JUDGMENT S.J. Hyder, J. - The appellants were charged under Sections 147 and 307 read with Section 149 I.P.C. and they were acquitted of the said charges. They were further charged under Sections 399 and 402 I.P.C. They have been found guilty under the aforesaid provisions of law. On the first count, four years R. I. has been awarded to each of the appellants. Three years R. I. was awarded to them under the second count. The two sentences have been ordered to run concurrently. Appellants Pershadi, Pitamber, Mihi Lal and Babu have also been found guilty of the offence punishable under Section 25 of the Arms Act and each of them has been sentenced to undergo R. I. for a period of one year. The sentence awarded to these appellants has also been made concurrent with the sentences awarded to them under Sections 399 and 482 I.P.C. 2. The prosecution case, shortly stated, is that on July 4, 1972 Station House Officer, Police Station Dadon Amar Das Sharma (P.W. 1) received information through an informant that some miscreants were going to assemble at the Canal Rest House at Kehra during the course of the coming night in order to commit dacoity at the house of one Inderjit Brahman. On receipt of this information, Amar Das Sharma sent Laturi Singh and Mukat Singh constables to guard the house of Inderjit Brahman. He also directed Bhudeo Sharma and Lachhman Singh constables to collect independent witnesses in the grove situate in the proximity of the Canal Rest House at Lehra. After making these arrangements Amar Das Sharma accompanied by police party consisting amongst others of Rampal Sharma (P.W. 2), H. C. Sharma (P.W. 5) proceeded to the spot at about 7-10 P. M. Some time thereafter the constables who had been sent to fetch independent witnesses also came there accompanied by a number of other persons including Prem Swarup (P. W. 3) and Bahori Lal (P. W. 4). The assembly on the side of the police was complete by 9-45 P. M. Mutual search was taken by the raiding party and nothing illegal was found on the person of any one of its members, Amar Das Sharma thereafter divided the entire group into three parts. He himself led the first group. The assembly on the side of the police was complete by 9-45 P. M. Mutual search was taken by the raiding party and nothing illegal was found on the person of any one of its members, Amar Das Sharma thereafter divided the entire group into three parts. He himself led the first group. Rampal Sharma was put in charge of the second group and constable Anang Pal was made the leader of the third party. Amar Das Sharma gave instructions to all the members of the police party to keep silent and not to light any match-stick or cigarette. He also gave a password to the members of the raiding party. It is alleged that at about 10.45 P. M., the appellants started converging in the rest house and they assembled in the verandah of the said Rest House. At this stage some one amongst the appellants is alleged to have said that Soran Kachhi, resident of Rampur has not turned up and it was getting late and that they should now proceed to commit the dacoity in the house of Inderjit Brahman. The raiding party which had been divided into three parts had surrounded the Rest House from three sides and one side of the Rest House had been left open. When the conversation stated above was heard by Amar Das Sharma he challenged the appellants that they were surrounded by the police party and that they should surrender themselves forthwith. At this stage, one of the appellants is said to have fired a shot towards Amar Das Sharma who replied by triggering his light pistol. The raiding party fell upon the appellants and caught hold of them. Country-made pistols with fire arms are alleged to have been recovered from the possession of Parshadi, Pitambar, Mihi-lal and Babu appellants. A recovery memo was prepared and was signed by the witnesses. Lakhan Singh and Sia Ram appellants were said to possess lathis or Dandas at the time of the arrest while Birbal appellant had a kulhari in his hand. 3. The prosecution in order to bring home the charge against the appellants examined as many as five witnesses They are Amar Das Sharma (P.W. 1), Ram Pal Sharma (P.W. 2), Prem Swaroop (P.W. 3), Bahori Lal (P.W. 4) and H. C. Sharma (P.W. 5). 3. The prosecution in order to bring home the charge against the appellants examined as many as five witnesses They are Amar Das Sharma (P.W. 1), Ram Pal Sharma (P.W. 2), Prem Swaroop (P.W. 3), Bahori Lal (P.W. 4) and H. C. Sharma (P.W. 5). It would thus appear that out of the five prosecution witnesses, three are police officials and only two are independent witnesses. 4. The law is well settled that in order to bring home a charge against the accused under Sections 399 and 402 I.P.C. should have assembled at a particular place with the intent to commit dacoity. Assembly of persons, without anything more, at a particular place, even though with weapons cannot per se be made punishable under the aforesaid provisions of law. It is quite possible that such assembly may be with the object of committing murder of some or some other dastardly crime. It is also possible that such persons may be honourable persons who may have assembled for the innocent pastime of shooting birds or other game. In this view I am supported by the decision of the Supreme Court in Chaturi Yadav v. State of Bihar, AIR 1979 SC 1412 . 5. It has come in evidence that the appellants intended to commit dacoity at the house of Inderjit Brahman and that two police constables had been sent by Amar Das Sharma to protect the intended victim. For some reasons, best known to the prosecution, he has not been examined nor has the prosecution examined any of the two constables who are alleged to have been posted to guard the house of Inderjit Brahman. The only evidence, therefore, which remains is the exhortation which one of the appellants is alleged to have made to his companions that it was getting late and that they should proceed to commit dacoity in the house of Inderjit Brahman. The evidence on this point furnished by the prosecution is unsatisfactory. It was highly unlikely that this conversation could have been heard by the members of the raiding party. All of them did not occupy the same position at the time when the arrest was made or when the exhortation is said to have been made. The evidence on this point furnished by the prosecution is unsatisfactory. It was highly unlikely that this conversation could have been heard by the members of the raiding party. All of them did not occupy the same position at the time when the arrest was made or when the exhortation is said to have been made. The actual evidence led by the prosecution that the appellants intended to commit dacoity in the house of Inderjit Brahman is of a hackneyed nature with which one comes across in every case punishable for the offence under Sections 399/402 I. P. C. 6. It is further to be noticed that Prem Swaroop (P.W. 3) and Bahori Lal (P.W. 4) do not appear to be truthful and independent witnesses. Both these witnesses were asked in their cross-examination whether they have ever appeared or cited as police witnesses or assisted the police in making recoveries from the persons accused in other cases. Both these witnesses gave a categorical answer in the negative. The accused have filed as many as six documents which are certified copies of the charge sheets filed by the police of police station Dan-don. One of these documents is a charge-sheet dated 15-5-1969 relating to an offence punishable under Section 399/402 I. P. C. said to have been committed by the accused on 27-4-1969. In that case Prem Swaroop (P. W. 3) is cited as a witness at serial No. 16. The second document is a charge-sheet relating to an offence punishable under Sections 147 and 323 I. P. C. The said offence was allegedly committed on 3-8-1969 and the charge-' sheet relating to it was filed on 27-10-1969. In the said case, both Prem Swaroop (P. W. 3) and Bahori Lal (P. W. 4) were cited as prosecution witnesses. The third document is a charge-sheet relating to an offence punishable under Section 110 I. P. C. In that case Prem Swaroop actually gave evidence and the judgment in the case was pronounced on October ,3, 1966. Certain persons were charged under Section 13 of the Gambling Act for an offence allegedly committed by them on 27-10-1973, charge-sheet in respect of which was submitted on 29-10-1973. In that case Bahori Lal (P. W. 4) appeared as a police witness. Certain persons were charged under Section 13 of the Gambling Act for an offence allegedly committed by them on 27-10-1973, charge-sheet in respect of which was submitted on 29-10-1973. In that case Bahori Lal (P. W. 4) appeared as a police witness. Prem Swaroop (P. W. 3) is again cited as a witness for an offence punishable under Section 454 I. P. C. alleged to have been committed on 10-9-1969 and charge-sheet in respect of it was filed on 28-9-1969. From these documents it is evident that both Prem Swaroop and Bahori Lal are not truthful witnesses. The said documents further go to show that they are convenient witnesses who can be relied upon by the police to depose in its favour. 7. Parshadi appellant appears to be a persona non Grata with the police of Dandon. He was prosecuted in Crime No. 2969 of 1972 under Section 25 of the Arms Act and was acquitted by the trial Court on 4-12-1974. The relevant document in proof of this fact has been filed on behalf of the appellants. Ordinarily the intent or preparation to commit an offence is not by itself punishable or penal. An intent or preparation to commit an offence may be proved as a link in the chain of circumstantial evidence to prove the commission of the offence itself by an accused person. Sections 399 and 402 I. P. C. are an exception to the general rule and when a person is charged for having committed an offence punishable under the said provision of law, the evidence must be subjected to strict scrutiny. Applying this rule to the facts of the instant case, this court is of the view that no case is made out against the appellants which may be punishable either under Section 399 or Section 402 I. P. C. 8. Once this court disbelieves the evidence of the prosecution witnesses, as it is doing in the instant case the offence punishable under Section 25 of the Arms Act, cannot also be sustained against the appellants. 9. The result is that this appeal succeeds and is hereby allowed. The order of conviction and sentence passed by the trial Court against the appellants is hereby set aside. The appellants are acquitted of all the charges framed against them. The appellants are on bail. Their bail bonds are discharged and they need not surrender.