JUDGMENT 1. - Both these appeals are directed against the judgment passed by the learned Addl. Sessions Judge, Gangapur City, dated 30-11-1985 in Sessions Case No. 53/1984 by which both the accused appellants were convicted. Appellant Ramprakash, was convicted and sentenced under Section 399 IPC to 5 years rigorous imprisonment and fine of Rs 200/-. In default of payment of fine to further rigorous imprisonment for two months. For the offence under Section 402 IPC he was also sentenced to R.I. for 5 years and fine of Rs. 200/-. In default of payment of fine to further undergo one months rigorous imprisonment. For the offence under S. 3/25 of the Arms Act, the appellant was convicted and sentenced to one year rigorous imprisonment. All these sentences were ordered to run concurrently. Appellant Bakshi. was convicted for the offence under Section 399 IPC to 3 years rigorous imprisonment and fine of Rs. 100/-, in default of payment of fine to further undergo one months rigorous imprisonment. For the offence under Section 402 IPC he was sentenced to 3 years rigorous imprisonment and fine of Rs. 100/- and in default of payment of fine to further undergo one months rigorous imprisonment. For the offence under S. 3/25 of the Arms Act, he was sentenced to one year rigorous imprisonment. All these sentences were ordered to be run concurrently. Both the accused appellants being dis-satisfied with the aforesaid conviction and sentence awarded to them by the learned trial court, have filed these appeals against the same judgment. Since both the appeals arise out of the same judgment therefore, they are disposed of by one common order. 2. Briefly, stated the facts of the case are that on 31st March 1984, at about 10.30 p.m. motbir informed the S.H.O. Dharampal Singh, that 6.7 bad character persons were sitting near wall of Bandh of Gangapurcity and Udai-kala, who were armed with guns and lathis and from their talks in hushed voice he felt that they were preparing to commit dacoity in the house of Radhey Lal Meena. There-upon Dharam Pal Singh, alongwith the other police constables went in jeep which was stopped at a short distance from the college They went on foot and reached the spot at about 11.30 p m. where they found some people sitting in darkness. There-upon Dharam Pal Singh, alongwith the other police constables went in jeep which was stopped at a short distance from the college They went on foot and reached the spot at about 11.30 p m. where they found some people sitting in darkness. When they reached near them they found that they were 6 persons who had guns and were talking. On seeing the police they started running and the police party was successful in catching two persons namely Ramprakash and Bakshi. Accused Ramprakash (Ex P. 5) was having single barrel gun of 315 bore and 22 live cartridges of the same bore were also found in the pocket of his paint. Apart from this, he was also having a torch Accused appellant Bakshi (Ex. P. 4) was also found in possession of one single barrel gun of 12 live cartridges of the same bore were also found in the pocket of his kurta. Apart from this the 4 persons who were successfully in running away left following arms on the spot which were also recovered as Ex. P 6. One country made (Local) single barrel, 12 bore gun, one cloth bag which contains 17 live cartridges, one axe made of iron and one lathi. Both these accused appellants were not having any licence for the local made gun found in their possession. Therefore, they were charge-sheeted under Ss. 309, 402 IPC and also for the offence under S. 3/25 of the Arms Act. The learned trial court after recording the evidence and the statements of the accused appellants under Section 313 Cr.P.C. and hearing the arguments of both the parties found then guilty and convicted and sentenced them as indicated above. 3. Learned Amicus Curise, Shri Saini, appearing on behalf of accused appellant Ram Prakash, has contended that all the witnesses in this case are police employees and no independent witnesses have been produced. He therefore, urged that no reliance can be placed on the witnesses who are police employees. He has pointed out that only eye witnesses are police employees. He has further pointed out that (Ex. He therefore, urged that no reliance can be placed on the witnesses who are police employees. He has pointed out that only eye witnesses are police employees. He has further pointed out that (Ex. P. 12) is an application dated 23-3-1984, which was filed in another case namely State v. Ramprakash , in which it is mentioned that appellant Ramprakash is not in position to attend the court of learned A C J.M. Gangapur City, in connection with the same quarrel took place in previous night. Therefore, it was prayed that his personal attendance may be exempted. It has therefore, been contended that the appellant Ram prakash, was already in police custody from 23rd March, 1984 therefore, he could not have been arrested on 31-3-84 as alleged by the prosecution. He has also pointed out Ex. DI, is the certified copy of the judgment dated 10.4.1985 given by the learned Addl. C. J M. Gangapurcity, in the case of State v. Ramprakash (Case No. 162/1984) which shows that he was acquitted for the offence under S. 3/25 of the Arms Act. He has also pointed out that (Ex. D-3) is also an application dated 6.4.1984 filed in the court of learned Addl. CJ.M. Gangapurcity. It was also mentioned in it that since the accused appellant was in police custody therefore, he was not position to be present in the court on that day i.e. 6.4.1984. He therefore, contends that this clearly proves that a false case has been made out by the prosecution against the accused appellant who was already in police custody on 31.3.1984 and he could not have been arrested on this date as alleged by the prosecution. 4. I have heard learned counsel for both the parties and perused the record of the case. 5. The learned Public Prosecutor, on the other hand, supported the judgment and conviction of the accused appellant Ramprakash and has pointed out that he is a habitual offender as it is evident from (Ex. P9) which is report received from the police station Khaboli, District, Agra which has been sent to S. H. O. Police Station Gangapurcity District, Sawai Madhopur. This report shows that the appellant Ramprakash is involved in 18 cases of dacoity and also one of the case is under Section 396 IPC. He has also pointed out that Ex. P9) which is report received from the police station Khaboli, District, Agra which has been sent to S. H. O. Police Station Gangapurcity District, Sawai Madhopur. This report shows that the appellant Ramprakash is involved in 18 cases of dacoity and also one of the case is under Section 396 IPC. He has also pointed out that Ex. P. 10 which is gang note regarding appellant Ramprakash shows that he is a gang leader and proclaimed offender. Details of his earlier conviction under Sections 399/402 IPC are also mentioned therein. At one time he was not traceable a prise of Rs. 1,000/- was also announed regarding his arrest. Ex. P. 11 is report of rojnamcha regarding information given by the motbir on which the police went to arrest accused persons. Ex. P. 12, shows 'ravangi' of the police. He has therefore, pointed out that the accused appellant Ramprakash, is a habitual offender and is a previous convict and the case has been proved against him to hilt. 6. It may be pointed out that the application Ex. D2, or Ex. D3, filed on 23.3.84. and 6.4.84, respectively only mentioned that the accused persons is not able to be present in the court on that particular day as he was in police custody. However, no relevant document to prove that he was actually in police custody on 23.3.84 has been produced. Apart from this even if it is may be assumed for a moment that the accused appellant Ramprakash was in police custody on 23.3.84 it does not go to prove that he w-as continued to be in police custody up till 31.3.1984. when he is said to have been arrested as per the prosecution story. I, therefore, fine no force in the arguments advanced by the learned counsel for the appellant Ramprakash. He is a habitual offender and a previous convict and also a proclaimed offender and the learned trial-court, has discussed evidence in details and has rightly come to the conclusion that he has committed offences. Therefore, there is no ground to interfere with the conviction and sentence awarded to him. The appeal of the accused appellant Ramprakash, is therefore, rejected. 7. Coming to the case of accused appellant Bakshi learned counsel for the accused Bakshi, has contended that P. W. 4, Roshan Singh, has stated in his statement that R. A. C. personnel were also with them. The appeal of the accused appellant Ramprakash, is therefore, rejected. 7. Coming to the case of accused appellant Bakshi learned counsel for the accused Bakshi, has contended that P. W. 4, Roshan Singh, has stated in his statement that R. A. C. personnel were also with them. This witness has further stated that Sukh Ram Pal, A. S. I. and R. A. C. constables had caught hold of the accused appellant. He has stressed that none of the R. A. C personnel or the constables who caught hold of the accused appellant have been produced in court. After arrest, the accused persons were taken to college while various documents were prepared. P. W, 6, Ghanshyam, a eye witness has stated that at that time two peons of the college were present but none of these peons have been made witnesses. He therefore, contends that this casts a shadow of doubt on the story of the prosecution. He has also pointed out that D. W. 1, Mansukha, D. W. 2, Pritam, D. W. 3, Smt. Uganti wife of accused appellant Bakshi, have stated that the police party came in their village about 18/19 months earlier at about 8.00 a.m and took-away appellant Bakshi while he was working in his field for interrogation. He has therefore, stressed that appellant Bakshi, was not present at the time of the alleged incident. Learned counsel for the accused appellant has drawn my attention to the case of Chaturi Yadav and Ors. v. The State of Bihar, A.I.R. 1979 S.C 1412 . It has been observed by their Lordships of the Supreme Court, in this authority that mere fact that some persons were found at 1.00 a.m. in the school premises and same of them were armed with guns, some had cartridges and others ran away, it did not by itself prove that they had assembled for the purpose of committing dacoity or for making preparations to accomplish that object. It was further observed that the school was quite close to the market, hence it is difficult to believe that the appellants would assemble at such a conspicuous place with the intention of committing dacoity and would take such a grave risk. It was further observed that the school was quite close to the market, hence it is difficult to believe that the appellants would assemble at such a conspicuous place with the intention of committing dacoity and would take such a grave risk. In the present case, the accused appellants are said to have been assembled at a deserted place and away from the vicinity of village therefore, this authority has no hearing on the fact of this case. He has also drawn my attention to the case of Motilal v. The State of U. P. AIR 1979 (S.C.) 1690 . In this case their Lordships of the Supreme Court observed that the accused appellant was convicted under Sections 399/402 IPC. In this case the appellant was a young man and a student and had no previous conviction to his credit. Therefore the probation of Offenders Act, was granted to him. It may be pointed out that P. W, 7, Hari Mohan, is an independent witness, who has signed arrest memo Ex. P. 7 and P. 8 of the accused persons. He lives opposite college building and he was called from the house. Recovery memos Ex. P. 4, P. 5 and P. 6 were also prepared in his presence and was signed by him. Therefore, it is clearly shows that the arrest of the accused appellants and the recovery of the arms is proved, apart from the police witness by an independent witness also. As earlier stated that the learned trial court has discussed the evidence in details and I do not find it necessary to do the same again. I am, therefore of the opinion that the learned trial court has rightly convicted the accused appellant Bakshi also. 8. Learned counsel for the accused appellant Bakshi, has pointed out that P. W. 9. Radhey Lal, who is said to have dispute with the appellants Bakshi, has clearly stated in his statement that Bakshi, lives in the village and does the work of agriculturist. He has also stated that there was dispute regarding land between him and Bakshi and both of them used to go to attend the dates in the court. He has also stated that they had talking terms between them since sometime. It has also been stressed that appellant Bakshi, is not involved in any other case and there are no reports of criminal cases pending against him. He has also stated that they had talking terms between them since sometime. It has also been stressed that appellant Bakshi, is not involved in any other case and there are no reports of criminal cases pending against him. It has also been pointed out that he has already remained in jail from 1.4.1984 to 17.10.1984 i.e. for about 61/2 (six and half) months and is presently on bail and involved in his work as an agriculturist. It has therefore, been prayed that in these circumstances accused appellant deserves to be given benefit under Section 4 of the Probation of Offenders Act. It is pointed out by the learned counsel for the accused appellant Bakshi, has a fixed living place and is an agriculturist, he is not a previous convict and he has no criminal case pending against him. The offence and Ss. 399/402 IPC and 3/25 of the Arms Act, is not punishable with the death or imprisonment for life. 9. Keeping in view of the facts stated above and also the circumstance that accused appellant Bakshi, is an agriculturist and has already been released on bail more than two years ago and is not a previous convict, I am of the opinion that he deserves to be given benefit of provisions of Section 4 of the Probation of Offenders Act, 1958. It is, therefore, ordered that if the accused appellant Bakshi, enters into a bond in the sum of Rs. 5,000/- with one surety in the like amount for the period of two years to maintain peace and good behaviour within eight weeks from today in the court of learned Addl C.J. M Gangapur City, he shall not be arrested to undergo remaining period of imprisonment. However, if he fails to enter the bond and the surety as ordered above he shall undergo sentence for the remaining period of imprisonment and fine as awarded by the learned trial court. 10. The appeal of accused appellant Ramprakash, is dismissed. *******