Judgment 1. Both the appeals arise out of the one and the same judgment of the trial Court. The appellants have been held guilty and convicted of the charges under Ss. 399 and 402 of the Penal Code (hereinafter to be referred to as the Code) and each one of them has been sentenced to undergo rigorous imprisonment for seven years under each count. 2. According to prosecution, the Police Patrol Party, while on round duty got some scent that a few persons had assembled in a house which was under construction, made a raid and succeeded in apprehending all the three appellants. But a few of them numbering about four could manage to escape. Incriminating articles like firearms, some bombs and Bhujali were recovered from their possession. The prosecution alleges that the appellants along with others had assembled for the purpose of committing dacoity and that they were making preparation for the same. 3. The appellants were taken into custody. The incriminating articles recovered by the police were seized and a seizure list was also prepared in presence of two independent witnesses, namely, P. Ws. 5 and 6. The accused appellants were taken to police station. S.I. of police Ram Rekha Singh (P.W. 4) who was in the raiding party gave statement before the Officer-in-charge of Dhanbad Police Station. On the basis of that, the first information report was drawn up and the case under S. 399 read with S. 402 of the Code was registered. The same witness i.e. the informant (P.W. 4) was entrusted with the job of investigation. After completing investigation, charge-sheet was submitted and the accused-appellants were thus put on trial. In the first information report, it has been said that the appellants had confessed before them that they had assembled there for the purpose of committing dacoity. 4. Seven witnesses were examined at the trial stage. P. W. 1 is a witness of formal character. P.Ws. 2 and 3 are the police officials who were in the raiding party along with P.W. 4 S. I. Ram Rekha Singh. P.Ws. 5 and 6 were brought in Court to speak about the arrest and seizure but they did not support the prosecution version and both of them were declared hostile by the prosecution. P.W. 7 is another police constable who was also in the raiding party. 5. Mr. P.Ws. 5 and 6 were brought in Court to speak about the arrest and seizure but they did not support the prosecution version and both of them were declared hostile by the prosecution. P.W. 7 is another police constable who was also in the raiding party. 5. Mr. M.K. Laik appearing in Criminal Appeal No. 10 of 1984 (R) for appellant Gholtu Modi has submitted that the prosecution could not prove the fact that there was any assemblage for the purpose of commission of dacoity or the appellants were making any preparation for commission of such offence. It has also been urged that even if the entire evidence of the prosecution is taken into consideration, all that can be gathered is that the appellants had assembled in a house at some odd hour but it could not be said that they were making any preparation for commission of dacoity or the assemblage was for that purpose. 6. Mr. Chhabra, counsel for the other two appellants in Criminal Appeal No. 49 of 1984 (R) has also advanced similar argument. The learned Advocate has further submitted that even recovery of incriminating articles from the possession of the appellants or from the place where they were sitting would not prove the charge. It has been argued that even the trial Court was probably conscious of the fact that mere assemblage and recovery of some incriminating article do not prove the charge. The learned Judge in para 10 of the judgment impugned has said that the simple fact that the accused persons were found sitting in a lonely place in the dead hour of night and some firearms were recovered from their possession cannot lead to the conclusion that the accused had assembled for the purpose of committing dacoity. 7. The trial Judge was also conscious of the fact that the statement in the first information report that the accused persons had confessed that they were sitting there for the purpose of committing dacoity is inadmissible in law. 7. The trial Judge was also conscious of the fact that the statement in the first information report that the accused persons had confessed that they were sitting there for the purpose of committing dacoity is inadmissible in law. But it appears that the learned Judge while appreciating the evidence has been very much obsessed by the fact that the assemblage was in a lonely place; that live bombs and a Bhujali and also bottles of wine were recovered from that place and on these accounts, the Court in conclusion took the view that accused had assembled there and were making preparation for the purpose of committing dacoity. Undoubtedly, it is a bad analogy, mere assemblage, as observed by the trial Court itself does not prove the charge. People may assemble for manifold purposes, and to speak in the least. Counsel for the appellants went on arguing that they might have assembled to plan and to commit murder of some one and might be lying in wait for achieving the purpose but this would not prove the charge under Ss. 399 and 402 of the Code. There is much force in the submission. To prove the charge under these heads, all such inferences must be eliminated. What is punishable under S. 399 of the Code is making of any preparation for committing any dacoity. S. 402 of the Code, in fact, is like a preventive section under which punishment is imposed if there is an assemblage of five or more persons for the purpose of committing dacoity. Thus, it is clear these two sections are confined to preparation for commission of dacoity and have no reference to any other offence. The prosecution, therefore must prove from some evidence directly or indirectly or from attending circumstances that they had assembled for no other purpose than to make preparation for commission of dacoity. If the evidence falls short of it, the case must fail. 8. In the aforesaid context, in analysing the evidence of the witnesses, it has been noticed that even the informant (P.W. 4) in his statement did not speak a word that the appellants had assembled for the purpose of committing dacoity. Similarly, the other witnesses P.Ws. 3 and 7 are equally silent on this score. 8. In the aforesaid context, in analysing the evidence of the witnesses, it has been noticed that even the informant (P.W. 4) in his statement did not speak a word that the appellants had assembled for the purpose of committing dacoity. Similarly, the other witnesses P.Ws. 3 and 7 are equally silent on this score. It is only P.W. 2 who made a vague assertion while giving his deposition that the accused had assembled for the purpose of commission of dacoity. It is needless to repeat that in the very first information report, the informant had said that the appellants had confessed that they had joined and assembled for the purpose of commission of dacoity and were making preparation for the same and that four of their companions had slipped away. They also admitted that one of them who ran away was named Andhra. The police could not find any trace of either Andhra or any other accused, said to have joined in the company of these three appellants. 9. It is the case of the prosecution that the police party while getting back from the patrolling duty had seen the accused persons in the said house near a Railway Crossing. The house was still under construction and was only half built and at the back of the house, there is open field. Both the counsel for the appellants have rightly submitted that in any view that place cannot be described as a lonely one, inasmuch as the time given was about 4 to 4.30 A.M., which also cannot be said to be an assemblage at an odd hour of night. Apart from it, the two independent witnesses did not support the prosecution version. Mr. Laik while canvassing the case of appellant Gholtu Modi in Criminal Appeal No. 10 of 1984 (R) has further condemned the very act of investigation and, in my opinion, rightly on the ground that the informant should not have taken up the investigation in his own hand, as he may not be impartial. The informant while investigating the case, must have made strenuous efforts to collect evidence in support of his statements made before the officer-in-charge of the police station to get laurels. 10. The informant while investigating the case, must have made strenuous efforts to collect evidence in support of his statements made before the officer-in-charge of the police station to get laurels. 10. Counsel for the State on the other hand, in rebuttal of the points raised, has submitted that the collection of the accused in a dilapidated house at such an hour and recovery of incriminating articles from their possession lead to only presumption that they were there for the purpose of committing dacoity. I think the submission is totally misconceived. 11. The word preparation has not been defined in the Penal Code but it can well be said that the prosecution must show some such conduct to prove the factum of preparation by the assembly and that the accused persons had conceived any such designs for committing dacoity and, in fact, intended to achieve the object for which they had assembled. It is only then that the evidence of recovery of firearms or other incriminating articles become relevant. Assemblage should be for a contemplated act of committing dacoity. For the recovery of fire-arms, live bombs" and other such incriminating articles, the police has registered a separate case. The Investigating Officer (P.W. 4) has said that accused have already been separately charge-sheeted for that. I, therefore, do not consider necessary to make any comment with regard to correctness or otherwise of the recovery of the firearms or other incriminating articles for which they have been separately put on trial. 12. The evidence must be such which may plainly manifest the main charge to satisfy the conscience of the Court that the members of the assembly did some such act or acts which may lead to irresistible presumption that they had assembled for the purpose of committing dacoity and were making preparation for the same, but in absence of any such evidence coming forth, mere assemblage and recovery do not prove the charge. 13. In the circumstances discussed above, the case of the prosecution fails. The appellants are acquitted. They may be discharged from the liabilities of their bail bonds, if any.