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IN THE HIGH COURT OF ALLAHABAD
V. Bhargava, J.
NATHWA - Appellant
Versus
STATE - Respondents
Criminal Appeal 683 Of 1949
Decided On : 07/12/1950
CRIMINAL LAW - Dacoity - Preparation for dacoity - Assemblage for the purpose of committing dacoity - Mere assemblage not amounting to preparation - Identification of accused - Reliability of evidence - Circumstances raising doubt about genuineness of identification.
Fact of the Case:
Ten persons were convicted of assembling for the purpose of committing dacoity, attempting to cause death of police officers, and possessing unlicensed weapons. The main evidence against them was the identification by four police constables, who claimed to have seen the accused during a raid on the garden house where they had assembled. The accused challenged the reliability of the identification, pointing out that senior police officers who were also present at the raid did not identify them, and that the investigating officer had failed to take steps to arrest one of the accused, Kirpal, for two months after the incident.
Finding of the Court:
The court found that the evidence of identification was not reliable. It noted that the senior police officers who were present at the raid did not identify the accused, and that the investigating officer had failed to take steps to arrest Kirpal for two months after the incident. The court also found that the investigating officer had made a false statement in court about when he had learned Kirpal's name, and that he had deliberately left Kirpal at liberty so that the prosecution witnesses would have an opportunity to see him and mark him carefully. The court concluded that the circumstances raised a considerable doubt about the genuineness of the identification.
Issues: 1. Whether mere assemblage for the purpose of committing dacoity amounts to preparation for dacoity. 2. Whether the evidence of identification of the accused was reliable.
Ratio Decidendi: 1. Mere assemblage for the purpose of committing dacoity does not amount to preparation for dacoity. The legislature considered it necessary to make a separate provision for punishing persons assembling for the purpose of committing a dacoity, indicating that the act of assembling is not to be deemed to be a preparation for the commission of a dacoity punishable under Section 399, Penal Code. 2. The evidence of identification of the accused was not reliable. The senior police officers who were present at the raid did not identify the accused, and the investigating officer had failed to take steps to arrest Kirpal for two months after the incident. The investigating officer also made a false statement in court about when he had learned Kirpal's name, and he had deliberately left Kirpal at liberty so that the prosecution witnesses would have an opportunity to see him and mark him carefully. These circumstances raised a considerable doubt about the genuineness of the identification.
Final Decision: The appeal of Nathwa, Laltu, and Mohammad Taqi alias Kalian was dismissed in toto. The appeal of Niadar, Dharma, Lal Singh, Banwari, Prabhu, and Achchhan was allowed against their conviction and sentence under Section 399, Penal Code, and they were acquitted of this charge. Their appeal in respect of their conviction for the remaining offenses under Sections 402 and 307 read with Section 149, Penal Code, was dismissed. The appeal of Kirpal appellant was fully allowed. His conviction and sentence were set aside, and he was acquitted of all the charges under Sections 399, 402, 307 read with Section 149, and Section 19 (f), Arms Act.
( 1 ) THIS is an appeal by ten persons, Nathwa, Niadar, Dharma, Lal Singh, Banwari, Pirbhu, kirpal, Mohammad Taqi, Achchhan and Laltu, who have all been convicted under Sections 399 and 402, Penal Code, and sentenced to undergo rigorous imprisonment for four years and three years respectively under these two sections. In addition all these appellants have been convicted for the offence under Section 307 read with Section 149, Penal Code. Two of them, Kirpal and mohammad Taqi alias Kalian have been sentenced to four years rigorous imprisonment for this offence whereas the remaining eight persons, have been sentenced to three years rigorous imprisonment. Mohammad Taqi and Kirpal nave further been convicted and sentenced to one years rigorous imprisonment for the offence under Section 19 (f), Arms Act and Nathwa and laltu have been convicted and sentenced to six months rigorous imprisonment under Section 19 (f), Arms Act. All the sentences of imprisonment of all these appellants have been directed to run concurrently.
( 2 ) THE incident in respect of which these appellants have been convicted is said to have taken place on 5-11-1948. It is alleged that all these appellants together with three other persons, chokhey, Mangal and AH Husain, had collected in the garden house of one Vijay Vir Singh close to the village Chak Goverdhanpur on the night of 5-11-1948, for the purpose of committing a dacoity. Information of this assemblage was carried to the Station Officer Mehtoreby an informer. Station Officer informed the Superintendent of Police, Bijnor, who proceeded to village Chak Goverdhanpur with a large party of policemen, some of whom had fire arms with them. The party also included the Deputy Superintendent of Police. They met Station Officer of police, Station Mehtore, with members of his staff close to that village. They also took two private citizens residing in Chak Goverdhanpur with them and the whole party then came towards the grove of Vijay Vir Singh. They surrounded the grove. The Superintendent of Police himself led the party which launched the attack on this assemblage of dacoits from the front side of the garden house which was towards the east. As these men approached firing started. A few shots were fired on both sides but no one happened to be injured. Thereafter, the Superintendent of Police happened to come close to the gathering of these men which was in the verandah of the garden house. Mohammad Taqi alias Kalian was the principal man who was firing towards the Superintendent of Police. The Deputy Superintendent of Police grappled with him and he was captured. One of the persons assembled there for the purpose of dacoity who was carrying a gun, ran away and it is alleged that this person was Kirpal, appellant. The remaining persons went inside the room where they were followed by the police officers. The superintendent of Police threatened to shoot any one who refused to surrender at once and thereupon all these men surrendered themselves. Mohammad Taqi alias Kalian was found in possession of an English-made revolver. Chhokhey, who was also convicted in this case but who has not filed any appeal, was found in possession of a country-made single barrel 12 bore gun. Kirpal, the man who ran away, is alleged to have had a double barrel gun, Nathwa appellant had a sword and Laltu had a spear. A number of lathis were also found in the room when the appellants had surrendered themselves to the police. The case was then investigated. But no case could be worked out against the 13th man who had run away. Twelve persons were, therefore, sent up for trial. These twelve were the nine appellants (besides Kirpal) and Chokhey, Mangal and Ali Husain. During enquiry in the committing Magistrates Court Ali Husain made a confession. He was then granted a pardon and was then examined as an approver. Ali Husain in his statement named Kirpal appellant and thereupon attempts were made to arrest Kirpal. It is alleged
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