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2026 Supreme(Online)(Guj) 9445

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
Gita Gopi, J
Arvindsingh Gangasingh Solanki – Appellant
Versus
State of Gujarat – Respondent
R/CRIMINAL APPEAL NO. 412 of 2005|R/CRIMINAL APPEAL NO. 715 of 2005|R/CRIMINAL APPEAL NO. 1139 of 2005

Advocates:
For the Appellants/Petitioners: Pratik Barot, Smriti K Chauhan, K I Kazi
For the Respondents: Jyoti Bhatt

A conviction for preparation of dacoity requires firm proof of assembly of at least five persons conjointly planning the offence. Mere possession of weapons or presence at a scene without evidence of specific intent or a five-person assembly is insufficient to satisfy the statutory requirements of the law.

Headnote:(A) Indian Penal Code, 1860 - Section 399 - Preparation for dacoity - Essential ingredients - For a conviction under Section 399 IPC, the prosecution must prove that five or more persons conjointly made preparation for committing dacoity. Mere assembly or possession of weapons is insufficient without evidence of specific preparation aimed at dacoity by five or more persons. (Paras 12, 71, 73, 93)

(B) Evidence Act, 1872 - Sections 25 and 26 - Confession to police - Confessions made by accused persons in custody of police, without the presence of a Magistrate, are inadmissible in evidence against the accused. (Paras 86, 89)

(C) Evidence Act, 1872 - Section 125 - Privilege of informers - While police officers have an immunity against disclosing the source of information, this privilege does not absolve the prosecution from the duty to present independent evidence or follow standard investigation procedures, particularly when the informer accompanies the police team. (Paras 15, 23, 24)

(D) Criminal Procedure - Trap and Investigation - Duty of impartiality - Where a police officer acts as both a member of the raiding team and the investigating officer, the fairness and independence of the investigation are compromised. Failure to record information in the station diary or produce seizure receipts violates procedural mandates. (Paras 27, 29, 39, 83)

Facts of the case:
Police conducted a raid following secret information that five individuals intended to assemble for dacoity at a fuel station. Four persons were apprehended, while an alleged fifth person escaped. The prosecution claimed weapons were recovered during the raid, but failed to identify the fifth person or clearly establish the alleged conspiracy, relying solely on testimony from interested police witnesses and failing to substantiate the assembly of five or more persons as required by law.

Findings of Court:
The trial court's conviction was based on erroneous interpretation of the requirement for five or more persons. Investigative lapses, such as the failure to document information in the station diary, lack of independent witnesses, and the fact that the investigator was also a member of the raiding team, rendered the prosecution’s case unreliable. The courts cannot substitute suspicion for legal proof.

Issues: Whether the prosecution successfully proved the essential ingredients of preparation for dacoity by five or more persons, and whether the evidence of weapons recovery and police testimony was sufficient for conviction.

Ratio Decidendi: To sustain a conviction under Section 399 of the IPC, the prosecution bears the burden of proving an assembly of five or more persons conjointly making preparations for dacoity. Admitting unreliable or inadmissible evidence, such as custodial confessions or findings from a biased investigation, fails to meet the threshold of proof beyond reasonable doubt.

Result: Appeals allowed; convictions set aside and accused acquitted.

Table of Content
1. establishing the factual matrix and procedural history. (Para 1 , 2)
2. parties argument regarding evidence reliability and sentencing. (Para 4 , 5)
3. principles of sentencing proportionality and deterrence. (Para 8 , 9)
4. requirement of five or more persons for dacoity charge. (Para 11 , 12 , 70 , 71)
5. privilege of protecting sources of information under evidence act. (Para 15 , 16 , 22)
6. necessity of maintaining and producing official police diary. (Para 25 , 26 , 27)
7. mere assemblage at public place does not prove preparation. (Para 51 , 52 , 84 , 85)
8. inadmissibility of police confessions without discovery. (Para 86 , 87)
9. failure to establish prosecution's case beyond reasonable doubt. (Para 93 , 94)

COMMON JUDGMENT

1. Criminal Appeal no.412 of 2005 was filed by the appellants – original accused nos.1, 2 and 3, while Criminal Appeal no.715 of 2005 was filed by the appellant – original accused no.4 and Criminal Appeal no. 1139 of 2005 had been filed by the State for enhancement of the sentence. The judgment and order of conviction and sentence dated 28.02.2005 passed by the learned Additional Sessions Judge, Ahmedabad City in Sessions Case no.51 of 2004 has been impugned. The accused persons were charged under Section 399 of the Indian Penal Code, 1860 (hereinafter referred to as “IPC” for short), Section 25(1) of the Arms Act and Section 135 of the Bombay Police Act.

1.1 The accused nos.1 to 3 were sentenced to undergo four years rigorous imprisonment with fine of Rs.2,500/- and in default of payment of fine, to further undergo rigorous imprisonment of three months for the offence punishable under Section 399 of the IPC. The accused nos.1 to 3 were further sentenced to undergo two years rigorous imprisonment for the offence punishable under Section 25(1B)(a) of the Arms Act, and also sentenced to undergo one year rigorous imprisonment for the offence punishable under Section 135 (1) of the Bombay Police Act. The sentences for each accused were ordered to run concurrently.

1.2 The accused no.4 was sentenced to undergo two years rigorous imprisonment with fine of Rs.2,500/- for the offence punishable under Section 399 of the IPC, and in failure to pay the fine, to undergo rigorous imprisonment of three months.

2. Facts, in nut-shell, are that on 02.06.2003, FIR no. I 7/2003 came to be registered with District Crime Branch at Ahmedabad for the offence punishable under Section 399 of the IPC, Section 25(1) of the Arms Act and Section 135 of the Bombay Police Act. It is the case of the prosecution that the District Crime Branch had received information that the named accused persons will assemble opposite to Natraj Hotel, Naroda Patiya three cross roads between 06:00 p.m. to 09:00 p.m. on 02.06.2003. As per the information, they were to meet there to hatch conspiracy to commit dacoity.

2.1 It is the case of the prosecution that at about 08:45 p.m. on 02.06.2003, three persons got down from an auto rickshaw, other two persons came from the other side walking and all assembled on the main road opposite to Natraj Hotel at Naroda Patiya. As soon as the accused persons assembled, the District Crime Branch apprehended them alleging that the accused were armed with weapons and hence, were preparing to commit dacoity.

2.2 The police arrested them under the accusation that they were preparing to commit offence of dacoity at Sahid Vir Petrol Pump at Dehgam. According to the prosecution, the accused were arrested from the open main road going to Dehgam, where from the said petrol pump was about 28 kms. away.

2.3 The charge-sheet was filed. As the offences in the charge-sheet were exclusively triable by the Court of Sessions, the learned Magistrate under Section 209 of the Code of Criminal Procedure, 1973 committed the case to the Hon’ble Sessions Court by an order dated 11.09.2003 and the same was registered as Sessions Case no.51 of 2004. Thereafter, the charge was framed on 30.06.2004. The accused not having ple

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2026 Supreme(Online)(Guj) 9445

IN THE HIGH COURT OF GUJARAT AT AHMEDABADGita Gopi, JArvindsingh Gangasingh Solanki – AppellantVersusState of Gujarat – RespondentR/CRIMINAL APPEAL NO. 412 of 2005|R/CRIMINAL APPEAL NO. 715 of 2005|R/CRIMINAL APPEAL NO. 1139 of 2005

Cases Referred (1)

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
Gita Gopi, J
Arvindsingh Gangasingh Solanki – Appellant
Versus
State of Gujarat – Respondent
R/CRIMINAL APPEAL NO. 412 of 2005|R/CRIMINAL APPEAL NO. 715 of 2005|R/CRIMINAL APPEAL NO. 1139 of 2005