A.D. Desai, J.
1. The appellants in this ease ware convicted for an offence under Section 399 of the Indian Penal Code and each of them was sentenced to suffer rigorous imprisonment for one year by the learned Additional Sessions Judge, Panchmahals, Godhra in Sessions Case No. 19 of 1965.
2. The prosecution case was that on October 18, 1964, Head Constable Naharsing Sardarsing Sisodia was at Jesavada outpost for keeping 'Baudobast' i.e., for maintaining law and order in the village. There was a communal riot at Dohad and the situation in the villages of Jasavada was very tease. The head constable had called the leaders of the village and was holding a meeting. The Head Constable was requesting the people not to support any rumours and to maintain peace in the village. While the meeting was in progress at about 9.00 P.M. the Head Constable was informed that 1500 Bhils bad collected with arrows, bows, dharias, sticks etc., in Kalal Falia of the village The Head Constable, with four constables and other persons proceeded to Kalal Falia. On seeing the police, the Bhils who constituted the crowd began to run away. The Head Constable asked the Bhila to return and about 500 Bhila came near the Head Constable. The Head Constable asked them why they had come to the village. The Bhila who had come near the Head Constable stated that they had come to loot the village as the shops at Dohad were looted. They further stated that they would not go back even if they were to die. The Head Constable and others persuaded them to leave the place but they did not agree. The Head Constable then came in the village and blew whistles. He requested the village people to help him. The Head Constable and villagers went near the crowd and the Head Constable threatened the Bhila that he would open fire if they did not disperse. The Bhila seceded and abused the Head Constable and others. The Head Constable seat the report with Baburao to the police station, Dohad. After some time, the Dy, Inspector General of Police came with State Reserve Police and the 'Bandobast' was maintained in the village. The Bhila left the place as the police oars arrived. The Head Constable then wrote the occurrence report. It was the prosecution case that all the appellants were in the crowd. On these allegations the appellants along with others were charged for an offence punishable under Section 899 of the Indian Penal Code i.e., making preparation for committing dacoity.
3. In their statements, under Section 342 of the Criminal Procedure Code, all the appellants denied their presence on that day in the village Jesavada. They also denied that any of them was a member of the crowd. The learned Additional Sessions Judge accepted the prosecution evidence against each of these appellants and convicted them as aforesaid.
After discussing the evidence led by the prosecution in paras 4 and 5, the judgment proceeded;-
(6) The evidence of the prosecution witnesses proved the following facts:
(1) That the Head Constable had received information that 1500 persons had gathered in Kalal Falia in the village at about 9.00 P.M.
(2) That the Head Constable and ether witnesses had gone to the Kalal Falia and on seeing them the members of the crowd began to run.
(3) That on persuation by the Head Constable members of the crowd numbering about 500 to 600 came near the Head Constable.
(4) That the Head Constable asked the persona in that crowd as to why they had come there, and the members of the crowd replied that they had come to loot. Some members of the crowd were armed with weapons and they were shouting that they would loot the shops.
(5) That according to the evidence of Naharsing Ext. 4, accused Nos. 1 and 8, incited other Bhils to loot.
(6) That when the Deputy Inspector General of Police and other police arrived, the crowd ran away.
(7) That the appellants were arrested on different dates and at different places.
(8) That the appellants belonged to different villages and none of them belonged to village Jesawada.
7. Mr. Thakore submitted that these facts were not sufficient to raise an inference that the crowd had assembled on that day for the purpose of committing dacoity. Mr. Thakore contended (1) that the prosecution had not led any evidence that there was prior association between the accused inter se and that they had agreed or assembled to commit dacoity in the village; (2) that the appellants belonged to different villages and therefore, it was highly (im.?) probable that they had assembled with the intention to commit dacoity in the village Jesawada. The very fact that the appellants belonged to different villages ruled out the inference that they had common design to commit commit dacoity especially when there was no evidence of prior consultation; (3) that there was no direct evidence on the record to justify an inference that the members of the crowd had come to the village for the purpose of looting and it was possible that the appellants might have come to the village either (a) to beat the Muslims and (b) to protect the members of the Hindu community in the village as there was a communal riot at Godhra, or (c) might have come to the village out of curiosity to find out what was the situation or was happening in the village; (4) that there was no evidence on the record to show that any member of the crowd carried any weapon to break open the house or shops; and (5) that except in case of accused Nos. 1 and 3 there wag no evidence assigning any overt act in respect of any of the appellants. The submission of Mr. Thakore was that the aforesaid circumstances justify the fact that the crowd has assembled in the village for a purpose other than one of committing dacoity.
8. Mr. Mehta, who appeared for the State submitted that the essential thing which the prosecution has to prove in order to establish an offence punishable under Section 399 of the Indian Penal Code is that there were persons in the crowd who had conceived a design of Committing dacoity. Once the existence of such a design baa been established, any step taken with the intention or for the purpose of forwarding that design may justify the Court in holding that there has been preparations for committing dacoity. The intention underlying the conduct of an individual is seldom a matter, contended Mr. Mehta, which can be conclusively established and it is indeed only known to the persons in whose mind the intention is conceived. If the prosecution has established the character and circumstances of an act suggesting that it was done with a particular intention, then under Section 106, Illustration (c) of the Indian Evidence Act, it may be assumed that the individual has the intention unless ha proves to the contrary. The argument was that the prosecution has to establish that the members of the crowd had conceived a design of committing dacoity. There can rarely be a direct evidence to prove this particular design. The legitimate inference in respect of such a design is to be drawn from the circumstance which may be established by the prosecution and if that is established then the individual accused has to prove that his intention was not to commit dacoity. For the aforesaid proposition, Mr. Mehta relied upon the decision in State v. Dhanpat Chamara : AIR1960Pat582 , State of U.P. v. Randhir Sri Chand : AIR1959All727 and Jain Lal v. King Emperor ILR 21 Pat 667 : AIR 1943 Pat 82. Mr. Mehta further submitted that the facts which have been proved by the prosecution in this case and which have been set oat in the earlier part of the judgment are narrated above, do establish that the crowd had gathered in the village for the purpose of committing dacoity.
Mr. Mehta further submitted that in addition to these facts, there was one more circumstance which should also be considered and that was that all the appellants had denied their presence at the time of the offence. The prosecution evidence has established their presence and that being so, the explanation given by the appellants that they were not present in the crowd was, a false one. Mr. Mehta submitted that there was no apparent reason why all these appellants who were residing in different villages, had some together at about 9.00 p.m. in the village Jesawada. If the purpose of their assemblage was innocent, they would have easily disclosed it. But in this case, they have denied their presence at the place of the incident. Therefore, this material circumstance should be considered for the purpose of determining the intention with which the members of the crowd had gathered in that evening at Jesawada.
After discussing the evidence in paras. 9 to 12, the Court found that appellants 1 to 29 were members of the crowd and that appellants 1 and 8 had instigated the crowd to loot, and proceeded:
13. Now, I shall consider the intention of the members of the crowd in assembling at the village Jesawada in the evening. (After discussing the evidence, the judgment proceeded). The evidence of the prosecution proves that the appellants Nos. 1 to 29 hid been present at the time and this evidence has not at all been shaken. The explanation of the appellants that they were not present in the village on that day is, therefore, false one. It is very difficult to prove by direct evidence the intention of each of these appellants who were the members of the crowd. The prosecution has proved that the intention of the assembly was to commit dacoity and that the appellants were the members of tint assembly. It is legitimate therefore, to assume that the intention of each of thane appellants was also to commit a dacoity, unless each of the appellant proved to the contrary. The provisions of Section 106 of the Indian Evidence Act are designed to meet such exceptional cases in which it would be impossible for the prosecution to establish the facts which are within the special knowledge of the accused and which he could prove without difficulty or inconvenience.
14. Now, I will consider the argument of Mr. Thakore that it might be that the crowd had assembled in the village either for the purpose of curiosity to find out whit was happening in the village or to protect the Hindus in the village or to beat Muslims residing in that village. Before considering this aspect of the argument, it is necessary to note that the appellants in their statements under Section 342 of the Criminal Procedure Code have denied their presence at the scene of offence. These reasons suggested by Mr. Thakore as to why the membars of the crowd assembled are not supported by the appellants in their statements under Section 342 of the Coda of Criminal Procedure. These suggestions therefore, are the suggestions of the counsel which have not been accepted by the accused. The Supreme Court in the case of K.N. Mehra v. State of Rajasthan : 1957CriLJ552 , has held that a defence suggested by the counsel a 3d not by the accused should not ha accepted by the Court. This is one of the reasons why I reject the above suggestions made by Mr. Thakore that the crowd had assembled in the village for a purpose other than to commit dacoity. The appellants belonged to different villages and there was no apparent reason why these parsons should have come together in that village at about 9.00. P.M. If the purpose of their assemblage was innocent they would have said so when they ware questioned by the Head Constable Naharsing. The reply to the query of the Head Constable as to why the members of the crowd had collected was that they had come to loot the village as shops in Dohad were looted and they were not to return even if they were to die. This answer itself is clear, and negatives the aforesaid suggestions or inferences put forward by Mr. Thakore. The prosecution, therefore, has proved that the members of the crowd had assembled on that day with a design to commit a dacoity. The police officers bad taken effective steps and prevented the commission of the dacoity. The prosecution has also proved the presence of the appellants in that crowd. The prosecution has, therefore, proved that the appellants were guilty of an offence punishable under Section 399 of the Indian Penal Code.
15. Mr. Thakore then submitted that in this sessions case, originally there were 47 accused. Aoauaed No. 15 was identified as a member of the crowd by Head Constable Naharsing Exh. 4 and Police Constable Ramanbhai Exh. 10. similarly accused No. 22 was also identified by Naharsing Exh. 4 and Datturao Exh. 7. These accused have been acquitted by the learned Sessions Judge. Relying on this finding, it was argued by Mr. Thakore that the prosecution evidence to the effect that the crowd hid assembled with the intention to commit dacoity and that the appellants were the members of the crowd should not be accepted. I am unable to accede to this argument. The learned Additional Sessions Judge has not given any reason why ha acquitted accused Nos. 15 and 20. There is nothing in his judgment to indicate that he had not accepted the evidence of the witnesses who had identified these accused. The learned Additional Sessions Judge has in para 31 (p. 383 of the record) given a table setting out the number of the accused identified and names of the witnesses identifying each of the accused. Accused Nos. 15 and 22 do not figure in this table. It is, therefore, probable, that the learned Additional Sessions Judge had thought that there was no evidence on record identifying the accused Nos. 15 and 22 as the members of the crowd and therefore, had acquitted the accused Nos. 15 and 22. Thus, the order of acquittal of the learned Additional Sessions Judge in respect of accused KosJl5 and 22 cannot be made a foundation for the argument that the evident of the prosecution witnesses viz. Naharsing Exh. 4, Datturao Exh. 7 and P.C. Ramanbhai should not be accepted. It is also to be noted and with surprise that no appeals have been filed by the State against the orders of acquittal of accused Nos. 15 and 22 and in respect of such a serious charge.
In para. 16 the Court held that the Additional Sessions Judge had allowed police statements to go on record as substantive evidence, and proceeded:
17. It is an elementary principle of criminal law as laid down in Section 161 of the Criminal Procedure Code, that the police statement can be used only for the purpose of contradiction and that too in the manner laid down in Section 145 of the Indian Evidence Act. The learned Additional Sessions Judge, before whom Keshavbhai and Ganpatbhai were examined as witnesses, has allowed the prosecution to use the police statements of these witnesses to corrobate their evidence in the Court Similarly, the learned Additional Sessions Judge relied on the police statements of witnesses Ohhagan Bhura, Magan Hira, Jivanlal and Narayan in holding certain accused guilty of the charge. The learned Additional Sessions Judge has thus repeatedly ignored the provisions of Section 161 of the Criminal Procedure Code. The only purpose for which the police statement can be used is for contradicting a prosecution witness and it cannot be used as ft substantial evidence or for the purpose of corroboration.
18. The prosecution has in this ease proved that the design of the members of the crowd which had assembled at village Jesawada at 9.00 P.M. on October 10, 1965 was to commit dacoity. The prosucution has also proved that the accused appellants Nos. 1 to 29 were members of that assembly. The order of conviction in respect of appellants Nos. 1 to 29 was, there. fore, correct and for the reasons which I have mentioned hereinbefore. The appeal of appellants Nos. 1 to 29 is therefore, dismissed and they should surrender to their bails.
19. With regard to appellant No. 30 (original accused No. 42) the prosecution has failed to prove that he was present is the crowd on that day. The learned Additional Sessions Judge was, therefore, in error in convicting appellant No. 30 (accused No. 42,) for an offence punishable under Section 399 of she Indian Penal Code. The appellant No. 30 is therefore acquitted. The bail bond in respect of appellant No. 30 is cancelled.