The prosecution must prove its case beyond reasonable doubt, and statements made while in police custody are inadmissible unless corroborated by independent evidence.

JUDGMENT :

GITA GOPI, J.

1. Criminal Appeal Nos.2583 of 2005, 2584 of 2005 and 2585 of 2005 are by the State for enhancement of the sentence. While, Criminal Appeal Nos.366 of 2005, 367 of 2005, 383 of 2005 and 378 of 2005 filed by accused are challenging the conviction under Sections 399 and 120B of the INDIAN PENAL CODE , 1860 (for short ‘IPC’), where six accused came to be convicted under Section 399 IPC for two years rigorous imprisonment and Rs.500 as fine with default stipulation of further fifteen days simple imprisonment.

1.1 For the offence under Section 120B IPC, two years rigorous imprisonment and Rs.500/- fine and in default of payment of fine, fifteen days simple imprisonment. The sentence to run concurrently and set off was granted for the imprisonment in connection with I-Cr. No.379/96 at Mahesana Police Station.

1.2 Criminal Appeal No.366 of 2005 had been filed by the accused Nos.2, 5 and 6 of Sessions Case No.203 of 2004, whereas Criminal Appeal No.367 of 2005 was by sole accused of Sessions Case No.215 of 1997 and Criminal Appeal No.378 of 2005 was filed by accused No.1 of Sessions Case No.203 of 2004 and Criminal Appeal No.383 of 2005 was by sole accused of Sessions Case No.03 of 2005.

2. The conviction was under Sections 399 and 120B of IPC, for making preparation to commit dacoity.

2.1 Section 399 of IPC reads as under:

“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.

2.2 The dacoity is defined under Section 391 of IPC, which is reproduced hereinbelow:

“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”.”

3. Learned advocate Mr. Rahul Dholakiya for the appellants in Criminal Appeal Nos.366 of 2005, 367 of 2005, 383 of 2005 and 378 of 2005, submitted that the whole case is only on assumptions, where the undetected offences were accumulated and messages were forwarded to other Police Stations to consider the arrested accused at Unjha Police Station, which was as I- Cr.No.264/96, whereby accused Shailesh Ishwargiri and Ibrahimkhan Umarkhan Pathan were arrested and the Mahesana City Local Crime Branch informed the police stations to contact L.C.B. Patan and Unjha Police Station for that purpose.

3.1 Learned advocate Mr. Dholakiya submitted that it was in consequence of this telephone call, the present case has been created, where an unsuccessful attempt of the accused had been shown, and further to bring the case under Dacoity over and above, Shailesh Ishwargiri and Ibrahimkhan Umarkhan Pathan, rest of the accused were also joined so as to make a case of more than five persons.

3.2 Learned advocate Mr. Dholakiya submitted that the case has been created by way of statement of accused before the police, which is not admissible in law and an attempt has been made to draw the panchnama and to form it as demonstration of the plan assumed to have been prepared by the accused alleging them as dacoits.

3.3 Learned advocate Mr. Dholakiya further stated that no independent witness has been examined; even the owner of the Maruti Van has not been examined to prove the fact that actually he had given the Maruti Van to the accused. All the police personnel are interconnected with a single intention o