G. S. N. TRIPATHI, J. Accused Pirthi, Phool Singh, Puttan and Bal Kishan have been convicted on a charge under Section 25, Arms Act and sentenced to undergo 6 months R. I. vide judgment and order dated 6-10-1979 passed by the then Vth Addl. Sessions Judge, Moradabad in S. I. No. 664 of 1978, State v. Jai Singh and 1 others, under Sections 399, 402,i. P. C. read with Section 25, Arms Act. 2. It is alleged that on receipt of information on 14-11-1977 at about 7. 30 p. m. the police party proceeded towards the place of occurrence, where it is alleged that the dacoits were likely to assemble, after having made prepara tion to commit dacoity. The police party consisting of the policemen as well as public persons divided themselves into three parties and they took their respective positions. After a short-while, the-alleged dacoits started assembl ing and talking amongst them. After hearing their conversation, the Station Officer was satisfied that it was a gang of armed dacoits that had assembled for the purpose of committing dacoity after having made requisite preparation for the same. He threw a challenge to the dacoits. They tried to run away. However, they were overpowered and arrested. One gun (Exhibit 4) and live cartridges (Exhibit 7) were recovered from Pirthi, Tamancha (Exhibit 5) and five live cartridges respectively (Exhibits 7/1 to 7/5) were recovered from accused Phool Singh. From Puttan Tamancha (Exhibit 8) and four live cartridges were recovered (Exhibit 9/1 to 9/4 ). From Bal Kishan, one Tamancha (Exhibit 10) and four live cartridges (Exhibit 11/1 to 11/4) were recovered. Some recove ries were made from other co-accused also, which are not relevant for the purpose of this appeal. Those article were sealed on the spot and recovery memo was prepared. 3. The case was investigated by Sri B. S. Awasthi then S. O. , P. S. Adampur under the orders of the Circle Officer, dated 18-11-1977. After formal investigation and visiting the spot, the I. O. completed the investiga tion. He obtained the permission from the District Magistrate to prosecute the accused under Section 25, Arms Act. 4. The prosecution laid the charge-sheet and produced witnesses of fact as well as formal witnesses for proving relevant documents. The accused denied the allegations against them. They pleaded not guilty. 5. He obtained the permission from the District Magistrate to prosecute the accused under Section 25, Arms Act. 4. The prosecution laid the charge-sheet and produced witnesses of fact as well as formal witnesses for proving relevant documents. The accused denied the allegations against them. They pleaded not guilty. 5. After appraisal of the entire evidence and circumstance on the record, the learned Sessions Judge extended the benefit of doubt to the accused on the charges under Sections 399 and 402, I. P. C. However, he believed the prosecution version as regards the recoveries under Section 25, Arms Act and convicted the accused appellants-accordingly. 6. All the four convicted accused have preferred this appeal. The accused appellants Pirthi and Bal Kishan have died. The appeal against them abates. 7. Now only accused Puttan and Phool Singh are left in this appeal. 8. I have gone through the record intensively and heard the learned counsel for the appellants. 9. At page 15 of the judgment, the learned lower court has observed as follows ; "in the instant case the prosecution evidence about over hearing the talks of the accused by the S. O. Satpal Singh and Sri Syed Ahmad (PW 2) have been found to be doubtful and it being more pro bable that the accused were arrested while they were sitting in the Kothri adjoining the temple. The only circumstances that appear against the accused is that they had assembled there at an odd hour and one of them was armed with a gun and 3 others were armed with pistols for which they had no licence. It cannot be inferred that the accused had assembled for the purpose of com mitting dacoity and had made preparation for the same. The prosecution has not given any evidence to show that any explana tion was sought from the accused as to the purpose of their assembly and no explanation was furnished. The possibility for their assembly for any other purpose cannot be ruled out. I am therefore of the opinion that prosecution has not been able to prove its case as against the accused under Section 399 and 402 of the Indian Penal Code beyond reasonable doubt. " 10. This way, the basic feature of the prosecution case has been disbelie ved. I am therefore of the opinion that prosecution has not been able to prove its case as against the accused under Section 399 and 402 of the Indian Penal Code beyond reasonable doubt. " 10. This way, the basic feature of the prosecution case has been disbelie ved. This fact of the prosecution story that recoveries were affected from the accused has been believed by the learned lower court. That finding has not been challenged before me by the learned counsel for the appellants. 11. The learned counsel has urged that the accused are very old person and they should be given leniency with regard to the sentence. I agree with this contention of the learned counsel. 12. The occurrence took place in the night of 14/15 November, 1977. The accused had suffered about two months imprisonment already. There is no evidence on the record to show that they are professional and habitual criminals or they have any conviction to their credit earlier even. Now there is any evidence that they have repeated such crimes after their conviction and release on bail. Taking the totality of the circumstances, into consideration, I think it will not be just and proper to send them to jail again to undergo imprisonment any further. 13. Thus after confirming the conviction of the accused under Section 25, Arms Act, I reduce the sentence for the period already undergone by the accused Puttan and Phool Singh. With these observations, the appeal is sub stantially dismissed. 14. The conviction of the accused Puttan and Phool Singh under Sections 25, Arms Act is hereby confirmed. However, the sentence is reduced to one period already undergone by them. Both the accused are in custody. They shall be released forthwith unless required in any other case. As observed earlier, the appeal of the accused Pirthi and Bal Kishan is abated due to their death pending appeal. Appeal dismissed. .