Document Fragment View

Matching Fragments

(iii) PW 6 ASI Balkar Singh also deposed on similar lines to PW 2 Sub Inspector Satnam Singh. He deposed that from the possession of accused, .315 bore loaded pistol and live cartridges were recovered. He also identified pistol Ex.P1 and cartridges Ex.P-2 to P-3 in the Court. He also proved the sketch of pistol Ex.PW 5/A and factum of sealing it in a parcel with his seal 'BS'. He also proved the recovery memo Ex.PW 5/B. He also CRA-S-2125-SB-2003 and other connected appeals stated that on 18.08.2001, he produced weapon before PW 4 Head Constable Manmohan Singh, armourer, in a sealed parcel who mechanically tested the same and made test report Ex.PW 4/B. To prove the guilt of accused under Section 402 of IPC, the prosecution must prove, from some evidence, directly or indirectly, or from attending circumstances, that the accused persons had assembled for no other purpose than to make preparation for commission of dacoity. The prosecution must also show some conduct to prove the factum of "preparation" by the assembly, and that the accused persons had conceived any such design for committing dacoity. Needless to mention here that mere assembly of five or more persons armed with weapons ipso facto will not be sufficient to record and uphold conviction for the offence under Section 402 of IPC.

In Mahavir v. State of Haryana 2010 (6) Recent Criminal Reports 3073, a Division Bench of this Court held as under:-

"15. Now coming to the factum, as to whether, the CRA-S-2125-SB-2003 and other connected appeals accused were allegedly making preparation to commit dacoity, while sitting in a room, armed with iron rods, a dagger, and a country made pistol, it may be stated here, that the same is not proved, as would be discussed hereinafter. Sections 399 and 402 of the Indian Penal Code, are confined to making preparation for commission of dacoity and have no reference to any other offences. Therefore, the prosecution must prove, from some evidence, directly or indirectly, or from attending circumstances, that the accused persons had assembled for no other purpose than to make preparation, for commission of dacoity. If the evidence falls short of it, the case must fail. Though the word "preparation" has not been defined, in the Penal Code, the prosecution must show some such conduct, to prove the factum of "preparation" by the assembly, and that the accused persons had conceived any such designs for committing dacoity, and, in fact, intended to achieve the object, for which they had assembled. Therefore, the mere fact that some persons were found sitting at a lonely place, at night, in a house which was under construction, and incriminating articles like firearms, some bombs and a Bhujali were recovered from their possession would not be sufficient to prove the charge that they had assembled for making preparation for commission of dacoity. The evidence must be such, which may plainly manifest the main charge to satisfy the conscience of the Court that the members of the assembly did some such act, or acts, which may lead to irresistible presumption, that they had CRA-S-2125-SB-2003 and other connected appeals assembled for the purpose of committing dacoity and were making preparation for the same, but, in absence of any such evidence, mere assemblage and recovery of firearms do not prove the charge..."
"19. It is perfectly true that the prosecution must establish, in a case of this kind, that the accused had conceived a design for committing dacoity, but it is equally true that the intention of an individual or a number of individuals who have conspired together is seldom known to others, and can only be established by proof of circumstances from which the intention can be inferred. Witnesses cannot give direct CRA-S-2125-SB-2003 and other connected appeals evidence as to the intention of the accused; and, if the legitimate inference from the circumstances which are established is that the intention of the accused was to commit dacoity, it is for them to prove that their intention was different. Illustration (a) of Section 106 of the Evidence Act makes this quite clear. Reliance may be placed in this connection upon Jain Lal v. Emperor, AIR 1943 Pat 82 a case to which I will again have to make reference."

So even from, this decision it is clear that it is for the prosecution to establish that the accused had conceived a design for committing dacoity. Of course, it has been stated therein that if the legitimate inference can be drawn from the circumstances which are established in the case that the accused persons had the intention to commit dacoity, it will be for them to prove that their intention was different. It was in this context that reference was made to Section 106 of the Evidence Act, but the learned Sessions Judge has placed the burden itself on the accused to satisfy, the court regarding the object or intention of their presence in the lonely orchard in the dead of night along with many other persons some of whom were armed with firearms and other weapons. What be aforesaid decision wanted to lay down was that once it was established by the circumstances of the case that the intention of the accused persons was to commit dacoity, then it was for the accused persons to explain that their intention was different from that of committing dacoity and not that the burden lay on the accused persons to explain and to satisfy the court about their presence there.