IN THE HIGH COURT OF PUNJAB & HARYANA AT

CHANDIGARH

CRA-S No.285-SB of 2008

Reserved on: 17.09.2026

Pronounced on: 24.09.2026

Uploaded on: 24.09.2026

Whether only operative part of the judgment is

Pronounced or the full judgment is pronounced: operative part/full judgment

Ramesh

…Appellant

Versus

State of Haryana

…Respondent

CORAM

: HON’BLE MS. JUSTICE MANDEEP PANNU

Argued by:- Mr. Abhishek Sindhu, Advocate

for the appellant.

Ms. Sheenu Sura, DAG, Haryana

for the respondent-State.

*****

MANDEEP PANNU, J.

1. The present appeal has been filed against the judgment of

conviction dated 9

th

January, 2008 and order of sentence dated 12

th

January,

2008 passed by learned Sessions Judge, Jind, in FIR No.152 dated 26

th

June, 2006, registered under Sections 399/402 IPC and Section 25 of the

Arms Act at Police Station Nirwana, District Jind, whereby the appellant

along-with co-accused Naresh, Shishpal and Balinder has been convicted

and sentenced as under:-

Convicts Under

Section

Imprisonment

awarded

Fine Imprisonment in

default of

payment of fine

Ramesh,

Naresh,

Section 399

IPC 

R.I. for 03 years

each 

Rs.3,000/-

each 

R.I. for 03 months

each

CRA-S No.285-SB of 2008 -2-

Shishpal and

Balinder

Ramesh,

Naresh,

Shishpal and

Balinder

Section 402

IPC

R.I. for 03 years

each

Rs.3,000/-

each

R.I. for 03 months

each

Ramesh and

Balinder

Section 25

of the Arms

Act

R.I. for 02 years

each

Rs.2,000/-

each

R.I. for 03 months

each

The sentences awarded were ordered to run concurrently. The

period already undergone by the accused during trial was ordered to be set

off against the substantive sentences of imprisonment.

2. Prosecution story, in brief, is that on 26

th

June, 2006 at about

10.00 p.m., Inspector Ravinder Kumar, PW-5, along with Head Constable

Baljeet Singh, was present at T-point near the cremation ground, Nirwana,

on patrol duty and for crime checking in government Gypsy bearing

registration No. HR-31-B-7831, being driven by EHC Ved Prakash. At that

time, the police party headed by ASI Rameshwar Das, PW-7, along with

Head Constable Ravinder Kumar, Constable Rajinder Singh and other

police officials, travelling in government vehicle bearing registration No.

HR-31-B-6995, being driven by Constable Rohtas, met them. While they

were talking to each other, a secret informer came there and informed

Inspector Ravinder Kumar that five young persons, armed with deadly

weapons, were sitting in an abandoned octroi kotha situated on Uklana

Road and were planning to loot the passengers of a Haryana Roadways bus

coming from Chandigarh to Hisar during the night, as the bus used to stop

at that point. Inspector Ravinder Kumar apprised the other police officials

of the information received from the secret informer and organized a

CRA-S No.285-SB of 2008 -3-

raiding party. Thereafter, a raid was conducted and the octroi kotha was

surrounded. A white Maruti car was also found parked on the western side

of the kotha. On reaching near the window of the kotha, Inspector Ravinder

Kumar allegedly overheard the conversation of the accused persons. One of

them was saying that as soon as the Haryana Roadways bus stopped, he

would board the bus from the front window, whereas Balinder would board

it from the rear window with their respective pistols. Shishpal would cover

the driver at the point of his pistol, whereas Naresh and ‘S’ (Juvenile)

would loot the passengers and, in case of resistance by anyone, Balinder

would shoot him. Ramesh was stated to be their ring leader.

3. Thereafter, Inspector Ravinder Kumar raised an alarm that the

accused persons had been surrounded by the police from all four sides and

that anyone attempting to escape would be shot dead. Upon this, the

accused opened the door of the kotha. First, accused Ramesh came out and

his personal search was conducted. A pistol of .315 bore was recovered

from the left dub of his pants. On checking, the pistol was found loaded. It

was unloaded and its sketch was prepared. One live cartridge was also

recovered from the right side pocket of his pants. Thereafter, accused

Balinder came out of the kotha and a country-made pistol of .12 bore was

recovered from the right dub of his pants. The same was also found loaded.

It was unloaded and its sketch, Exhibit P7, was prepared. The third person

to come out of the kotha was accused Shishpal, who was carrying an air

gun in his right hand. Its sketch, Exhibit P8, was prepared. Thereafter,

accused ‘S’ (Juvenile), who was facing trial before the Juvenile Justice

CRA-S No.285-SB of 2008 -4-

Board and not before learned trial Court, came out of the kotha carrying a

danda. Its sketch, Exhibit P9, was prepared. Lastly, accused Naresh came

out of the kotha, also carrying a danda in his hand, and its rough sketch,

Exhibit P10, was prepared. The pistols, cartridge, air gun and dandas were

converted into separate parcels, which were sealed with the seal bearing

impression “RS”, and the parcels were taken into possession. The Maruti

car was also taken into possession vide recovery memo, Exhibit P12.

4. After completion of the necessary investigation, all the above

said five accused were sent up for trial along with the report under Section

173 Cr.P.C. However, out of the aforesaid accused, ‘S’, was found to be a

juvenile and a supplementary challan against him was ordered to be

presented before the Juvenile Justice Board. Charge was, thereafter, framed

against the other four accused, namely, Naresh, Shishpal, Balinder alias

Pala and Ramesh son of Dharampal, (appellant), under Sections 399 and

402 IPC, and against accused Ramesh and Balinder under Section 25 of the

Arms Act. The accused pleaded not guilty to the charges and claimed trial.

5. The prosecution, in order to prove its case, examined PW-1

Ram Niwas, Ahlmad, in the Court of District Magistrate, Jind, who proved

sanction orders Exhibits P1 and P2 passed by the District Magistrate, Jind.

PW-2 Head Constable Armourer Dharambir Singh, deposed regarding

production of three sealed parcels in intact condition by PW-4 SI Pratap

Singh before him along with application Exhibit P3. One parcel contained a

country-made .315 bore pistol and two live cartridges bearing the seal

“RS”, the second parcel contained a .12 bore pistol and two live cartridges

CRA-S No.285-SB of 2008 -5-

of the same bore, whereas the third parcel contained an air gun. He further

deposed that after opening the parcels, he examined pistols Exhibits PB and

PG and found the same to be in working order. Exhibit PA was the air gun.

After giving his report Exhibit P4, the witness resealed the pistols as well

as the cartridges in the same parcels with his own seal “DS” and returned

the same to SI Pratap Singh. PW-3 Head Constable Suresh Kumar, the

attesting witness, is also a formal witness who dealt with the case property.

He proved on record his affidavit Exhibit P5 and deposed regarding deposit

of the parcels with him on 27

th

June, 2006 and their subsequent handing

over to SI Pratap Singh on 18

th

July, 2006. He further deposed that SI

Pratap Singh re-deposited the parcels with him on the same evening,

bearing the seals “RS” and “DS”. PW-4 SI Pratap Singh deposed regarding

getting the pistols and cartridges tested from Armourer PW-2, taking them

back from MHC Suresh Kumar and thereafter, re-depositing the sealed

parcels with the MHC in intact condition. PW-5 Inspector Ravinder Kumar

is the complainant as well as the Investigating Officer. PW-6 Kuldeep

Singh is the draftsman, who proved on record the scaled site plan. PW-7

ASI Rameshwar Das is the recovery witness. Thereafter, the prosecution

closed its evidence.

6. Statements of the accused were, thereafter, recorded under

Section 313 Cr.P.C., wherein all the incriminating evidence appearing

against them was put to them. The accused denied the same and pleaded

false implication in the case. In their defence, the accused did not examine

any witness.

CRA-S No.285-SB of 2008 -6-

7. Thereafter, learned trial Court heard learned APP for the State

and learned defence counsel. After hearing the arguments of both the

parties, learned trial Court convicted the accused persons under Sections

399 and 402 IPC and also convicted accused Balinder and Ramesh under

Section 25 of the Arms Act, as detailed in paragraph No.1 of this judgment.

8. Feeling aggrieved by the aforesaid judgment of conviction and

order of sentence passed by learned trial Court, the present appeal has been

preferred by Ramesh, appellant.

9. Notice of the appeal was issued to the State, which has

contested the same.

10. Before adverting to the contentions raised by the parties, it

would be appropriate to notice the essential ingredients of the offence

punishable under Section 399 IPC. To bring home the charge under Section

399 IPC, the prosecution was required to establish that the accused had

made preparation to commit dacoity. Mere intention to commit dacoity was

not sufficient; there had to be some act or acts amounting to preparation

towards the commission of dacoity. The preparation, however, need not

have extended to the stage of attempt.

11. In order to prove the aforesaid ingredients, the prosecution

examined PW-5 Inspector Ravinder Kumar, who was the complainant as

well as the Investigating Officer, and PW-7 ASI Rameshwar Dass, who was

also a member of the raiding party. The prosecution case, in brief, is that on

receipt of secret information, the police party reached the octroi kotha where

the accused were allegedly found present. According to the prosecution, the

CRA-S No.285-SB of 2008 -7-

police officials overheard the accused discussing their plan to commit

dacoity on a bus going from Chandigarh to Hisar. The accused were,

thereafter, apprehended and weapons were allegedly recovered from them.

The prosecution relies upon this evidence to establish that the accused had

assembled and were making preparation for committing dacoity and, thus,

had committed the offence punishable under Section 399 IPC.

12. According to PW-5 and PW-7, the police party, after receiving

the secret information, reached the spot and took position near the octroi

kotha. The accused were allegedly present inside the octroi kotha and were

discussing the manner in which the proposed dacoity was to be committed.

PW-5 Inspector Ravinder Kumar allegedly overheard the conversation and,

thereafter, apprehended the accused when they came out of the octroi kotha.

Weapons were allegedly recovered from the accused during the proceedings

conducted thereafter. The prosecution relies upon this circumstance of the

alleged conversation, coupled with the presence of the accused at the spot

and the recovery of weapons, to establish preparation for committing dacoity.

13. Learned counsel for the appellant, however, disputed the

prosecution version and raised several contentions regarding the manner in

which the accused were allegedly apprehended and the evidence relied

upon by the prosecution to prove the alleged preparation for committing

dacoity.

14. Learned counsel for the appellant first contended that only two

out of the nine police officials who had conducted the raid were examined

as prosecution witnesses, namely PW-5 Inspector Ravinder Kumar and

CRA-S No.285-SB of 2008 -8-

PW-7 ASI Rameshwar Dass. It was submitted that HC Baljeet Singh and

Mohinder Singh, who were also members of the raiding party and were

material witnesses, were not examined by the prosecution. According to

learned counsel, their non examination assumes significance as they were

present at the spot and had witnessed the apprehension of the accused, the

alleged conversation and the recovery of weapons from them.

15. Learned State counsel, on the other hand, submitted that there

is no requirement in law that each and every member of the raiding party

must be examined. It was argued that PW-5 and PW-7 had given the

necessary evidence regarding the raid, apprehension of the accused and

recovery effected from them and their evidence cannot be discarded merely

because the other members of the police party were not examined.

16. I have considered this contention of learned counsel for the

appellant. The contention does not carry much weight. There is no

requirement that every member of a police party must be examined as a

prosecution witness. What is required to be seen is whether the evidence of

the witnesses who have been examined is reliable and sufficient to prove

the prosecution case.

17. In the present case, PW-5 Inspector Ravinder Kumar and PW-7

ASI Rameshwar Dass were examined as witnesses to the raid and the

proceedings conducted thereafter. Both were members of the police party

and have supported the prosecution case regarding the presence and

apprehension of the accused and the recoveries effected from them. The

mere fact that HC Baljeet Singh and SI Mohinder Singh were not examined

CRA-S No.285-SB of 2008 -9-

does not by itself make the evidence of PW-5 and PW-7 unreliable. The

non-examination of the other members of the police party may be

considered along-with the other circumstances pointed out by learned

counsel for the appellant. However, it cannot by itself be a ground to

discard the testimony of PW-5 and PW-7, particularly when their evidence

is otherwise found to be consistent on the material aspects of the

prosecution case.

18. Learned counsel for the appellant next contended that the

prosecution had failed to join any independent witness despite the fact that

the alleged place of occurrence was near human habitation. It was

submitted that the Police Station was only about one kilometre from the

spot and a school was situated at a distance of about 500 metres. According

to learned counsel, when the police party had sufficient opportunity to

associate an independent person, the failure to do so casts a doubt on the

prosecution version. It was further submitted that the entire prosecution

case rests upon the statements of PW-5 Inspector Ravinder Kumar and

PW-7 ASI Rameshwar Dass, both being police officials, and their

statements should not be accepted without independent corroboration.

19. Learned State counsel submitted that the place of occurrence

was an abandoned octroi kotha and there was no person available at the

spot who could have been joined in the proceedings. It was further

submitted that the mere fact that the Police Station and a school were

situated at some distance from the spot does not mean that independent

persons were available at the relevant time. Learned State counsel argued

CRA-S No.285-SB of 2008 -10-

that the evidence of the police officials cannot be discarded merely because

no independent witness was joined, particularly when there is no reason to

believe that PW-5 and PW-7 would falsely implicate the accused.

20. I have considered this contention. The non-joining of an

independent witness is a circumstance which has to be considered while

appreciating the evidence, but it is not a requirement of law that the

testimony of a police official cannot be relied upon unless it is supported by

an independent witness. The evidence of PW-5 and PW-7 has to be

considered on its own merits.

21. In the present case, the prosecution version is that the accused

were found sitting inside an abandoned octroi kotha at about 10.00 p.m.

The fact that the Police Station was about one kilometre away or that a

school was situated at some distance from the spot does not establish that

any independent person was actually available at the spot at that particular

time. The prosecution witnesses have stated about the proceedings

conducted at the spot and their evidence cannot be discarded merely for

want of independent corroboration.

22. It is also relevant that the defence has not been able to show

any reason why PW-5 and PW-7 would falsely implicate the appellant.

Their presence at the spot is not in dispute in any meaningful manner and

the recovery of the weapon from the appellant is supported by the evidence

of the other witnesses connected with the case property. Therefore, the

mere non-joining of an independent witness does not create a doubt in the

prosecution case.

CRA-S No.285-SB of 2008 -11-

23. Learned counsel for the appellant next contended that there are

material contradictions between the statements of PW-5 Inspector Ravinder

Kumar and PW-7 ASI Rameshwar Dass. It was submitted that PW-5 stated

that the cartridges recovered from the .315 bore pistol were bearing the

marking “KA8MM”, whereas PW-7 stated that the marking on the

cartridges was “8CC”. It was further submitted that PW-5 and PW-7 gave

different versions regarding the number of windows in the octroi kotha.

According to learned counsel, PW-7 stated that there were two windows,

whereas only one window was shown in the site plan. Learned counsel also

referred to the contradiction regarding the manner in which the writing

work was completed at the spot. It was submitted that PW-5 stated that the

police officials were sitting on chairs and there was a lamp post nearby,

whereas PW-7 stated that the writing work was done while sitting on the

ground with the help of a torch. According to learned counsel, these

contradictions show that the presence of the witnesses at the spot and the

manner in which the proceedings were conducted are doubtful.

24. Learned State counsel submitted that the contradictions

pointed out by learned counsel for the appellant are minor and relate to

matters which are not material to the prosecution case. It was argued that

there is no contradiction regarding the presence of the accused at the spot,

their apprehension or the recovery of weapons from them. Learned State

counsel submitted that minor variations in the statements of witnesses are

bound to occur with the passage of time and such variations cannot be

made a ground to discard otherwise consistent evidence.

CRA-S No.285-SB of 2008 -12-

25. I have considered this contention. The contradictions pointed

out by learned counsel for the appellant do not affect the material part of

the prosecution case. The difference regarding the marking on the

cartridges is not such as would make the recovery of the pistol from the

appellant doubtful. The cartridges were produced before PW-2 Armourer

Dharambir Singh, who examined the pistol and found the same to be in

working order. The case property was also dealt with by PW-3 Suresh

Kumar and PW-4 SI Pratap Singh and the evidence regarding its deposit,

examination and resealing has already been noticed.

26. The difference regarding the number of windows also does not

affect the fact that the accused were apprehended from the octroi kotha.

The site plan was prepared by the draftsman on the basis of the place

shown to him and a minor difference in the description of the windows

cannot by itself make the entire prosecution version doubtful.

27. Similarly, the difference between the statements of PW-5 and

PW-7 regarding whether the writing work was done while sitting on chairs

or on the ground, and whether the light was provided by a lamp post or a

torch, relates to the manner in which the proceedings were carried out at

the spot. It does not affect the fact that the accused were apprehended and

the weapons were recovered from them. Such differences in the statements

of witnesses regarding peripheral matters cannot be treated as material

contradictions so as to discard their evidence on the main occurrence.

28. What is important is that both PW-5 and PW-7 h ave

consistently supported the prosecution case regarding the presence of the

CRA-S No.285-SB of 2008 -13-

accused at the octroi kotha, their apprehension and the recovery of weapons

from them. The contradictions pointed out by learned counsel do not create

a doubt regarding these material facts.

29. Learned counsel for the appellant next contended that the

prosecution version regarding the alleged conversation overheard by PW-5

Inspector Ravinder Kumar is highly improbable. It was submitted that it

was unlikely that the police party would reach the spot at the very time

when the accused were discussing their plan to commit dacoity and that

they would speak in such a loud voice that their conversation could be

heard by the police officials standing outside the octroi kotha. It was further

submitted that the accused, if they were actually planning to commit

dacoity, would have kept a watch on the persons approaching the kotha and

would not have continued discussing their plan in such a manner. Learned

counsel, therefore, argued that the alleged conversation cannot safely be

relied upon for holding that the accused were making preparation to

commit dacoity.

30. Learned State counsel submitted that PW-5 has categorically

stated in his examination-in-chief that he overheard the conversation of the

accused and that the roles to be played by the accused in committing the

dacoity were being discussed. It was submitted that this part of the

testimony of PW-5 was not challenged in cross-examination. Not even a

suggestion was put to him that he had not overheard any such conversation.

Learned State counsel argued that the defence cannot now challenge a fact

which was not put to the witness in cross-examination.

CRA-S No.285-SB of 2008 -14-

31. I have considered this contention. PW-5 Inspector Ravinder

Kumar has categorically stated in his examination-in-chief that when he

reached near the window of the octroi kotha, he overheard the conversation

of the accused persons. He has also stated the substance of the conversation

and the specific roles which were being assigned to the accused for

committing the dacoity. This part of his testimony is important for

determining whether the accused had made preparation to commit dacoity.

32. Significantly, the witness was not cross-examined on this

aspect. Not even a single question was put to PW-5 suggesting that he had

not overheard any conversation or that the conversation stated by him was

not taking place inside the octroi kotha. The cross-examination of PW-5 is

directed towards other aspects of the prosecution case, including the

manner of apprehension of the accused, the place of occurrence and the

recovery of weapons. Thus, the material assertion of PW-5 regarding the

conversation remained unchallenged.

33. The defence had an opportunity to question PW-5 about the

manner in which he was able to hear the conversation and to put to him that

no such conversation had taken place. No such question or suggestion was

put to him. In these circumstances, the subsequent argument that PW-5

could not have overheard the conversation cannot be accepted merely on

the basis of an assumption as to how the accused would ordinarily behave

while making such a plan.

34. The conversation stated by PW-5 also cannot be viewed

separately from the other circumstances appearing in the prosecution

CRA-S No.285-SB of 2008 -15-

evidence. The accused were allegedly found together in the abandoned

octroi kotha, weapons were recovered from Ramesh and Balinder, and the

prosecution case is that specific roles had been assigned to the accused for

committing the dacoity. These circumstances, taken together, support the

prosecution version that the accused were not merely present at the spot but

were making preparation to commit dacoity.

35. Learned counsel for the appellant next contended that it was

highly unlikely that the accused, who were allegedly carrying weapons,

would come out of the octroi kotha along with the weapons when the

police party was already waiting outside to apprehend them. It was

submitted that any person who was aware that the police had surrounded

the place would have tried to throw away the weapon or conceal it before

coming out of the kotha. Learned counsel argued that the alleged recovery

of weapons from the accused in these circumstances is therefore doubtful.

Reliance was placed upon the judgment in Jasbir Singh @ Javri @ Jabbar

Singh vs. State of Haryana, 2015(5) SCC 762, wherein, according to

learned counsel, the Hon’ble Supreme Court had found it unnatural that the

accused, despite being armed with deadly weapons, would neither offer

resistance nor cause any injury to the police officials before being

apprehended.

36. Learned State counsel submitted that the conduct of an

accused cannot be judged on the basis of an assumption as to how he

should have behaved in a particular situation. It was argued that the

accused may choose not to resist the police and may also come out with the

CRA-S No.285-SB of 2008 -16-

weapons in their possession.

37. I have considered this contention. The submission proceeds on

the assumption that a person carrying a weapon would necessarily try to

throw it away or offer resistance on finding himself surrounded by the

police. Such conduct cannot be said to be the only natural reaction in such

a situation. The conduct of a person depends upon how he reacts to the

particular situation in which he finds himself. Some persons may choose to

resist, whereas others may choose not to resist and surrender themselves to

the police. Therefore, merely because the accused did not offer resistance

before being apprehended cannot, by itself, be made a ground to doubt the

prosecution version.

38. The judgment relied upon by learned counsel for the appellant

in Jasbir Singh @ Javri @ Jabbar Singh (supra) was rendered on its own

facts and does not lay down that absence of resistance by an accused who is

alleged to be carrying a weapon must, in every case, result in rejection of

the prosecution version. The conduct of the accused has to be considered in

the facts and circumstances of each case. In the present case, the absence of

resistance, by itself, does not create any doubt in the prosecution case.

39. Learned counsel for the appellant next contended that there are

material contradictions and discrepancies in the statements of PW-5

Inspector Ravinder Kumar and PW-7 ASI Rameshwar Dass. It was

submitted that PW-5 stated that efforts were made to join independent

witnesses, whereas PW-7 stated that no effort was made to join any

independent witness. It was further submitted that PW-5 stated that he

CRA-S No.285-SB of 2008 -17-

remained at the spot from about 8.00 p.m. till 2.00 a.m., whereas PW-7

gave a different version regarding the period for which the police party

remained there. Learned counsel also referred to the difference in the

statements of the two witnesses regarding the manner in which the writing

work was completed at the spot. According to learned counsel, these

discrepancies are material and show that the prosecution witnesses are not

consistent about the proceedings conducted at the spot.

40. Learned State counsel submitted that the differences pointed out

by learned counsel for the appellant are minor variations in the statements of

the witnesses and do not relate to the main occurrence. It was submitted that

both PW-5 and PW-7 are consistent regarding the presence of the accused at

the octroi kotha, their apprehension and the proceedings conducted against

them. Learned State counsel argued that such variations are natural and

cannot be made a ground to discard the entire prosecution case.

41. I have considered this contention. The contradictions pointed

out by learned counsel for the appellant are mainly regarding the manner in

which the proceedings were conducted at the spot and the time spent there

by the police officials. These contradictions do not affect the main part of the

prosecution case regarding the presence of the accused, their apprehension

and the circumstances in which the police proceedings were conducted.

42. The difference regarding the joining of independent witnesses

has already been considered. The fact that PW-5 stated that an effort was

made to join independent witnesses whereas PW-7 stated that no such

effort was made is a variation in their statements, but it does not, by itself,

CRA-S No.285-SB of 2008 -18-

make their entire testimony unreliable.

43. Similarly, the difference regarding the period for which the

police party remained at the spot has to be considered in the light of the

entire evidence. A variation regarding the exact time spent at the spot

cannot by itself discredit the witnesses when their statements remain

consistent regarding the material facts of the occurrence.

44. As regards the manner in which the writing wor k was

completed, whether the police officials were sitting on chairs or on the

ground and whether the light was provided by a lamp post or a torch, these

matters relate to the manner in which the proceedings were recorded. They

do not affect the material facts which the prosecution was required to prove

under Section 399 IPC.

45. Thus, the discrepancies pointed out by learned counsel for the

appellant do not create a doubt regarding the main prosecution case. They

are not of such a nature as to make the evidence of PW-5 and PW-7

unreliable on the material facts.

46. Learned counsel for the appellant next contended that the

provisions of Section 100(4) Cr.P.C. were not complied with while

conducting the search of the octroi kotha. It was submitted that the trial

Court wrongly observed that Section 100(4) Cr.P.C. was not attracted as the

police officials had not entered the octroi kotha for the purpose of

apprehending the accused. Learned counsel referred to the statement of PW-

7, who stated in his cross-examination that after the accused had come out of

the octroi kotha, he searched the kotha with the help of a torch. It was argued

CRA-S No.285-SB of 2008 -19-

that the expression “place to be searched” used in Section 100(4) Cr.P.C.

would include the octroi kotha and, therefore, the requirement of associating

independent witnesses could not have been ignored.

47. Learned State counsel submitted that Section 100(4) Cr.P.C.

has no application to the facts of the present case. It was argued that the

police party did not enter the octroi kotha for the purpose of apprehending

or searching the accused. The accused themselves came out of the kotha

after they were informed that the police had surrounded the place. The

search of the kotha, thereafter, was only a part of the police proceedings

and the recovery relied upon by the prosecution was from the accused and

not from inside the kotha. It was, therefore, submitted that no adverse

inference can be drawn on this ground.

48. I have considered this contention. Section 100(4) Cr.P.C.

requires the officer conducting a search to call upon two or more

independent and respectable inhabitants of the locality to attend and

witness the search. In the present case, the accused were not apprehended

as a result of a search of the octroi kotha. The prosecution case is that the

police party reached the spot on receipt of secret information, surrounded

the octroi kotha and the accused came out of the kotha after being informed

that they had been surrounded by the police.

49. It is also important that the alleged recovery of weapons,

which is relied upon by the prosecution, was effected from the accused

after they came out of the octroi kotha. The subsequent statement of PW-7

that he searched the kotha with the help of a torch does not change the

CRA-S No.285-SB of 2008 -20-

nature of the proceedings or make the recovery from the accused a

recovery as a result of search of the kotha. Therefore, the provisions of

Section 100(4) Cr.P.C. cannot be invoked merely because PW-7 stated that

he had searched the octroi kotha after the accused had come out. The

contention of learned counsel for the appellant on this ground, therefore,

does not create any doubt in the prosecution case.

50. Learned counsel for the appellant next contended that the

accused had not been apprehended from the octroi kotha in the manner

alleged by the prosecution. It was submitted that Ramesh and Shishpal had

been picked up by the police from Narwana, whereas Balinder and Naresh

had been picked up from their respective places. According to learned

counsel, the accused were already wanted by the police in other cases and,

in order to implicate them in another case, they were picked up from

different places and the present case was falsely planted upon them. It was

further submitted that the registration of another case against Ramesh on

the following day also supports this defence version.

51. Learned State counsel submitted that the defence version is

only an assertion made on behalf of the accused and there is no evidence on

record to support the same. It was argued that the prosecution witnesses

have categorically deposed regarding the apprehension of the accused from

the octroi kotha and the defence has not been able to bring anything in their

cross-examination which would establish that they were picked up from

some other place.

52. I have considered this contention. The plea that the accused

CRA-S No.285-SB of 2008 -21-

were picked up from different places and were thereafter falsely implicated

in the present case has not been supported by any evidence. No defence

witness was examined by the accused to establish that they had been picked

up from their respective places or that they were not present at the octroi

kotha at the relevant time. The accused, in their statements under Section

313 Cr.P.C., denied the prosecution case and pleaded false implication, but

a mere denial cannot by itself establish the defence version.

53. The fact that the accused may have been wanted in some other

case also does not establish that the present case was falsely registered

against them. The registration of another case against Ramesh on the

following day, by itself, cannot prove that he had been falsely implicated in

the present case. There has to be some material on record to support such a

serious allegation against the police officials.

54. In the present case, no such material has been brought on

record. The defence has not been able to show any reason for falsely

implicating the accused in the manner alleged. The plea that they were picked

up from different places, therefore, remains only a suggestion and is not

supported by any evidence. It does not create a doubt in the prosecution case

regarding their presence at the octroi kotha and their apprehension there.

55. The evidence discussed above, particularly the testimony of

PW-5 and PW-7 regarding the presence of the accused at the octroi kotha,

the conversation overheard by PW-5 regarding the manner in which the

dacoity was to be committed and the respective roles assigned to the

accused, coupled with the recovery of weapons from the accused,

CRA-S No.285-SB of 2008 -22-

establishes that the accused had gone beyond a mere intention to commit

dacoity and had made preparation for the same. The prosecution has,

therefore, been able to prove the necessary ingredients of Section 399 IPC

against the appellant beyond reasonable doubt. The finding of learned trial

Court in this regard calls for no interference.

56. Coming to the offence under Section 402 IPC, the prosecution

was required to establish that five or more persons had assembled for the

purpose of committing dacoity. In the present case, the prosecution

evidence shows that five accused persons had assembled in the octroi kotha

and were discussing the plan to commit dacoity on the Chandigarh to Hisar

bus. The conversation overheard by PW-5 clearly indicates that the accused

had assembled with a common purpose and that specific roles had been

assigned to them for committing the dacoity. Their presence together at the

spot, coupled with the conversation proved by PW-5, establishes that their

assembly was not accidental but was for the purpose of committing dacoity.

The ingredients of Section 402 IPC are, therefore, also established against

the appellant and the conviction under Section 402 IPC does not call for

interference.

57. Coming to the charge under Section 25 of the Arms Act, as per

the prosecution version, a country made .315 bore pistol was recovered

from the left side dub of the pants of the appellant Ramesh when he came

out of the octroi kotha. The pistol was found loaded and, after unloading

the same, its sketch was prepared. One live cartridge was also recovered

from the right side pocket of his pants. The pistol and cartridge were taken

CRA-S No.285-SB of 2008 -23-

into possession, sealed and subsequently produced before PW-2 Head

Constable Armourer Dharambir Singh for examination. PW-2 examined the

pistol and found the same in working order. The prosecution also relied

upon the sanction granted by the District Magistrate, Jind, for prosecution

under the Arms Act.

58. Learned counsel for the appellant next contended that the

recovery of the .315 bore pistol and live cartridge from the appellant

Ramesh had been falsely planted upon him. It was submitted that the

appellant was not in possession of any such weapon and that the alleged

recovery was part of the false case prepared by the police. Learned counsel,

therefore, argued that the conviction of the appellant under Section 25 of

the Arms Act was not sustainable.

59. Learned State counsel, on the other hand, submitted that the

recovery of the .315 bore pistol and live cartridge from the appellant had

been duly proved by the prosecution witnesses. It was argued that the

recovery was made at the spot immediately after the appellant came out of

the octroi kotha and that there was no reason to disbelieve the evidence of

the police officials regarding the recovery. Learned State counsel further

submitted that the pistol was subsequently examined by the Armourer and

was found to be in working order. The requisite sanction had also been duly

proved on record.

60. I have considered this contention. The allegation of false

recovery has already been considered while discussing the prosecution case

under Sections 399 and 402 IPC. The evidence on record shows that the .315

CRA-S No.285-SB of 2008 -24-

bore pistol was recovered from the appellant at the spot. The pistol was

unloaded and its sketch was prepared at the spot. The recovery proceedings

were duly recorded and the case property was sealed and deposited in

accordance with the prosecution evidence.

61. The prosecution has further examined PW-2 Head Constable

Armourer Dharambir Singh, who deposed regarding the production of the

sealed parcel containing the .315 bore pistol and live cartridges. After

opening the parcel, he examined the pistol and found the same to be in

working order. He, thereafter, prepared his report Exhibit P4 and resealed

the pistol and cartridges with his seal ‘DS’. The sealed parcel was,

thereafter, returned to SI Pratap Singh and was subsequently re-deposited

with the MHC. The evidence regarding the deposit and re-deposit of the

sealed parcel has also been proved by the concerned witnesses.

62. The prosecution has also proved the requisite sanction for

prosecution. PW-1 Ram Niwas, Ahlmad, in the Court of the District

Magistrate, Jind, proved sanction orders Exhibits P1 and P2 passed by the

District Magistrate, Jind. Thus, the statutory requirement regarding sanction

also stands duly proved.

63. The evidence regarding recovery of the pistol from the

appellant, its examination by the Armourer and its being found in working

order, the safe custody of the sealed parcel and the sanction granted by the

competent authority, when considered together, establish the charge under

Section 25 of the Arms Act against the appellant. The plea of false recovery

is not supported by any material on record. The conviction of the appellant

CRA-S No.285-SB of 2008 -25-

under Section 25 of the Arms Act, therefore, also calls for no interference.

64. In view of the discussion made above, the prosecution has

been able to prove the charges against the appellant under Sections 399 and

402 IPC as well as under Section 25 of the Arms Act beyond reasonable

doubt. The evidence on record establishes that the appellant was present

with the other accused at the spot and was making preparation to commit

dacoity, and the prosecution has also proved the recovery of the .315 bore

pistol and live cartridge from his possession. The findings recorded by

learned trial Court are based on the evidence on record and do not suffer

from any illegality or infirmity. The conviction of the appellant under

Sections 399 and 402 IPC and Section 25 of the Arms Act is, therefore,

upheld. The present appeal is dismissed qua the conviction.

65. Coming to the question of quantum of sentence, learned

counsel for the appellant submitted that the appellant is suffering from liver

cirrhosis and has remained involved in the criminal proceedings for a long

period. It was submitted that the occurrence pertains to the year 2006,

whereas the appeal has remained pending since the year 2008. Learned

counsel submitted that the appellant has faced a long and protracted trial

and thereafter the present appeal for a considerable period. It was,

therefore, prayed that the sentence awarded under Sections 399 and 402

IPC may be reduced from three years to two years.

66. Learned State counsel opposed the prayer for reduction of

sentence and submitted that the sentence awarded by learned trial Court is

appropriate having regard to the nature of the offences and the

CRA-S No.285-SB of 2008 -26-

circumstances in which the appellant was apprehended.

67. Having considered the submissions regarding the quantum of

sentence, the occurrence pertains to the year 2006 and the appellant has

been facing the proceedings for about two decades. The trial itself took

place long ago and the present appeal has remained pending since 2008.

Thus, a considerable period has elapsed since the occurrence. The appellant

has also placed his medical condition before the Court as a circumstance

for consideration. Taking into consideration the aforesaid circumstances,

the sentence awarded under Sections 399 and 402 IPC is reduced from

three years to two years. The sentence of fine and the sentence awarded in

default of payment of fine shall remain unaltered. The sentence under

Section 25 of the Arms Act shall also remain unaltered. All the substantive

sentences shall run concurrently. The period already undergone by the

appellant during investigation, trial and pendency of the present appeal

shall be set off against the substantive sentence imposed upon him in

accordance with law.

68. The present appeal is partly allowed in the aforesaid terms.

69. All pending applications, if any, also stand disposed of.

(MANDEEP PANNU)

24.09.2026 JUDGE

neetu

Whether speaking/reasoned: Yes/No

Whether Reportable: Yes/No