2014 ALL MR (Cri) 4375
IN THE HIGH COURT OF JUDICATURE AT BOMBAY

S.S. JADHAV, J.

Mohd. Irshad Kamruddin Shaikh Vs. The State of Maharashtra

Criminal Appeal No.682 of 2007,Criminal Appeal No.668 of 2007,Criminal Appeal No.765 of 2007

15th October, 2013

Petitioner Counsel: Mr. H.E. MOOMA
Respondent Counsel: Ms. M.R. TIDKE

Penal Code (1860), Ss.399, 402 - Arms Act (1959), Ss.3, 25 - Dacoity - Making preparation and assembling to commit dacoity - Evidence and proof - Complainant police Sub-Inspector heard accused persons planning to commit dacoity - Without corroboration of any cogent evidence he readily inferred that accused persons were in possession of arms and therefore they were making preparation to commit dacoity - Three persons were arrested from crowd - Allegedly there were two more persons with accused persons - They fled away on motorcycle - Admittedly no precautions were taken for safety of public, even though accused persons were armed with weapons - Members of raiding party admitted that there was no station diary entry - And no signatures of accused persons were obtained, no copy of panchnama was furnished to accused - No reference in complaint as to who caught whom - Arrest panchnama was also not recorded - Except bare words of police Sub-Inspector, there is no evidence to show that accused persons had conspired to commit dacoity, hence conviction needs to be set aside. (Paras 11, 12, 14)

JUDGMENT

JUDGMENT :- Appellants herein are convicted for offence punishable under section 399 of Indian Penal Code and are sentenced to suffer rigorous imprisonment for 10 years and to pay fine of Rs. 1,000/- i. d. to further rigorous imprisonment for one month. They are further convicted for offence punishable under section 402 of Indian Penal Code and are sentenced to suffer rigorous imprisonment for 7 years and to pay fine of Rs. 500/- i. d. to further rigorous imprisonment for 15 days. They are also convicted for offence punishable under section 3 r.w. 25 of Arms Act and are sentenced to suffer rigorous imprisonment for 2 years and to pay fine of Rs. 500/- i. d. to suffer rigorous imprisonment for 15 days in Sessions Case No. 514/2006 by Additional Sessions Judge, Sewree, Mumbai vide Judgment and Order dated 20/06/2007. Hence this appeal.

2. Such of the facts which are necessary for the decision of this appeal are as follows:

3. On 16/02/2001, P.S.I. Vilas More received an information that some persons were going to Orlum Church, Malad to commit dacoity and that they were armed with weapons. P.S.I. More immediately apprised his senior officer about the said information and along with police staff, he proceeded to the said sight. The informant had pointed out 3 persons. Vilas More over heard the conversation. The accused was prepared to commit dacoity at Mani Ratnam Jewellers at Marve road. Accused no. 3 was saying that 2 more persons were to arrive to carry out the said commission. The accused no. 1 had signalled 2 persons. At that juncture, P.S.I. Vilas More, P.I. Anand Kamble with the help of their staff had nabbed the 3 accused. However, the persons who were on the motor cycle had fled away.

4. During the search of accused no. 1, P.S.I. Found a pistol loaded with 6 cartridges in his pant pocket. He also had revolver and a bag with 4 rounds and 2 choppers, one cell-phone and number plates of vehicles. Accused No. 2 was found in possession of one revolver with 6 rounds and one pager. Accused no. 3 was also found in possession of revolver with 6 rounds. The weapon was seized. The police officers brought the three accused along with weapons to the police station. P.S.I. Vilas More lodged F.I.R. on behalf of the State which is marked at Exhibit 24. At the behest of the accused, several weapons, map and other incriminating articles were seized from room no. 12, Four Bunglow, Andheri (West) which were produced by Anjali Rathod under seizure panchanama Exhibit 25. Crime No. 76/2001 was registered against the accused. The investigation was completed and chargesheet was filed on 26/04/2001. The case was committed to the Court of Sessions and registered as Sessions Case No. 514/2006. The prosecution examined 7 witnesses to bring home the guilt to the accused.

5. P. W. 1 Chandrakant Dethe was attached to Malad Police Station. On 16/02/2001, he was a member of detection staff. He had accompanied P.S.I. More to Orlum Church, Malad. The informant had shown the suspected persons to P.S.I. More and they were nabbed. P. W. 1 has given the details of the articles which were seized. It is admitted in the cross-examination that the accused were apprehended at a crowded place. The police officers had not called any panchas at the time when the accused were taken into custody. The officers had left the police station at 5.30 p.m. The distance between the police station and spot of incident is half miles. No groups were formed. He has deposed that when they were made an attempt to nab the accused, there was a commotion and everybody was running helter-skelter. He is certain that they had nabbed 3 accused out of the crowd. However, he could not state, who caught whom. It appears that they had nabbed 3 persons from the crowd. There is no arrest panchanama.

6. P. W. 2 Anjali Rathod is the neighbour of the accused no. 1. She has been declared hostile. Similarly P. W. 3 Noor Mohd. Mehboob Shaikh has also not supported the prosecution.

7. P. W. 4 Vilas More is the first informant. He has deposed before the Court that upon receiving the said information, he had proceeded to Orlum Church along with P.I. Kamble, P. I. Rajam and other police staff. According to him, the panch and informant were with the police. P. W. 4 has deposed that he was following the 3 persons, so as to hear their conversation. He heard the accused were saying that they have to carry out the dacoity at Mani Ratnam Jewellers. Accused no. 2 was saying that he had loaded the weapons and accused no. 3 was saying that 2 more persons were to join them for carrying out the mission. Two persons had come on motor-cycles & had called upon the accused. When the accused were proceeding towards the motor cycles, P.S.I. had given signal. When nabbed, accused persons on the motor cycle had fled away. He has given the description of the weapons found with the accused. He has admitted in the cross-examination that he had not taken station diary entry in respect of information received by him. It is admitted that the spot near Orlum Church is crowded place. It is also admitted that no precautions were taken for safety of public, even though, they were knowing that the said persons are armed with weapons.

8. He had called the panchas before they proceeded to the spot. The accused no. 1 was searched by P. W. 4. He was not entrusted with the investigation and had proceeded to the spot on oral directions of the P.I. The seized articles were not kept in a sealed bag. It is also admitted that informant had not specified the time when the accused would arrive. Panchas were called through constables. According to P. W. 4, the distance between the police station and spot by vehicle can be covered in 5 minutes. Police officers had gone by different vehicles. They had taken their positions near the bus stop. He had heard the conversation between the accused inter-se from the distance about 10 feet. Accused were not nabbed immediately.

9. P. W. 5 Pramod Patil had acted as a panch. According to him, the informant had shown 3 persons and informer moved away. In the meanwhile, 2 persons came on motor cycle and crossed the bus stop towards the school. P. S.I. More had given signal and 3 persons were nabbed. It is admitted in the cross-examination that P. W. 5 resides in Somwar Bazar which is after Malad Police Station and one hour is required to reach police station from his house. He was called by Mr. More. It is admitted that no search was given by police nor accused have taken the search. He left his company at 5.00 p.m. on the date of incident. Police station is at a distance of one our from his company by walk. The informant was present in the police station. The panchanama of search was prepared on the spot. He has also stated that when the accused were nabbed, people started running and he does not know who caught whom.

10. P. W. 6 Usman Babudia is another panch who is declared hostile.

11. P. W. 7 Anand Kamble was attached as P. I. To Malad Police Station. He was a member of the raiding company. He has also admitted that there was no station diary entry. However, at one stage, he had stated that he had taken station diary entry. However, the same was not placed on record. He had not obtained the signature of the accused on the panchanama nor has furnished a copy of the panchanama to the accused. There is no reference in the complaint, who caught whom and who has taken the search of which person. Arrest panchanamas are not recorded. Cellphone which was seized was not produced in the Court.

12. In the present case, except the bare words of P.S.I. More, there is no evidence to show that the accused/appellant had conspired to commit dacoity in the shop of Mani Ratnam Jewellers. Except the seizure panchanama, prosecution has not been able to establish any incriminating circumstance against accused. Except of offence punishable under section 3 r.w. 25 of Arms Act, it was incumbent upon the prosecution to produce the notification on record. It was incumbent upon the officers to depose before the Court that the accused were in possession of the arms without any license. Be that as it may be, the appellants have undergone the sentence inflicted upon them under the Arms Act. The appellants have also been convicted for offence punishable under section 402 of Indian Penal Code which contemplates:

"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."

13. In the present case, there is no cogent evidence to substantiate that the two motorcyclists had assembled with the present appellants and had made preparations to commit the dacoity and therefore the appellants herein cannot be convicted under section 402 of Indian Penal Code. There is an allegation that 2 persons were to join the present appellants. There has been no investigation in respect of other 2 persons. The custodial interrogation has not been effective. There is nothing to indicate that it was an assembly of 5 persons at the time when the appellants were nabbed.

14. It is the case of P.S.I. More that he had over heard the accused planning to commit dacoity. However, it is not corroborated by any other cogent evidence. It is only inferred that the accused were in possession of arms and therefore they were making preparation for commit dacoity. The criminal antecedents of the accused/appellants have not been investigated. It can therefore be inferred that the prosecution has failed to establish the charge against the accuse for offence punishable under section 399 of Indian Penal Code. Hence, following order.

ORDER

(i) Appeals are partly allowed.

(ii) The conviction of the appellants for offence punishable under section 3 r.w. 25 of Arms Act is confirmed.

(iii) Conviction of the appellants under section 399 & 402 of Indian Penal Code is hereby quashed and set aside. Appellants are acquitted of the offence punishable under section 399 and 402 of Indian Penal Code.

(iv) Appellants be released forthwith if not required in any other offence.

(v) Office to communicate the order to the appellants through Jail Authority in which they are lodged.

Appeals stands disposed off.

Appeal partly allowed.