Judgment:
Kanchan Chakraborty, J.
This two appeals had arisen out of one judgment dated 5th October, 2010 passed by the learned Sessions Judge Dakshin Dinajpur at Balurghat in Sessions Case No.156 of 2009 (S.T.No.81 of 2009) thereby convicting Ujjal Mali @ Baltu (Appellant in C.R.A.691 of 2010) and Biswanath Mondal @ Bega, Shiben Sarkar @ Shibu, Gopal Saha (Appellants In C.R.A.663 of 2010) for committing offence under Section 399/402 of the I.P.C. and Narayan Chowhan (one of the appellants in C.R.A.663 of 2010) for committing offence under Section 399/402 of the I.P.C. read with Section 25 (i) (a) of the Arms Act and sentencing them to suffer R.I. for seven years each with fine and five years with fine, respectively. Narayan Chowhan was also sentenced for five years more under Section 25 (i) (a) of the Arms Act besides the offence under Section 399/402 of the I.P.C.
The case of the prosecution before the learned Trial Court was that Dharmadeb Chatterjee, Inspector-in-charge of Balurghat Police Station lodged one written F.I.R. suo-moto with his Police Station alleging therein that on 22.1.2007 at 20.05 hours he received source information that a group of miscreants numbering about 10 to 12 assembled in an under construction building situated at Mission More, Bahicha, opposite to Reliance Petrol Pump by the side of Balurghat-Gangarampur State High Way with an intention to commit a crime in the locality. He diarised the information in G.D. vide Balurghat Police Station G.D.E.No.1343 dated 22.1.2007 and left for the place together with S.I., Ashis Deb (P.W.5), S.I. Sudipta Kumar Das, S.I. Ganesh Sharma, Constable Hitendra Narayan Datta, Constable Amal Dutta, Constable Prafulla Ghosh and Constable Ranjan Sarkar. On his way to that place, some police officials joined him viz., S.I. Manoranjan Sarkar, Constable Pradip Dey, NVF Dulal Hansda and NVF Paritosh Sarkar of Patiram Police Camp. Dharmadev Chatterjee also taken Sukumar Sen (P.W.4) and Prosenjit Pal (P.W.3) with him on his way to the place where the miscreants were reported to have gathered. At about 2.50 hours, he and his companions reached Mission More Bahicha and kept the vehicles at a safe distance and proceeded on foot to the place of assembly i.e. one under construction pucca building and on arrival there, he found presence of some people in the building in the light of candle. The police party cordoned the house and warned the persons after disclosing the identity of the police. The miscreants tried to escape but after a hot chase, five miscreants (appellants) were apprehended but failed to give any satisfactory account of their presence in such a building at such place and at such an odd hour. The place was thoroughly searched and in course of searching, one improvised automatic pistol, 7 round of ammunition, one empty magazine was found in the possession of the appellant Narayan Chowhan, one dragger, one nylon rope were recovered from the possession of appellant Biswanath Mondal @ Bagha, one Daw and one crowber in a nylon bag recovered in the possession of Shiben Sarkar @ Sibu, one knife was recovered from the possession of the appellant Gopal Saha, one knife was recovered from the possession of the appellant Ujjal Mali. One half burnt candle, some pieces of bidi and cigarettes and two empty bottles of country spirit were also recovered from that place. Dharmadev Chatterjee, the Inspectorin- charge of Balurghat Police Station seized those articles under a seizure list duly signed by the witnesses as well as the appellants/accused persons whom he arrested. He also interrogated them and all the miscreants told him that they assembled there for preparing themselves to commit road dacoity in that area. He had taken all the five miscreants to the police station, lodged the F.I.R. and himself endorsed the case in favour of S.I. Amitava Sarkar (P.W.7) for the purpose of investigation and report.
The investigation was ended in a charge sheet and the appellants were arrayed to face charges under Section 399/402 of the I.P.C. Besides those offences, the appellant Narayan was also arrayed to face charge under Section 25(1) (a) of the Arms Act. All the appellants pleaded not guilty of the charge and accordingly, the trial commenced.
The learned Trial Court upon consideration of the evidence on record, oral and documentary, came to a findings that the prosecution brought home the charges levelled against the appellants and accordingly, recorded their conviction and sentence which is impugned in these appeals.
Since these two appeals had arisen out of a common judgement and all the five appellants were arrayed to face the charges in the trial, these two appeals are disposed of by this common judgment.
Mr. Tarique Quasimuddin, learned Counsel appearing in C.R.A.691 of 2010 and Mr. Jayanta Narayan Chatterjee, learned Counsel appearing in C.R.A.663 of 2010 on behalf of the appellants contended that the prosecution has miserably failed to establish that there was assembly of five or more persons at the relevant point of time and that any arms and ammunitions were recovered from their possession. It was contended by them that the ingredients of the offence under Section 399/402 of the I.P.C., i.e., preparation to commit dacoity or to assemble for that purpose has not at all been established. This apart, they contended that the P.W.3 and P.W.4, the only non-interested witnesses stated categorically that they did not witness seizure of anything. They were taken to police station by the police officials and were compelled to sign on a paper in the police station. There was no reason for the Court to disbelieve their testimonies.
Mr. Quasimuddin and Mr. Chatterjee, learned Counsel for the appellants contended further that the F.I.R. was lodged by the Inspector-in-charge of the Police Station and one Subordinate Officer was directed to take up the investigation. In such a case, fairness in the investigation is really doubtful. Besides everything, there are much discrepancies in the testimonies of the witnesses on material and vital issues. The judgment was a fruit of surmise and conjecture and is liable to be set aside.
Mr. Tapan Deb Nandi, learned Counsel appearing on behalf of the respondent/State of West Bengal contended that the appellants were found in an isolated place by the side of high way at an odd hour at night. The deadly weapons like revolver, dragger, knife were seized from their possession. They could not explain while examining under Section 313 of the Cr. P. C. as to why they assembled in such a deserted place at an odd hour at night with arms and ammunitions. The intention of the appellants is clear. They gathered there obviously with an intention for high way dacoity. Mr. Nandi contended further that the seizure of the arms and ammunitions, dragger and knife etc. was also proved satisfactorily. The contradiction and discrepancies in the oral evidence of the witnesses are trivial in nature and was rightly ignored by the learned Trial Court. Therefore, he contended that the judgment impugned is not at all required to be upset in these appeals.
It is admitted that the F.I.R. was lodged by Dharmadev Chatterjee, the Inspector-in-charge of Balurghat Police Station while the investigation was done by a Subordinate, a Sub Inspector of Police, P.W.7. Mr. Quasimuddin and Mr. Chatterjee doubted the fairness in the investigation in such a facts situation. This Court does not like to put any importance on such an issue raised by Mr. Quasimuddin and Mr. Chatterjee. There is no embargo for Inspector-in-charge to lodge F.I.R. and direct any Officer of his Police Station to investigation into a case. The Inspector-in-charge is not supposed to overpower the Investigating Officer simply because he was subordinate to him. The Investigating Officer of a case has full-fledged power to investigation into the matter independently without being influenced by anybody. Therefore, this point should not be taken for granted as it would not be realistic and pragmatic approach for any Court to presume that P.W.7 being a Subordinate Officer had to file charge sheet under the influence of the Officer-incharge of the Police Station who lodged the F.I.R.
The prosecution case as narrated earlier is that on 22.1.2007, the P.W.1, Dharmadev Chatterjee received source information to the effect that 10 to 12 miscreants gathered in one under construction building situated at Mission More Bahicha opposite Reliance Petrol Pump by the side of Balurghat Gangarampur State High Way with an intention to commit crime in the locality. Accordingly, a G.D. Entry being No.1343 dated 22.1.2007 was recorded then and there and Mr. Chatterjee (P.W.1) together with others headed for the under construction pucca building where the miscreants assembled. On their way they picked up P.W.3 and P.W.4, un-interested persons for the purpose of witnessing the entire episode. When he reached the spot at 20.50 hours, he found some persons inside the house in the light of candle. Some miscreants tried to escape but after a hot chase, five miscreants, i.e., appellants were apprehended and from their possession arms, ammunitions, knife, dragger, nylon rope were seized and they confessed that they assembled there with an intention to commit road dacoity in the area. This fact depicted in the F.I.R. was not at all supported by the Inspectorin- charge, Dharmadev Chatterjee, P.W.1, himself. He has not stated anywhere as P.W.1 that hearing information that some antisocial assembled in that building for committing crime in the area. The word “committing crime” in the area, which has been specifically mentioned in the F.I.R., has been omitted by the P.W.1 while examined in Court. The P.W.1 has not stated that after a hot chase, the police could apprehend the appellants while the others fled away. The words ‘hot chase’ mentioned in the F.I.R. has not been uttered by the P.W.1 while examined in Court. Nowhere, it is mentioned, surprisingly, whether these appellants were also tried to escape or not and if they tried to escape where they were actually apprehended. It is natural that all the miscreants tried to escape seeing police and these appellants did not seat idle. They obviously tried to escape also, and that is why the ‘hot chase’ was mentioned in the F.I.R. This fact leaves no room of doubt that the miscreants were not apprehended inside the under constructed pucca building. By that time they apprehended, they must have left the place.
According to the P.W.1, the seizure was done on spot in presence of P.W.3 and P.W.4, non-interested witnesses in these cases. He simply seized those articles but did not put any identification mark therein or pasted level on each item and taken signature of the witnesses on the levels.
The P.W.3 and P.W.4 have flatly denied the prosecution case. According to them, on the relevant date at 9.00 A.M. while they were gossiping with friends at Bahicha more, a police zeep appeared there and asked them to board on the zeep. Accordingly, they boarded on the zeep and came to the Balurghat Police Station where they asked to sign some papers without knowing anything about the contents of the papers. Amongst the P.W.3 and P.W.4, the P.W.3 was declined hostile but the P.W.4 was not. Therefore, what had stated by the P.W.4 is to be accepted, as prosecution has not challenged it. Therefore, if the evidence of P.W.4 is believed, the seizure of arms, ammunitions, dragger, knife and iron rod at the place of occurrence from the possession of the appellants has not at all been established satisfactorily and sufficiently.
The P.W.5 and P.W.2 are police personnels. They had been to the place of occurrence accompanying the P.W.1. Amongst them, P.W.2 did not sign the seizure list. He has not stated that there was a hot chase for apprehending the appellants. He has stated that P.W.1 got an information that some persons assembled at the place of occurrence for committing dacoity. This face neither mentioned by the P.W.1 in the F.I.R. nor stated by the P.W.1 himself. No reliance can be placed on the evidence of P.W.2.
The P.W.5 stated that on interrogation, five accused persons confessed that they assembled there for committing dacoity. This fact also was not stated by the P.W.1 as well as by the P.W.2. This particular statement of P.W.5 is not admissible in evidence because a confessional statement made before the police officer is not admissible in evidence. The P.W.5 has not also mentioned that there was a hot chase for apprehending the miscreants. He did not sign the seizure list also. Therefore, the evidence of P.W.5 does not appear to be helpful in proving the prosecution case.
The P.W.6 is the Police Officer who examined the arms and ammunitions placed before him. He identified the revolver and magazine and cartridges, examined by him. Those were marked as material exhibits in Court.
The P.W.7 is the Investigating Officer of the case. He simply done the formal job by going to the place of occurrence, preparing sketch map, collecting report of Expert and submitting charge sheet. He did nothing more. He did not even collect the G.D. Entry No.1343 dated 22.1.2007 which, in the opinion of this Court, was very important.
Peculiarly enough, the police officers joined the party from Patiram Police Station were not cited as witnesses and not examined in Court. It is not a case that the evidence adduced on behalf of the prosecution was a quality evidence basing which a conviction can be recorded. Therefore, the prosecution badly needed more evidence in support of its case but that was lacking in the case.
Even if it is believed that there was a raid by P.W.1 and his party and these five appellants were caught, it is doubtful whether they have committed any offence punishable under Section 399/402 of the I.P.C.
Mr. Nandi, learned Cou7nsel appearing on behalf of the respondent/State of West Bengal referred to a decision of Punjab and Haryana High Court reported in 1982 Cr. L. J. 29(Naushera and Ors. Vs. State of Haryana) and submitted that even if preparation of dacoity is not established, the assembly itself is sufficient to record conviction under Section 402 of the I.P.C. specially when the appellants failed to explain their presence in such an isolated place with arms and ammunitions at an odd hour at night.
Section 399 says as under;
“399. Making preparation to commit dacoity.-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.”
The offence under Section 402 of the I.P.C. is set out below;
“402. Assembling for purpose of committing dacoity.- 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.”
A bare reading of both the sections makes it abundantly clear that in order to attract the section 399 of the I.P.C. , some act amounting to preparation must be proved and what must be proved further is that the act for which preparation was being made was a dacoity, i.e., robbery to be committed by five or more persons.
In the instant case, even if it is accepted that the appellants gathered at an isolated place at an odd hour with weapons like revolver, etc. and apprehended by police officials, prosecution is not free from its obligation to establish that some act amounting to preparation to commit a dacoity was done. Until and unless such preparation is taken by the persons apprehended, they cannot be said to have committed an offence punishable under Section 399 of the I.P.C. Attempt to commit a dacoity is misnomer because attempt to commit robbery by five or more persons is encompassed within the definition of dacoity. Persons assembled may make preparation of dacoity and after making preparation in a dacoity may be attempted and finally be committed. The law has assigned different gravities to these different acts and had made such acts differently punishable. After assembling for the purpose of committing a dacoity and proceeding to a certain distance on their way to the destination, it is possible that the idea be obtained or the process be intercepted. When once the destination is reached or almost reached, preparation becomes complete and till then, there would be a mere assemblage. Under Section 399 of the I.P.C., the preparation for committing dacoity is punishable and no hard and first rule can be laid down that any particular act towards commission of offence of dacoity is necessary to constitute preparation. There must, however, be proof that the culprits had conceived of designing of committing dacoity. Once this is established, any step taken with that intention and for that purpose of forwarding that design may justify the Court in holding that there had been preparation within the meaning of Section 399 of the I.P.C.
Though the offence under Section 399 and 402 of the I.P.C., more or less, involved similar ingredients, the only difference is between the two is that while under Section 402 mere assemblage without preparation is enough, Section 399 require some additional steps by way of preparation. Section 402 applies to the case of mere assembling for dacoits without proof of any other preparation and it does contemplate a stage when the whole project still lies in the realm of design and intention without there being any intent to give any concrete shape to the intention. Section 399 is attracted whenever some one of the persons assembled advances a step further by doing some act amounting to preparation. Whether a case falls within the ambit of Section 399 or Section 402 of the I.P.C. depends upon the facts of each case. There may be cases where assembling itself may amount to preparation. Some other factors are also very important for the Court to deduce the intention of the assembly for committing dacoity, such as, proper procedure of arrest, proper search and seizure, recording a general diary etc. If there was no proper procedure for arrest, no proper search and seizure and no copy of general diary was produced in Court, it is really hard for the Court to record conviction either under Section 399 of the I.P.C. or Section 402 of the I.P.C. Mere fact that the appellants were in a lonely place at night in a house under construction and incriminating articles like fire arms, bombs, dragger from their possession has not sufficiently proved the charge that they assembled for making preparation for commission of dacoity.
In the instant case, it appears to this Court that the arrest of the appellants from the abandoned house at the site of the High Way itself is doubtful because P.W.3 and P.W.4 did not spare a single word to the effect that they found five persons arrested by police when police officials took them to the place of occurrence. In fact, it is not at all established that the police officials had taken P.W.3 and .W.4 with them to the place of occurrence. The search and seizure of the arms, ammunitions wee not at all established by sufficient and reliable evidence. The P.W.4 was not declared hostile by the prosecution. Therefore, his statement is binding on the prosecution. The P.W.4 did not support the prosecution case at all even the seizure of arms andammunitions etc. in their presence. The P.W.2 and P.W.5 are found not reliable witnesses. The P.W.1, the lodger of the F.I.R. made contradictory statement on materials points. Taking all these factor together, it appears really difficult to come to a conclusion that there was an assembly of five persons for the purpose of committing dacoity and that they prepared themselves with an intention to commit dacoity.
Therefore, this Court is constrained to accept the view of the learned Trial Court. In the instant case, the fact that five appellants had actually been arrested from an abandoned under construction house by the side of State High Way itself is doubtful. The fact that revolver, cartridges, nylon rope, etc. were seized from their possession is also really doubtful. The G. D. Entry being No.1343 dated 22.1.2007 allegedly entered into the G.D. book of Balurghat Police Station by the P.W.1 was not placed before the learned Trial Court. All these facts together makes the prosecution case doubtful. Therefore, I am of the view that the prosecution has failed to establish the charges under Section 399 and 402 of the I.P.C. and Under Section 25 of the Arms Act against the appellants.
In view of the discussions above, both the appeals succeed. The judgment impugned is set aside. The appellants be acquitted and set at liberty at once. They be discharged from the bail bond, if any.
Let a copy of this judgment along with the L.C.R. be sent down to the learned Trial Court.
Urgent photostat certified copy of this order, if applied for, be given to the appearing parties upon compliance of necessary formalities.