Mohd. Wahid v. State

judgment of the High Court.

¶18High Court of Delhi in the decision reported as (1999) SCC OnLine Del 1049 Des Raj v. State while holding that the mere presence of some people even with arms is not enough to hold that the accused had assembled there to commit dacoity, observed as under:

¶20The prosecution has to establish that the accused persons had assembled there for committing dacoity or assembled for the purpose of making preparation to commit dacoity. Mere presence of some persons even with arms cannot legitimately lead to the definite conclusion that they had assembled there to commit dacoity. Convicting the accused on such presumption is against the settled principles of criminal jurisprudence.

¶19Appellants have been convicted for offence punishable under Section 402 IPC and appellants Javed, Ayyub and Mohd. Wahid for offence punishable under section 25 Arms Act. Section 402 IPC reads as under:

"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."

¶20In contradistinction to Section 399 IPC which punishes the offence of preparation to commit dacoity, Section 402 punishes for assembling for the purpose of committing dacoity. It is thus evident that for the prosecution to prove an offence under Section 402 IPC it has to prove that the accused

assembled at the place with the intention and for the purpose of committing dacoity. The stage for Section 402 IPC is between a preparation and intention i.e. less than preparation and more than intention. Though intention can be gathered from the fact that accused assembled with the weapon however, the same is not sufficient to convict accused for offence punishable under Section 402 IPC for the reason they could have even assembled for committing any other offence i.e. murder etc. for which mere assembling is not sufficient.

¶21The prosecution, to press the ingredients of offence punishable under Section 402 IPC, relies upon the statement of ASI Mahender Singh and Ct. Gurcharan, who overheard the appellants' intention and the purpose for assembling at the spot. Contention of learned counsel for the appellants is that the appellants were allegedly behind a big statue which was more than the height and width of any of the members of the raiding party and thus what is being stated on the back side could not be heard properly. Ct. Gurcharan has not been examined as a witness and thus the only person who overheard the conversation was ASI Mahender Singh. Though ASI Mahender Singh stated that he heard their plan and that Javed was saying that they would commit dacoity in the bus meant for going to Shahdara while boarding the bus from ISBT and he would cover the driver at point of Katta whereas Wahid would cover the conductor with Katta and Ayyub, Pradeep, Mehmood and Raju Churiwala would rob the commuters of the bus at the point of knives however, ASI Mahender Singh has not stated the language used by Javed thus indicating what exactly he had stated.

¶22Further, the appellants have examined Ali Hasan, the chowkidar at Maharaja Agrasen Park, ISBT, Kashmere Gate, Delhi as DW-2 who stated

that he was on duty in the said park on 18th April, 2011 from 5.00 P.M. to

11.00 A.M. and during his duty hours he remained present at the duty and no incident took place in the park. Though in his cross-examination he fumbled but on seeing the register he reiterated that he was on duty on 18th April, 2011. Ali Hasan was a natural witness and there is no mention of Ali Hasan in the entire prosecution case or that any other person was doing the duty of chowkidar.

¶23In view of the evidence of Ali Hasan, the fact that ASI Mahender Singh did not state verbatim what was stated by Javed or the other accused and his version was the conclusion of what he heard the appellants said, this Court is of the considered opinion that the appellants are entitled to the benefit of doubt.

¶24Consequently, this Court finds it to be a fit case for setting aside the conviction of the appellants for offences punishable under Sections 402/34 IPC and Section 25 Arms Act.

¶25Appeals are disposed of accordingly. Appellants be released forthwith if not required in any other case.

¶26Copy of this order be sent to Superintendent, Central Jail Tihar for updation of the Jail record and intimation to the appellants.

¶27TCR be returned.

(MUKTA GUPTA) JUDGE SEPTEMBER 05, 2018 'rk'

* IN THE HIGH COURT OF DELHI AT NEW DELHI % Reserved on: 19th July, 2018 Decided on: 5th September, 2018 + CRL.A. 497/2016 JAVED @ CHIKNA ..... Appellant Represented by: Mr.Rajiv Mohan,Mr.Abhimanyu Kampani, Mr.M.A.Karthik and Mr.Akshay Kumar, Advocates versus STATE ..... Respondent Represented by: Mr.Ashok Kumar Garg, APP with SI Kamaljeet Singh, PS Kashmere Gate + CRL.A. 541/2016 AYYUB ..... Appellant Represented by: Mr.Saurabh Kansal, Ms.Pallavi S.Kansal and Mr.Deepak Pandey, Advocates versus STATE ..... Respondent Represented by: Mr.Ashok Kumar Garg, APP with SI Kamaljeet Singh, PS Kashmere Gate + CRL.A. 653/2016 SAMSUDDIN @ RAJU ..... Appellant Represented by: Mr.Saurabh Kansal, Ms.Pallavi S.Kansal and Mr.Deepak Pandey, Advocates versus STATE ..... Respondent Represented by: Mr.Ashok Kumar Garg, APP with SI Kamaljeet Singh, PS Kashmere Gate + CRL.A. 785/2016 MOHD. WAHID ..... Appellant Represented by: Mr.Saurabh Kansal, Ms.Pallavi S.Kansal and Mr.Deepak Pandey, Advocates versus STATE ..... Respondent Represented by: Ms.Meenakshi Dahiya, APP with SI Kamaljeet Singh, PS Kashmere Gate CORAM: HON'BLE MS. JUSTICE MUKTA GUPTA 1. By these appeals, appellants Javed @ Chikna, Ayyub, Samsuddin @ Raju and Mohd. Wahid challenge the impugned judgment dated 28th April, 2016 convicting them for the offence punishable under Section 402 IPC and Javed @ Chikna, Ayyub and Mohd. Wahid also being convicted for the offence punishable under Section 25 Arms Act in FIR No. 69/2011 registered at PS Kashmere Gate and the order on sentence of dated 4th May, 2016 directing the appellants to undergo rigorous imprisonment for a period of four years and to pay a fine of ₹5,000/- each and in default whereof to undergo simple imprisonment for a period of two months for the offence punishable under Section 402 IPC and Javed @ Chikna, Ayyub and Mohd. Wahid were further directed to undergo rigorous imprisonment for a period of one year and to pay a fine of ₹1,000/- each and in default whereof to undergo simple imprisonment for a period of fifteen days for the offence punishable under Section 25 Arms Act. 2. Assailing the conviction, Learned Counsel for Javed @ Chikna submits that there is difference between preparation and planning. The case of the prosecution is assembling for planning to commit offence and not for the purpose as required under Section 402 IPC. Though Javed @ Chikna is involved in 30 cases, however, none of the cases against him relate to dacoity and other co-accused are not Javed's associates. Since Javed has been acquitted for the offence punishable under Section 399 IPC, thus, preparation is disproved. On same facts, conviction cannot be sustained for offence punishable under Section 402 IPC. There is only one witness ASI Mahender Singh (PW-5) who overheard five persons. ASI Mahender Singh, in fact, laid the trap, seized and sealed the weapons i.e. conducted the entire investigation. Further, ASI Mahender Singh heard the alleged conversation from behind the statue which was very big, thus it was not possible to hear the conversation as alleged. Reliance is placed upon the decision of Supreme Court reported as (2008) 11 SCC 153 State of Uttar Pradesh v. Punni and Others. 3. Learned Counsel for Ayyub and Mohd. Wahid submits that appellants cannot be convicted solely on the basis of alleged conversation heard by one witness. Furthermore, the Learned Trial Court categorically held that 'there was no specific evidence to prove that accused persons were making preparation for dacoity' and hence acquitted them for offence punishable under Section 399 IPC however, held them guilty under Section 402 IPC. It is urged that the appellants cannot be held liable for the offence punishable under Section 402 IPC since there was no overt act on the part of the appellants. There are material inconsistencies in the testimonies of the witnesses and non-examination of material witness creates sufficient doubt on the prosecution version. 4. Learned Counsel for