Important Point
Though pistol was not in working order cartidges were live cartidges, live cartidge being an explosive within meaning of Section 5 of TADA conviction could be sustained.

Headnote:(i) Indian Penal Code, 1860-Sections 399 and 402-Making preparation and assembling to commit dacoity-Conviction for-Sustainability of-P.W. 2, Head Constable allegedly heard accused conversating about looting of a petrol pump-ASI who accompanied P.W. 2 not examined-During cross examination P.W. 2 did not narrate what accused had spoken or discussed-P.W. 2 evidence doubtful-P.W. 2 was telling the truth-Conviction could not be sustained.
       Held : To prove why the five accused had assembled at Dharamshala of Sarup Nagar, the prosecution had mainly relied upon the evidence of P.W. 2 who was the only witness who had gone near the Dharamshala and heard conversation amongst the accused. He was accompanied at that time by ASI-Bhagat Ram but the prosecution did not examine ASI-Bhagat Ram as a witness. P.W. 2-Head Constable Chand Singh in his examination-in-chief did not depose anything about the conversation, he was declared hostile and permitted to be cross-examined by the learned public prosecutor. In cross-examination, he stated that the conversation which he had heard and reported to Sub-Inspector Om Prakash was about looting a petrol pump. According to the witness, he had remained near the Dharamshala for about 15 minutes. His further cross-examination on behalf of the accused discloses that when he had gone near the Dharamshala, it was dark as there was no light either inside or nearby. Dharamshala consisted of only one room and it had only one door and no window. He had stood outside that room and a little away from the door. He had not told anything more than that five persons inside the Dharamshala were planning to rob a petrol pump that night. He had not narrated what they had spoken or discussed. It is also doubtful that they were speaking so loudly that their conversation could be heard outside. It is also surprising as to how he could have reported to S.I. -Om Prakash that two of them had pistols and remaining three had knives. As the evidence discloses, the weapons were kept concealed on their persons and there was complete darkness inside the room. P.W. 2 had not even gone near the door. This would clearly indicate that P.W. 2 was not telling the truth when he stated that he had heard the accused talking about looting a petrol pump. It is, therefore, not possible to sustain the conviction of the appellants under Sections 399 and 402 IPC. Their conviction under Sections 399 and 402 IPC will have to be set aside. (Para 4)
       (ii) TADA-Section 5-Revolver and pistol from two accused and knives from three accused seized-All accused found assembled in one place-Revolver and pistol found loaded with live cartidge-Revolver was found be in working condition by Forensic Science Laboratory-Pistol’s firing mechanism was found to be defective-Live cartidge is an explosive within meaning of Section 5-Conviction rendered by Designated Court warrants no interference.
       Held : As regards possession of arms, the evidence of all the three witnesses is consistent. A revolver was found from Sadhu Ram, a pistol from Suleman and knives from the remaining three. The revolver carried by Sadhu Ram was found loaded with five live cartridges and the pistol of Suleman was found loaded with one live cartidge. The report of the Central Forensic Science Laboratory shows that the revolver was in working condition and all the five cartidges were live cartidges. The pistol was not in working order in the sense that firing mechanism was found defective. The cartidge found from it was a live cartidge. Live cartidge is an explosive within the meaning of Section 5 of the TADA Act. Therefore, even if evidence regarding possession of pistol by Suleman is ignored, his conviction under Section 5 can be sustained. We see no reason to doubt the evidence of P.Ws. 2, 3 and 6 regarding their having apprehended the appellants and seized from them the fire arms. (Para 5)

Judgment

Nanavati, J.-Both these appeals arise out of the common judgment passed by the court of Additional Designated Court-II, Delhi. Suleman and Chiman are the appellants in Criminal Appeal No. 627/98 and Sadhu Ram is the appellant in Criminal Appeal No. 750/98. The three appellants alongwith two others were tried for the offences punishable under Sections 399 and 402 IPC and Section 5 of the TADA Act. The three accused who were alleged to be in possession of knives were further charged under Section 25 of the Arms Act. The allegation against the appellants and the other accused was that they were planning to commit a dacoity and for that purpose they had assembled in Sarup Nagar Dharamshala with arms and ammunitions.

2. In order to prove its case, the prosecution had examined P.W. 2-Head Constable Chand Singh, P.W. 3-Rampal Sharma and P.W. 6-S.I. Om Prakash. The prosecution had also led evidence to prove that the seized articles were kept in proper custody and that the two fire arms were examined by the Central Forensic Science Laboratory. Relying upon the evidence of P.Ws. 2, 3 and 6, the designated Court held that all the five accused had assembled in the Dharamashala at Sarup Nagar as alleged and were planning to loot a petrol pump on that day. As the appellants were held to have made preparations for committing dacoity and assembled for that purpose, they were convicted both under Sections 399 and 402 IPC. The trial Court also held appellants-Suleman and Sadhu Ram guilty under Section 5 of the TADA Act as they were found in possession of fire arms and ammunitions.

3. Learned counsel for the appellants took us through the evidence of P.Ws. 2, 3 and 6 and pointed out the inconsistencies in their evidence as regards the place where the police officer had received information regarding the accused and non-availability of independent persons for joining the raiding party to witness the outcome of the raid. He also submitted that their evidence even otherwise is not sufficient to sustain conviction under Sections 399 and 402 IPC. Learned counsel for the appellant-Suleman further submitted that the pistol recovered from him was not found in working order and, therefore, Suleman could not have been convicted under Section 5 of the TADA Act.

4. To prove why the five accused had assembled at Dharamshala of Sarup Nagar, the prosecution had mainly relied upon the evidence of P.W. 2 who was the only witness who had gone near the Dharamshala and heard conversation amongst the accused. He was accompanied at that time by ASI-Bhagat Ram but the prosecution did not examine ASI-Bhagat Ram as a witness. P.W. 2-Head Constable Chand Singh in his examination-in-chief did not depose anything about the conversation, he was declared hostile and permitted to be cross-examined by the learned public prosecutor. In cross-examination, he stated that the conversation which he had heard and reported to Sub-Inspector Om Prakash was about looting a petrol pump. According to the witness, he had remained near the Dharamshala for about 15 minutes. His further cross-examination on behalf of the accused discloses that when he had gone near the Dharamshala, it was dark as there was no light either inside or nearby. Dharamshala consisted of only one room and it had only one door and no window. He had stood outside that room and a little away from the door. He had not told anything more than that five persons inside the Dharamshala were planning to rob a petrol pump that night. He had not narrated what they had spoken or discussed. It is also doubtful that they were speaking so loudly that their conversation could be heard outside. It is also surprising as to how he could have reported to S.I. - Om Prakash that two of them had pistols and remaining three had knives. As the evidence discloses, the weapons were kept concealed on their persons and there was complete darkness inside the room. P.W. 2 had not even gone near the door. This would clearly indicate that

Click Here to Read the rest of this document

1999 Supreme(SC) 164

Important PointThough pistol was not in working order cartidges were live cartidges, live cartidge being an explosive within meaning of Section 5 of TADA conviction could be sustained.

Important Point
Though pistol was not in working order cartidges were live cartidges, live cartidge being an explosive within meaning of Section 5 of TADA conviction could be sustained.