JUDGMENT S. N. Saxena, J. 1. This Criminal Appeal was heard yesterday and the operative order allowing the appeal and acquitting the appellants of the charges levelled against them was pronounced after the conclusion of the arguments. Necessary order in respect of material exhibits also was passed. The reasons for allowing the appeal are being given now. 2. All the five appellants were convicted and sentenced for different offences including the offences under sections 399 and 402, IPC by the learned IV Addl. Sessions Judge, Bulandshahr on 31-3-1979 in Sessions Trial No. 351 of 1974 and Sessions Trial No. 42 of 1976, both of which were consolidated and heard and decided by a common judgment. S. T. No. 351 of 1974 was the loading case. The accused persons, on 11-8-73, at about 10.00 P.M. had allegedly assembled in the "Dharmshala" of Shastriji at the out-skirts of village Sondha Habibpur in police station Khuurja, district Bulandshahr, after having made preparations for commiting dacoity. They were illegally carrying arms due to which accused Ghoorey. Dal Chand, Ram Lal and Mahmood were tried under section 25 (1) (a) of the Arms Act in respect of the arms which were found in their possession at the time of their arrest by the police. Appellant, Hukum Singh, was charged under section 27 of the Arms Act as he was found in possession of his gun, which, if required, could be used by him for commission of the dacoity. Accused Chhattar had been charged under section 5 of the Explosives Act also for having been found in possession of one hand-grenade on the said date, time and place as aforesaid. Accused Chhattar is not an appellant in this appeal. Accused Mahmood was found in possession of a sten-gun and a few live-cartridges. Accused Ram Lal was armed with a country-made pistol and soma live cartridges. Accused Dal Chand and Ghoorey were armed with guns. 3. It may be mentioned at the outset that there was no public witness in this case. The reason given by the prosecution was that sufficient time was not there for collection of public witnesses (Sue to which the polloe party had divided itself into two groups and had apprehended the accused persons after having become satisfied that they had assembled there for committing dacoity at the house of Raghnnath. The reason given by the prosecution was that sufficient time was not there for collection of public witnesses (Sue to which the polloe party had divided itself into two groups and had apprehended the accused persons after having become satisfied that they had assembled there for committing dacoity at the house of Raghnnath. The police party consisting in all of ten police personnels had left police-station Khurja at 8.40 P.M. on 11-8-73 in a jeep car to arrest an alleged dacoit, named, Kanuwa of Arnia Mansoorpur village. PW 1 Sub-Inspector, Indraj Singh, was the Station Officer of Khurja police station. He had received information that Kanuwa was residing in the house of Faqira Jatav in village Zahidpur Kalan on the aforesaid date, time and place. The police party, besides the Station Officer, consisted of two Sub-Inspectors, two head-constables and five constables. All of them were carrying fire-arms and ammunitions as well as a few torches. The jeep was being driven by driver, Bharat Singh. On the way, they met a person, who, too was going to participate in the aforesaid dacoity alongwith his companions who had assembled in the aforesaid "Dharmshala". The police party searched him and recovered one country-made pistol and a few cartridges from the bag which he was carrying In his right-hand. He gave out his name as Yashpal and on interrogation by the police party disclosed the intended commission of dacoity by the appellants. The police party, thereafter, divided itself into two and successfully apprehended the accused persons. Admittedly not a single shot was fired from either side during the arrest of the accused persons by the police party. Help was taken from torches with the police party during the arrest as well as for drafting of "Fards" etc. after the recovery of the fire arms and hand-grenade from the possession of the appellants. 4. Learned Sessions Judge believed the two witnesses, examined by the prosecution, and convicted and sentenced the appellants against which they have preferred this appeal. The evidence adduced by the prosecution consisted of the statements of PW 1 Indraj Singh who was posted as Sub-Inspector on 11-8-1973 in Khurja Kotwali and PW 2 S. D. Sharma who too was posted as Sub-Inspector at Police station Khurja that day. PW 1 Indraj Singh was holding the charge of the Kotwali on 11-8-73. 5. The evidence adduced by the prosecution consisted of the statements of PW 1 Indraj Singh who was posted as Sub-Inspector on 11-8-1973 in Khurja Kotwali and PW 2 S. D. Sharma who too was posted as Sub-Inspector at Police station Khurja that day. PW 1 Indraj Singh was holding the charge of the Kotwali on 11-8-73. 5. The contention of the appellants that the testimony of PW 2 S D. Sharma, S. I. was of no help at all for the prosecution as he had stated in para 2 of his statement in cross-examination that he was unable to identify the accused persons with reference to their names. He, however, volunteered that considerable time had passed over meaning thereby that due to time factor he was not in a position to identify the accused persons with reference to their names. It is a case of alleged spot arrest. The appellants during the trial were on bail. The substantive evidence so far as an eye-witness is concerned is the statement given by hits before the trial court during the trial and any previous statement by him cannot be relied upon to prove the guilt of the accused persons. The substantive evidence so far as PW 2 S. D. Sharma was concerned, was his statement recorded by the trial court on 16-3-1979 in which he could not identify the accused persons with reference to their names. His statement thus was not sufficient to show that the accused persons were the members of the alleged gang of dacoits which was going to commit dacoity in the house of Raghunath. The only other evidence to prove the case of the prosecution consisted of the statement of PW 1 Indraj Singh but after going carefully through the same I am of opinion that reliance could not safely be placed upon it for returning the verdict of guilt against the accused persons. The testimony of PW 2 S. D. Sharma also, if considered in favour of the prosecution, did not apper to be truthful. There were some important circumstances due to which reliance could not safely be placed upon the statements of the aforesaid two witnesses. 6. The very commencement of the prosecution story appears to be unnatural and improbable. The police party allegedly was going to arrest Kanuwa dacoit. There were some important circumstances due to which reliance could not safely be placed upon the statements of the aforesaid two witnesses. 6. The very commencement of the prosecution story appears to be unnatural and improbable. The police party allegedly was going to arrest Kanuwa dacoit. If it was so, there was hardly any need of ten police personnels for arrest of one dacoit. It it not the case of the prosecution that Kanuwa was staying in the house of Faquira Jatav in village Zabidpur Kalan alongwith his gang. The contention of the appellants that the police party had left the police station for illegally arresting the appellants from different places under the circumstances could not lightly be ruled out. Besides the above ten police personnels, there was driver, Bharat Singh, also who was driving the jeep. The police force was highly excessive for the alleged arrest of a single dacoit. There is also nothing on the record to show as to whether after the alleged arrest of the appellants, the police had been able to arrest Kanuwa in the same night or they at all had made any attempt to arrest him from village Zahidpur Kalan. The FIR of this alleged incident had been lodged at 330 A.M. at police station Khurja and there was thus sufficient time left for the arrest of Kanuwa. Silence of the prosecution on this important aspect of the case renders its story doubtful from the very beginning. The police party, after having arrested Yashpl who had given out his name as Madan Pal also, took no steps at all to protect Raghunath and his family members although Yashpal had told the party that the dacoits who had assembled in the "Dharmshala" would commit dacoity at the house of Raghunath. It was surprising that the police party took it for granted that it will be able to arrest the appellants definitely before the commission of the dacoity at the house of Raghunath. As responsible police officers, it was their duty to first send police force for protection of Raghunath and his family members. It was argued for the State that there was paucity of time as the dacoity was to be committed by 10 00 P.M. and, therefore, no step was taken for protection of Raghunath and his family members. The explanation, however, did not appear to be reasonable and convincing. It was argued for the State that there was paucity of time as the dacoity was to be committed by 10 00 P.M. and, therefore, no step was taken for protection of Raghunath and his family members. The explanation, however, did not appear to be reasonable and convincing. The possibility of the dacoit-party leaving the "Dharmshala" before the arrival of the police there could riot be ruled out and there could be no two opinions that the police party had acted in an unnatural and in responsible manner, by leaving Rughunath and his family members at the mercy of the alleged dacoits. 7. The argument for the appellants that the police had avoided the presence of public witnesses as it wanted to apprehend the appaliants from their houses and also had succeeded in the same appears to carry force. Village Sodha Habibpur was about one kilometer only from the place where the police party had apprehended Yashpal.. Attempt, therefore, should have been made for collecting public witnesses from the aforesaid village before proceeding to the "Dharmshala". If prosecution story was correct, the reason able and natural conduct of the police party should have been to take steps for protection of Raghunath and his family members and collection of public witnesses from village Sodha Habibpur. The police party, however acted in a highly improbable, unnatural and irresponsible manner due to which reliance could not safely be placed upon the highly interested testimonies of PW 1 S. I. Indraj Singh and PW 2 S. I. S. D. Sharma. 8. The prosecution story about the actual arrest of the accused persons also did not appear to be trust-worthy. The accused persons were heavily armed with fire arms. There were two factory made single barrel muzzle loading guns, one sten-gun, two country-made pistols and one hand-grenade ; but, surprisingly they made no effort to avoid their arrests and did not fire even a single shot towards the police party. Surprisingly, the (police party also felt no need of opening fire towards the accused persons. The story suggested peaceful surrender by the accused persons to the police party which was difficult to understand. The prosecution story about the manner of apprehension of the appellants by the police, therefore, did not appear to be truthful. Under such circumstances reliance could not safely be placed upon the highly interested testimony of the abovenamed two witnesses. The story suggested peaceful surrender by the accused persons to the police party which was difficult to understand. The prosecution story about the manner of apprehension of the appellants by the police, therefore, did not appear to be truthful. Under such circumstances reliance could not safely be placed upon the highly interested testimony of the abovenamed two witnesses. The prosecution version that the police party had flashed torch light towards the alleged assembly of the dacoits appears to be highly unnatural and improbable. It is a matter of common experience that a person carrying a fire arm can very conveniently hit the person flashing torch towards him with the help of the beam of the light. It is, due to this reason that in genuine cases under sections 399 and 402 IPC, the police creates light by firing very light pistols. In this case, however, the police admittedly did not possess very light pistols which was rather surprising even for the arrest of Kanuwa dacoit. The police party should have taken very light pistols and its ammunition with them as the same danger of being shot at the light from the torches was very much there in the arrest of dacoit Kunwa. 9. It was in view of the above discussion that the testimonies of PW I Indraj Singh and PW 2 S. D. Sharma were found unreliable by this Court due to which the appeal was allowed as already mentioned above and the following order was passed. 10. "The appeal is allowed. The conviction and sentences of appellants Ram Lal, Dal Chand, Hukum Singh, Ghoorey and Mahmood are set aside and they are acquitted of the charges levelled agaiast them. All of them are on bail and need not surrender. Their bail bonds are cancelled and sureties discharged. The material exhibits shall be dealt with as ordered by the learned lower Court (IV Addl. Sessions Judge, Bulaadshahr). Reasons shall be given later." Appeal allowed.