HASAN, J. - (1.) THIS appeal arises out of appellant's conviction under Section 399 IPC & sentence of; 3 year's R. I. with a fine of Rs. 1000/- (in default, 6 months further R. I.), imposed by the Addl. Sessions Judge, Bharatpur.
(2.) ON 20. 10. 1981 at 6 a. m. a report by the Circle Officer, Bayana (Teg Bahadur Singh) was lodged at police station Bayana stating therein that upon receiving a secret information in the intervening night of 19th & 20. 10. 1981 to the effect that the dacoits are hiding in the Bayana Fort with intention to commit dacoity in village Sikandra, a police party consisting of Station House Officer & other police personnel, proceeded to the scene of occurrence and reached the fort at about 6 a. m. where found five persons engaging themselves in discussion thereupon the police started firing from 'beri pistol' so as to flash light but the dacoits attempted to flee from the scene and three dacoits managed to escape and the two were arrested. From the arrested persons, one 12 bore Katta with 5 cartridges & another 12 bore Katta with 4 cartridges were recovered alleged from appellant, Bhagwan Singh & Ghanshyam respectively. The police registered a criminal case against the appellants for the offences punishable under Section 399, IPC & 3/25 of the Arms Act and after usual investigation, filed a challan. After committal proceedings, the Court of Sessions framed charges against the appellants for the aforesaid offences. After due trial, and hearing both the parties, the trial Court held the appellants guilty under Section 399 IPC, and acquitted them of the offence charged under Section 3/25 of the Arms Act, and sentenced them for the conviction u/s 399, IPC, as indicated above. Hence this appeal. At the very threshold, I may state that admittedly, the police got secret information at about 11 p. m. in the night of 19th & 20. 10. 1981, but from the record, it is crystal clear that the police party proceeded to the spot at about 3/4 p. m. in the early morning. The prosecution utterly failed to explain this delay as to why the police party failed to reach at the place of occurrence after a delay of about five hours. The information received by the police was that five persons had been hidden in the Fort and indulged in making preparation for committing decoity. Despite such an information, the police party reached the scene of occurrence after about more than five hours. This makes the prosecution case doubtful. Shri S. S. Sunda, learned counsel for the appellants contended that arrest memo of the appellants has not been proved inasmush as the investigating officer did not appear and his non-production is a serious infirmity and very much fatal to the prosecution. Learned Public Prosecutor failed to explain as to why the investigating officer who is a start witness of the incident of alleged dacoity, could not be produced. A look at the record shows that though at the very beginning, an assembly of five persons had been alleged but only two persons, the present appellants, had been allegedly arrested which too has not been proved by the prosecution inasmuch as the prosecution failed to explain as to who were the other persons having been alleged hidden in the fort with intent to make preparation of the dacoity, and why were they not brought on record. Learned counsel for the appellants further contended that in the absence of any proof that there were five or more than five persons making in preparation for committing dacoity, offence of Section 399, IPC, cannot be held to have been made out. I agree with his contention. A look at the statements of the prosecution witnesses shows that the police party had surrounded the persons who were alleged sitting in the Fort. Even after that, the three persons who had allegedly escaped but it is not clear from the record whether they were chased by the police party and why did they fail to arrest the persons attempting to flee from the scene. Moreover, none of the prosecution witnesses stated that the persons accused in this case were indulged in making preparation for committing and dacoity any what sort of the preparation were they being made. It is necessary to prove that the raid for which they were making preparation was to be committed by five or more persons. Otherwise, it would not be dacoity and mere preparation for committing dacoity is not punishable by law unless it ends in an actual attempt. In 1979 SCC (Cr.) p. 502, (1) it has been held that on the mere circumstance of the assembling of eight persons in a school compound near a market place at a. m. and recovery of a gun and cartridges from them a conviction under Ss. 399 & 402, IPC, cannot stand. In the case at hand, the trial Court has convicted the appellants under Section 399, IPC, on the mere circumstance of the assembling of the appellants in a lonely conspicuous place of the Fort at about mid-night.
(3.) IN view of the foregoing, I am of the considered opinion that the prosecution has failed to establish on record by means of cogent ad reliable evidence that there were five persons who had assembled on the alleged date and place and they were making preparation for committing a dacoity. Only two appellants were arrested allegedly at the place of spot but surprisingly enough their arrest has not been proved by the prosecution beyond doubt inasmuch as the investigating officer has not been produced in the witness box to prove significant facts and circumstances of the case. The result is that this appeal is accepted. The impugned conviction & sentence passed by the trial court, referred to above, is set aside and the appellants are acquitted. They are on bail and need not surrender. Their bail bonds stand cancelled. Record be sent back. . ;