JUDGMENT Mr. Girdhar Malviya, J. - Peeru, Ram Swaroop, lmamuddin, Deena, Yasin and Idris were tried in Sessions Trial No. 233-A of 1977 by IIIrd Addl. Sessions Judge, Muzaffar Nagar. By his judgment and order dated 19.3.1979 he convicted Pecru, Ram Swaroop and Imamuddin under Section 25 Arms Act awarding them six months' rigorous imprisonment. The Court also convicted all the appellants under Section 399/402 Indian Penal Code and Appeal allowed awarded them four years and three months' rigorous imprisonment respectively under those Sections. All the sentences were directed to run concurrently. Against their conviction the appellants have come to this Court in the present appeal. 2. In brief the allegation against the appellants is that on the night between 16th and 17th February, 1977 they had assembled in the jungle of village Sher Nagar in a maqbara which was near Jansat Road. This information was given at the Police Station, Nai Mandi, district Muzaffar Nagar by an informer. At that time the Station Officer of the Police Station P.W. 6 R.N. Singh was present. Accordingly an entry about this information was recorded at the Police Station in general diary vide G.D. No. 49. It is alleged that at the same time one Jag Roshan alongwith three persons Brahma Prakash, Sohan Veer and Ved Singh had come to the Police Station for lodging a First Information Report under Section 323 Indian Penal Code which fact is reported to have been mentioned at G.D. No. 48 of 10.45 p.m. of 16.2.1977 of the said police station. Consequently the Station Officer R.N. Singh (P.W. 6) took the police force with him alongwith three public witnesses Brahma Prakash, Sohan Veer and Ved Singh who had come to the Police Station alongwith Jag Roshan for lodging the report under Section 323 Indian Penal Code. It is alleged that the Station Officer had told the purpose of taking these witnesses to the place where the dacoits had assembled as he wanted to apprehend these dacoits. 3. The prosecution case further is that the police party was divided in three groups after they had reached the crusher near village Sher Nagar. All the persons were searched, as is prescribed, and when the parties reached the maqbara and took their position they found that four persons arrived there and started gossiping. After sometime two more persons joined them. The prosecution case further is that the police party was divided in three groups after they had reached the crusher near village Sher Nagar. All the persons were searched, as is prescribed, and when the parties reached the maqbara and took their position they found that four persons arrived there and started gossiping. After sometime two more persons joined them. Subsequently one of the miscreants is alleged to have said that they had sufficient arms; the time for committing dacoity is ripe; that house of Laxmi Chand Gujar in Sher Nagar was known to him where a marriage was going to take place with the result that sufficient booty was likely to be found. The miscreant is alleged to have exhorted his companions to move for committing the dacoity. As these talks confirmed the information that these persons had assembled for committing dacoity, S.O. R.N. Singh flashed torch and challenged the dacoits by saying that they had been encircled; they should surrender their arms and if they tried to escape, they would be shot dead. All the miscreants tried to run away from northern side but the three parties apprehended all the six miscreants at about 12.15 mid night. When the dacoits were interrogated they gave out their names and on their person being searched one SBBL 12 bore country made gun in working condition alongwith five live cartridges were recovered from Peeru. From Ram Swaroop one country made pistol 12 bore in working condition and three live cartridges alongwith a bundle of bins and matches were recovered. From Imamuddin one country made pistol of 12 bore in working condition and three live cartridges as also a bundle of bins were recovered. From Dina a Kulhari, from Yasin a lathy and a torch with a bundle of bins were recovered. All these articles were sealed on the spot, their memos were prepared as prescribed by law. The entire party with miscreants was then brought to the Police Station where a report was entered in the general diary as has been stated by P.W. 2 Head Constable Chaman Prakash Sharma, and the case was registered. 4. The investigation of the case was conducted by Sub Inspector V.S. Tyagi P.W. 7, who after completing the investigation submitted the charge-sheet. The accused pleaded not guilty and claimed to be tried. 5. 4. The investigation of the case was conducted by Sub Inspector V.S. Tyagi P.W. 7, who after completing the investigation submitted the charge-sheet. The accused pleaded not guilty and claimed to be tried. 5. In the sessions trial apart from the formal evidence direct evidence for the accused persons to assemble for the preparation and committing dacoity was given by P.W. 6 S.O. R.N. Singh, and P.W.S.I. Suraj Pal Singh. The prosecution also examined P.W. 3 Brahma Prakash, P.W. 4 Sohan Veer and P.W. 5 Ved Singh as public witnesses who had accompanied the raiding party. 6. The accused in their statement denied the prosecution case and attributed their false implication in this case on account of their enmity either with the pradhan or due to the enmity with the police. Out of the accused persons Ram Swaroop examined D.W. 1 Jai singh, Dina examined P.W. 2 Rasoola his brother-in-law and D.W. 2 Nasibuddin, Imamuddin examined D.W. 4 Mool Chand and Idris examined D.W. 5 Ali Jan, who all stated about the fact that the accused had been arrested from their houses and not as had been alleged by the prosecution witnesses. 7. In this case P.W. 3, Brahma Prakash and P.W. 4 Sohan Veer the two witnesses of public did not support the prosecution case with the result that they were declared hostile and cross-examined by the prosecution. However, the Sessions Judge re lied on the testimony of remaining witnesses and convicted the accused persons as has been mentioned earlier. 8. I have heard learned Counsel for the accused appellants as also the learned State Counsel. P.W. 6 S.O. R.N. Singh gave the details how the informer came to the Police Station at 11 p.m. on 16.2.1977 and informed about the plan of the accused persons to commit dacoity at the residence of Laxmi Chand Gujar in village Sher Nagar. He deposed about the entry of this information in the general diary, his collecting police personnels and the witnesses Brahma Prakash, Sohan Veer and Ved Singh who had come to the Police Station alongwith Jag Roshan for lodging a report under Section 323 Indian Penal Code, telling them the purpose of their going to apprehend the culprits, dividing the force in three parties, witnessing the arrival of the culprits in the maqbara and their conversation, his challenging the culprits and the arrest. He has also given out the fact about the recovery of the articles as has been mentioned earlier which, according to him, was all done in the light of the torches, P.W. 1 S.I. Suraj Pal Singh also gave out all the facts as were laces deposed by S.O. R.N. Singh. As stated earlier the two witnesses of public namely P.W. 3 Brahma Prakash and P.W. 4 Sohan Veer were cross-examined and hence their testimony could not be of much value to the prosecution case. However, P.W. 5 Ved Singh supported the prosecution case. He stated that he alongwith police persons and 4-5 other persons had reached the maqbara at about 11 p.m. after going upto the crusher on jeep and cycles. The force was divided in three parties at the crusher. He alongwith Brahma Prakash was in the first party. His party was placed towards the western side of the maqbara. After about 20 minutes four persons came in the maqbara. Two persons also joined them later. All these persons were saying that they would commit dacoity at the house of Laxmi Chand Gujar in village Sher Nagar. This witness said that on this the police fired and challenged the dacoit to surrender their arms. He explained that by the torch firing the witness meant the fire which created light. He said it was about 12.30 at mid night when all the miscreants were apprehended and their names were asked which he did not remember, but the persons arrested were present in the Court. When the culprits were searched, from their possession country made pistol, lathy, kulhari and cartridges were found. He could not explain, however, as to which thing was recovered from which culprit. All these facts were stated by P.W. 5 Ved Singh in his examination-in-chief. In contrast to the statement of this witness, learned Counsel for the appellants has placed before me the categorical statement both by P.W. 1 and P.W. 6 viz. S.I. Suraj Pal Singh and S.O. R.N. Singh who had stated that VIP was never fired and the entire operation was conducted in the light of the torches. Learned Counsel consequently asserts that P.W. 5 Ved Singh cannot be believed as he on the other hand was quite categorical that VIP had been fired. 9. I have given my anxious consideration to this submission of learned Counsel for the appellants. Learned Counsel consequently asserts that P.W. 5 Ved Singh cannot be believed as he on the other hand was quite categorical that VIP had been fired. 9. I have given my anxious consideration to this submission of learned Counsel for the appellants. Ved Singh P.W. 5 was the only witness of public on when the prosecution could place reliance. But if this witness was present, he could not have forgotten the fact that the search of the accused was conducted by S.O. and the S.I. alongwitn one Sub-Inspector L.C. Verma, who had constituted the third party, in the light of torches and not in the light of VIP. This aspect definitely renders the testimony of P.W. 5 Ved Singh doubtful. 10. Learned Counsel for the appellants further asserts that if at all the police party had information about a dacoity going to take place then the night of the incident being admittedly a dark night it was inconceivable that the police party would not have used a VIP. He accordingly asserts that the cause as suggested by the accused persons that they had been implicated on account of enmity should be accepted and the defence witnesses should be believed over and above the evidence of the prosecution. Although the testimony of the defence witnesses is not supported by any positive documentary evidence and the witnesses of the defence are also interested witnesses, yet what I find in this case is that the prosecution evidence itself is not of such a nature on which the conviction of the accused could be recorded without any element of doubt. The absence of taking any VIP by the police party the fact that P.W. 3 Brahma Prakash and P.W. 4 Sohan Veer have turned hostile and the third witness of public alleging that a VIP had been fired coupled with the arguments of the defence which had been raised before the sessions Court as also here in the High Court make the prosecution story not entirely free from doubt. In any case the evidence if not of a nature on which the conviction of the accused appellants can be safely recorded without any doubt. 11. In the result, this appeal succeeds and is allowed. The conviction and sentence awarded to the appellants by the IIIrd. Addl. District and Sessions Judge, Muzaffar Nagar in Sessions Trial No. 233 of 1977 is set aside. 11. In the result, this appeal succeeds and is allowed. The conviction and sentence awarded to the appellants by the IIIrd. Addl. District and Sessions Judge, Muzaffar Nagar in Sessions Trial No. 233 of 1977 is set aside. The bail bonds of the accused are discharged. They need not surrender.