The prosecution must prove beyond reasonable doubt that the accused had assembled for the purpose of committing dacoity. Mere assembly of five or more persons armed with weapons is not sufficient to establish the offence of dacoity.

JUDGMENT

Kanwaljit Singh Ahluwalia, J. - Raghuveer @ Bichchhuda son of Ram Narayan Kanjar, Radhey Shyam @ Kabra and Vikram @ Vikara both sons of Lakhma, Bala son of Kanwariya @ Kanwar Lal Kanjar and Roopchand @ Dadiya son of Ram Lal were tried by the court of Sessions Judge, Jhalawar in Sessions Case No. 206/2016. The trial Judge vide impugned judgment dated 1.7.2017 held the appellants guilty of offences under Sections 399 and 402 IPC. Raghuveer @ Bichchhuda was also convicted for the offence under Section 3/25 of the Arms Act, whereas remaining four accused were convicted for offence under Section 4/25 of Arms Act.

2. Having convicted the accused for the aforesaid offences, the trial Judge vide a separate order of even date, sentenced the accused as under:-

U/s. 399 IPC- to undergo seven years RI and to pay a fine of Rs. 1000/- each, in default thereof to undergo additional three months SI each.

U/s. 402 IPC- to undergo five years RI and to pay a fine of Rs. 1000/- each, in default thereof to undergo additional three months SI.

Raghuveer @ Bichchhuda:

U/s. 3/25 Arms Act to undergo two years RI and to pay a fine of Rs. 1000/-, in default thereof to undergo additional three months SI.

Radhey Shyam @ Kabra, Vikram @ Vikara, Bala @ Kanwar Lal and Roopchand @ Dadiya:

U/s. 4/25 Arms Act to undergo two years RI and to pay a fine of Rs. 1000/- each, in default thereof to undergo additional three months SI.

All the sentences were ordered to run concurrently.

3. Aggrieved against their conviction and sentence, the appellants have filed the present appeal to question their conviction and sentence.

4. The case of the prosecution can be summed up from the charges framed against the accused/appellants.

5. The first charge stated that on 9.10.2016 at 12:40 AM, near bridge of Khakhodiya Khal, Police Station Sadar, Jhalawar, Raghuveer @ Bichchhuda armed with one loaded iron country made pistol and two live cartridges, Radhey Shyam @ Kabara armed with one incised sword, Vikram @ Vikara armed with one incised Knife, Bala armed with one incised knife and Roopchand @ Dadiya armed with one incised sword were planning to commit dacoity on Royalty Naka situated at Jhalrapatan - Bhawani Mandi Highway, when they were apprehended by Manoj Singh (P.W.2), SHO Police Station Sadar, Jhalawar. Thus, they committed offence punishable under Section 399 IPC.

6. The second charge stated that on the said date and time, all the above-mentioned five accused armed with weapons gathered to commit dacoity and thereby committed offence punishable under Section 402 IPC.

7. The third charge under the Arms Act was also framed against the accused. Raghuveer @ Bichchhuda who was armed with fire arm was charged for the offence under Section 3/25 of Arms Act, whereas, remaining four accused namely Radhey Shyam @ Kabra, Vikram @ Vikara, Bala and Roopchand @ Dadiya were charged for the offence under Section 4/25 of Arms Act.

8. The prosecution to secure conviction of the appellants, in all examined eight witnesses namely Armor Yashwant Singh (P.W.1), SHO/investiging officer Manoj Singh (P.W.2), ASI Abdul Latif (P.W.3), Constable Ramswaroop (P.W.4), Head Constable Shambhu Lal (P.W.5), LDC Mohan Lal Shekhawatiya (P.W.6), Constable Dilip Kumar (P.W.7) and Head Constable Madan Lal (P.W.8).

9. The prime witness of the prosecution is Manoj Singh (P.W.2), who at the relevant time was posted as SHO, Police Station Sadar, Jhalawar. This witness in the court deposed that on 9.10.2016 at about 12:10 AM he along with companion police officials namely Shambhu Lal (P.W.5), Ashok (not examined), Ramswaroop (P.W.4), Sandeep (not examined), Dilip (P.W.7), Maninder (not examined) proceeded on a patrol duty in government jeep from police station. At 12:40 AM when they reached village Bhilwara, special informant met and relayed him information that at Kanwada Road, below Khakhodiya Khal on culvert, some anti social elements of Kanjar community have gathered and they are hatching a planning to com