Judgment Madan Mohan Prasad, J. These appeals are filed against the conviction of these appellants under sections 399 and 402 of the Indian Penal Code and the sentences of 7 (Seven) years rigorous imprisonment and fine of Rs. 500-in default of payment of which the appellants are to undergo one year's rigorous imprisonment, to run concurrently. 2. The prosecution case is as follows: That the officer-in-charge of the police station of Baikunthpur in the sub-division of Gopalganj within the district of Saran received confidential information that some person s were going to commit dacoity in a certain village and that they would pass by a certain route, he recorded the information in the station diary and organized a raiding party to intercept the dacoits. The party consisted of policemen and officers and some villagers. They reached a place called Deokali More (Junction) where the road coming from Haradia joins the pucca road going towards Jhanjhawa Bazar. The party divided itself into two groups and kept concealed. At about 100 clock at night, the members of the party noticed torch light and saw some persons including the accused all well armed approaching the crossing of the road. The police officer-in-charge gave a signal and the raiding party from both sides fell upon the group of men coming, there was a scuffle between the two parties and the raiding party succeeded in apprehending seven accused persons. During the encounter both parties received injuries. The accused having been arrested were searched and arms and ammunition, other weapons and instruments of house breaking were recovered from them. 3. On the basis of his own statement the officer-in-charge P.N. Tewary, P.W.19, drew up a first information report and himself took up investigation. After completing investigation he submitted charge-sheet against accused persons. 4. These accused persons were then committed to the Court of Sessions. It appears that there were two commitment enquiries because accused Kishundeo Dome was absconding and he was committed subsequently after his appearance. 5. As a result the appellants were tried and convicted by the 1st Assistant Sessions Judge of Chapra. 6. The defence of these accused persons is that they have been falsely implicated and that they were arrested at their house in Village Lakari Dome parao. 5. As a result the appellants were tried and convicted by the 1st Assistant Sessions Judge of Chapra. 6. The defence of these accused persons is that they have been falsely implicated and that they were arrested at their house in Village Lakari Dome parao. It is said that the accused were on bad terms with the residents of Village Chamanpur and the police in collusion with them had arrested these persons, assaulted them and falsely implicated them in this case. 7. The prosecution examined II witnesses in support of the occurrence namely p.ws. 1, 3 to 5, 7, 9 to 11, 13 and 17 and tendered seven witnesses for cross-examination namely p.ws. 2, 6, 8, 12, 14, 15 and 13. The Doctor was examined as p. w. 16. and the investigation Officer as P.W. 19. The prosecution also proved documents including the first information report, the seizure list and the station diary entry. It also produced as a material exhibits guns, cartridges, sendhmarnis, lathis, Farsa, Bhala and pharsi alleged to have been found on the persons of the accused. The defence did not lead any evidence in the case. 8. The points for determination in these appeals are: (I) whether the accused persons had assembled for the purpose of committing dacoity and thus, they committed an offence under section 402 of the Indian Penal Code, and (II) whether they had made any preparation for committing dacoity and thus, liable for an offence under section 399 of the Indian Penal Code. 9. On the first point we have the evidence of the eleven (11) witnesses, who claim to have seen the occurrence. P. W. 19 is the first informant in this case. He has stated the case made out by him in the first information. He states that these seven accused persons were arrested and further he identified all the accused persons. According to him, appellant Sahdeo Dome was arrested by him along with p. w. 8 and others and a double barrel gun and five live cartridges were recovered from his person. A.S.I. Gajendra Prasad Singh. P. W.1, assisted by others arrested accused Kapildeo who had a gun and three live cartridges, constable Jagarnath had arrested accused Kishundeo with three live cartridges., P. Ws. 2, 3, and 7 had arrested accused Binda and recovered two live cartridges from him. A.S.I. Gajendra Prasad Singh. P. W.1, assisted by others arrested accused Kapildeo who had a gun and three live cartridges, constable Jagarnath had arrested accused Kishundeo with three live cartridges., P. Ws. 2, 3, and 7 had arrested accused Binda and recovered two live cartridges from him. P .W. 6 along with others had arrested accused Narayan and recovered a Bhala from his possession. Another constable Rajendra Prasad had arrested accused Mathura and the constable and Dafadar, P.Ws. 13 and 5, had arrested accused Kamal. In respect of the recovery of the arms and ammunition found from their persons he prepared a seizure list, Ext. 4 series. He says that two of the dacoits had managed to escape. The rest, who had been caught, were taken to the police station. 10. In his cross-examination he has admitted that he knew accused Binda, Kishundeo, Kapildeo and Sahdeo from before he had started a case under section 109 of the Code of Criminal Procedure against accused Binda and another accused Kishundeo. He has also admitted that there was a case for dacoity started earlier against Sahdeo, Binda and others. He says that there was a case under section 399 of the Indian Penal Code against accused Sahdeo and Kapildeo and in that case they were convicted. According to him, Binda and Kishundeo are full brothers. He has denied the suggestion made in his cross-examination that he had arrested the accused persons at their houses and sent them up. He had admitted that he acted both as the informant and the investigating Officer in this case. He has also admitted that there was wanton assault by the police party and the dacoits and the constables had hit the accused with bayonets. There is nothing else of any importance in his cross-examination. 11. P.W.I. A.S.I. Gajendra Prasad Singh, had also stated the prosecution case stated earlier. He corroborates the evidence of P.W.19 and says that he caught hold of accused Kapildeo, Further he says that a country made gun with three live cartridges were recovered from the possession of accused Kapildeo on his person. He also supports the story of the recovery of the other gun from the possession of accused Sabdeo, and of live cartridges from the possession of Sabdeo, Binda and one more accused and the recovery of Sendbmarnis, Bhala, Lathi, Pharsa and torch from the possession of the accused persons. He also supports the story of the recovery of the other gun from the possession of accused Sabdeo, and of live cartridges from the possession of Sabdeo, Binda and one more accused and the recovery of Sendbmarnis, Bhala, Lathi, Pharsa and torch from the possession of the accused persons. In his cross-examination, the witness admitted he was assaulted with Lathi, but he could not give the name of the person, who had assaulted him. He had got four Lathi blows. He admits that he could not give the names of the accused persons. 12. P.W. 3, Constable Biswanath Choubey, had been called by the P.W.19 to the Deokali More and he was one of the members of the raiding party. He also gives the prosecution case as a whole and corroborates the fact of arrest of accused Binda by him and others as also of the recovery of two live cartridges from his person. In his cross-examination he stated that he could not give the names of the accused, who had been arrested. Further he stated that his party bad arrested only one dacoit named Binda. He claims to have known three accused namely Kapildeo, Binda and Sahdeo since before the occurrence. It appears from his evidence that the accused were going in the direction of Jhanjhawa Bazar, which is about 31/2 miles from Deokali more. 13. P. W. 4. Constable Raghunath Ram, is another witness on the point of occurrence. He says that he had arrested accused Kamal and that latter was armed with a pharsa. He could not name the villagers, who had helped him in arresting accused Kamal. He states that he did not know the accused from before. 14. P.W.5 Rudal kuer, Dafadar, is the next witness to support the occurrence. He says that he and another sepoy had arrested Kamal Dome. His house is only ten (10) Bighas from Deokali More and his service had been requisitioned by P. W. 19. It appears from his evidence that Lakri Dome Parao, the village of the accused, was about 5 miles from Deokali More. In his cross-examination he admitted that he did not know the accused from before and he could not say who was arrested by whom nor could he say which articles were recovered from the possession of which accused. 15. P. W. 7 is Rama Nand kuer. In his cross-examination he admitted that he did not know the accused from before and he could not say who was arrested by whom nor could he say which articles were recovered from the possession of which accused. 15. P. W. 7 is Rama Nand kuer. He belongs to village Sirsa where he is a cultivator. He says that he had been called at the police station through a chaukidar and be joined the raiding party. He also received injuries during the scuffle. He says that seven out of the dacoits were arrested by the raiding party, but it was little dark and he could not, therefore, identify any of the dacoits there. He says that he had arrested one of the dacoits there, but he does not know his name. In cross' examination he stated that he did not see Kamal, Narayan and Mathura there at that point of time. Again he says that he had not arrested anyone of them and that they were• not arrested there at all then. The witness was not declared hostile or cross-examined as such by the prosecution. His evidence, thus, remains at tl1at. He proves the arrest of the seven dacoits and the arrest of one of them by himself and yet he says that accused Kamal, Narayan and Mathura were not arrested there at all. It is obvious that this witness is not stating the truth for it is contradictory to the evidence of all the other witnesses in this behalf. 16. P.W.9, Ram Jatan Singh, belongs to village Deokali and works in a mill. He had arrived there on hullah and seen the dacoits under arrest. He says that he could not identify them due to the night being dark, but he proves the recovery of the arms ammunition Sendhmarnis and torch from the hands of the dacoits. He admits his signature in the seven seizure lists. In cross-examination however the witness had first said that the S.I. had recovered these articles in his presence. In the next breath however he said that he had not done so and he could not say from whose possession what articles were recovered. The evidence of this witness denying the recover is falsified by the seizure lists, which he has admitted. 17. P.W.10, Eqbal Raut, another resident of village Deokali says that he came on hullah and saw seven dacoits under arrest. The evidence of this witness denying the recover is falsified by the seizure lists, which he has admitted. 17. P.W.10, Eqbal Raut, another resident of village Deokali says that he came on hullah and saw seven dacoits under arrest. He identified them and proved the recovery of the articles from the possession of the dacoits. In his cross-examination, however, he had first said that the dacoits were arrested in his presence, but subsequently said that he had reached there after the arrest of the accused. There is no conflict between this and his statement in examination in chief, because he him self first stated that the seven dacoits arrested were there. It thus appears to be a mere slip when he said that the dacoits were arrested in his presence. His evidence, would show that the persons arrested were the same as the accused in the dock. 18. P.W. 11, Nathuni Sah a shopkeeper of Deokali, said that having heard about the arrest of thieves, he went there and saw the seven accused under arrest. 19. P.W.13, Raghunath Thakur, another resident of village Deokali, heard hullah and come to the place of occurrence and saw Marpit going on between the police and the dacoits. He proves the arrest of the seven accused. persons and the recovery of the articles from their possession. In his cross examination he admitted that the police party had sustained injuries and the accused had also bleeding injuries. 20. P.W.17 is another resident of village Deokali who came to the road Junction on hearing hullah and saw the accused persons under arrest. He identified them in dock. 21. P.W.16, the Doctor, has proved that he had examined all the seven accused persons and P. W. 7, 8, 9 and 10. It appears that on Kamal he had found three injuries including a punctured wound, on Kishundeo four abrasions and swellings, on Mathura two swellings and three incised and punctured wounds, On Narayan six lacerated wounds and swellings, on Sahdeo 12 injuries including several punchued and incised wounds, on Kapildeo five injuries including two punctured wounds and on Madan nine injuries including three punctured wounds. On the persons of P. W. 7 he found small abrasion, on P. W. 6 three abrasions, on P. W. 1 scratch, swellings and abrasion in all numbering four and on P. W. 19 two swellings. On the persons of P. W. 7 he found small abrasion, on P. W. 6 three abrasions, on P. W. 1 scratch, swellings and abrasion in all numbering four and on P. W. 19 two swellings. The injuries on the person of prosecution party appeared to be very minor. 22. The prosecution story bas been proved by all the witnesses, aforesaid, except that I have not believed certain statements of P.W.7 and P.W.9. The evidence, thus, proved three points beyond reasonable doubts. I That these accused persons were coming together at about 10 o'clock at night and going towards village Jhanjhawa, when they were intercepted and arrested II That they were variously armed with dangerous weapons and that they were also found with instruments used for house breaking. III That they were at a distance of 31/2 miles from their houses in village Lakari Dome parao. 23. It has been suggested by the defence that they were arrested at their houses in their own village. There is no circumstance or evidence in respect of this suggestion. On the other band the evidence of the police witnesses and the residents of Deokali clearly goes to show that they were arrested at Deokali road Junction. The defence suggestion must be thrown out as false. There is, thus, no explanation for their going towards Jhanjhawa passing by Deokali Junction at 10 O'Clock at night at a lonely place armed in the manner stated above and carrying instruments of house breaking. There is no explanation given on behalf of the defence as to why they were carrying these weapons or why they were carrying sendhmarnis or where they were going and or where they were from. In the absence of the explanation by the accused persons the circumstances go against them. The presence of Sendhmarnis with them shows that they were going to commit house breaking or theft. The presence of weapons show their intention to use those weapons for assault during commission of such theft. In other words these circumstances would show their number being more than five that they were going to commit dacoity. The fact that they were going together and were arrested together would show that there was an unity of purpose and unity of mind. In other words these circumstances would show their number being more than five that they were going to commit dacoity. The fact that they were going together and were arrested together would show that there was an unity of purpose and unity of mind. In other words they had devised a scheme to commit dacoity and armed with that purpose prepared themselves for it by obtaining sendhmarnis and that they were moving with that purpose at the dead of night and were found at a place far away from their houses. The fact thus, would go to show that they had assembled for the purpose of committing dacoity and further that they had also made preparations for committing dacoity. 24. It is well known that for the purpose of constituting an offence under section 402 there must be an assemblage of five or more persons for the purpose of committing dacoity. On the other hand in order to constitute an offence under section 399 it must be proved that a person or persons concerned had made preparations for committing dacoity. In the case of the State V. Dhanpat Chamar and others, Kamla Sahai, J. relying upon the decision of a bench of this court in the case of Jain Lal alias Jainath Vs. Emperor held that the prosecution must prove that the accused had conceived a design for committing dacoity and the proof of intention can be gathered only from the circumstances. It was further held that if the circumstances lead to a legitimate inference that the intention of the accused was to commit dacoity it is for the accused to prove that their intention was different relying upon the first illustration of section 106 of the Evidence Act. It was further held that it would not be necessary for the prosecution to prove that the intention of the accused was to commit dacoity in the house of a particular person of a particular village and it would be enough to prove that the assemblage or preparation was made for the purpose of committing a dacoity irrespective of the place where it was to be committed. The learned Judge held that the offence under section 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 such assemblage. The learned Judge held that the offence under section 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 such assemblage. In the case before his lordship the accused had all come to a place several miles away from their homes armed with weapons and assembled at an unusual time and it was held that they were enough to establish that they had made preparations for committing a dacoity. Reference may also be made to the decision of Shadi Lal, J .(as he then was) in the case of Karmun Convict appellant Vrs. Emperor. In that case it was held that where it is found that the members of a gang had taken in their possession instruments for house breaking and arms for the purposes of offence and defence and had actually proceeded to a place near the scene of contemplated dacoity the Court is justified in holding that there was not a mere assemblage but that the members of the assembly had got ready for the actual commission of a dacoity. Further it was held that it is not necessary that the prosecution should point out the exact part taken by each member of the gang as regards preparation, provided that it is shown that the accused were members of a gang which had nipped in fact preparation for dacoity. It is not necessary to multiply other authorities on the point for the distinctions between sections 399 and 402 have been clearly defined and the law is well settled with regard to the requirements of the two sections. 25. In the present case the evidence on record proved both the fact that the accused persons had formed a gang and they had conceived the idea of committing a dacoity and further that they had assembled for that purpose as also the fact that they had made preparations for committing dacoity. They have, thus, been rightly convicted both under sections 399 and 402 of the Indian Penal Code. The sentences passed against them do not appear to be severe in the circumstances of this case. I would, accordingly, dismiss these appeals. Appeal dismissed.