JUDGMENT : Barman, J. - These are criminal appeals from an order of conviction and sentence passed by the learned Sessions Judge, Sambalpur Sundergarh, convicting the accused Appellants u/s 402 Indian Penal Code on a charge of assembling for the purpose of committing dacoity and sentencing them to rigorous imprisonment for four years each, in the circumstances hereinafter stated. 2. In Criminal Appeal No. 171 of 1961 the accused Appellants are Sulakhan Singh, Makhan Singh, Kundan Singh and Chandan Singh all convicted and sentenced as aforesaid. In Criminal Appeal No. 172 of 1961 Sadhu Singh is the accused Appellant convicted and sentenced as aforesaid. There was another accused Amr Singh charged before the learned Sessions Judge and he was acquitted. 3. The prosecution case against the accused persons, shortly stated, was this: The accused person were employees in various concerns at Rourkela. On July 10, 1959, the accused person and their associates had gathered at the hut of Gurnam Singh, who subsequently turned an approver (p.w. 9), at Rourkela and they are said to have conspired to commit dacoity in the house of a contractor. It is said that the accused persons and their associates had assembled under a pipal tree near Oramtola at Uditnagar at about 8 p.m. on the night of July 11, 1959. There were 10 or 12 persons in that assembly including the accused persons and others who evidently had escaped. They were armed with swords, daggers, firearms like pistol etc. The villagers of Oramtola came to know of the accused persons having assembled for the purpose of committing dacoity and came to the spot with lanterns. The accused persons and their associates who had gathered ran away in different directions when the villagers appeared at the scene. The accused Sulkhan Singh is however said to have been caught at the spot a short distance and he was made over to the police. In course of investigation by the police the other accused persons were traced out, arrested and put up for trial. 4. The charges against the accused persons were u/s 120-B Indian Penal Code for having conspired to commit dacoity, such alleged conspiracy having been at the house of Gurnam Singh at Rourkela at about noon on July 10, 1959. In course of investigation by the police the other accused persons were traced out, arrested and put up for trial. 4. The charges against the accused persons were u/s 120-B Indian Penal Code for having conspired to commit dacoity, such alleged conspiracy having been at the house of Gurnam Singh at Rourkela at about noon on July 10, 1959. The accused persons were also charged u/s 402 Indian Penal Code for having assembled for the purpose of committing dacoity under a Pipal tree on the night of July 11, 1959. They all pleaded not guilty to the charges and stated that they neither conspired to commit a dacoity nor did they assemble for the purpose of committing any dacoity as alleged. 5. The learned Sessions Judge had acquitted the accused persons of the charge u/s 120-B Indian Penal Code on the ground that the evidence of the approver Gurnam Singh (p.w. 9), for want of corroboration, had to be wholly excluded from consideration and there is no other evidence on record to prove the charge of conspiracy against the accused persons. The learned Sessions Judge, however, convicted all the accused persons on the charge of assembling for the purpose of committing dacoity punishable u/s 402 Indian Penal Code and sentenced each of the assused Appellants to four years rigorous imprisonment each as aforesaid. 6. The question, therefore, in these appeals is whether the accused Appellants or any of them are guilty of the charge of assembling for the purpose of committing dacoity. 7. At the trial the pro section called as many as 13 witnesses including four eye-witnesses p.ws. 1, 2, 6, and 10 who are said to have identified the accused Appellants. The prosecution also relied on the retracted confession of each of the accused Appellants made before the Magistrate p.w. 8 who bad recorded the confession. The other material witnesses are p.w. 3 the doctor who had examined Sulakhan Singh for the injury he sustained during the incident; p.w. 4 the ballistic expert and p.w. 5 the Magistrate who held the T.I. Parade and also p.w. 9 the approver whose evidence however was not taken into consideration by the learned Sessions Judge as aforesaid. 8. The general story of the incident as narrated by the several eye-witnesses appears to be substantially consisted. 8. The general story of the incident as narrated by the several eye-witnesses appears to be substantially consisted. The evidence of the eye-witnesses is that the accused Appellants and their associates numbering 10 to 15 people had assembled under a Pipal tree at Oramtola. The villagers in the neighborhood had came out with lanterns and went towards the Pipal tree. The prosecution witnesses, with whom I shall presently deal individually said that they could identify some of the culprits whom they saw under Pipal tree. Some of the eye-witnesses had identified some of the culprits. During the incident one of the culprits (referring to the accused Chandan Singh) is said to have raised a sword at the villagers and threatened them. Thereupon the villagers fell back on their way and raised a hulla 'Chor, Char'. Then some other villagers came running with lathis. Upon seeing the villagers the culprits ran away in different directions, three of them ran towards Uditnagar and the rest about 10 or 12 towards the opposite direction. The villagers including some eye-witnesses had chased one of whom fired a gun at the villagers. P.W. 6 and a rickshaws are said to have ought hold of the accused Sulakhan Singh while running away and the other culprits escaped. The villagers came to the assistance of p.w. 6 and the rickshawalla in arresting Sulakhan Singh. P.W. 2 is said to have given a stroke with his lathi on the bead of the accused Sulakhan Singh, as the accused Sulakhan, as trying to escape from the clutches of the rickshawalla and p.w. 6. Within a few minutes the Sub-divisional Officer, Uditnagar, is said to have appeared at the scene in his jeep. But that time the other culprits had escaped before the jeep arrived. A rest Identification Parade was held by the Magistrate p.w. 5 for identification of the accused persons. All the accused persons made confession before the Magistrate p.w. 8. This is the general structure of the prosecution case. The point is how far the prosecution has succeeded in proving the alleged guilt of each of the accused persons as having participated in the act of assembling for the purpose of committing dacoity as aforesaid. 9. The offence u/s 402 is complete as soon as five or more persons assemble together for the purpose of committing a dacoity. The point is how far the prosecution has succeeded in proving the alleged guilt of each of the accused persons as having participated in the act of assembling for the purpose of committing dacoity as aforesaid. 9. The offence u/s 402 is complete as soon as five or more persons assemble together for the purpose of committing a dacoity. Preparation for committing a dacoity may take place before or after the dacoits assembled together. There is distinction between preparation for a dacoity and assembling for the purpose of committing dacoity. Preparation consists in devising or arranging means necessary for the commission of an offence, and attempt is the direct movement towards the commission after preparations are made. Where the persons assemble at a particular spot for committing dacoity they are guilty u/s 402. The facts that they had come armed with weapons of defence and attack and had assembled at an usual hour (night) for committing dacoity is enough to establish that they had made preparations to commit a dacoity. If they had actually arrived at the house where they intended to commit dacoity, namely the contractor's house, they would have been liable for actually committing dacoity even if their act did not go beyond an attempt to commit that offence. 10. It is in the light of the above position in la that we are to consider whether the necessary ingredients constituting the offence of assembling for the purpose of committing dacoity are present in the instant case. In this context, the consistent evidence of p.ws. 1, 2 and 10 is that more than five persons, namely, about 10 to 15 persons including the accused Appellants had assembled, the accused Appellants were arrested and others escaped. The purpose of the said assembly consisting of the accused Appellants and their associates could be gathered only from the circumstances. This incident, during the night of July 11, 1959, took place at a place about three miles from Rourkela near Adibasi Bustee under a Pipal tree. There is also evidence of a country-made pistol and sword having been used and in fact there is evidence of a sword having been brandished before the villagers when they approached the culprits. It is indeed unusual to assemble at such a place at such time at night which is the usual time for committing dacoity. There is also evidence of a country-made pistol and sword having been used and in fact there is evidence of a sword having been brandished before the villagers when they approached the culprits. It is indeed unusual to assemble at such a place at such time at night which is the usual time for committing dacoity. The conduct of the accused persons and heir associates also shows the purpose of such assembly. 11. It is difficult to give any direct evidence or purpose. In the present case,-having regard to the circumstances which led the villagers to go to the spot near the Pipal tree whereupon a sword was brandished before them (villagers) by one of the accused persons (Chandan Singh) who threatened the approaching villagers, and in view of the firing of a pistol by another accused person (Sadhu Singh), and the recovery of the pistol seized by the police from the very place where the accused Sadhu Singh had concealed it, there is hardly any room for doubt that the purpose of the said assembly was to commit dacoity because, among other circumstances, the articles usually recovered from dacoits were found and seized by the police as aforesaid. That apart, not one of the accused persons made any attempt to offer an explanation of their object or intention for their meeting under the Pipal tree at such an unusual hour in the Bustee locality, away from the town area. 12. The prosecution case mainly depends on identification of the individual accused persons by the different eye-witnesses and on retracted confession of each of the accused Appellants. 13. With regard to identification, I do not attach much importance to identification at T.I. Parade for good reasons. As regards the eye-witnesses, the substance of their evidence is as follows: The evidence of p.w. 1 Budhua Mahali in court is that he saw six or seven people under the Pipal tree from a distance of 6 or 7 cubits; but he could not identify them. He said that when the villagers, including himself, approached the accused persons and their associates one of the members of the assembly had threatened them with a sword; that when the villagers chased, one of the culprits fired a gun. At the T.I. Parade the witness could not identify any of the accused persons. He identified accused Sulakhan Singh in Court. At the T.I. Parade the witness could not identify any of the accused persons. He identified accused Sulakhan Singh in Court. P.W. 2 Budhu Manda said that after being reported that 10 to 15 people were sitting under the Pipal tree, he and other villager's went out with lanterns towards the Pipal tree; he said that he could identify the culprits whom he saw under the Pipal tree. The witness identified in Court the accused Sulakhan Singh, Sadhu Singh and Chandra Singh. The witness also said that one of the culprits raised a sword at the villagers and threatened them. All the witness said with reference to the stage of the incident when the villagers saw the accused persons and their associates first under the Pipal tree. In cross-examination, however the witness said that when the villagers chased there was no light except the moonlight and he could not see the appearance of any of the culprits properly. At T.I. Parade the witness identified .the accused Appellants Sadhu Singh, Chandan Singh and Makhan Singh. P.W. 6 Asgar Mian is an eye-witness to that part of the incident when the culprits, chased by villagers were running away. P.W. 6 identified the accused Sulakhan Singh in Court and said that the accused Sulakhan Singh came running from the direction where the Hulla was being raised; the witness further said that in the light of the motor vehicle of the S.D.O. the witness saw the accused Sulkhan running towards them. The witness and his companion (a Rickshawalla) caught hold of the accused Sulakhan and the culprit was arrested. P.W. 6 was not put as a witness at the T.I. Parade. P.W. 10 Sarat Ch. Roy while giving evidence generally as to the fact that under the Pi pal tree he and the villager a found 10 or 12 people sitting; that one of them had threatened the approaching villagers with a Tarwal; that when the villagers gathered, the accused persons and their associates fled away in different directions. The witness further said that he heard a report of the gun fire coming from the side of the Nala. The witness identified the accused Sulakhan Singh in Court and could not identify the other culprits who were running away with accused Sulakhan. At T.I. Parade p.w. 10 Sarat Ch. Roy identified the accused Sadhu Singh, Chandan Singh and Makhan Singh. 14. The witness identified the accused Sulakhan Singh in Court and could not identify the other culprits who were running away with accused Sulakhan. At T.I. Parade p.w. 10 Sarat Ch. Roy identified the accused Sadhu Singh, Chandan Singh and Makhan Singh. 14. Thus on analysis of the evidence of the-eye-witnesses, it is clear, that the accused Kundan Singh was no identified by any of the eye-witnesses either in Court or at the T.I. Parade; the accused Makhan Singh was not identified by any eyewitness in Court but he was identified by p.ws. 2 and 10 at T.I. Parade; but identification at T.I. Parade is not wholly reliable in the present case. With regard to the accused Sadhu Singh and Chandan Sing, they were identified both in Court and T.I. Parade as aforesaid. The accused Sulakhan Singh was identified in Court by three eye-witnesses as aforesaid but he was not identified at T.I. Parade. 15. Then as regards confession made by each of the accused apparents before the Magistrate, it is needless to dilate on the legal position regarding confessions generally, which I have fully discussed in my judgment delivered today in Sulakhan Singh and Ors. v. State Cr. Appeals Nos. 159, 162, and 169 of 196 1 D/11-5-1962 where all the present accused Appellants (except Sadhu Singh) were involved. It is unnecessary to repeat the same herein. The defence commented on the evidence of the Magistrate P.W. 8 who said that he told the accused persons that they would not be handed over back to the police. It was contended on behalf of the defence that this amounted to an inducement to the accused persons to make the confession and therefore such confession has no value because it is not voluntary confession. It was contended on behalf of the defence that this amounted to an inducement to the accused persons to make the confession and therefore such confession has no value because it is not voluntary confession. There is no substance in this contention in view of the clear position in law that besides the warning specifically provided for in the first part of Sub-section (3) of Section 164 Code of Criminal Procedure namely, that the accused is not bound to make a statement and that if he makes one it may be used against him as evidence in relation to his complicity in the offence at the trial, that was to follow, the accused should also, in plain terms, be assured of protection from any sort of apprehended torture or pressure from such extraneous agents as the police or the like, in case he declines to make a statement. So, what the Magistrate told the accused persons was no inducement as alleged; it was only by way of assurance of protection. 16. Now, coming to the confessions in this particular case, I have gone through the confession of each of the accused Appellants Sadhu Singh, Sulakhan Singh and Chandan Singh. I am satisfied that their confession is both voluntary and true. There is general corroboration of the confessional statement, in material particulars of each of the accused Appellants, Sadhu Singh, Sulakhan Singh and Chandan Singh were identified both in court and at T.I. Parade as aforesaid. The accused Sulakhan who was caught during the incident was identified by p.ws. 1, 2, 6 and 10. 17. The cases of the two remaining accused Appellants, namely, Kundan Singh and Makhan Singh, however, are different. The accused Kundan Singh was not identified by any of the eyewitnesses either in court or at T.I. Parade; thus there is no corroboration of his retracted confession. The accused Makhan Singh was not identified by any of the eye-witnesses in court; he was identified by p.ws. 2 and 10 at T.I. Parade. Such identification is unreliable in the present case.... 18. In the light of the above discussion, the result of these criminal appeals, with reference to earn of the accused Appellants-is as follows: Re: Sadhu Singh. His confession Ext. 6, though retracted, is sufficient for his conviction because the confession is substantially corroborated in material particulars. Such identification is unreliable in the present case.... 18. In the light of the above discussion, the result of these criminal appeals, with reference to earn of the accused Appellants-is as follows: Re: Sadhu Singh. His confession Ext. 6, though retracted, is sufficient for his conviction because the confession is substantially corroborated in material particulars. There is no substance in the defence comment that the part of his confessional statement that he handed over the gun to the police being untrue, the confession cannot be relied upon. The alleged untrue statement is not in respect of any material particulars in the confession. The defence contention is untenable in view of the settled position in law, which I need not reiterate herein. P.W. 2 had identified Sadhu Singh both in court and at T.I. Parade and had generally corroborated all the statements made by the accused Singh in his confessional statement. The evidence of the Magistrate p.w. 8 is also that he sufficiently warned the accused Sadhu Singh and he had been given time for reflection and he was assured of protection as aforesaid. Thus in view of the general corroboration of the confession of Sadhu Singh in all material particulars, and the confession having been voluntary and true, the conviction of the accused Appellant Sadhu Singh must be upheld. Re: Sulakhan Singh. Apart from his confession (ext-4) generally corroborated in material particulars, which by itself is sufficient for his conviction, p.ws. 1, 2, 6 and 10 identified Sulakhan in court as having been in the said assembly. That apart, the injury report Ext. 2 further corroborates the fact of his having received injury by lathi blow during the incident in the circumstances hereinbefore stated. In view of the position that he was arrested at the spot and identified by the several witnesses as aforesaid, there can be no doubt about his identity. In this view of the case the accused Sulathan Singh's conviction is upheld. Re: Chandan Singh. Apart from his confession (Ext. 7), which also was generally corroborated by the witnesses as discussed above, the accused was identified by p.w. 2 in court by p.ws. 2 and 10 at T.I. Parade. For the same reasons as in the case of the accused Appellants Sulakhan Singh and Sadhu Singh, which I need not repeat, the conviction of accused Chandan Singh must also be upheld. Re: Kundan Singh. 2 and 10 at T.I. Parade. For the same reasons as in the case of the accused Appellants Sulakhan Singh and Sadhu Singh, which I need not repeat, the conviction of accused Chandan Singh must also be upheld. Re: Kundan Singh. The case of Kundan Singh is different from the other accused persons for reasons aforesaid. None of the eye-witnesses could identify him. There is no corroboration of his retracted confession. I am, therefore, of opinion that his conviction cannot stand and must be set aside. He is acquitted of the charge u/s 402. Re: Makhan Singh. As regards this accused Appellant, although he was identified at T.I. Parade by p.ws. 2 and 10, but none of the eye-witnesses could identify him in court. As I have already observed, not much importance can be attached to identification at T.I. Parade in this case. In the absence of corroboration of his confessional statement, the conviction of accused Makhan Singh cannot stand on mere uncorroborated confession. Therefore, is conviction is set aside and he is also acquitted of the charge u/s 402. 19. It was argued on behalf of the defence, that if any of the accused Appellants who are only five in number, is acquitted, then the case cannot come u/s 402 on the ground that by reason of such acquittal, it will fall short of the minimum number of persons, namely five, in the assembly required for constituting the offence of assembling for the purpose of committing dacoity. There is no substance in this contention. Here, the evidence is that there were 10 to 15 persons in the assembly out of whom the accused Appellants were identified, traced and arrested and the others escaped. The acquittal of the accused Appellants Kundan Singh and Makhan Singh cannot take the case out of Section 402, so far as the remaining accused Appellants Sadhu Singh, Sulakhan Singh and Chandan Singh are concerned. An that the law requires u/s 402 is the satisfaction of the conditions, namely, the assembly of five or more persons and their purpose of committing dacoity. Both the conditions have been satisfied in his case. Therefore while acquitting the accused Appellants Kundan Singh and Makhan Singh, the remaining accused Appellants Sadhu Singh, Sulakhan Singh and Chandan Singh may still be lawfully convicted u/s 402. 20. Both the conditions have been satisfied in his case. Therefore while acquitting the accused Appellants Kundan Singh and Makhan Singh, the remaining accused Appellants Sadhu Singh, Sulakhan Singh and Chandan Singh may still be lawfully convicted u/s 402. 20. The result, therefore, is this: Criminal Appeal No. 172 of 1961,-so for as the accused Appellant therein Sadhu Singh is concerned,-is dismissed and the order of conviction and sentence of accused Appellant Sadhu Sigh is upheld. Criminal Appeal No. 171 of 1961,-so far as the accused Appellants Sulakhan Singh and Chandan Singh are concerned, is dismissed; the order of conviction and sentence of the accused Appellants Sulakhan Singh and Chandan Singh is upheld. The sentences passed on the accused Appellants Sulakhan Singh and Chandan Singh are to run concurrently with the sentences passed on them by the learned Sessions judge in S.T. No. 4 (Sgh.) of 1961, which have been upheld by this Court in Criminal Appeal Nos. 159 and 169 of 1961 in judgment delivered today on May 11 of 1962, in respect of them and others. Criminal Appeal No. 171 of 1961, so far as the accused Appellants Kundan Singh and Makhan Singh are concerned, is allowed; the accused Appellants Kundan Singh and Makhan Singh are acquitted of the charge u/s 402 Indian Penal Code. Final Result : Allowed