G. S. N. TRIPATHI, J. ( 1 ) ACCUSED Maqbool c Ahmad, Ikram Uddin, Panna Lal and Ramdhiraj were convicted under Sections 399/402, I. P. C. by c the then IVt Additional Sessions Judge, Fatehpur, vide his judgment and order dated a 28. 7. 1979 in S. T. No. 9/76 of that district. They r were sentenced to undergo 4 years R. I. These accused were further convicted under Section 25, Arms Act and sentenced to undergo one years R. I. ( 2 ) AS per the prosecution story contained in the memo of recovery Exhibit Ka 1, dated 7. 11. 1975, an information was received by P. W. I L. N. Dubey, the then S. I. on duty that some dacoits had planned to commit dacoity at the house of Ram Narain Yadav of village Hauliyapur, hamlet of Dhankamai, P. S. Bindki, District Fatehpur. The information was registered in the G. D. Thereafter, the police party made preparation to depart for the place of occurrence. Constables Raj Deo Misra and Dinesh Dixit were directed to procure the attendance of public witness. After these witnesses arrived, S. I. concerned went to the spot inspected it and divided the force into three parties. Party NO. 1 was headed by S. I. himself. He took his position towards the south of the grove. Party No. 2 took its position towards the north and party No. 3 was located to the west of the above. About 12 p. m. the dacoit started trickling one by one. They were smoking and talking in the words that they were sufficient in number although the leader had not come out by that time people would have slept and thus it was proper opportunity to commit dacoity and thus saying they stoop up and were about to move for the place of their destination. Hearing his conversation, the S. I. was convinced that this was a gang of dacoits, for whom they were searching. Therefore he challenged them to surrender before the police as they had been surrounded by him. He also fired 3 V. L. P. shots. They dacoits started running away but they were over-powered and arrested. They gave their names as Maqbool, Ikram, Pannal Lal and Ramdhiraj. Three dacoits escaped taking advantage of the circumstances. ( 3 ) AFTER arrest, searches were made. He also fired 3 V. L. P. shots. They dacoits started running away but they were over-powered and arrested. They gave their names as Maqbool, Ikram, Pannal Lal and Ramdhiraj. Three dacoits escaped taking advantage of the circumstances. ( 3 ) AFTER arrest, searches were made. From the possession of Ikram Uddin, one Country-made pistol and 3 live cartridges from Panna Lal, one country-made pistol and 3 live cartridges from Maqbool, one country-made pistol and 7 live cartridges and from Ramdhiraj, one pharsa were recovered. These articles were sealed on the spot and memos were prepared. After executing the recovery memo on the spot in torch light, the police party returned to the P. S. , where cases were registered in the G. D. On 9. 11. 1975 at 4. 15 a. m. after negotiating a distance of about 2 miles. ( 4 ) AFTER usual investigation and obtaining the permission of the D. M. the charge-sheets were laid against the accused. The prosecution examined P. W. 1 S. I. Laxmi Narain Dubey who is the leader of party No. 1. He has narrated the entire prosecution story contained in F. I. R. and the recovery memo. P. W. 2 Lal Pal as a-public witness. He was in party No. 3 located towards the west of the grove. He has supported the prosecution case. P. W. 3 Ajay Singh is another public witness. He too has reiterated the same story. So is the case with P. W. 4 Bal Raj Singh. P. W. 5, S. I. Ram Chandra Singh was the leader of party No. 2 located towards the north of the grove. He has again slated the same Story. Other evidence is formal in nature. ( 5 ) THE accused in their statements under Section 313, Cr. P. C. have denied the allegations against them and have started that on account of enmity, they have been falsely implicated. ( 6 ) AFTER appraisal of the evidence and circumstances on the record, the learned Additional Sessions Judge was of the view that the prosecution story was correct. He accordingly convicted and sentenced the accused as noted above. ( 7 ) FEELING aggrieved, the accused have preferred these appeals. ( 6 ) AFTER appraisal of the evidence and circumstances on the record, the learned Additional Sessions Judge was of the view that the prosecution story was correct. He accordingly convicted and sentenced the accused as noted above. ( 7 ) FEELING aggrieved, the accused have preferred these appeals. I heard learned counsel for the appellants and the learned A. G. A. at stretch and gone through the record, I find that there is much substance in these appeals and they deserve to be allowed. ( 8 ) A look-at the site plan prepared by the 1. 0. shows that party No. 1 was located towards the south of the grove, party No. 2 towards the north and party No. 3 towards the west. The dacoits had assembled at point A on the site-plan, which is, towards the eastern fringe of the grove. The site plan further shows that the location of party No. 1 was at a distance of about 40 paces from point x, the party No. 2 at a distance of 50 paces and that of party No. 3 at a distance of 8 paces. All the party members have deposed that they heard the conversation going on amongst the dacoits. It is imposible to believe this part of the story. From such a long distance, conversation amongst the dacoits could not have been heard. After all, the dacoits were not shouting nor crying. They were discussing their plan amongst themselves in the dead of night. Meaning thereby, that they must be liking in whispering manner. If the prosecution says that the dacoits were speaking very loudly that makes the prosecution story unnatural and no reliance can be placed on the same. The result is that the very basis of the prosecution story becomes unacceptable on this ground. It is bound to be rejected. Unless the conversation amongst the dacoits is proved to the hilt to be correct, neither the preparation to commit dacoity nor assembling for committing dacoity will be proved. Thus both the charges under Sections 399/401, I. P. C. would fail. Another unnaturalness in the prosecution story is that the dacoits were arrested at point X, which is only 15 paces from point A. They were challenged from a distance ranging from 40 to 80 paces. All were in different directions. The dacoits had come from the east and they ran towards the east. Another unnaturalness in the prosecution story is that the dacoits were arrested at point X, which is only 15 paces from point A. They were challenged from a distance ranging from 40 to 80 paces. All were in different directions. The dacoits had come from the east and they ran towards the east. So by the time these members of the police party would have arrived, they would have made good their escape. So their arrest at a small distance of 15 paces from point X is impossible. So, I cannot accept the conclusion drawn by the learned Additional Sessions fudge that the dacoits could have been successfully intercepted and arrested at point X. ( 9 ) THESE two factors have put in serious nails in the coffin of the prosecution story and on this ground alone, the entire story is liable to be rejected. Apart from these things, there is another difficulty in accepting the prosecutory story. The very basis of the story is false. Because according to S. I, Laxmi Narain, P. W. 1, an information was received by him at about 10 p. m. Thereafter he recorded the statement and despatched two constables to bring public witnesses from different villages. These Constables went there, contacted the witnesses and brought them near the S. I. Laxmi Narain. But P. W. 2 Lok Pal states in third line in the examination-in-chief that the constables met him at about 9 p. m. and disclosed their intention to take them to the S. I. for helping the police party in intercepting the dacoits. If the information had been received at 10 a. m. , how could this witness be contacted at 9 p. m. That also shows that no such information was received at the P. S. and the story that on the basis of the informants information, the G. D. entry was made, is not acceptable. P. W. 4 Bal Raj Singh states that he received the information at about 10 p. m. at a distance of about 2 miles. This was again impossible because the constables started after the information had been registered in the G. D. P. W. 5, Ram Chandra Singh states that he received the information at about 8 or 8. 30 p. m. So he makes the prosecution story totally unacceptable. This was again impossible because the constables started after the information had been registered in the G. D. P. W. 5, Ram Chandra Singh states that he received the information at about 8 or 8. 30 p. m. So he makes the prosecution story totally unacceptable. Because according to S. I. Laxmi Narain, the information had been received about 10 p. m. , whereas, according to Ram Chandra Singh, it was received at 8 or 8. 30 p. m. Then what is the authenticity of the G. D. entry having been made at 10 p. m. in that night. ( 10 ) THESE are the broad features of the prosecution case, which make it unacceptable after careful analysis. Unfortunately, the Additional Sessions Judge has not properly appraised the evidence and circumstances on the record. Therefore, his conclusion has gone wrong. The judgment and order passed by the learned lower Court cannot be sustained. ( 11 ) THE appeal is allowed. The judgment and order passed by the learned lower court are set aside. The accused are held innocent. They are acquitted accordingly. They are on bail. Their bail bonds and surety bonds are discharged. Appeal allowed. Conviction set aside. .