JAVED Vs. STATE

JUDGEMENT

(1.) By these appeals, appellants Javed @ Chikna, Ayyub, Samsuddin @ Raju and Mohd. Wahid challenge the impugned judgment dated 28th April, 2016 convicting them for the offence punishable under Section 402 IPC and Javed @ Chikna, Ayyub and Mohd. Wahid also being convicted for the offence punishable under Section 25 Arms Act in FIR No. 69/2011 registered at PS Kashmere Gate and the order on sentence of dated 4 th May, 2016 directing the appellants to undergo rigorous imprisonment for a period of four years and to pay a fine of Rs. 5,000/- each and in default whereof to undergo simple imprisonment for a period of two months for the offence punishable under Section 402 IPC and Javed @ Chikna, Ayyub and Mohd. Wahid were further directed to undergo rigorous imprisonment for a period of one year and to pay a fine of Rs. 1,000/- each and in default whereof to undergo simple imprisonment for a period of fifteen days for the offence punishable under Section 25 Arms Act.

(2.) Assailing the conviction, Learned Counsel for Javed @ Chikna submits that there is difference between preparation and planning. The case of the prosecution is assembling for planning to commit offence and not for the purpose as required under Section 402 IPC. Though Javed @ Chikna is involved in 30 cases, however, none of the cases against him relate to dacoity and other co-accused are not Javed's associates. Since Javed has been acquitted for the offence punishable under Section 399 IPC, thus, preparation is disproved. On same facts, conviction cannot be sustained for offence punishable under Section 402 IPC. There is only one witness ASI Mahender Singh (PW-5) who overheard five persons. ASI Mahender Singh, in fact, laid the trap, seized and sealed the weapons i.e. conducted the entire investigation. Further, ASI Mahender Singh heard the alleged conversation from behind the statue which was very big, thus it was not possible to hear the conversation as alleged. Reliance is placed upon the decision of Supreme Court reported as State of Uttar Pradesh v. Punni and Others, (2008) 11 SCC 153.

(3.) Learned Counsel for Ayyub and Mohd. Wahid submits that appellants cannot be convicted solely on the basis of alleged conversation heard by one witness. Furthermore, the Learned Trial Court categorically held that 'there was no specific evidence to prove that accused persons were making preparation for dacoity' and hence acquitted them for offence punishable under Section 399 IPC however, held them guilty under Section 402 IPC. It is urged that the appellants cannot be held liable for the offence punishable under Section 402 IPC since there was no overt act on the part of the appellants. There are material inconsistencies in the testimonies of the witnesses and non-examination of material witness creates sufficient doubt on the prosecution version.