SUNIL Vs. STATE

JUDGEMENT

(1.) The present appeal has been filed by appellant under Sec. 374 read with Sec. 482 of Code of Criminal Procedure, 1973 ('Cr.P.C.') seeking setting aside of the impugned judgment dtd. 19/3/2009 and order on sentence dtd. 30/3/2009 passed by the learned Additional Sessions Judge-01, South, Patiala House Court, New Delhi in the Sessions Case No. 124/07 vide which the appellant has been convicted for the offences punishable under Sec. 399/402 of the Indian Penal Code, 1860 ('IPC') and Sec. 25 of Arms Act, 1959.

(2.) The facts upon which the present FIR was registered are that on 11/7/2007, Sub Inspector K.C. Kaushik alongwith other staff consisting of Head Constable Pritam Singh, Constable Ram Saran and Constable Maz Ahmed were on petrolling duty and later, were also joined by Constable Dev Lagan. A secret information was received by SI K.C. Kaushik that in MCD/ACC Park, Panchsheel Park, 5-6 miscreants are sitting intending to commit some crime. The information was passed on to the S.H.O, Police Station Malviya Nagar on telephone. 4-5 passersby were requested to join raiding party but they did not join and left without revealing their names and addresses. Thereafter, SI K.C. Kaushik alongwith raiding team reached at Badarpur Service Lane near Panchsheel Park near MCD/ACC Park at about 10.00 PM. SI K.C. Kaushik had directed the raiding party to go to South West corner carefully and HC Pritam Singh heard the conversation of accused persons and informed him that five accused persons were sitting while one had a country made revolver in his hand. He further revealed that they were talking to each other about tying the guard of one Sabharwal and then taking away the valuables kept in the kothi. They were also saying that they will open fire if anyone will raise alarm. Thereafter, the raiding team surrounded the accused persons but they started running in different directions. Four accused named Omkar, Sukhpal, Sunil and Suraj were overpowered. One loaded country made revolver was recovered from accused Sukhpal. One buttondar knife was recovered from accused Sunil. One raxine bag was also recovered from accused Sunil which contained 2.5 metres long plastic rope and a black coloured cloth. One knife was recovered from accused Omkar, however, fifth accused had escaped who could not be arrested by the police. Thereafter, investigation was carried out. Chargesheet was prepared for offences punishable under Sec. 399/402 IPC read with Sec. 25 of Arms Act and charges were framed against four accused persons mentioned above. Vide the impugned judgment, four accused persons were convicted for committing offences punishable under Sec. 399/402 IPC as well as under Sec. 25 of Arms Act. As per prosecution story, no arms were recovered from accused Suraj, however, he was convicted for offence punishable under Sec. 25 of Arms Act.

(3.) It is argued by learned counsel for accused/appellant that as per mandate of Ss. 399/402 IPC, the essential ingredient for commission of offence of dacoity is association of at least five or more persons whereas in the present case, only four persons were arrested, and fifth person could not be arrested. It is also stated that this fifth person could never be found and, therefore, it can be concluded that there was no fifth person present to constitute the offence in question. It is also argued that the accused persons were allegedly preparing to commit dacoity at the house of one Sabharwal by tying his guard, however, there is no investigation qua the existence of such a person or house. It is further argued that a perusal of Trial Court Record also reveals lack of legal assistance rendered to the accused persons including present appellant during the trial.