Rowland, J.:— The 13 appellants have been convicted under section 399 of the Indian Penal Code and each sentenced to five years' rigorous imprisonment.
The charge was to the effect that on or about 20th March, 1941, they made preparation in Jogia Tilha, Satdiha and other places for committing dacoities. Jogia Tilha and Satdiha are adjacent villages within the jurisdiction of police-Station Jainagar, district Hazaribagh. The appellants are residents of Akbarpur, Pachrukhi, Bhatbigha and Bhaiji Balia. Pachrukhi and Akbarpur are two villages which may be said to constitute one town, only one road forms the boundary between the two. Bhatbigha is a tola of Akbarpur, and Bhaiji Balia is adjacent to Pachrukhi.
In March, 1941, there appears to have been something like an epidemic of dacoities which caused the local people to organize defence groups; chaukidars had also been warned to look out for movements of suspicious character. The case for the prosecution is that the accused persons with others are members of a gang which has been suspected of a good many of such crimes. On the 16th of March there was a gathering of men in Bhaiji Balia. The witness Bajo Raut, who deposes to having seen this gathering, says that the persons gathered together threatened to kill him if he reported the fact of the meeting to anyone. The witness is a servant of the Mahanth of Rajauli. In spite of the threat he told a fellow servant, Somar Kandu (p.w 39). The witness mentions among the appellants, Bauna alias Ramkishun Teli, Bishun Lal, Barho Kahar, Jain Lal and Saheb Singh. Two other witnesses speak of a similar suspicious gathering at Pachrukhi on or about the 16th March, they are Gobardhan Lal (p.w 36) and Jago Lal (p.w 37). Gobardhan Lal mentions among the appellants, Ramdhani Kahar, Bishun Lal, Jain Lal, Saheb Singh, Chhotan Mushar, and Nunu Mushar as present at this meeting. He says the party moved off towards the south. The other witness Jago Lal (p.w 37) says that he saw a party similar to that described by the previous witness going southwards in the direction of Bhaiji Balia and that he recognized among them the following of the appellants: Nauna alias Kishun Teli, Ramdhani Kahar, Barho Kahar, Bishun Lal, Chhotan Mushar, Jain Lal, Saheb Singh and Nunu Mushar. The statements of these two witnesses were not taken by the police till sometime later, and in argument it has been suggested that their story as to seeing such a gathering should not be credited. Be that as it may, some information reached the Sub-Inspector of Nawada at about 8 p.m on the 20th March, 1941, as to absence from their homes of suspicious characters of villages Akbarpur and Pachrukhi. The Sub-Inspector went to Akbarpur and Pachrukhi and found the persons, whose names had been reported to him to be absent from their houses. He posted pickets at their houses, and a further step which he took in consequence of the information received was to proceed to Rajauli because his information led him to believe that it was in that direction that the suspicious characters had gone for the purpose of committing crime. He arranged with the Sub-Inspector of Rajauli to check all the lorries coming from the Kodarma side that is further south. These steps led to the arrest of certain of the accused persons in the course of the next day.
In the meantime a number of villagers of Jogia Tilha came to Jainagar police-station in district Hazaribagh, bringing with them appellant Kishun Teli alias Bauna and appellant Hira Kahar. These persons along with about eight others had been noticed by the villagers sitting under a bar tree about a furlong distant from the village in a lonely place. One of them had been heard to make some remark as to
“What good fortune mother Kali will today put in our hands”
On being questioned by the villagers as to who they were and what luck they were looking for, they began to move off. The villagers raised alarm and the party all began to run away, but the two men named above were captured. This village, Jogia Tilha, is more than forty miles from Akbarpur and Bhaiji Balia, the residences, respectively, of Kishun and Hira. In connection with this incident another witness, Barhan Kumhar, had seen those ten strangers sitting under the bar tree and had been addressed by two of them, whom he identifies as Hira Kahar and Kishun Sao, with the inquiry as to who were the substantial men, zamindars and shop-keepers in the village. He told other villagers about this because there had been dacoities in the neighbourhood and he suspected that the inquiry was being made for the purpose of eliciting information with a view to crime. On the same day at about 8 p.m a party of villagers from Satdiha came to police-station Jainagar, bringing with them four of the appellants, namely, Barho Mistri, Lachman Rajwar, Somar Rajwar and Chamari Rajwar. Of these, Barho Mistri is a resident of Pachrukhi, Lachhman Rajwar of Bhatbigha, and the other two of Bhaiji Balia. They were said to have been found concealing themselves under the ridge of a field called Kari Mahua. On being asked why they were concealing themselves they did not reply but began to run away. They were, however, pursued and captured by the villagers when they offered as an explanation for their presence that they were going to Katras for work. In connection with this incident it was said that Barho Mistri had at about 10 a.m been making inquiry from Budhan Dusadh as to who were the rich men in the village. The villagers arrested them and brought them to the police-station as they appeared to have collected for the purpose of committing crime. Satdiha, like the adjoining village of Jogia Tilha, is more than forty miles from the home of these accused persons.
The remainder of the accused were arrested in the following circumstances. Mahendra Prasad, Sub-Inspector of Rajauli, was checking the buses passing from Kodarma towards Akbarpur. He found the appellant Saheb Singh travelling in that direction on a lorry which came from Kodarma at 9 a.m He found at 1-30 p.m Ramdhani Kahar and Murat Singh and arrested Ramdhani. A third man was with them, namely, Bishun Lal, but he ran away and escaped. Of the persons named, Saheb Singh, Ramdhani and Bishun Lal are appellants. Ramdhani made a confession and was sent to a Magistrate in order that it might be judicially recorded. This was done on the 24th March. At the trial Ramdhani has pleaded that this statement was extorted from him. He says that at Nawada Thana he was mercilessly beaten, passed stool and urine in his dhoti, became practically unconscious, could not remember to have made any statement to the police and was forced to make the statement before the Sub-Deputy Magistrate by threats of violence; the polies Sub-Inspector was nearby and was threatening to give him further beating, and he did not make statements before the Magistrate of his own accord. There is no material on record in support of these remarkable suggestions, and the Magistrate who observed all the regular precautions, was fully satisfied that the confession was entirely voluntary. I have no doubt that the Magistrate was right and that the story of violence and threats used towards Ramdhani by the police is an after-thought. The confession speaks of a gathering of men led by Barho Kahar (appellant) at the instigation of a relative of Saheb Singh, and this gathering he says was dispersed because the villagers saw them and Barho and his companions had to scatter. Ramdhani also said that Saheb Singh's relative came to Nunu Mushar of Pachrukhi (appellant) and invited him to come to commit burglary. Nunu with Jailal (appellant), Barho Mistri (appellant), Bishun Lal (appellant) and Ramdhani himself went by lorry to Tilaya, i.e Kodarma, that there they met Patulwa Kahar who had come from Calcutta for committing dacoity, that Nunu purchased railway tickets and the party went by railway train to Sarmatanr station. He mentions that they came to a dry river where an alarm was raised and they had to disperse. He says that the next morning he with Bishun Lal and Murat Singh got on a lorry near Kodarma and came to Rajauli. There is some corroboration as to the journey in the evidence of Railway officials who prove that on the 20th March an abnormal number of tickets was booked from Kodarma to Sarmatanr and an abnormal number of tickets was booked from Sarmatanr to Hiradih. Sarmatanr and Hiradih are two stations nearest to Satdiha and Jogia Tilha.
Barho Kahar was one of those whose absence from home had been reported to the Sub-Inspector of Nawada who was found in fact to be absent on the night of the 20th and whose house was picketed. He was arrested by Havildar Subedar Khan on the evening of 21st March as he was returning home. Bishun Lal was also arrested by the picketing party as he was coming to his house in Pachrukhi. Chhotan Mushar was another of those reported to the Sub-Inspector, Nawacla, as being absent from home and found in fact to be absent when his house was visited. His arrest was effected by constable Halim Khan on his return. Subedar Khan says that Chhotan was arrested in the evening of 23rd. Jain or Jainath Lal is one of those who were reported to the Sub-Inspector, Nawada, as being absent from home and were in fact found absent when Sub-Inspector R.K Kumar visited his house. Pickets were placed there and this appellant was arrested on the morning of 21st March, returning to his house. He has given an explanation of his absence by saying that he had gone to Nawada on the 16th March to attend the Court of the Sub-divisional Officer on the 17th in connection with a criminal case and that thereafter he was all along at home in Pachrukhi looking after his wine-shop at Akbarpur, that he comes of a respectable family and that he never took part in any conspiracy for committing dacoity, that in fact he was returning from his wine-shop at Akbarpur to his house when he was arrested. It appears from the evidence of Dhanwan Dusadh Chaukidar that Jain Lal had taken settlement of the kalali at Narhat but it is managed by Saukhi Lal; and Bundi Chamar Dafadar has also said that Jain Lal's father is manager of a kalali. The witness adds that Pachrukhi kalali is in the name of Saukhi Lal and that Jain Lal and Saukhi Lal work together in Pachrukhi kalali.
The appellant Saheb Singh was not one of those mentioned as absent from home in the first report which reached the Sub-Inspector of Nawada. For this reason, apparently, when he was found at Rajauli travelling on a lorry from Kodarma towards Akbarpur he was not arrested. The evidence does not disclose on what date the arrest of this accused was effected; but from the order-sheet it would seem that he had been first produced before the Sub-divisional Officer, Nawada, by whom he was forwarded to the Sub-divisional Officer Sadr at Hazaribagh. He was produced before the latter Court on 3rd May, 1941.
Nunu Mushar was one of those reported absent from home and whose houses were visited by the Sub-Inspector of Nawada, and who were found absent from home. His house was picketed and up till the time when the pickets were withdrawn he had not returned. The charge-sheet in the case was submitted on the 24th June, 1941, and up to that date Nunu was shown as still absconding—vide order-sheet.
This is an outline of the facts which the evidence establishes. We have been taken through the details of the evidence by Mr. S.C Chakravarty, who has very fairly, fully and lucidly placed before us the materials and the evidence. Now the argument addressed to us has been that the facts proved by the prosecution do not establish the existence of any preparation for dacoity, and, secondly, that even if there was a preparation for dacoity on the part of some persons, the guilt of individual accused has not been proved.
The question arises what ingredients the prosecution is required to prove in order to establish the offence punishable under section 399. It is, ordinarily, no offence to make preparation for committing a crime until the stage of preparation has passed and that of attempt is reached. But it is an offence under this section to “make any preparation for committing dacoity”. Mr. Chakravarty suggested that we might hold particular features, such as the carrying of weapons or of instruments of house breaking, as necessary to constitute preparation for the commission of dacoity. But I do not think that any hard and fast rule can be laid down that any particular act or any particular kind of steps towards the commission of an offence are necessary to constitute “preparation”. The essential thing seems to me to be that the prosecution must show that there were persons who had conceived the design of committing dacoity. Once the existence of such a conspiracy has been established then any step taken with the intention and for the purpose of forwarding that design may justify the Court in holding that there has been preparation within the meaning of the section. It is from this point of view that I would approach the facts of this case.
Undoubtedly a large number of persons from Akbarpur and the adjoining villages had come in one or more groups to destination to which they have not shown that they had any lawful occasion to go. The meetings in Pachrukhi of persons who were subsequently found absent from their homes at the relevant time are an indication from which a concerted purpose can be inferred in the departure. The conduct of those members of the party who were found at Satdiha or Jogia Tilha in failing to give any satisfactory explanation of their presence and also in the inquiries made by some persons as to who in those villages had money suggests that the object of the journey was a raid on property. Inference from these individual facts is in no way conclusive; but the intention-underlying the conduct of any individual is seldom a matter which can be conclusively established, it is indeed only known to the person in whose mind the intention is conceived. But if the prosecution has established that the character and circumstances of an act suggest that it was done with a particular intention, then under section 106, Illustration (a), of the Indian Evidence Act, it may be assumed that he has that intention unless he proves the contrary.
Now all the circumstances proved in this case are in every way consistent with the setting out of an expeditionary party with a view to the commission of violent crime. One circumstance is absent, and that is the carrying of weapons of offence. No such weapons were found in the possession of any of the accused at the time of their arrest. But this by itself proves little for the dacoits who were concealing themselves at one place could very well conceal their weapons at another. Besides the inference from the circumstances, we have the confession of Ramdhani Kahar as to the purpose with which the excursion was made; and the intention which is admitted in that confession appears to be fully corroborated by whatever can be inferred from the other circumstances. I am, therefore, of opinion, as a result of these considerations, that there was a design to commit dacoities in the neighbourhood of Sarmatanr and Hiradih railway stations and of villages Satdiha and Jogia Tilha which are in that neighbourhood, and that it was for this purpose that those of the accused who went to Sarmatanr and Hiradih had gone out. If that was the intention in their minds the going out for that purpose would, in my opinion, be a preparation for the fulfilment of that purpose, i.e for dacoity.
Now as to the two accused Kishun and Hira, Kheman Goala, the first witness who speaks regarding their arrest, has said that Kishun Teli made a confession that he had come with dacoits to commit dacoity and that 8 of the dacoits had run away and as they had come for the first time to commit dacoity they were arrested. The next witness Karto Gope says that both Kishun and Hira confessed to the above effect, that they had come with the 8 dacoits who had run away and as they had come for the first time they were caught. Hiraman (p.w 4) gives a slightly different version of what Kishun Teli said, namely, that he had
“come with the dacoits who had run away and that he and his companion were not dacoits”;
and one more witness, Latai Gope, has said that Kishun and Hira said that
“the real thieves had escaped and they who were innocent had been caught”.
Whatever may have been the precise words used by Kishun and his companion, they seem to have admitted that their companions at least were dacoits and were assembled for dacoity, and as for themselves it would seem that they described themselves as not being dacoits in the sense of not being professional dacoits. I have no doubt that the conviction of these two appellants is fully justified by the evidence and must be affirmed.
Next I take up the case of Barho Mistri, Lachman, Somar and Chamari who were found hiding in a ditch or below a ridge in Satdiha. Puran Gope of Satdiha speaks of seeing a party of 12 or 13 men going towards the east between Satdiha and Sarmatanr. Of these, four were caught by the witnesses Gango Gope, Kalia Gope, Akal Gope and others. The witness describe how the four men attempted to escape but were captured. Their explanation for their presence was that they were on the way from Kodarma to Katras or Jharia, but the place where they were arrested is not on the way between Kodarma and Jharia. One of these appellants, Somar, is said to have met Budhan Dusadh and made inquiry of him as to whether there were rich men in village Satdiha. The inquiry, as already pointed out, throws some light on the intentions with which the party had come all the way from Akbarpur to Satdiha. I feel no difficulty in affirming the conviction of these four appellants.
The remainder will have to be dealt with individually. Ramdhani Kahar was arrested in circumstances already explained while travelling by lorry towards his home. His confession along with the other evidence amply supports his conviction. Barho Kahar is mentioned in the confession of Ramdhani and he was one of those whose absence was reported to the Sub-Inspector and whose house was visited and picketed in consequence. The witnesses Jago Lal (p.w 37) and Bajo (p.w 38) who speak of the meetings at which it is suspected that the expedition may have been organized, mention this accused Barho as having been present; though Gobardhan (p.w 36) does not take his name. He was arrested while returning to his house and has failed to offer any explanation of his absence. In my opinion he was rightly convicted. Bishun Lal is one of those who were reported to be absent from home whose house was picketed and who is mentioned in the confession of Ramdhani Kahar. He was travelling on the lorry from Kodarma towards his home with Murat Singh and Ramdhani when the latter was arrested, but Bishun Lal escaped. He was arrested on the evening of the 21st March, 1941, on arrival at his home. The circumstances fully corroborate the confession of Ramdhani Kahar as to the complicity of this accuse in the crime, and I would affirm his conviction. Chhotan Mushar is one of those who were absent from home and whose houses were visited and picketed. He is mentioned by the witness Gobardhan Lal as one of those present at the meeting in Akbarpur on the 16th March. Jago Lal corroborates. In my opinion, the evidence against this accused is sufficient and I would affirm his conviction.
Jain Lal was reported to be absent from home and his house was visited and he was found absent. Pickets were placed and he was arrested at sunrise on the 21st while coming to his house. As already stated, he had given an explanation for his absence and there does not appear to be any clear evidence proving him to be present at Satdiha, Sarmatanr or Jogia Tilha. In his case an element of doubt arises of which I think he should have the benefit. I would allow the appeal of this accused and acquit him.
Nunu Mushar was one of those reported absent and found absent from home. His house was picketed and after the occurrence he was absconding until late in the month of June. His name appears in the confession of Ramdhani Kahar and he is mentioned as having been present at the meeting at which it is suspected that the excursion may have been organized. The evidence against him, in my opinion, is sufficient and I would affirm his conviction.
Saheb Singh is not a registered surveillee nor was his name one of Chose reported to the Sub-Inspector of Kodarma as being absent from home. His house was not picketed, and though his name appears in the confession of Ramdhani, which speaks of a relative of his being active in organizing the party, the name of Saheb Singh is not there as a member of the party. In the evidence regarding the meeting on 16th March, 1941, there is mention of his name as having been present in company with others and there is the suspicious circumstance that at 9 A.M he was found travelling from the direction of Kodarma by the ‘Bihar Transport Motor Service’ lorry and thereafter remained absent from home until after the picket was withdrawn from his house. It does not, however, appear exactly how long he remained absent. There are circumstances of grave suspicion against this accused; but they do not appear to us to be quite conclusive and we are inclined to give him the benefit of the doubt.
In the result I would acquit Jain Lal and Saheb Singh and would affirm the convictions of the remainder of the accused.
As to sentence, I do not consider that the Magistrate has been unduly severe or that the sentences call for interference.
I would dismiss the appeal of appellants other than Jain Lal and Saheb Singh.
In leaving the case, I would like to commend the energy with which it was investigated and the care with which it has been tried.
Varma, J.:— I agree.
As a point of law has been raised in this case on the question whether on the evidence an offence under section 399 has been made out, I may say at once that on the evidence in the case I have no doubt in my mind that there was enough material for the Court to arrive at the conclusion that there was preparation for dacoity. Section 399 is one of the three sections in the Indian Penal Code in which the preparation to commit an offence has been made punishable, the other two sections being preparation to wage war against the King and the other, preparation to cause depredation upon allied power. As to what amounts to “preparation” has been noticed in this Court in Lakshumi Prasad v. Emperor. There the learned Judge while drawing the distinction between “preparation” and “attempt” quoted from Mayne's Criminal Law of India (4th edition) to point out that there was a wide difference between preparation and attempt to commit offence. Preparation consists in devising or arranging means necessary for the commission of an offence; an attempt is the direct movement towards the commission after preparations are made. This definition is to be found in paragraph 227, page 933 (4th edition of the book). From the wordings of the two sections, 399 and 402, of the Indian Penal Code, it is clear that the Legislature wanted to draw a distinction between preparation for a dacoity and assembly for purpose of committing dacoity. It is not difficult to give illustration in which there may be preparation for dacoity without any assembling. For example, five persons in their respective villages are asked by a person to make preparations, one by purchasing guns, another by getting torches, third by buying masks and the fourth by buying gun powder, and the fifth by collecting lathis, each with the intention of committing dacoity. Each one of them will be guilty of preparation for dacoity. In the case of Khwaja Hassan v. Emperor it was held that in order to establish an offence under section 399 of the Indian Penal Code it is not necessary that preparation should be by five or more persons. But it is necessary to prove that the raid for which they were making preparation was committed by five or more persons. In the case of Ramesh Chandra Banerjee v. Emperor Woodroffe, J., while dealing with section 399, Indian Penal Code, and section 402, Indian Penal Code, observed as follows: “Dealing only with the principal aspects of the offence of dacoity there may be, as is apparent from the Code itself, the actual commission of dacoity, a preparation for it, and an assemblage for the same purpose. As appears from the punishments awarded, as the first two are treated as the more grievous offence, preparation is the next grievous, and assembly is the least grievous. All the offences have this in common that they presume an intention or agreement to commit dacoity by five or more persons. In a popular sense an assembly to commit dacoity may be a preparation for it. But a mere assembly without further preparation is not a “preparation” within the meaning of section 399. For if it were, section 402 would be redundant. This section applies to the case of mere assembling without proof of other preparation, for which there is a maximum punishment of seven years, whilst the preparation which is the subject of section 399 is punishable with ten years' imprisonment. A person can thus be not guilty of dacoity yet guilty of preparation, and not guilty of preparation yet guilty of an assembly.” In the case of assembling for dacoity there may be assembling for dacoity without preparation and it appears to me that something more is required before members of an assembly can be said to be preparing to commit dacoity. In this particular case it is not a case of mere assembly which has been proved by the witnesses to have taken place on the 16th March near about Nawada, for when the members of the assembly covered a distance of forty miles and some of them were inquiring about substantial men, I am of opinion that they passed the stage of assembly and they were making preparations to commit dacoity.
K.D
Jain Lal and Saheb Singh acquitted.
Appeals of the rest dismissed.
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