H. G. CHAUDHURI, J. ( 1 ) SIX appellants upon their conviction under sections 399 and 402. Indian Penal Code and sentence of four years R. I. for each of the offences and a fine of rupees one thousand each, in default, R. I. for one year each by Assistant Sessions Judge, Birbhum in Sessions Trial No. 2 of September 1978 filed this appeal from jail. The sentences have been ordered to run consecutively. One of the appellants Sunil Bagdi (appellant No. 3) is reported to have died in jail in the meantime. Mr. H. P. Jaiswal the learned Advocate volunteered to argue the appeal on behalf of the appellants as an Amicus Curiae and we appreciate his service and spirit. Mr. Mukti Prosonno Mukherjee the learned Advocate represents the State Government as respondent. ( 2 ) THE prosecution case may be briefly stated as follows: On 23. 6. 1971 corresponding to 8th Asar, 1378 B. S. the appellants along with some other numbering in all 15 or little more were seen assembled below a tamarin tree on the Western bank of a tank locally known as Gutinga tank in village Bilashpur, P. S. Murari. It is alleged that the accused and others were Been preparing bombs under the tree. Some villagers organizing themselves as resistence party were then patrolling the village to keep off undesirable and anti-socials. The suspicion of the members of the said party arose because they saw the accused flashing their torch lights from beneath the tamarinds tree and they were also whispering amongest themselves suspiciously. It is alleged that the said villagers pursuaded some more villagers to join them and they encircled the Western bank of the tank and came near the accused to arrest them. As a matter of fact they managed to arrest nine persons of whom six eventually faced the sessions trial. Others, however, managed to escape. It is alleged that the accused bad powders of different kinds suspected to be gun-powder or explosive substance, sheets of paper, cloth bags, torch lights and quantity of thread with them and railway tickets. After their arrest, they disclosed their names and made a further disclosure that they had come to the village to commit a dacoity and were preparing themselves for the said operation. A police officer (P. W. 7) came on patrol duty to the village at 12. After their arrest, they disclosed their names and made a further disclosure that they had come to the village to commit a dacoity and were preparing themselves for the said operation. A police officer (P. W. 7) came on patrol duty to the village at 12. 30 mid-night and P. W. 1 made over to him- a written complaint giving the hour of occurrence as 22 hrs. on 23. 6. 1971. The formal F. I. R. , however, was drawn, up on 24. 6. 1971 at 5 A. M. The learned Assistant Jugde at the commencement of the trial framed three-fold charges against the accused, firstly, under section 401, Indian Penal Code, secondly, under section 399, Indian Penal Code and thirdly, under section 6 (3) of the Indian Explosives Act. At the conclusion of the trial upon materials on record, including evidence, the learned Judge held that the charge under section 6 (3) of the Explosives Act was not proved. He accordingly found the. accused not guilty of the said charge. In respect of the other two charges the learned Judge has concluded that the charges were proved. The learned Judge, however, bas not recorded his findings with regard to the charges under sections 402 and 399 separately nor has he discussed in details each of the constituent elements of offences which were proved beyond reason able doubt. ( 3 ) SECTION 354 of the Criminal Procedure Code requires that a judgment shall contain the point or points for determination, the decision thereof and the reasons for the decision and shall specify the offences of which and the section of the Indian Penal Code under which the accused is convicted. Unmindful of the said provision the learned Judge formulated the point for decision as follows: The point for determination is if the prosecution has been able to prove its case beyond reasonable doubt. We take exception to the above formulation because it does not indicate that the learned Judge had in his mind free-fold offences alleged against the accused. If he had that in mind he would have recorded his findings with regard to the three-fold offences separately after discussing the evidence relevant to the three kinds of offences. The learned Judge has not none this. All through the judgment the learned Judge has used the expression charge under sections 399/402, Indian- Penal Code. If he had that in mind he would have recorded his findings with regard to the three-fold offences separately after discussing the evidence relevant to the three kinds of offences. The learned Judge has not none this. All through the judgment the learned Judge has used the expression charge under sections 399/402, Indian- Penal Code. He forgot that the implication of the above expression was a charge under section 399 read with section 402, Indian Penal Code. Obviously the learned trial Judge did not mean that. From the sentence imposed by him on the accused it is abundantly clear that the learned Judge intended to convey the impression that the accused were guilty of offences under both the sections, viz. 399 and 402, Indian Penal Code. ( 4 ) THIS raises a question if more than five accused facing a trial can be simultaneously convicted of both the offences under sections 399 and. 402 and sentenced separately section 399, Indian Penal Code prescribes a maximum sentences of R. I. extending to ten-yean and fine and contemplates preparation by a person for commission of dacoity. Section 402, Indian Penal Code however, prescribes a punishment of R. I. for a term extending upto seven years and to a fine and contemplates assembly of five or more persons for the purpose of committing dacoity. The implication of the two sections are obvious. Five persons might have assembled at a particular place for commission of dacoit and only one of them might have armed himself with a deadly weapon by way of preparation for committing dacoity or might have armed himself with housebreaking instruments. In that event, the man spoken of last may be convicted of the graver offence under section 399 and the other may be convicted of the lesser offence under section 402, Indian Penal Code. Assembly of five or more persons seems to be implicit in the offence contemplated under section 399, Indian Penal Code. But the heavier punishment prescribed by the section is to be imposed on him or then only who have specially prepared themselves for commission of dacoity. In this connection we may refer to the co-relation between sections 39 and 397 Indian Penal Code when more than five persons are proved to have committed dacoity. But the heavier punishment prescribed by the section is to be imposed on him or then only who have specially prepared themselves for commission of dacoity. In this connection we may refer to the co-relation between sections 39 and 397 Indian Penal Code when more than five persons are proved to have committed dacoity. although they are all liable to be convicted and sentenced under section 395, but if amongst them one or more used deadly weapon or caused grievious hurt etc. he or they only would be convicted under section 397, Indian Penal Code and sentenced to heavier punishment prescribed thereunder. The learned Judge should have kept in view the co-relation between sections 399 and 402, Indian Penal Code and if he had done that he would have discussed the evidence adduced methodically and precisely. We are of the view that conviction of the same person or same set of persons simultaneously under both the sections 399 and 402. Indian Penal Code is neither proper not permissible. ( 5 ) FOR the purpose of conviction the learned Judge relied upon the testimony of P. W. 1 the informant, as corroborated by P. Ws. 2, 3, 4, 5 and 6 who were allegedly members of the village resistence party that night. P. W. 1 the informant deposed that along with P. Ws. 2. 3,4 and ten others while he was guarding the village at about 10/10-30 in the night he found some persons focusing light on the western bank of the tank Gutinga indulging in whispers. He deposed that along with other villagers somehow they encircled the bank of the tank and found 10-15 persons preparing bombs. It is not explained how 10-15 persons preparing bombs could be seen from a distance at night. There is no evidence that the persons had a lantern or a hazack burning in front of them. Similarly. P. W. 2 deposed that the persons encircled were preparing bombs. He also did not explain how he could see that. The deposition of P. Ws. 3, 4, 5 and 6 suffer from the same deficiency. This part of the prosecution case appears to us to be exaggerated and unbelievable. It is again unbelievable that a group of persons intending to raid a house as dacoits would came there without bombs or explosives made ready for use. The deposition of P. Ws. 3, 4, 5 and 6 suffer from the same deficiency. This part of the prosecution case appears to us to be exaggerated and unbelievable. It is again unbelievable that a group of persons intending to raid a house as dacoits would came there without bombs or explosives made ready for use. The story of the appellants being seen preparing bombs, as alleged is not believable. Some powder white or yellow is was seized but there is no report from any competent authority that the said powder was explosive substance. We have already Noted that the charge under section 6 (3) of the Explosives Act brought against the appellants failed. If the appellants, were not in possessions of any explosive substance it cannot be argued that they were preparing bombs. In course of his cross-examination P. W. 1 deposed that he did not find any lathi or any other weapon with the accused persons. So we reach the conclusion that the accused persons were not equipped with any explosive substance or readymade bombs nor were they armed with lathies or any such weapon which might have been useful in the commission of dacoity. If the accused were so ill-equipped the conclusion that they had assembled for commission of dacoity or were preparing for commission of dacoity becomes difficult for acceptance. The only incriminating evidence against the appellants were that they were not men of the village. The railway tickets alleged to have been recovered from them indicated that they had made journey from Bolpur to Chatra, a neighhouring village that night. That by itself neither proves assembly for the purpose of commission of dacoity, far less preparation there for. ( 6 ) THE learned Assistant Sessions Judge appears to have concluded that the accused confessed their offence to the arresting villagers. The confession, therefore was extrajudicial. To rely upon an extra judicial confession the evidence regarding the same should have been critically and carefully examined. Doing so we find the evidence on the point discrepant and unreliable. P. W. 1 deposed that at their interrogation Sudhir Roy one of the arrested accused disclosed that they live near about Bolpur side and assembled to prepare bombs for the purpose of committing dacoity in a house. Doing so we find the evidence on the point discrepant and unreliable. P. W. 1 deposed that at their interrogation Sudhir Roy one of the arrested accused disclosed that they live near about Bolpur side and assembled to prepare bombs for the purpose of committing dacoity in a house. He does not say that some of the known villagers had invited the appellants to the village for committing dacoity in the house of a particular villager. P. W. 2 struck a discordent note when he deposed that one of the arrested persons. viz. Mukunda told him that he engaged and brought 3-4 other accused persons for committing dacoity. He did not say that the accused confessed that they were preparing bombs. P. W. 3 deposed in a vague fashion without disclosing the name of any particular accused that the accused confessed that they were engaged for the purpose of committing dacoity. P. W. 4 deposed in a still different way. He stated that some persons disclosing their Dames as Babulal, Ganapati and others confessed that they had engaged. Khalek and Sajahan to commit dacoity in their house. P. W. 5 deposed that Mukunda, Ganapati and Babulal disclosed that Sajahan, Khalek and. Kasem advanced them money and brought them to the village for the purpose of committing a dacoity. He deposed that he knew Kasem very well. P. W. 6 deposed that some of the arrested persons gave out their name as Ganapati, Babulal and Sudhir and stated that they hailed from Bolpur side. It is worthy of note that he did not depose that any of them had made any confession. From the discussion above it is abundantly clear that with regard to the alleged confession the prosecution witnesses have deposed in discrepant fashion for the above reason the story cannot be accepted. ( 7 ) A similar discrepancy stated us in the face as to the time of the occurrence handing over the arrested persons to the police and lodging of the F. I. R. P. W. 1 deposes that the persons suspected were apprehended at about 10-30 at night and they were made over to the police at about 11-30 at night. But in the written complaint marked Ext. But in the written complaint marked Ext. 1 the time of occurrence is said to be 11-30 p. m. P. W. 7 the police officer who accidentally came to the patrol duty deposed that he reached the village at about 12-30 mid-night. If he reached the village at 12-30 midnight the arrested persons could not have been made over to him at 11. 30 as alleged. It is again curious that although a number of persons were arrested with the help of villagers numbering 20 or 25 on information was sent to the thana through any of the villagers although the thana was only 5 kilo meters away. The informant wrote out a written complaint waiting for the accident arrival of the P. W. 7 in the village. This aspect of the case arouses grave doubt in our mind as to the authenticity of the prosecution case. We note that on Ext. 1 there is no endorsement made by P. W. 7 as to the time when he received the written complaint from the informant although there is an endorsement on it marked Ext. 1-A showing that the written complaint was received at the thand on 24. 6. 1971 at 5 hours. Regarding the seizure or thread paper and powder looking like gun-powder or explosive substance we need not take serious notice. The seizure was not made by P. W. 1 himself after arrival in the village in the presence of independent witnesses. A reading of the deposition on record conveys the impression that the villagers encircling the accused who hailed from different village had already searched their persons to find out the materials said to be incriminating and the police officer (P. W. 7) mechanically prepared the seizure list in the presence of the assembled villagers who were no doubt parties. We mean to say that the seizure of the so called incriminating materials was not made in a proper and reliable fashion. We therefore, reach the conclusion that neither of the offences for which the appellants were convicted were proved beyond reasonable doubt. The learned trial Judge did not examine the evidence adduced before him critically to reach the conclusion if the offences were proved beyond reasonable doubt. ( 8 ) IN the circumstances stated above we hold that the judgment of conviction appealed against is absolutely untenable. The learned Judge was wrong in convicting the appellants. The learned trial Judge did not examine the evidence adduced before him critically to reach the conclusion if the offences were proved beyond reasonable doubt. ( 8 ) IN the circumstances stated above we hold that the judgment of conviction appealed against is absolutely untenable. The learned Judge was wrong in convicting the appellants. The sentences imposed on them were again improper. In the facts and circumstances of the case the learned judge should not have directed running of the sentences consecutively. In any event, the appeal will succeed and the judgment of conviction will be set aside. Hence, it is ordered that the appeal is allowed. The judgment of conviction and hence is set aside. The appellants, other can appellant No. 3 against whom the appeal had abated on account of death are found not-guilty of the offences for which they have been convicted or for any allied offence and they are acquitted. The appellants be set at liberty immediately. Gubinda Chandra Chatterjee - I agree. Appellants set at liberty