IDRISH AND 2 OTHERSversusSTATE

         HIGH COURT OF JUDICATURE AT ALLAHABAD

                 CRIMINAL APPEAL No. - 1488 of 1987

Idrish And 2 Others
                                                             .....Appellant(s)
                                   Versus
State
                                                           .....Respondent(s)

Counsel for Appellant(s)                     :   Vindhyachal Singh
Counsel for Respondent(s)                    :

Court No. - 93
           HON'BLE MRS. VANI RANJAN AGRAWAL, J.

1. This appeal has been filed against the judgment and order dated
26.05.1987 of learned Special Judge, Dacoity Affected Area/ VI Additional
Sessions Judge, Kanpur Dehat, in Special Trial No. 90 of 1986, State Vs.
Idrish and others, in convicting and sentencing the appellants under Section
399 and 402 I.P.C. to 4 years rigorous imprisonment and under Section 25 of
Arms Act to 1 year rigorous imprisonment.

2. Vide order dated 23.02.2021, the present appeal has been abated qua
Appellant No. 2, Raj Bahadur, and Appellant No. 3, Ram Sewak. The appeal
now survives only on behalf of Appellant No. 1, Idris.

3. Heard Sri Vindhyachal Singh, learned counsel for the appellants and Sri
Rahul Asthana, learned A.G.A. for the State.
4. Briefly, the prosecution case, as disclosed in the memo of arrest and
recovery is that in the night of 08.03.1986, SHO- Indra Pal Singh of Police
Station- Sheoli, received an information that a gang of dacoit armed with
firearms was to assemble in the grove of Shiv Bodhan Singh for purpose of
committing dacoity in the house of Shiv Narain Singh. Acting upon the
information, S.H.O.- Indra Pal Singh along with other police officials
proceeded towards the spot after getting noted departure entry in G.D.
No.37. On the way they took public witnesses namely Madho Singh, Lal
Singh, Shivdhar Singh and Tej Singh. S.H.O. Indra Pal Singh divided the
police party into two teams. Two constables Shahabuddin and Mohd.
Ibrahim were sent to the house of Shiv Narain for his safety. Both the police
party reached the Mango grove at about 11.25 P.M. and hidden themselves
in the grove. Two miscreants from the side of south west came and sat
underneath the mango tree. Thereafter four miscreants came and started
talking together. One of the miscreants said that we were sufficiently armed
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and we would get sufficient valuables from the house of Shiv Narain Singh
and we should go and commit dacoity. On hearing this S.H.O. Indra Pal
Singh immediately challenged the miscreants and fired V.L.P. shot and
asked them to surrender. The police party apprehended accused person Idris,
Raj Bahadur and Ram Sevak and three of them managed to escape. Illegal
firearms and cartridges were recovered from the possession of the accused
persons who were arrested on the spot.
5. On the basis of memo of arrest and recovery, F.I.R. was registered and
after getting sanction for prosecution under Arms Act from District
Magistrate, Kanpur Dehat, matter was investigated and after investigation of
the case, charge-sheet was submitted.
6. Charges were framed for offences under Section 399 and 402 I.P.C. and
read over to the accused person. They denied the charges levelled against
them and claimed to be tried.
7. In order to prove its case, the prosecution has examined as many as five
witnesses namely, P.W.-1 Lal Singh, P.W.-2 Madho Singh, P.W.-3 S.I. V.K.
Tewari, P.W.-4 Brijendra Singh Head Moharrir, P.W.-5 Investigating
Officer, Pitamber Lal.
8. P.W.-1 Lal Singh and P.W.-2 Madho Singh supported the prosecution
version in their deposition. P.W.-3 S.I. V.K. Tewari has narrated the
prosecution story in detail and prove Ext. Ka-1. P.W.-4 Head Moharrir
Bijendra Singh proved his handwriting and signatures on FIR Ext. Ka-2 and
carbon copy of G.D. Ext. Ka-3. P.W.-5 Investigating Officer S.I. Pitamber
Lal, narrated the process of investigation and proved site plan as Ext. Ka-6.
Memo of torches Ext. Ka-7, Ka-8, Ka-9 and Ka-10. Sanction of the
prosecution Ext. Ka-11, Ka-12 and Ka-13, bearing the signatures of the then
District Magistrate- Kanpur Dehat. He also stated that after completion of
the investigation he submitted charge-sheet on 30.04.1986. He proved his
handwriting and signatures on charge-sheet which has been exhibited as Ext.
Ka-14, Ka-15 and Ka-16.
9. In statement recorded under Section 313 Cr.P.C. the accused persons
denied of the charges and their involvement of the occurrence.
10. The trial court, after hearing the arguments advanced by both the parties
and considering the oral and documentary evidences on record, returned the
finding of guilt and convicted the accused persons for offences under
Section 399 and 402 I.P.C. and Section 25 of Arms Act and sentenced them
accordingly.
11. Aggrieved with the judgment and order of conviction and sentence, the
present appeal has been preferred on the ground that the conviction and
sentence of the appellants are contrary to law and evidence on record. The
trial court has ignored to consider the material evidence on record and the
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                                 3

sentence awarded to the appellants is also too severe.
12. Learned counsel for the appellants has submitted that the essential
ingredients of Section 399 and 402 I.P.C. have not been established. It is
argued that the prosecution has failed to prove the presence of five or more
persons, which is a sine qua non for constituting an offence under Section
399 and 402 I.P.C. It is further submitted that the entire prosecution story
suffers from material inconsistencies and improbabilities.
13. Learned A.G.A. for the state supports the judgment of conviction and
sentence.
14. Section 399 I.P.C. reads as under :

     "Section 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."

15. Dacoity has been defined in Section 391 I.P.C., which reads as under :-

     "391. Dacoity :- When five or more persons conjointly commit or
     attempt to commit a robbery, or where the whole number of
     persons conjointly committing or attempting to commit a robbery,
     and persons present and aiding such commission or attempt,
     amount to five or more, every person so committing, attempting
     or aiding, is said to commit "dacoity"

     When robbery is either committed or an attempt to commit it is
     made by five or more persons then all such persons, who are
     present or aiding in its commission or in an attempt to commit it,
     would commit the offence of dacoity."

16. Section 402 I.P.C. reads as under :-

     "Section 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."

17. Learned counsel for the appellants relied on the judgment passed by the
Apex Court in State of Punjab Vs. Jagga Singh, (1998) LawSuit (SC) 717,
wherein the order of acquittal of accused person was upheld on the ground
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                                4

that no report from F.S.L. obtained to prove that the recovered gun was in
working condition. There was no satisfactory evidence to show that the
recovered arms and cartridges were sent for ballistic examination. No report
from F.S.L. was available on record. Similarly in State of U.P. Vs. Punni,
2008 Cri LJ 1028 (SC), the Hon'ble Supreme Court held that where the
alleged dacoity was said to have been committed without any resistance or
struggle, and the information received by the police from an informer was
not supported by the Sub-Inspector, the accused was entitled to acquittal.
18. Having heard learned counsel for the appellants and learned A.G.A. for
the State and perused the record, this Court finds that according to
prosecution, on the intervening night of 8/9.03.86, at about 12.00 midnight,
the police received secret information that some miscreants have assembled
at village Sariayan Lalpur, Police Station – Seoli, District- Kanpur Dehat
with illegal arms and were planning to commit dacoity at the house of one
Shiv Narain. Acting upon the said information, the police party formed two
teams, took along independent witnesses and reached the spot. It is alleged
that the police overheard the miscreants planning the dacoity and thereafter
surrounded them. The appellants were apprehended, while three of them
managed to escape. Illegal firearms and cartridges were recovered from their
possession.
19. Though independent witnesses P.W.-1 Lal Singh and P.W.-2 Madho
Singh have supported the prosecution case to some extent, their testimony
does not satisfactorily establish that five persons were assembled at the spot.
Only three accused persons were apprehended and there is no reliable
evidence regarding the identity or the existence of the alleged two
absconding person. During investigation, no effort appears to have been
made to ascertain the identity of the alleged absconding miscreants nor were
their names disclosed by the apprehended persons.
20. The prosecution has not examined Shiv Narain at whose house the
dacoity was allegedly planned. The constables Shahabuddin and Mohd.
Ibrahim were also not examined who were allegedly sent to the house of
Shiv Narain for his safety.
21. It is admitted that the miscreants did not fire any shot nor is there any
evidence of any overt act except the alleged conversation. The recovered
arms and cartridges were also not sent for ballistic examination to ascertain
that they were in working condition at the time of arrest and recovery.
22. The place of occurrence is stated to be in complete darkness though the
witnesses claimed that the police had torches, the same were neither
produced nor brought before the Court. The Investigating Officer has
admitted in his cross-examination that the torches which were taken into
possession were not produced before the Court.
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                                    23. Even the sealed articles when produced before the Court were found in
                                    such condition where the inscriptions were not legible thereby creating doubt
                                    about the integrity of case property.
                                    24. In view of the above deficiencies, prosecution has failed to establish
                                    beyond reasonable doubt that five or more persons had assembled on spot
                                    with intention to commit dacoity. The foundational requirement for offence
                                    under Section 399 and 402 I.P.C. is not satisfied. The findings recorded by
                                    the learned Trial Court do not appear to be sustainable in law as it
                                    overlooked material consistencies and lack of essential ingredients of
                                    Sections 399 and 402 I.P.C. Accordingly, the appeal deserves to be allowed.
                                    25. The appeal is allowed. The conviction and sentence imposed by the
                                    learned trial court is hereby set aside. Accused- appellant No.1- Idris is
                                    acquitted of the charges under Section 399 and 402 I.P.C.
                                    26. The accused-appellant is on bail. His bail bonds and sureties are
                                    discharged.
                                    27. A copy of this judgment along with trial court record be transmitted to
                                    trial court concerned for necessary compliance.
                                    February 23, 2026
                                    P. Pandey
                                                                               (Mrs. Vani Ranjan Agrawal,J.)




Digitally signed by :-
PUSHPENDRA PANDEY
High Court of Judicature at Allahabad