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2023 Supreme(Ker) 112
IN THE HIGH COURT OF KERALA AT ERNAKULAM
Kauser Edappagath, J.
Shihab, S/O. Meerasahib – Petitioner
Versus
State Of Kerala Rep. By Public Prosecutor And Ors. – Respondents
CRL.A NO. 2083 & 2187 OF 2006
Decided On : 15-02-2023
Advocate Appeared:
For the Petitioner: Sri. K.Abdul Jawad, Sri. S. Niyasudeen
For the Respondent: Smt. Rekha Sr. Public Prosecutor
Point of Law: Section 402 of IPC contemplates a stage when whole project still lies in realm of design and intention without there being any intent to give concrete shape to intention.
Headnote:
Indian Penal Code, 1860 - Section 402 - Dacoity – Appeal against conviction - Accused Nos. 1 to 5 carrying weapons such as iron rod, ring spanner and chopper - According to prosecution, they assembled for purpose of committing dacoity – Mere assembly of five or more persons or mere arrest of accused at spot and recovery of weapons from their possession are not sufficient to attract offence under Section 402 of IPC - Para 10.
Finding of the Court :
Merely because a group of persons, some being armed, were found at place of occurrence in suspicious circumstances, it cannot be said that they had assembled there for purpose of committing dacoity unless there is evidence to show that association was for purpose of committing dacoity - Such an evidence is lacking in this case - Finding of court below that mere assembly of persons without any proof of other - Preparation warrants conviction under Section 402 of IPC is wrong and cannot be sustained.
Result: Appeals allowed.
JUDGMENT :
Both these appeals have been filed challenging the conviction and sentence in S.C.No.132 of 2005 on the files of the Additional Sessions Court (Adhoc-III), Kollam (for short 'the court below') .
2. The appellant in Crl.A.No.2083 of 2006 is the accused No.4 and the appellants in Crl.A.No.2187 of 2006 are the accused Nos.2 and 3.
3. The crime was registered by the Punalur police station suo motu against the five accused persons for the offence punishable under Section 402 of IPC. The prosecution allegation is that when PW4, the Sub Inspector of Police, and PW1, the Police Constable, Punalur police station, were conducting patrolling duty on 14.08.2004 at 11.00 p.m., they got reliable information that few persons were assembled at the school near to the Punalur hanging bridge in suspicious circumstances. Accordingly, they reached the said place at 11.45 p.m., where they found the accused Nos. 1 to 5 sitting at the southern end of the veranda of the school building carrying weapons such as iron rod, ring spanner and chopper. According to the prosecution, they assembled for the purpose of committing dacoity. Accordingly, crime was registered against them by PW1 as Crime No.333 of 2004. PW4, who detected the offence, himself conducted the investigation and filed the final report.
4. All the accused appeared at the court below and faced trial for the offence punishable under Section 402 of IPC. On the side of the prosecution, PWs 1 to 4 were examined and Exts.P1 to P10 were marked. MOs 1 to 3 were identified. No defence evidence was adduced. After trial, the court below found all the accused guilty of the offence punishable under Section 402 of IPC and they were convicted for the said offence. They were sentenced to undergo simple imprisonment for two years each. Challenging the said conviction and sentence, the accused No.4 preferred Crl.A.No.2083 of 2006 and the accused Nos.2 and 3 preferred Crl.A.No.2187 of 2006
5. I have heard Sri.K.Abdul Jawad, the learned counsel for the accused No.4, Sri.K.S.Manu, the learned counsel for the accused Nos.2 and 3 and Smt.Rekha S., the learned Senior Public Prosecutor.
6. The learned counsel for the appellants impeached the findings of the court below on appreciation of evidence and resultant finding as to the guilt. The learned counsel submitted that there is absolutely no material on record to prove that the accused assembled at the place of occurrence for the purpose of committing dacoity. The learned counsel further submitted that the conviction was solely based on the oral testimony of the official witnesses and two independent witnesses examined did not support the prosecution case. The detection and investigation were conducted by the very same officer, and it has caused prejudice to the accused, added the learned counsel
7. The learned Public Prosecutor, on the other hand, supported the findings and verdict of the court below and argued that necessary ingredients of Section 402 of IPC have been established and the court below rightly convicted the accused.
8. As stated already, PWs 1 to 4 were examined on the side of the prosecution. PW4 is the SI of police who detected the offence, conducted the investigation, and filed the final report. PW1 is the Police Constable, who accompanied PW4, and witnessed the detection of the case and seizure of MOs 1 to 3 from the possession of the accused. PWs 2 and 3 are the independent witnesses. They did not support the prosecution. The court below solely relied on the evidence of PWs 1 and 4 to prove the incident and to fix the culpability on the accused.
9. PW4 deposed that on 14.08.2004 at about 11 p.m., in the night, on getting reliable information that four to five persons had assembled at the school situated near to the Punalur hanging bridge, he along with PW1 proceeded to the spot where they found the accused Nos. 1 to 5 sitting on the veranda of the school carrying weapons in their hands in suspicious circumstances. He further depose
