1. This judgment shall also govern the disposal of Criminal Appeal No.817/1995 (Lakhansingh v. State of M.P.) and Criminal Appeal No.917/1995 (Pappoo alias Vijay Singh v. State of M.P.).
2. All the three appeals have been filed against the judgment dated 30/05/1995 passed by II Additional Sessions Judge, Panna in Sessions Trial No.32/1990, whereby all the accused persons were convicted for the offence under Section 399 read with Section 402 of IPC and directed to suffer five years' rigorous imprisonment to each and fine of Rs.1000/-, in default of payment of fine, further six months' imprisonment each under Section 399 of IPC and to suffer three years' rigorous imprisonment to each and fine of Rs.500/-, in default of payment of fine, further three months' rigorous imprisonment each under Section 402 of IPC.
3. As per prosecution case, SHO, Dharampur R.P.S. Parihar (PW-9) received an intimation on 19/1/1990 from the informer that accused Shera and other co-accused persons are making a plan for the commission of robbery/dacoity in the house of Munshilal (PW-8) of village Nizampur for which they are assembled near the Devi temple situated at village Ramnagar along with deadly weapons. Rojnamcha entry was made and the intimation was given to the Superintendent of Police, Panna and two other police stations calling the force at Police Station Dharampur. The Deputy Superintendent of Police came along with the force and Azim Khan, SHO, Shah Nagar also reached to Dharampur Police Station. Independent witnesses were also called. Then the police party proceeded to the spot. Before village Ramnagar three police parties were constituted to surround the accused persons by three sides. At that time accused persons were sitting along with other associates on the spot and planning to commit robbery/dacoity in the house of Munshilal (PW-8). The police parties alarmed them. Four accused persons were caught hold at the spot and some of them succeeded in fleeing away, hence the offence under Section 399/402 of IPC was registered.
4. After investigation challan was filed before the Judicial Magistrate First Class, Fatehgarh , Ajaygarh and as the case is triable by the Court of Session, however committed the case to the competent court. Charges under Section 399 read with Section 402 of IPC were framed against all the accused persons and they were tried together. During the trial one of the accused, namely, Jhallu Raja alias Rudra Pratap Singh has died, however, proceedings stood abated against him and remaining three accused persons, namely, Shera alias Sher Mohammad, Pappu alias Vijay Singh and Lakhan Singh were convicted by the impugned judgment and directed to undergo the imprisonment as aforementioned.
5. The Trial Court after considering the statement of R.P.S. Parihar (PW-9) recorded a finding that no plausible explanation is available of assembling the accused persons at such a far place near Devi Temple. It is also held that no explanation has been put forth by the accused persons as to why they were assembled near Devi Temple. Considering all these aspects, charge under Section 399/402 of IPC has been found to be proved against all the accused persons.
6. Shri Anil Khare and Shri Siddhartha Datt, learned counsel appearing for the appellants submit that no cogent evidence is available to show that on the basis of merely assembling the accused persons at one place it can be inferred that they have assembled for the commission of robbery/dacoity. However, the finding recorded by the Trial Court is unsustainable in law. Reliance has been placed on the judgment of the Apex Court in the case of Chaturi Yadav and others v. State of Bihar, AIR 1979 SC 1412. It is urged by the learned counsel that the Apex Court has opined that merely assembly of the accused persons at the lonely spot with deadly weapons does not by itself prove that they had assembled for the purpose of committing the dacoity or for making preparations to accomplish that object. In addition to the aforesaid contention, my attention has been drawn to the fact that the intimation from the informer was received at about 3.00 P.M. On 19.1.1990 and the raid was conducted at 12.30 A.M. Of 20.1.1990. However, from the time of receiving the information, more than 9 hours have passed away, therefore, it cannot be presumed that the accused persons who wanted to commit robbery/dacoity shall remain sitting at one place for such a long time. My attention has further been drawn to the fact that the FIR has been lodged in the Police Station at 2.30 A.M. on 20.1.1990. The crime number may be indicated after registration of the FIR while on the Dehati Nalish (Ex.P-9) which is registered at 9.30 P.M. on 19.1.1990 by the same SHO near Devi Temple and the crime number has been specified therein. Further mere Arrest Memo (Ex.P-1) of the accused Shera, Pappoo, Jhallu and Lakhan which is at 2.30 A.M. on 20/1/1990 bears the same crime number, in fact, on conduction of the raid at 12.30 A.M. and they should have been arrested on the spot, because the FIR has been lodged at 2.30 therefore the crime number may not be possibly mentioned on Arrest Memo. In view of the aforesaid fact, the entire prosecution case has been concocted at the police station for the reasons best known to the prosecution agency. Therefore, the learned counsel urged that the conviction of the appellant and the sentence passed by the Trial Court may be set aside.
7. On the other hand Ms Sheetal Dubey, learned Government Advocate appearing on behalf of the respondent/ State has argued in support of the finding recorded by the Trial Court and it is urged that as per the statement of R.P.S. Parihar (PW-9) it is apparent that he has heard the conversation of the accused persons about 12-15 foot steps regarding commission of the robbery/dacoity. Some of the accused persons were caught hold and arrested on the spot, however, the prosecution story cannot be doubted merely on account of putting the crime number in Dehati Nalish registered at 9.30 on 19.1.1990 and in the Arrest Memo. It is further urged by the learned Government Advocate that merely mentioning the crime number in the Arrest Memo as well as the Dehati Nalish would be amounting to only irregularity. However on such irregularity the prosecution case cannot be doubted, particularly when the finding of the guilt and conviction has been recorded by the Trial Court. In view of the said submission, it is urged that the finding of conviction and the judgment of the Trial Court deserves to be upheld.
8. Having heard the rival contentions of learned counsel appearing for the parties, I find much substance in the argument of learned counsel appearing on behalf of the accused/appellant. Looking to the prosecution story, it is apparent that an information was received by R.P.S. Parihar, SHO of Police Station, Dharampur from informant at 3.00 P.M. on 19/1/1990. The raid was conducted at 12.30 in the night. It cannot be accepted by a man of common prudence that a person who wants to commit robbery/dacoity shall wait at one place for about more than 9 hours. Simultaneously the Dehati Nalish recorded by the prosecution agency at 9.30 bears the crime number though the FIR was registered for the said incident at 2.30 on 20/1/1990 i.e. the next day. However,
prior to the registration of FIR, crime number cannot be mentioned in the Dehati Nalish. It is apparent that the raid was conducted at 12.30 on 20/1/1990. Four persons, namely, Shera @ Sher Mohammad, Pappoo alias Vijay Singh, Jhallu Raja alias Rudra Pratap Singh and Lakhan Singh were arrested from the spot. The Arrest Memo was prepared at 2.30 near Ram Nagar Devi Temple while the FIR has been registered at the same time at 2.30 in the Police Station. In the Arrest Memo the crime number has been specified. No explanation has come forth in the prosecution case regarding such discrepancies. The Apex Court in the case of Chaturi Yadav (supra) in para 4 of its judgment has observed as under :-
"The courts below have drawn the inference that the appellants were guilty under both the offences merely from the fact that they had assembled at a lonely place at 1 A.M. and could give no explanation for their presence at that odd hour of the night, Mr. Misra appearing for the appellant submitted that taking the prosecution case at its face value, there is no evidence to show that the appellants had assembled for the purpose of committing a dacoity or they had made any preparation for committing the same. We are of the opinion that the contention raised by the learned counsel for the appellants is well founded and must prevail. The evidence led by the prosecution merely shows that eight persons were found in the school with guns, some had cartridges and others ran away. The mere fact that these persons were found at 1 A.M. Does not, by itself, prove that the appellants had assembled for the purpose of committing dacoity or for making preparations to accomplish that object."
9. In view of the aforesaid, this Court is of the considered opinion that the charge under Section 399 read with Section 402 of IPC has not been established by the prosecution against the appellant beyond reasonable doubt.
10. Resultantly, the appeal is allowed. The conviction and the sentence as directed by the Trial Court by the impugned judgment is hereby set aside. Appellant is acquitted of the charge under Section 399 read with Section 402 of IPC, consequently his bail bonds shall stand discharged.