Harnam Singh, J.
1. This order disposes of Criminal Appeals Nos. 66, 70, 93 and 346 of 1950.
2. In Criminal Case No. 193/2 of 1949 Shri I. E. N. Chauhan, Section 30 Magistrate, Jullundur District, has convicted 'Mahant' Karam Das, Resham Singh, Khazan Singh, Piara Lal & Sohan Singh sons of Harnam Singh under Section 148, Section 399 read with Section 149 and Section 307 read with Section 149 of the Indian Penal Code, hereinafter referred to as the Code.
Each one of the convicts has been ordered to undergo three years' rigorous imprisonment under Section 148 of the Code. Resham Singh aged 18 years, and Piara Lal aged 16 years, have then been sentenced to three years' rigorous imprisonment each under Section 399 read with Section 149 of the Code and to three years' rigorous imprisonment each under Section 307 read with Section 149 of the Code. Karam Das, Khazan Singh and Sohan Singh son of Harnam Singh have been sentenced to seven years' rigorous imprisonment each under Section 399 read with Section 149 of the Code and to seven years' rigorous imprisonment each under Section 307 read with Section 149 of the Code. In the case of all the convicts the trial Judge has ordered that the sentences imposed upon them will run concurrently.
3. Mahant Karam Das, Resham Singh, Khazan Singh and Piara Lal have appealed from their convictions and sentences; while Sohan Singh son of Harnam Singh has not appealed from the judgment passed by the trial Court on the 31st December 1949, convicting and sentencing him as stated above.
4. Briefly summarised, the prosecution case was that on the night between the 1st and 3nd of January 1949, nine dacoits armed with three guns, one rifle, one pistol, two 'kirpans', one hockey and one spike committed dacoity in village Nanagal Majhan situate within the Pepsu State in the house of Bhagwan Singh P.W. 17. In that dacoity, one of the dacoits gave a barchhi blow to Randhir Singh c. W. 5 and the other dacoits beat Bhagwan Singh P.W. 17. Bhagwan Singh P.W. 17 lost Rs. 7,500/- and ornaments and clothes in that dacoity.
5. Bhagwan Singh P.W. 17 made the initial report, copy whereof is Exhibit P. X., at Police Station Phagwara at 11 a.m., on the 2nd of January 1949.
6. On the 2nd of January at about 9 a.m., It is said that Karam Das and Piara Lal convicts went to village Ucha and sold ornaments Exhibits P. 12 to P. 19 to Shiv Singh P.W. 3 for Rs. 690/-, Exhibit P. M. is the entry relating to this transaction in the 'bahi' of Shiv Singh P.W. 3, Exhibit P. 11. On the same day, Harnam Singh P.W. 2 went to Police station Adampur and made the report. Exhibit P.L., alleging that dacoits had collected in the house of Karam Das. On that report 'Sardar' Kundan Singh, Sub-Inspector of Police, Adampur, accompanied by a posse of police.' Ujagar Singh P.W. 1, Harnam Singh P.W. 2 and others went to the house of 'Mahant' Karam Das and on reaching the spot chained the house from outside. Sub-Inspector Kundan Singh then went up the roof of the house of 'Mahant' Karam Das with Ujagar Singh P.W. 1 and Pritam Singh P.W. 5. Through a skylight in that house 'Sardar' Kundan Singh saw an earthen lamp burning in one of the rooms and three persons armed with a rifle, a gun and a pistol moving in that room. Mt. Swaran Kaur, wife of Karam Das, asking the persons on the roof to disclose their identity, Sub-Inspector Kundan Singh told her that they were the police from Police Station Adampur and wanted Mahant Karam Das. Mt. Swaran Kaur thereupon told Sub-Inspector Kundan Singh that there was no Karam Das in that house. Sub-Inspector Kundan Singh then called out to the men inside the house of 'Mahant' Karam Das to surrender themselves with their arms, but it is said that some persons from inside that house challenged the Sub-Inspector saying that they had 4,000 rounds of ammunition and could finish the police party. Thereupon one of the Persons from inside the house fired through a, window in the north and a second shot was fired from the skylight in the south. At that stage Foot Constable Fateh Chand P.W.' 9 cried out that he was injured. Head Constable Amar Singh shouting out that the dacofts were trying to break open a door. Sub-Inspector Kundan Singh ordered his men to fire at the door. The Police then flred at the door.
7. Sub-Inspector Kundan Singh looking through the skylight saw a man with a rifle and fired at him with the result that the man with the rifle fell down crying 'hai.' After firing had gone on for some time the dacoits cried out from inside that one of them was dead and One was injured and that they were ready to be arrested. Sub-Inspector Kundan Singh then ordered the dacoits to throw their arms and ammunition out of the window which they did. Sub-Inspector Kundan Singh then handcuffed the accused through the window. Mt. Swaran Kaur, wife of Mahant Karam Das, passed out two 'kirpans' and a 'gandasa' to the Sub-Inspector. Going inside the house the Sub-Inspector found Khazana lying injured on a cot with a bullet in his chest. Underneath the cot lay a hand-grenade, Exhibit P. 6. In the cattle shed lay the corpse of Karma. Removing Khazana and the dead body of Karma from that house the Sub-Inspector sealed the house for the night. Early next morning Khazana and the dead body of Karma were sent to the hospital for medical examination.
8. On the search of the house of 'Mahant' Karam Das the Sub-Inspector recovered arms, Exhibits P. 1 to P. 8, During the encounter which went on for about two hours the police party fired 13 rounds of 303 bullets and 10 cartridges.
9. Prom two rooms in the house of 'Mahant' Karam Das the Sub-Inspector recovered 9 empties of .303 bore and one of .12 bore. From an earthen jar in that house the Sub-Inspector then recovered Rs. 725/3/6 and ornaments Exhibits P. 20 and P. 21. Hidden under a heap of 'turi' in one room the Sub-Inspector found the trunk Exhibit P. 22 containing clothes.
10. On the allegations set out above, Mahant Karam Das, Resham Singh, Khazan Singh, Piara Lal, Sohan Singh son of Harnam Singh and Sohan Singh son of Jagat Singh were prosecuted for offences under Section 148, Section 399 read with Section 149, Section 400 and Section 307 read with Section 149 of the Code. Sohan Singh son of Jagat Singh died on the 15th of April 1949.
11. Now, the four appellants and Sohan Singh son of Harnam Singh have been acquitted of the charge under Section 400 of the Code and have been convicted and sentenced as stated above.
(Then after discussing evidence, His Lordship came to the conclusion that the convictions under S3. 148 and 307 of the Penal Code could not be sustained.)
12. And this brings me to the case under Section 399 of the Code. As already stated, the assumptions underlying the judgment under appeal are that the accused had all participated in the dacoity at Nangal, that each one of them was in possession of a deadly weapon at the time of the incident and that all the accused resisted their capture by the Police party. For the reasons given above, I see no warrant for the assumptions underlying the judgment of the trial Court.
13. To bring the case within Section 399 of the Code, it is not necessary that persons shown to be making the preparations should be five or more in number. It is, however, necessary for the prosecution to prove that the raid for which the persons prosecuted were making preparation was to be committed by five or more persons for otherwise it would not be dacoity but merely robbery, and mere preparation for committing robbery, unless it ends in an actual attempt, is not punishable by law.
14. Now, in the words, 'preparation for committing dacoity' occurring in Section 399 it is implicit that the persons making preparation had conceived the design of committing dacoity. In other words, Section 399 contemplates that there is a general design to commit dacoity, or to engage in an expedition for that purpose, though the plans of the dacoits are not matured. In plain English the Court has to satisfy itself that the accused had decided upon committing dacoity and it was for committing dacoity that they were making preparation. In 'JAIN LAL v. EMPEROR', AIR 1943 Pat 83, Rowland, J., (Varma, J., concurring) said:
'No hard and fast rule can be laid down that any particular act or any particular kind of steps are necessary to constitute 'preparation'. The essential thing is that the prosecution must show that there were persons who had conceived the design of committing dacoity. Once the existence of such a conspiracy had 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 (Section 399, Indian Penal Code.)'
In the present case even assuming that the accused had already taken part in the dacoity at Nangal it is difficult to come to the conclusion that they had not assembled in the house of 'Mahant' Karam Das for the disposal of the stolen property and had assembled there for committing another dacoity. The house of 'Mahant' Karam Das is close to the village 'abadi', the raid took place at 9-30 p.m. on the night between the 2nd and 3rd of January 1950 and it cannot be said that each one of them was armed or resisted his arrest. Indeed, on the evidence given by the prosecution the presence of the accused in the house of 'Mahant' Karam Das at the time of the raid is not inconsistent with the innocence Of the accused. On this point 'Bachtnta v. Emperor', AIR 1916 Lah 380, may be seen. In that case Johnstone and Rattigan, JJ., said;
'The prosecution rely upon the story as told by the approver for the foundation of the charges against the accused persons, and urge that it establishes the fact that they all assembled at Banta Singh's hut for the purpose of committing dacoity and that they made preparations for that purpose. As at present advised, but without giving any definite decision on the point, we are inclined to hold that even if we accept the approver's story no offence under Section 399 or Section 402, Indian Penal Code, is thereby disclosed inasmuch as there is no evidence that the accused persons assembled (or the purpose of committing a dacoity or made preparations for committing a dacoity. The utmost that could be urged against them. (assuming that their knowledge of the objects of the meeting went even so far) was that they met in order to discuss the possibility of committing a dacoity.'
15. For the foregoing reasons, I find that the case does not fall under Section 399 of the Code.
16. In the result I allow Criminal Appeals Nos. 66, 70, 93 and 346 of 1950, and set aside the convictions and sentences of Mahant Karam Das Resham Singh, Khazan Singh and Piara Lal and order their immediate release.
17. In an earlier portion of this judgment, Ihave mentioned that Sohan Singh son of HarnamSingh has not appealed, but in the view that Ihave taken in this judgment I think that thisCourt must intervene in the exercise of its revisional jurisdiction so far as Sohan Singh son ofHarnam Singh is concerned without any regardto the question of the failure of Sohan Singhaccused to appeal. Clearly, this Court has powerunder Section 439, Criminal Procedure Code, in aproper case to deal with the cases of accusedpersons not appealing against their convictionswhile deciding the appeal preferred by some otherpersons and that Sub-section (5) of Section 439 ofthe Criminal Procedure Code does not in any wayaffect the jurisdiction vested in the High Courtto deal with the case of non-appealing accused.This being the position of law, I set aside theconvictions and sentences of Sohan Singh son ofHarnam Singh and order his immediate release.