B. C. JAUHARI, J. ( 1 ) THIS appeal has been filed by SADHOO, Phoolan Singh, Mohkam Singh and Raghubir against their conviction and sentence under sections 399/402/ 307/149 Indian Penal Code and 25 Arms Act, excepting Raghubir imposed on them by Sri R A. Singh, I Additional Sessions Judge, Mainpuri-vide his judgment dated 8-4-1976. ( 2 ) THE case against the appellants was that Sri Bakhat Singh P. W. 1 posted as Station Officer, Khairagarh along with his Head Constable Room Singh Sub-Inspector Sobaran Singh, some police constables and two sections of P. A. C. set out from the Police Station Sikohabad in search of the hated gang or notorious dacoits Jai DAYL and Shree Krishna on 10-9-1974 at 1. 05 P. M. after making of the entry of their departure in the General Diary of Police Station Sikohabad by clerk constable Ram Bhajan P. W. 3 copy of which is Ex. Ka 8. As they reached the town of Sirsaganj they were met by an informer that the gang would collect at the house of Mohkam Singh appellant in Nagla Dharma and the gang was contemplating a dacoity at the house of Saheb Singh, Pradhan of village Paigu. Sri Bakhat Singh then went to police station Sirsaganj and took with him Harpal Singh P. W. 2 Station Officer, Sirsaganj at that time and constables Badan Singh and Ram Bharosey were sent to the house of Saheb Singh for his safety. They came back to the crossing where Shyam Singh P. W. 4 and one Mahabir Singh met who were bound for Sikohabad. They were asked to accompany the police party for this raid and they an went on a P. A. C. truck and reached village Bajuwa leaving the truck there Thereafter Sri Bakhat Singh divided the force into two parties and took mutual search of each other. The first Party was headed by Bakhat Singh and included Shyam Singh P. W. 4 alongwith others. Second party was headed by Sri Harpal Singh, P. W. 2 and included the public witnesses Mahabir Singh and others. The first party was posted on the north-west of the Kotha while the second party was posted on the southern-east of the Kotha. The first Party was headed by Bakhat Singh and included Shyam Singh P. W. 4 alongwith others. Second party was headed by Sri Harpal Singh, P. W. 2 and included the public witnesses Mahabir Singh and others. The first party was posted on the north-west of the Kotha while the second party was posted on the southern-east of the Kotha. They saw the burning of a match-stick and over-heard someone saying that it was no use to wait for Prem Singh and they should proceed to commit dacoity at the house of Saheb Singh Pradhan with out any delay. Station Officer Bakhat Singh being satisfied that they were dacoits inside the Kotha, challenged them by flashing torches and asked them to surrender as they were surrounded by the police. The dacoits emerged from the Kotha and fired at the police party. The police party returned the fire. The police party succeeded in capturing the appellant on the spot while others made good their escape. The names of these who had escaped were told by Shyam Singh and Mahabir Singh to be Jai Dayal, Shree Krishna, Chandra Bhan and Viddya Ram, another Shree Krishna and Tandon. On the search of the appellants a S. B. B. L. 12 bore gun Ex. 1 having a spent cartride in its barrel and a leather bag containing 5 live cartridge (Ex. 211 to Ex. 2/5) were recovered from the possession of Sadhoo. From the possession of Phoolan Singh a leather bag Ex. 4 containing 16 live cartridges Ex. 6 and a pistol Ex. 5 was recovered. From the possession of Mohkan Singh a country made pistol Ex. 7, 3 live cartridges Ex. 8, torch Ex. 9, match-box Ex. 10, a bin bundle Ex. 11, a protective spectacles Ex. 12, a fountain pen Ex. 13. A safety razor Ex. 14 and a plastic bag Ex. 15 were recovered. A lathi Ex. 16 was recovered from the possession of Raghubir. Excepting the lathi all other articles were sealed on the spot and recovery memos Ex. Ka. 1 to Ex. Ka. 4 were prepared. From the place where the dacoits had assembled articles Ex. 17 to Ex. 36 were recovered and a memo Ex. Ka. 5 were prepared. Empities of the cartridges used by police force were collected and a memo Ex. Ka. 6 was prepared. The arrested persons were. Ka. 1 to Ex. Ka. 4 were prepared. From the place where the dacoits had assembled articles Ex. 17 to Ex. 36 were recovered and a memo Ex. Ka. 5 were prepared. Empities of the cartridges used by police force were collected and a memo Ex. Ka. 6 was prepared. The arrested persons were. made papurdah and as such brought to the police station Sikohabad on 11-9-1974 at 6. 30 A. M. and Bakhat Singh P. W. 1 dictated his report Ex. Ka. 7 to Ram Bhajan P. W. 3 and an entry was made in the General Diary of Police Station copy of which is Ex. Ka. 9. As the case pertained to the jurisdiction of police station Ghiror, papers were sent for investigation after making a note in the General Diary copy of which is Ex. Ka. 10. Sri D. P. Gautam P. W. 5 started investigation of the case, recorded statements, of the witnesses inspected the locality and prepared a site-plan Ex. Ka. 11 and after completing investigation submitted a charge-sheet Ex. Ka. 12 to Ex. Ka. 15 against the accused. ( 3 ) THE accused pleaded not guilty and attributed their implication in the case due to enmity. The learned Session Judge came to the conclusion that the offence under Sections 399/402 Indian Penal Code was made out against all the appellants and that of section 25 Arms Act against the appellants excepting Raghubir. ( 4 ) I have heard the learned counsel for the appellants and the learned State counsel at great length and feel that the conviction recorded by the learned Sessions Judge cannot be sustained and must be set aside. The prosecution in this case relies on the testimony of Bakhat Sihgh P. W. 1, Harpal Singh P. W. 2 and Shyam Singh P. W. 4 who are said to be the eye-witnesses of the occurrence. Out of these witnesses Bakhat Singh P. W. 1 and Harpal Singh P. W. 2 are sub inspectors belonging to police station Khairagarh and Sirsaganj. It is curious that this assemblage of dacoits is said to have taken place at the house of Mohkam Singh one of appellants in this case which lies in the jurisdiction of police station Ghiror and the police of Ghiror were not associated with this raid at all. It is curious that this assemblage of dacoits is said to have taken place at the house of Mohkam Singh one of appellants in this case which lies in the jurisdiction of police station Ghiror and the police of Ghiror were not associated with this raid at all. The reasons advanced that it would have delayed is wholly unconvincing because the party had a truck with then which could have easily conveyed information of their intended raid to the police personnel at Ghiror. ( 5 ) IN this case the police personnel consisted about 23 persons who were armed to the teeth there being P. A. C. constables also amongst them and it is rather surprising that from a single door shown by letter 2 in the site-plan a majority of the assemblage namely six in number were also to make good their escape and it was only the unfortunate lot of the four appellants to be arrested on the spot. It is equally amazing that there was firing from both the sides and yet no one received even a minor scratch. It is also curious that the Investigating Officer did not find any signs of any encounter on the spot. Normally whenever such raids are conducted, entries are made in the General Diary of the police station before proceeding. In this case however, those General Diary entries have not been exhibited to afford corroboration to the statements of these police officers. The net result, therefore, in that the case cannot be believed merely on the strength of the statements of the police personnel. ( 6 ) CORNING now to the statement of public witness Shyam Singh, he is not an independent witness inasmuch as he was the author of the report of murder lodged against Shree Krishna and Jai Dayal who were co-accused along with the appellants being crime No. 319 and had, therefore, an axe to grind against Shree Krishna and Jai Dayal. He has admitted that the other appellants are relations of this accused. Therefore, he is not an independent witness as the prosecution wants us to believe. Further the other witness Mahabir Singh was also not examined. He is none other than the scribe of the report No. 319. He has admitted that the other appellants are relations of this accused. Therefore, he is not an independent witness as the prosecution wants us to believe. Further the other witness Mahabir Singh was also not examined. He is none other than the scribe of the report No. 319. Even Shyam Singh who is the only public witness examined in this case does not support the theory of the prosecution that the dacoits had talked themselves and one of them said that they should go and commit dacoity at the house of Pradhan of village Paigu. The other witnesses produced in this case Bakhat Singh P. W. 1 and Harpal Singh P. W. 2 have made memo variations in what was actually said on the spot. It is rather improbable that outside the Kotha which is closed on all the sides excepting the door on the south, the police personnel can be able to hear fairly the conversation carried on inside the Kotha. Shyam Singh, however, does not support as far as this part bf the prosecution case is concerned and makes no mention. By Shyam Singh could not listen and reproduce the conversation, how was it possible for Bakhat Singh the party leader to do so. Apart from this Shyam Singh according to the F. I. R. is said to be posted with a lathi when he went to attend this raid although both Bakhat Singh P. W. 1 and Harpal Singh P. W. 2 said that he was armed with a gun when he has gone to this raid. This contradiction is not a minor or trivial one which cannot be noticed. This is a major contradiction. ( 7 ) APART from what has been stated above Shyam Singh has said that the night was a bright-lit night while Harpal Singh P. W. 2 has said that it was a dark night. Then Shyam Singh says that encounter and firing took place for almost 1/2 hour while Harpal Singh P. W. 2 confined it to 5 or 6 minutes only. There is also difference in the statements of the witnesses as to the stage at which the informer left the police party. There is also difference on the direction where the parties were posted. There is also difference in the statements of the witnesses as to the stage at which the informer left the police party. There is also difference on the direction where the parties were posted. ( 8 ) CONSIDERING all the facts and circumstances of the case I feel that the evidence of the witnesses produced by the prosecution is not reliable and does not prove the assemblage of the encounter as stated by the prosecution. ( 9 ) IN the result the appeal is allowed. The conviction and sentence recorded by the learned Sessions Judge are set aside. The appellants are on bail. They need not surrender and their bail bonds are discharged. Appeal allowed. .