Patna High Court
Brijlal Mandal And Ors. vs State Of Bihar on 3 January, 1978
Equivalent citations: 1978CRILJ877
JUDGMENT M.P. Singh, J.
1. Each of the three appellants of this appeal was sentenced to six years' rigorous imprisonment Under Section 399 of the IPC (briefly stated 'the Code'). They were further sentenced to six years" rigorous imprisonment Under Section 402 of the same Code. The sentences were ordered to run concurrently. The convictions and sentences were recorded by the First Assistant Sessions Judge, Santhal Perganas, Dumka.
2. Briefly stated, the prosecution case is that on September 3, 1968 at about 9-30 P.M. at night the appellants along with certain others were found sitting in the third class waiting hall of Mirza-chawki Railway station within Sahebganj Police station in the district of Santhal Perganas and they were talking among themselves in a manner which aroused suspicion in the mind of P.W. 1 Ramdahin Ram, the informant. It appears that some persons including a constable arrived there. The appellants started running away. They were, however, chased and caught. Appellant Brijlal Mandal was apprehended at the time when he was entering into an empty wagon of a goods train. The other two appellants Lakhan Choudhary and Kamdeo Choudhary were apprehended at the Mirzachawki Chau-raha. All the three appellants were of the district of Monghyr. Three more persons who also tried to run away were caught. They belonged to the district of Bhagalpur. Two of them died. The third one was also convicted Under Sections 399 and 402 of the Code and was similarly sentenced but it is not known as to whether he has filed any appeal or not. We are, however, concerned only with the three appellants who are of Monghyr district. According to the prosecution case a country made gun was recovered from the possession of appellant no. 1 Brijlal Mandal, a whistle was recovered from the possession of appellant no. 2 Lakhan Chaudhary and a torch of five cells was recovered from the possession of appellant no. 3 Kamdeo Chaudhary.
3. The defence of appellant no. 1 Brijlal Mandal was that he was going to his relation Kedar Singh and Ujagir Singh of village Babupur. The defence of the other two appellants was that they were going to the same village to purchase parwal creepers. According to the plea taken by the defence no boat was available to cross the river and, therefore, they had to wait in the waiting room at the railway station.
4. learned counsel appearing for the appellants has not disputed the fact that the appellants were caught at the Mirzachawki railway station within Sehebganj police station. I may state here that there is overwhelming evidence adduced by the prosecution to show that the articles aforesaid, namely, a country made gun, a whistle and a torch of five of cells were recovered from the possession of the three appellants respectively. I would, therefore, uphold the finding of the court below with regard to the recovery of the aforesaid articles from the possession of the three appellants as alleged by the prosecution.
5. learned counsel appearing for the appellants has urged that even on the facts found by the court below no offence either Under Section 399 or Section 402 of the Code can be held to have been established. In my opinion, the contention is of substance. Section 399 of the Code runs as under:
399. Whoever makes any preparation for committing dacoity, shall be punished with rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine.
6. On a perusal of the provisions of the section it is quite clear that in order to convict a person of the offence Under Section 399 the prosecution is bound to prove that he was making or has made preparation for committing dacoity. In the present case all that the prosecution proved was that several persons were sitting in the waiting hall at the railway station, that they started running away at the sight of the constable and were caught after chase. Nothing beyond this was proved by the prosecution. "Preparation" in my opinion consists in devising or arranging the means or measures for the commission of the offence. In the- present case there is absolutely no evidence on the record to show that any of the appellants was devising or arranging any means or measures for committing the offence. They were simply sitting in the waiting hall. It is thus clear that the prosecution did not prove that they were making or made any preparation for committing dacoity. The appellants, therefore, cannot be convicted Under Section 309 of the Code.
7. So far as the offence Under Section 402 is concerned it deals with the assemblage of persons for the purpose of committing dacoity. The section runs as under:
402. Whoever, at any time after the passing of this Act, shall be one of five or more persons assembled for the purpose of committing dacoity, shall be punished with rigorous imprisonment for a term which may extend to seven years, and shall also be liable to fine.
It is true that in the present case several persons were found sitting inside the waiting hall but there were admittedly a large number of persons at the railway station. It was a public place. P.W. 1 Ramdahin Ram said in his evidence that none of the accused persons was taking any precaution to conceal himself. He further said that 10 or 12 persons who were in the waiting room did not come together. He further said that one of them was lying near the corner of the waiting room. He no doubt stated in his evidence at the trial that they were talking in a suspicious manned but he had not stated -this fact at the earlier stage to the Investigating Officer and, therefore, no value can be attached to this statement as it has been made for the first time in the court of session. The question is, can it be said that the pur- pose of these persons was to commit dacoity? There is no evidence and there are no circumstances on record to show that the purpose of these persons was to commit dacoity. The purpose may be to commit any other offence, as for example to murder or to commit other offence. In order to prove the guilt Under Section 402 of the Code the prosecution has to 'how that the purpose of the assemblage was to commit dacoity and no other offence.
In State v. Ghisu Khan it was held: "The mere fact that a number of persons were found collected together, some of whom in possession of fire arms, does not by itself lead to the inference that they had collected there having made preparation to commit dacoity."
This view was not dissented from in State of U. P. v. Randhir Sreechand and the following observation was made (at p. 1278 of Cri LJ):
We entirely agree that the mere fact that a number of men, some of them, armed, are caught in a railway carriage which must inevitably contain scores of harmless persons, and with regard to the passengers of which it cannot even be certain as to which of them are actuated by a common intention or object does not warrant their conviction Under Section 399 or Section 402 I.P.C. for it can be perfectly consistent with their innocence.
From the above it is quite clear that no conviction Under Section 399 or 402 can be recorded simply on the basis of the fact that a certain number of persons, some being armed, are apprehended at the platform of a railway station.
8. learned counsel for the appellants has further pointed out that the country made gun had no cartridges. He further submitted that no cartridge was recovered from the possession of any of the accused. It was further pointed that although there was a torch but there was no battery. My attention was also drawn to the fact that the gun was not produced before the Magistrate. Under the aforesaid circumstances and in view of the facts that the accused persons gave explanation of their presence at the railway station I am not inclined to uphold the conviction and sentence of the appellants.
9. For the foregoing reasons I hold that the prosecution has not been able to prove the guilt of the appellants Under Section 399 or 402 of the Code. The conviction and sentence of the appellants are set aside. Their appeal is allowed and they are acquitted. Their bail bonds are cancelled.