R. A. MISRA, J. ( 1 ) ACCUSED appellants Ram Sewak, Dularey, Bhikhu, Sukhdeo and Mallabir have been convicted and sentenced to undergo R. I. for a period of five years under Section 399 IPC. and four years under Section 402 I. P. C. The appellants Ram Sewak, Dularey, Bhikhu and Sukhdeo have been further convicted and sentenced to undergo R. I. for a period of one year under Section 25 of the Arms Act with the directions that all the sentences of each accused shall run concurrently. ( 2 ) THE facts which have given rise to these appeals are briefly put as below. ( 3 ) SRI Sita Ram Arog (P. W. 1) the then Sub-Inspector Police Station, Thariyaon, district Fatehpur, received information on 7th of March 1975 at 3. 20 P. M. that the gang of Dularey Chamar was going to commit dacoity in the house of Shiv Ram Pradhan in village Michki and that the gang consisted of 11 to 12 dacoits and would assemble towards the north of village Michki in a nala. The Station Officer on receipt of this information proceeded along with police force towards the aforesaid nala after making entry in the General Diary. Two constables Kunj Behari and Nirmal Chand were deputed to bring witnesses and meet the police party towards the west of Jamalpur. The Station Officer then reached towards the north of Jamalpur and asked the police force to stay there. He himself went in the Nala where the dacoits were to assemble and inspected that place with the assistance of the informant. He then came back at the place where the police party was staying. Two constables brought the witnesses Ram Sia, Ganga Dhar (P. W. 3 ). Shiv Singh (P. W. 4) Chandrapal, Ram Siroman and Rais Pal on that very place. The Station Officer then explained the entire matter to the witnesses and divided the entire force in three parties. First party was led by him. The second party was led by Sub-Inspector Ram Murti Misra (P. W. 2) and the third party was led by Kunj Behari constable. Ganga Dhar was in party No. 2 and Shiv Singh was in party No. 3. The first party which was led by Station Officer took its position towards the west of the nala behind a mango tree. The second party was led by Sub-Inspector Ram Murti Misra (P. W. 2) and the third party was led by Kunj Behari constable. Ganga Dhar was in party No. 2 and Shiv Singh was in party No. 3. The first party which was led by Station Officer took its position towards the west of the nala behind a mango tree. The second party led by Ram Murti Misra S. I. took its position towards the east of the nala beneath a him tree and by the side of a Khain. The third party led by Kung Behari took its position towards the south of the nala behind Mahwa tree at about 10. 30 P. M. After about half on hour four dacoits came from northern side and sat down in the nala. Shortly thereafter two other dacoits came from northern side and joined them. Shortly thereafter three dacoits came and joined the former dacoits in the nala and all of them began to talk together. One of them said that Jhitampurwala had not come by that time. The other said that they would be coming. Let them wait. After sometime one of them said that they had sufficient force as well as arms and ammunition. They should proceed and commit dacoity otherwise they would be late. The decided to take possession of the gun of the Pradhan in the very beginning. Thereupon, all the dacoits got up and were ready to proceed. Just then the Station Officer Sri Arog (P. W. 1) fired two rounds and challenged the dacoits saying that the dacoits had been surrounded by police force and they should surrender and lay down their arms. The dacoits then began to run. All the three police parties surrounded the dacoits inside the nala and arrested six of them after beating them. Three of them, however, managed to escape. A country made pistol and four live cartridges were recovered from the possession of appellant Ram Sewak. One country made pistol and four live cartridges were recovered from the possession of accused appellant Dularey. One Pharsa was recovered from the possession of appellant Bhikhu and one spear was recovered from the possession of the accused Sukhdeo. The accused along with the incriminating articles were carried to the police station where F. I. R was lodged at 9. 30 AM. on 8. 3. 75. One Pharsa was recovered from the possession of appellant Bhikhu and one spear was recovered from the possession of the accused Sukhdeo. The accused along with the incriminating articles were carried to the police station where F. I. R was lodged at 9. 30 AM. on 8. 3. 75. The case, was investigated by Jagmohan Singh (P. W. 5) who submitted charge-sheet against the appellants after completing the investigation. The prosecution examined Sita Ram (P. W. 1) Ram Murti, Misra, (P. W. 2) Gangadhar (P. W. 3) Shiv Singh (P. W. 4) as witnesses of fact. Jagmohan Singh (P. W. 5) is Investigating Officer. The accused have not examined any witness in defence. The learned Sessions Judge on a consideration of the entire evidence arrived at the conclusion that the charges are proved beyond doubt against the accused appellants. He has consequently convicted and sentenced them of the same. They have felt aggrieved and come up in appeal. ( 4 ) SITA Ram (P. W. 1) is the Station Officer. He has narrated the entire prosecutions story, which I have given in the opening of this judgment. The entry in the General Diary of the Police Station, the recovery memos prepared on the spot and the F. I. R. fully corroborate him. Ram Murti Misra (P. W. 3) is the S. I. who accompanied the Station Officer and he has also fully supported the prosecution story. Ganga Dhar (P. W. 3) and Shiv Singh (P. W. 4) are residents of village Asuabaspur. They were picked up by the two constables from their respective houses and joined the police party near village Jamalpur towards the north. They have fully corroborated the prosecution story. The learned counsel for the appellants has urged that the prosecution has failed to prove beyond doubt that the appellants assembled in the nala for the purpose of committing dacoity and that they made any preparation for the commission of dacoity. They have fully corroborated the prosecution story. The learned counsel for the appellants has urged that the prosecution has failed to prove beyond doubt that the appellants assembled in the nala for the purpose of committing dacoity and that they made any preparation for the commission of dacoity. It has been pointed out that the Station Officer Sri Sita Ram Arog (P. W. 1) in his deposition before the court below has undoubtedly said that- the persons who assembled in the nala said that they should proceed and commit dacoity as it was getting late, but this fact has not been mentioned by the Station Officer himself who wrote the F. I. R. According to the F. I. R one dacoit said that Chhitampurwala had not come, whereupon the other dacoits said that they would be coming, and they should wait for them. After some time one of them said that now time has come. They have not come. They must have made some other programme of their own. We have sufficient arms and ammunitions and we are sufficient in number. First of all we must go and take the gun of the Pradhan in our possession. Just then all the dacoits became ready and got up saying Kaliman Ki Jai. It is true that in the F. I. R. the word dacoity has not been mentioned while narrating the conversation which was overheard by the Station Officer but the, facts narrated therein coupled with the circumstances under which the conversation was overheard, leave no room for doubt that the persons who were having the aforesaid conversation had assembled there for the purpose of committing dacoity and had made preparation for commission of the same. Sri Ram Murti Misra (P. W. 2) while narrating the aforesaid conversation has given almost the same facts as narrated by Sri Aroj (P. W. 1 ). After narrating initial part of the conversation this witness has said that one dacoit said now let us go and do our work. First of all we have to take possession of Pradhans gun. Thereupon, all the dacoits got up and became ready to proceed supporting the suggestion of the former dacoit. This witness has also not used the word, dacoity. On the other hand according to him, one of the dacoits said that let them proceed and do their work. First of all we have to take possession of Pradhans gun. Thereupon, all the dacoits got up and became ready to proceed supporting the suggestion of the former dacoit. This witness has also not used the word, dacoity. On the other hand according to him, one of the dacoits said that let them proceed and do their work. Ganga Dhar (P. W. 3) says that when one dacoit said that Chhitampurwala had not come the other said that they were getting late. They would go and first of all take possession of Pradhans gun. He has also not used the word dacoity in the aforesaid conversation of the dacoits. Shiv Singh (P. W. 4) says that when one dacoit said that Chhitampurwala had not come then the other said that let them go and commit dacoity at the house of Pradhan and take his gun in their possession. Sri Misra (P. W. 2) admitted in his cross- examination that his party had taken its position at a distance of 40 steps towards the east from the place where dacoits were sitting and party of Sri Arog (P. W. 1) was-at a distance of 25 steps towards the west. The third party was towards south-west at a distance of 60 steps. I do not find any substance in the contention raised en behalf of the appellants that from these distances the members of the police party could not overhear the conversation which was taking place amongst the dacoits. It is significant to bear in mind that it was a lonely place an I dead of night. The dacoits were waiting, according, to the prosecution inside the nala and the police parties were at their respective positions at the distances mentioned above. The members of the police party (P. W. 1 to P. W. 4) have deposed to have over heard the conversation, which took place amongst the dacoits. There is not a word in their cross-examination to suggest that under the prevailing circumstances it was not possible for them to overhear the conversation. The only possible conclusion which can be drawn from the evidence on the record is that the prosecution witnesses did hear the conversation which took place amongst the dacoits. There is not a word in their cross-examination to suggest that under the prevailing circumstances it was not possible for them to overhear the conversation. The only possible conclusion which can be drawn from the evidence on the record is that the prosecution witnesses did hear the conversation which took place amongst the dacoits. Sri Arog (P. W. 1) and Shiv Singh (P. W. 4) have deposed that the word dacoity was used by the dacoits in their conversation, but the F. I. R. and the deposition of the remaining two witnesses do not clearly show that the word dacoity was used by the dacoits in their conversation. But the conversation of the dacoits as narrated by these witnesses coupled with the circumstances under which the conversation was taking place leave no room for doubt that the persons who were having the conversation had assembled there for purpose of committing dacoity even if the use of word dacoity is not believed. They were armed with deadly weapons and firearms. They got up and became ready to proceed after saying Kali Manki Jai and that makes very clear that they had made preparation also for committing the dacoity in the house of Pradhan. The facts that the accused persons assembled there from different villages in a lonely place, to wit, a nala at an odd hour armed with deadly weapons of attack and defence, without any explanation for so assembling there at that hour, and then the conversation overheard by the P. W. 3 lead to the only conclusion that they had assembled there for put the pose of committing dacoity and did make preparation for committing the dacoity. ( 5 ) THE learned counsel for the appellants has urged that it is in evidence that the appellants were beaten with dandas and the police party, according to P. W. 1, proceeded from the police Station armed with fire arms and not with any danda or lathi. It is in evidence that the appellants were beaten with dandas during the occurrence. It is true that according to Station Officer Sri Arog (P. W. 1) the police party was armed with firearms when it left the Police Station. He does not say that any member of the police party at that time was armed with any lathi or danda. It is true that according to Station Officer Sri Arog (P. W. 1) the police party was armed with firearms when it left the Police Station. He does not say that any member of the police party at that time was armed with any lathi or danda. But on that account alone it is not possible to doubt the prosecution story or the testimony of the prosecution witnesses. It is in evidence that public witnesses were also picked up and with the police party when the appellants were arrested. The learned cross-examiner has not given any opportunity to the prosecution witnesses to explain as to how the appellants were beaten with lathis when the police officers did not carry any lathi or danda with them when they left the Police Station. The possibility of the public witnesses having been armed with la/his is there and use of their lathis by police officials cannot be over-ruled. I am, therefore, unable to agree with the learned counsel for the appellants that the prosecution story and the testimony of the prosecution witnesses is not worthy of belief simply because appellants had been beaten with lathis and dandas during the occurrence. ( 6 ) THE prosecution has produced two police officers and two public witnesses. Ganga Dhar (P. W. 3) was member of party No. 2 and Shiv Singh was member of party No. 3. They are perfectly independent witnesses of the occurrence. There is nothing on record to show that they are likely to swear falsehood in this case either to oblige the local police or on account of any enmity with the appellants. They have fully corroborated the prosecution story that the appellants have been arrested on the spot under the circumstances narrated above, and on a search of their person incriminating articles were recovered. The learned Sessions Judge has rightly placed reliance on the testimony of prosecution witnesses and believed them. In the result, the accused appellants have been rightly convicted and sentenced of the charges against them. The appeal has got no force and shall be dismissed. ( 7 ) THE appeal is dismissed. The conviction and sentence passed against the accused appellants are confirmed. They are on bail. Their bail bonds are cancelled. Let them be taken into custody forthwith to serve out the sentence. Appeal dismissed. .