JUDGMENT
Ram Nandan Prasad, J.
1. These two appeals have been heard together and are being disposed of by a common judgment as they are directed against the same judgment.
2. Mohammad Hussain is the sole appellant in Criminal Appeal No. 192 of 1982, whereas there are two appellants in Criminal Appeal No. 319 of 1982, namely, Sadique Mian and Jamadar Hajra. Out of these two appellants, Sadique Main died during the pendency of this appeal and as such the appeal abates so far as he is concerned. Now Criminal Appeal No. 319 of 1982 is confined to only one appellant, namely, Jamadar Hajra. Both the appellants, namely, Mohammad Hussain and Jamadar Hajra have been convicted under Sections 399 and 402 of the Indian Penal Code and have been sentenced to undergo rigorous imprisonment for 7 years each an both the counts. Their sentences have, however, been made to run concurrently.
3. The prosecution case is that in the evening of 7-2-1975 informant Bachcha Singh, Officer-in-charge of Raxaul police station, received a confidential information that some dacoits were to assemble in an orchard of village Bharath Mahi Tola Baluaha with a view to commit dacoity in that village. On receipt of this information, he organised a raiding party and proceeded towards the said place. When he reached near the said orchard, he divided his raiding party into two groups–one of which was led by him and the other by Sub-Inspector Mehdi Abbas. The party led by the informant comprised of 5 persons and the party led by Mehdi Abbas comprised of 8 persons in all. These two groups proceeded towards the orchard from two directions one from southern direction and the other from south-eastern direction. When they were about 50 yards from the orchard, some members of the raiding party flashed torch in the light of which they found about 20 persons sitting in the orchard in suspicious circumstances. On seeing the flash of torch, these persons started running but they were chased and, ultimately, the raiding party succeeded in apprehending four dacoits and the others managed to flee away. On hearing alarm raised by the raiding party, 7 persons of the locality came and saw those 5 persons in the custody of the police party. These apprehended persons disclosed their names and addresses etc. They also disclosed the names of the persons who had managed to flee away. Thereafter a search was made and a country-made gun was recovered from the hand of Mangal Kurmi and two live cartridges were recovered from the shirt of Jamil Mian who were amongst those 5 apprehended persons. These two persons, however, died during the pendency of the commitment proceeding and consequently only three appellants were put on trial, out of whom, as stated above, one of them, namely, Sadique Mian died during the pendency of the appeal. It is said that one farsa, one tanqi, three green bamboo lathis, five phattas and some unburnt ends of bidis and match sticks were also found at the place of the assemblage of the apprehended persons. The informant seized ail these articles and drew up his own fard-beyan at about 1 a.m. on 8-2-1975 in the orchard itself and took up investigation. Eventually a case was registered on the basis of that Fard-beyan. In due course, charge-sheet was submitted and the three appellants were put on trial with the result as stated above.
4. The defence of the appellants was that they were not apprehended in the orchard, rather they were arrested by the police at different places and have been falsely implicated in the case. The specific defence of appellant Mohammad Hussain was that he was dealing in eggs at Birganj and has been falsely implicated by the Rexaul police as he could not oblige them with eggs.
5. At the trial, the prosecution examined 8 witnesses in all, out of whom, PW 8 is a formal witness and PW 2 is the police officer who had submitted charge-sheet in the case PW 1, Gorak Thakur is a Dafadar and PW 6 Bishwanath Singh and PW 7, Gaya Tiwary are Assistant Sub-Inspectors of Police. All these three persons were members of the raiding party. PW 3, Bagar Pandit, PW 4 Ganesh Pandit and PW 5 Motilal Raut are residents of the locality who had reached the orchard after the apprehension of the dacoits on hearing nulla. The first informant Bachcha Singh or Mahdi Abbas, who was leader of the other group, have not been examined at all. Similarly other 8 police personnels of the raiding party and 4 local persons who had come there on the alarm of the raiding party have not been examined by the prosecution. So the prosecution case rests on the evidence of PWs 1, 3, 4, 5, 6 and 7.
5. It was submitted by the learned Counsel appearing for the appellants that even if the prosecution evidence is taken at its face value, no case under Sections 399 or 402 of the Indian Penal Code is made out against the appellants. In view of this submission, it does not appear necessary to go into the details of the evidence in this case.
6. It appears from paragraph 13 of the judgment of the learned Sessions Judge that he has come to the conclusion about the guilt of the appellants under Sections 399 and 402 of the Indian Penal Code on the basis of the following facts and circumstances:
(i) The apprehended persons belong to different villages having no relationship with each other.
(ii) They were apprehended when they had assembled in the lonely orchard in question at about 1 a.m. in the night.
(iii) One of the apprehended persons, namely, Mangal Kurmi, had a gun with him and the other, namely, Jalil Mian, was in possession of two live cartridges. Then a Farsa, a Tanki and some lathis were also recovered from the place of assemblage.
(iv) The apprehended persons could not explain their presence in the orchard at that hour of the night.
7. The submission of the learned Counsel for the appellants is that the aforesaid circumstances are not sufficient to prove that the appellants along with others had assembled in that orchard for the purpose of committing dacoity and had made preparations for the same. This aspect of the matter has been considered by the Supreme Court in the case or Chaturi Yadav and Ors. v. State of Bihar , which runs as follows:
The evidence led by the prosecution merely shows that eight persons were found in the school premises. Some of them were armed with guns, some had cartridges and others ran away. The mere fact that these persons were found at 1 a.m. does not, by itself, prove that the appellants had assembled for the purpose of committing dacoity or for making preparations to accomplish that object.
Their Lordships have further observed that:
The possibility that the appellants may have collected for the purpose of murdering somebody or committing some other offence cannot be safely eliminated.
8. The circumstances found by the learned Sessions Judge in the present case are almost akin to the circumstances appearing in the aforesaid Supreme Court case. Indeed, in the present ease it is the admitted position that nothing was recovered from the two appellants who are before this Court now.
9. The learned Sessions Judge has, however, taken the aid of Section 106 of the Indian Evidence Act for drawing an adverse inference against the appellants. The observation made by him is as follows:
The burden was on the accused under Section 106 of the Evidence Act to satisfy the court as to the object or intention of their presence in the lonely orchard at the dead of night along with many persons armed with fire arms and other weapons. The facts proved by the evidence and the prosecution witnesses give rise to a reasonable inference of the fact that the accused persons had assembled for the purpose of committing dacoity and that in preparation for the same they had brought lire arms and ammunitions with them and the said inference does not appear to be rebutted by the accused persons. If the accused persons had assembled there for any other purpose, it was within their knowledge which they could have explained, but the accused persons have not adduced any evidence to show that it was their lawful assemblage at that place. The accused persons did not show that the object for which they had assembled was not that of committing dacoity.
10. The learned Counsel for the appellants, however, submitted that the provisions under Section 106 of the Indian Evidence Act could not be invoked for supplementing the evidence adduced by the prosecution. On the other hand, learned Counsel for the State placed reliance on a single Bench decision of this Court in the case of State v. Dhanpat Chamar and Ors., in support of the view of the learned Sessions Judge. In my opinion, even this decision does not help the prosecution to the extent the learned Sessions Judge has gone. The legal position has been explained in paragraph 13 of this judgment which is as follows:
13. It is perfectly clear that the prosecution must establish, in a case of this kind, that the accused had conceived a design for committing dacoity, but it is equally true that the intention of an individual or a number of individuals who have conspired together is seldom known to others, and can only be established by proof of circumstances from which the intention can be inferred. Witnesses cannot give direct evidence as to the intention of the accused; and, if the legitimate inference from the circumstances which are established is that the intention of the accused was to commit dacoity, it is for them to prove that their intention was different. Illustration (a) of Section 106 of the Evidence Act makes this quite clear. Reliance may be placed in this connection upon Jain Lal alias Jai Nath v. Emperor A.I.R. 1945 Pat. 82 a case to which I will again have to make a reference.
So even from this decision it is clear that it is for the prosecution to establish that the accused had conceived a design for committing dacoity. Of course, it has been stated therein that if the legitimate inference can be drawn from the circumstances which are established in the case in that the accused persons had the intention to commit dacoity, it will be for them to prove that their intention was different. It was in this context that reference was made to Section 106 of the Evidence Act, but the learned Sessions Judge has placed the burden itself on the accused to satisfy the court regarding the object or intention of their presence in the lonely orchard in the dead of night along with many other persons some of whom were armed with fire arras and other weapons. What the aforesaid decision wanted to lay down was that once it was established by the circumstances of the case that the intention of the accused persons was to commit dacoity, then it was for the accused persons to explain that their intention was different from that of committing dacoity and not that the burden lay on the accused persons to explain and their presence in that lonely place and that the burden was upon them to satisfy the court about their presence there.
11. The applicability of Section 106 of the Evidence Act was con sidered by the Supreme Court in the case of Sawal Das v. State of Bihar . In this case the husband had been convicted for committing the murder of his wife who had died of burn injuries. The defence of the husband was that the wife had met her death because her nylon Sari had accidently caught fire by a kerosene stove. The following observations of the Supreme Court would explain the obligation of the accused under Section 106 of the Evidence Act:
Neither an application of Section 103 nor of 106 of the Evidence Act could, however, absolve the prosecution from the duty of discharging its general or primary burden of proving the prosecution case beyond reasonable doubt. It is only when the prosecution has led evidence which, if believed, will sustain a conviction, or, which makes out a prima facie case, that the question arises of considering facts of which the burden of proof may lie upon the accused. The crucial question in the case before us is: Has the prosecution discharged its initial or general and primary burden of proving the guilt of the appellant beyond reasonable doubt ?
12. It is apparent from this decision that the aid of Section 106 can be taken in a criminal trial only when the prosecution has led evidence which, if believed, will sustain a conviction, or, which makes out a prima facie. Unless this is done, no burden of proving any thing would lie on the accused. If there was any fallacy in explaining their position on the part of the accused persons to explain their position, that would not absolve the prosecution from its primary obligation to make out a prima facie case which goes to make out a case under Section 399 or 402 of the Indian Penal Code against the appellants as stated above. It is evident from the decision of the Supreme Court in the case of Chaturi Yadav (supra) that the materials brought on the record in the present case by the prosecution are not sufficient to establish the guilt of the appellant under Sections 399 and 402 of the Indian Penal Code, The same view has been reiterated by a learned Single Judge of this Court in the case of Gholtu Modi v. State of Bihar 1985 B.B.C.J. 731, in which it has been stated that “the prosecution, therefore, must prove from some evidence directly or indirectly or from attending circumstances that they had assembled for no other purpose than to make preparetion for commission of dacoity. If the evidence falls short of it, the case must fail.”
13. In the present case also, the prosecution has miserably failed to prove that the appellants along with other companions had assembled at that lonely orchard for the purpose of committing dacoity and not for any other purpose. There is also no material from which it can be said with any amount of certainty that they had made preparation for committing dacoity. Mere possession of fire arms cannot be sufficient to prove that they intended to commit dacoity and not any other offence. In such circumstance, there is no option but to hold that the prosecution has failed to prove the charge under Section 399 or under Section 402 of the Indian Penal Code against the appellants.
14. In this view of the matter, it does not appear necessary to go into the other infirmities in the prosecution evidence, two of which, are apparent on face of the records. The first is that the recovered articles were not at all produced in the Court below and the second is non-examination of a large number of material witnesses including the first informant. It may also incidently be stated that the investigation of the case was conducted by the first informant which was also not proper. Then, three of the local witnesses, i.e., PWs 3, 4 and 5 did not support the prosecution story regarding the apprehension of the appellant Mohammad Hussain in that orchard. In fact, according to PWs 3 and 4 only four persons were apprehended and not five which is the prosecution case. Out of these witnesses PWs 3 and 4 have not been declared hostile or cross-examined by the prosecution and the observation of the learned Sessions Judge that PW 3 was declared hostile is apparently wrong.
15. In view of what has been stated above, the conviction of both the appellants cannot be sustained and both the appeals are, therefore, allowed and the appellants of both the appeals are acquitted of the charge for which they have been convicted and they are discharged from the liability of their bail bonds.