JUDGMENT Khastgir. J. The appellants Mohon Ghosh, Satyanarayan Shaw and Kashi Nath Adhikari preferred this appeal being aggrieved by a conviction together with three other accused under ss.399 and 402 of the Indian Penal Code to suker rigorous imprisonment for seven years and six years respectively. Similarly, Ajit Das @ Babu and Answar ali preferred an appeal being aggrieved by a conviction under ss.399 and 402 of the Indian Penal Code to undergo rigorous imprisonment for seven years and the convection of the appellant Ajit Das under s. 25(1) (a) of the Arms Act to undergo rigorous imprisonment for three years. 2. The case against the appellants was that pursuant to a complaint mad by the sub inspector Ashok Kumar Bhowmick of Haripal Police Station on the ground that on 11th of February, 1975 on receiving a source information the police party consisting of number of police personnel went to Basudebpur more. The Circle Inspector of Tarakeswer who also came there on night round accompanied the raiding party. On reaching an abandoned hut which is used as a pachai shop (country liquor shop) they found a lamp was burning and some persons inside the hut. The police personnel surrounded the hut. As soon as the complaint Ashok Kumar Bhowmick flashed his torch, the persons who assembled there also focused their torches. One of the miscreants announced that the police has come. As a result one of the miscreants hurled a cracker which exploded on the ground, as a result nobody sustained any injury. Thereafter the police personnel pounced upon the inmates and arrested lambusi, having a loaded pipe gun with live cartridges in his pocket and one big knife with brass made handle. Answar ali had a big digger, Mohan Ghosh, Satyanarayan Shaw, and Kashi Nath Adjikari were also arrested. Some other persons fled away from the place who could not be apprehended. The seizure list was prepared in the presence of the witnesses who accompanied the police personnel in respect of the pipe gun, with live cartridges, wearing apparels, one bicycle chain, daggers, knife together with lahistle found inside the pocket of the shirt which was worn by lambusi some materials for the purpose of preparation of bomis had also been recovered. The seizure also included a bunch having seventy keys in number, two hasuas, empty liquor bottles, one kerosene lamp were also seized. The seizure also included a bunch having seventy keys in number, two hasuas, empty liquor bottles, one kerosene lamp were also seized. The learned Trial Judge framed a charge against Lambusi and Ajit Lal Das under s.25 (1) (a) and s.27 of the Arms Act for having in their possession firearms to with pipe gun cartages etc without any licence for the unlawful purpose of using them. Apart from that a charge was framed against Lambusi, Answar Ali, Ajit Das, Mohan Ghosh, Kashi Nath Shaw,Satyanarayan Shew under s.399 as also s.402 of the Indian Penal Code. Ashok Kumar Bhowmick narrated the incident in his evidence as to under what circumstances pursuant to source information he together with the force at about 11:30 p.m. went to Basudebpur More where he met the Circle Inspector of Tarakeshwar Circle. He called Gour Mohan Pal, Panchanan Sadhukhan and Surendra Nath Das, members of the public to accompany the police personnel for the purpose of raiding a pachsishop were certain dacoits had assembled which was situated on a files to the south of the road. As soon as the electric torch was focused, a bomb was bursted which bursted with a loud report. After surrounding the shop room the police personnel could apprehend seven persons with arms and ammunitions other made good with their escape P.W.1 identified all the six persons from whose possession loaded pipe gun, live cartridges, police, whistles, gold ring a big dagger two live K.F. special cartridges of 12 bore, wrist watch, one sickle and a cycle claim was recovered from another person named Chandi Ghosh who did not face the trial. The double edged dagger was also recovered Apart from that a brief case together with a bunch of keys was seized by the police. One electric torch some materials like newspapers jute strings, stone chips, mixture of explosive for the purpose of preparation of bombs was also seized, apart from the empty bottles of liquor cigarette and match box. The accused Satyanarayan Shaw, Kashl Nath and Mohen were admitted to be local men 3. The defence suggestion was that as P.W. 1 used to make purchase of vegetables from the shop of. Satyanarayan Shaw, and because of dispute over such purchase he has been falsely implicated in this case He admitted that Satyanarayan was detained under MISA. The accused Satyanarayan Shaw, Kashl Nath and Mohen were admitted to be local men 3. The defence suggestion was that as P.W. 1 used to make purchase of vegetables from the shop of. Satyanarayan Shaw, and because of dispute over such purchase he has been falsely implicated in this case He admitted that Satyanarayan was detained under MISA. Further In cross-examination it was suggested that there were shops, hotels, dharamsalas etc on both sides of the road at the Basudebpur crossing, towards Baidyabati on the left side were the shops of Basudeb Sadhukhan and Panchanan Sadhukhan. Men sleep inside those shops during the night. There is also a garage of Gopal Kokey and Rahaman. There is also a hotel of Biswanath Chowdhury and lit a little distance there is a cold storage it was suggested that on the roadside towards Baidyabati there is a sweat meat shop and a tea shop and the hotel of show Mangal Chowdhury. He admitted that towards Tarakeswar Side there is a goomty or pan shop The abandoned hut was about 300 cubit from the crossing P.W.1 with the force reached the spot at about 1-30 a.m. which was 3/4 K M away from Haripal Police Station. He admitted that there lire houses at the crossing he admitted in his cross examination that although there was a loud report of the bursting of the bomb none else Came to the place of occurrence 4. Panchanan Sadhukhan, P.W.3 a member of Basudebpur R G Party corroborated the evidence of PW.1 but he did not enter the but nor seen the seizure and/or arrest of the person. He admitted that there are shops on both sides of the road near the crossing including a garage About hundred cubit away from the country liquor shop a few santals lived there. He admitted that at the crossing there was one sweat meat shop belonging to Luxmi Das to the east of such shop there is a tea shop of Bhim Ghosh. There is a hotel of Shew Mangal Chowdhury and Anil Das and towards Tarakeswer Side, there is a pan shop of one Ram Raj Shew a cloth store of Khagen Patra, cycle repairing shop of Hamanta Mukherjee shop of Gulu Mastan dealing with fertilizers There is also a two storied house of Sohadeb Sadhukhan 5. There is a hotel of Shew Mangal Chowdhury and Anil Das and towards Tarakeswer Side, there is a pan shop of one Ram Raj Shew a cloth store of Khagen Patra, cycle repairing shop of Hamanta Mukherjee shop of Gulu Mastan dealing with fertilizers There is also a two storied house of Sohadeb Sadhukhan 5. Similarly, Joygopal Pal, P.W. 4 a member of the local R.G Party narrated the Incident and subsequently found seven men inside the but from whom various articles like pipe gun, cartridges, bullets, double edged sharp cutting weapon keys chain, electric torch a country lamp newspapers, gun powder, stone chips, two liquor bottles etc were seized. He identified all those articles in court and the six accused apprehended on that night. He identified that from Lambusi the pipe gun and bullets were recovered. In cross-examination he admitted that he did not state to the Investigating Officer that on search one pipe gun with five cartridges and two other cartridges were recovered from some of the accused persons He admitted that he deposed against the appellant Lambusi at a triad before the Chandenagore Court. In cross-examination he stated that the pipe gun was recovered from the person of Lambusi which was stuck inside his waist. 6 Surendra Nath Das another member of the R G Party reiterated the prosecution case Pipe gun and cartridges were recovered from the possession of Lambusi. He also identified Sk Answar Ali from whose possession a knife was recovered. He admitted that at the time when the appellants were apprehended and the arms were recovered he was outside the hut and it was only after such arrest and searches were made and completed he entered the hut The articles seized did not bear any special markings which helped the witnesses to identify them He in Cross examination admitted that his signature was taken at the police station. He further admitted that he himself did not see the pipe gun being recovered from the possession of Lambusi but that's what he heard from the Investigating Officer. 7. Basudeb Saha, a seller of foodstuff admitted in his examination that people who buy country liquor from Chowtara they make the purchase of potato curries etc from his shop the hut from where the accused persons had been apprehended is a hut made with bamboo walls. 8. 7. Basudeb Saha, a seller of foodstuff admitted in his examination that people who buy country liquor from Chowtara they make the purchase of potato curries etc from his shop the hut from where the accused persons had been apprehended is a hut made with bamboo walls. 8. Sub Inspector Dipak Mitra (P. W. 10) corroborated the evidence of P W 1 He stated that the police had source information that certain dacoits had assembled there for committing dacoity He identified the pipe gun and the cartridges recovered from the possession of Lambusi and also Identified him at the dock Two bullets were recovered from Ajit Dad. He also identified the other accused persons at the trial. 9. The defence suggestion that because of some dispute regarding price of vegetables purchased at the market the police personnel had falsely implicated them in the instant case of dacoity, has been totally denied by them. The defence suggestion that they had also been Implicated In other cases have not been totally admitted by them. 10. Sri A.K. Ghosh, the Arms Expert (P.W.2) examined the pipe gun in question five rifle cartridges and one live cartidge of rifle having striking mark on the percussion cap seized from Lambusi and two live cartridges of 12 bore gun seized from Ajit Das. On exam nation not only the pipe gun was found in order but he opined that it was dangerous for human lives or any livestock. The five cartridges were found to be ammunition of semiautomatic rifle. By firing one of them he tested the firing action of the same. These ammunitions were dangerous for human lives He fired the pipe gun with a cartidge and also found the firing part of the pipe gun intact. The cartidge found from the possession of Ajit Das was also tested and its firing power was found to be intact. 11. Although there is sufficient evidence given on behalf of the prosecution of the assembly of the accused persons in the hut, arrest of the six accused persons from the hut in question and also of the recovery of the various arms and ammunitions and there was no reason to disbelieve that part of the prosecution case. 11. Although there is sufficient evidence given on behalf of the prosecution of the assembly of the accused persons in the hut, arrest of the six accused persons from the hut in question and also of the recovery of the various arms and ammunitions and there was no reason to disbelieve that part of the prosecution case. More so in the light of the defence raised at the time of the cross-examination that the miscreants have been falsely implicated and not arrested from the place of occurrence but from their respective houses or because there was a dispute over the purchase of vegetables in the market by some of the police personnel. The defence submission that the miscreants have been picked up from their respective residences and falsely implicated on a charge of decoity is unacceptable to this court, in view of the overwhelming evidence given on behalf of the prosecution of the facts and circumstances under which the appellants have been arrested from the hut and arms and ammunitions recovered from the possession of some or them. Similarly, the defence version that they have been implicated in other cases before other courts without any particulars is of no consequence. There is no reason to hold that the police personnel were motivated by any inimical disposition towards the appellants. There is no reason to disbelieve that part of the prosecution case that the accused persons at that unearthly hour of the night assembled there, some of whom with arms and ammunitions and on source information they bad been apprehended by the police personnel and those alms and ammunitions had been seized from their possession in the presence of the independent witnesses. Neither there is any reason to disbelieve the members of RG Party who accompanied the police personnel to the spot and corroborated their evidence. The prosecution thus had been able to establish that on the date and time and the place the accused persons were assembled with deadly weapon and other articles in the instant case specific charges had been framed under ss. The prosecution thus had been able to establish that on the date and time and the place the accused persons were assembled with deadly weapon and other articles in the instant case specific charges had been framed under ss. 399 and 402 of the Indian Penal Code, which provides as fallows :- "Section 399-Making preparation to commit dacoity- Whoever makes any preparation for committing dacoity, shall be punished with rigorous imprisonment for a term which may extend to ten years and shall also be liable to fine" Section 402 –Assembling for purpose of committing decoity- Whoever, at any time after the passing of this Act, shall be one of five or more persons assembled for the purpose of committing dacoity, shall be punished with rigorous imprisonment for a term which may extend to seven years, and shall also be liable to fine" 12. Hence, the prosecution case suffered from one infirmity that is that it failed to substantiate its case that all the miscreants assembled there for the purpose of committing dacoity. Hence, preparation for committing dacoity or assembly of five or more persons for the purpose of committing dacoity has not been proved beyond all reasonable doubt save and except a bald statement that on source information the police personal came to know that these persons have assembled there for the purpose of committing dacoity may not be sufficient to drive home the charge framed against them, Although the police is under to obligation to disclose the source Information but some other evidence to indicate that those accused persons assembled there for the purpose of committing dacoity is expected in as much as the male fact that they were found at such deadly hour of the night at that deserted place with arms and ammunitions do nut by itself prove that they assembled there for the purpose of committing dacoity and no other offence. In the case reported in AIR 1979 SC p 1412 Chaturi Yadav & ors. In the case reported in AIR 1979 SC p 1412 Chaturi Yadav & ors. V. State of Bihar where it was held by the learned Judges of the Supreme Court that "Prosecution evidence merely showing that eight persons including the appellant were found in the school premises which was quire close to the market at I am and that some of them were armed with guns, some bad cartridges and others ran away- Held that the conviction under ss.399 and 502 was not sustainable - The mere fact that these persons were found at I am did not by itself prove that they had assembled for the purpose of committing dacoity or for making preparations to accomplish that object-The possibility that the appellants might have collected for the purpose of murdering somebody or committing some other offence Could not he safely eliminated." 13. Under similar fact and circumstances In the Instant case there being no other evidence save and exempt assembly inside the hut at about 1 and 1:30 am in the morning with arms and ammunitions by Itself conclusively do not prove that the miscreants assembled there solely for the purpose of committing dacoity and no other offence. 14. In the Case reported in AIR 1958 Cal p.25 Madhusudhan Sen, Gupta v. State of West Bengal. It was held by Chakravarti CJ that- "It thus appears to me that in order to establish a charge under s.399 some act amounting to preparation must be proved and what must be proved further is that the act, for which the preparation was being made, was a dacoity, that is to say, robbery to be committed with five or more persons For the latter, the test is the intention of the accused himself and his intention alone and if his Intention to commit dacoity along with four or more other persons is proved, It is not necessary to prove that at least four other persons, sharing his intention and associated with him in the project, actually existed. Still less it is necessary to prove, where four or more other persons were externally at least associated with the accused In the preparation that they did in fact share his intention. His belief in their intention and his own intention to commit a dacoity along with them is sufficient. Still less it is necessary to prove, where four or more other persons were externally at least associated with the accused In the preparation that they did in fact share his intention. His belief in their intention and his own intention to commit a dacoity along with them is sufficient. This it appears to me, was tersely expressed by Simson, J. In the case to which I have already referred 18 Pun Re. 1868 p. 4 (B), when he said that in order to establish an offence under s. 399 It was necessary to give evidence either of concert between five or more persons or that dacoity was the object of the accused. The same principle was more tersely stated in the case of Romesh Chandra Banerjee v. Emperor ILR 41 Cal. 350 (: AIR 1914 Cal 456) (B), where it was said that what was required to be proved was either an agreement or an intention to commit decoity, that is to say an agreement between five or more persons to commit a dacoity, followed by some act amounting to preparation, or an intention on the part of the accused to commit a robbery along with four or more other persons coupled with acts of the requisite character," 15. Under the circumstances it appeals that the appellants are entitled to the benefit of doubt and acquitted of the charge under ss. 399 and 402 of the Indian Penal Code. There is neither any ground nor reason to Interfere with the finding and conviction of Ajit Das under s.25(1)(a) of the Arms Act is concerned Under the circumstances, both the appeals disposed of accordingly. Amal Kumar Chatterjee J : I agree Appeal allowed