Judgment A.K.Prasad, J. 1. Criminal Appeal Nos. 242. 232. 274 and 318 of 1998 which arise out of the common judgment have been heard together and are being disposed of by this common judgment. 2. The sole appellant in Cr. Appeal No. 242 of 1998 is Md. Sahid @ Mustaque @ Ramesh, whereas the lone appellant in Cr. Appeal No. 232 of 198 is Mahendra Choudhury. Romesh Mondal and Tuntun Bhuiyan are the appellants in Cr. Appeal Nos. 274 and 318 of 1998. All the appellants have been convicted under Secs. 399 and 402 of the Indian Penal Code. They have been further convicted under Secs. 25 (1-B). 26/35 of the Arms Act and under Sec. 5 of the Explosives Substances Act and have been sentenced to rigorous imprisonment for five years under Sec. 399 three years under Sec. 402 of the Indian Penal Code three years under Sec. 25 (I-B) of the Arms Act, three years under Secs. 26/35 of the Arms Act, and five years under Sec. 5 of the Explosives Substances Act, by the impugned judgment and order in S.T. No. 246 of 1997 passed by Sri Md. Khursid Alam then Additional Sessions Judge. Hazaribagh. However, the sentences have been ordered to run concurrently. 3. The prosecution case, briefly stated, is that on 28/29-3-1997 at about 11 p.m. when Vivekanand Thakur (P.W. 5/the informant), the then officer-incharge, Dhansar Police Station, with police force, including Anejani Kumar (P.W. 6), the Assistant Sub-Inspector of Police and Civil Paswan (P.W. 8) the Junior Sub-Inspector of Police, was on patrolling duty and while on way near Chandmari Colliery. around 11.15 p.m. he got confidential information that some miscreants had assembled in the children park at Manjhi Basti for committing some crime, where upon he picked up Ramasis Bhuiyan (P.W. 1) and Jago Raja (P.W. 2) the residents of the locality and went to the children park at about 11.45 p.m. overheard the whispers coming from the northern side corner of the park, surrounded the assembled miscreants, and challenged them by flashing his torch. whereupon the miscreants fled in commotion and five of the miscreants including the appellants/accused were apprehended. whereupon the miscreants fled in commotion and five of the miscreants including the appellants/accused were apprehended. It is alleged that one unlicensed country made pistol, loaded with one live cartridge, was recovered from the possession of the appellant/Mahendra Choudhury, which was hidden round his waist while the live-bomb each, was seized from the possession of the other four accused/appellants and three bhujalis and iron rod some empty wine bottles, glasses and two patties (leaf plates) were found abandoned, near the place of assemblage of the miscreants, which were seized under the seizure list (Exhibit 3/5). It is further alleged that the loaded fire-arm and the hand-made bombs were seized from the possession of the accused/appellants under the separate seizure lists, in presence of the witnesses. . Further allegation is that on inquiry, the accused/appellant (Mahendra Choudhury) disclosed before the informant that they had assembled and made preparation to commit dacoity in East Bastacola. Sri Ram Nagar. Ultimately the informant prepared a written report (Exhibit 4) on the basis of which the present case came to be instituted, a formal first information report (Exhibit 5) was drawn up, investigation of the case as entrusted to P.W. 8 (Civil Paswan), the seized unlicensed pistol, loaded with live cartridge were sent to the Sergeant Major (P.W. 7) for examination and experts opinion the seized bombs were deactivated and a sample of deactivated bombs was sent to the Regional Director, Forensic Science Laboratory, Ranchi for examination and report, intimately, on completion of investigation and after obtaining sanction from the competent authority for prosecution under the Arms Act as well as Explosives Substances Act, charge-sheet was laid in Court against the accused/ appellants, including the coaccused/ convict (Biswajit Rajwar). The case was, ultimately, committed to the Court of Sessions by Sri S.P. Pandey the then Judicial Magistrate. Dhanbad. 4. The main defence is of innocence and false implication. 5. At the trial the prosecution had examined eight witnesses in support of its case. Out of them, P.W. 4 (Vijoy Kumar Bhuiyan) is a tendered witness. P.W. 1 (Ramashish Bhuiyan) and P.W. 3 (Indrajit Bhuiyan) the seizure witnesses have turned hostile to the prosecution. The other P.Ws. are P.W. 2 (Jago Razak), P.W. 5 (Vivekanand Thakur), the informant himself, P.W. 6 (Anjani Kumar), P.W. 7 (Jyotish Khalkho) and P.W. 8 (Civil Paswan), the Investigating Officer. The defence, on the other hand, examined no witness. 6. P.W. 1 (Ramashish Bhuiyan) and P.W. 3 (Indrajit Bhuiyan) the seizure witnesses have turned hostile to the prosecution. The other P.Ws. are P.W. 2 (Jago Razak), P.W. 5 (Vivekanand Thakur), the informant himself, P.W. 6 (Anjani Kumar), P.W. 7 (Jyotish Khalkho) and P.W. 8 (Civil Paswan), the Investigating Officer. The defence, on the other hand, examined no witness. 6. The trial Court, on consideration of the evidence and materials on record, held the accused/appellants and co-accused (Biswajit Rajwar) guilty of the offence under different heads and sentenced them, as stated above. 7. The common argument, advanced on behalf of the accused/ appellants is that the conviction of the appellants on each count is bad in law, that obviously Secs. 399 and 402 of the Indian Penal Code as well as Sec. 26 of the Arms Act have no application in the facts and circumstances of the case and conviction of the accused/ appellants under Sec. 5 of the Explosives Substances Act suffers from infirmity. It has been further urged on behalf of the appellants that no independent witness has supported the facture of recovery of the fire-arm or bomb (s) from the possession of the accused/appellants. Learned APP, on the other hand, has supported the impugned judgment and convictions. 8. The point which now falls for consideration is whether the convictions of the appellants are liable to be set aside. 9. The informant (P.W. 5), P.W. 6 (Anjani Kumar), members of the patrolling party, and P.W. 8 (Civil Paswan), who too was a member of the raiding party, have testified to the effect that while on patrolling duty, on a tip-off, a raid was made by the police force in presence of P.Ws. 1 and 2 and the accused/ appellants were apprehended and loaded country made pistol under Exhibit 3/2 and handmade bomb were seized from each of the accused/ appellants Md. Sahid @ Mustaque @ Ramesh, Tuntun Bhuiyan and Ramesh Mondal, under seizure lists (Exhibits 3/1, 3/4 and 3 respectively) in presence of P.Ws. 1 and 2, while abandoned Bhujali, empty bottles, etc. were recovered under seizure list (Exhibit 3/5). The copy of the seizure list was sieved on each of the appellants from whose possession the recovery had been effected. Sahid @ Mustaque @ Ramesh, Tuntun Bhuiyan and Ramesh Mondal, under seizure lists (Exhibits 3/1, 3/4 and 3 respectively) in presence of P.Ws. 1 and 2, while abandoned Bhujali, empty bottles, etc. were recovered under seizure list (Exhibit 3/5). The copy of the seizure list was sieved on each of the appellants from whose possession the recovery had been effected. P.W. 1 (Ramashish Bhuiyan) and P.W. 2 (Jago Razak) have admitted the signatures on the seizure list, but they have denied that any recovery was effected in their presence from the possession of the accused appellants P.W. 2 admits that the accused/ appellants were apprehended on the scene of occurrence. The reason as to why P.Ws. 1 and 2 do not support the recovery of incriminating articles from the possession of the accused/appellants is not far to seek. P. W. 1 is a trade unionist and P.W. 2 is a Homeopathic Doctor. It is difficult to believe that they would put their signatures on the document of recovery in absence of effecting of such recovery of incriminating articles. In spite of searching cross-examination, P.Ws. 5,6 and 8 are consistent in their evidence on the point of raid and recovery of loaded unlicensed country-made pistol and live bombs from the conscious possession of the accused/appellants. Their evidence cannot be discarded simply because they are police officers. There is no material on record to suggest that they bear any animus with the accused/appellants. It appears in the evidence of P.W. 5 that the recovered country-made pistol with the cartridge have been seized and kept in Malkhana in safe-custody, while the recovered live bombs were dipped in water to defuse them. P.W. 7 (Jyotish Khalkho) has identified the pistol and 315 bore cartridge (material Exhibits 22 and 23) in Court and has testified to the effect that the country-made pistol was in working condition and the cartridge was live. Exhibit 24 is his examination report. It is in the -evidence of P.W. 8 that the defused/ deactivated seized bombs were sent to the Forensic Science Laboratory, Ranchi, and the report received therefrom shows that on chemical examination they were found to be live bomb (s). The abandoned articles, seized on the spot, namely, the bhujali, iron rod, wine bottles, glasses and handmade bombs have been produced and marked material Exhibits 7 to 21 in the case. 10. The abandoned articles, seized on the spot, namely, the bhujali, iron rod, wine bottles, glasses and handmade bombs have been produced and marked material Exhibits 7 to 21 in the case. 10. It is well established from the evidence on record that the unlicensed, loaded country-made pistol and live cartridge were seized from the exclusive possession of the accused/appellant (Mahendra Choudhury), whereas the live bombs were recovered from the conscious possession of the three accused/appellants in Cr. Appeal Nos. 242,274 and 318 of 1998(R). 11. Sanction order from the competent authority under Secs. 25 ((1-B)), and 26/35 of Arms Act (vide Exhibit 26) and for prosecution under Secs. 3 / 5 of the Explosive Substances Act (vide Exhibit 25) were obtained. 12. It has now to be considered as to what offence has been committed by the accused/ appellants. It has been noticed above that a country-made pistol, which was in working condition, loaded with live cartridge, was found in illicit possession of the accused/ appellant (Mahendra Choudhury). Hence, he is liable for the offence under Sec. 25 (1- B) of the Arms Act. 13. The mere fact that the loaded pistol was found hidden in his waist by itself would not bring it within the ambit of Secs. 26/35 of the Arms Act. Further, there is no evidence on record to suggest that he had concealed it with the secret intention that the possession of the firearm would not be known to the public servant/police officer. There is no special circumstances beyond mere concealment of the loaded fire arm, recovered from his possession. Hence, in the facts and circumstances so far as this appellant (Mahendra Choudhury) is concerned, this case does not come within the purview of Sections 26/35 of the Arms Act. 14. Since, no bomb has been recovered from the possession of Mahendra Choudhury (the appellant), his conviction and sentence under Sec. 5 of the Explosives Substances Act cannot be sustained. 15. For the aforementioned reasons, the conviction and sentences of the appellant (Mahendra Choudhury in Cr. Appeal No. 232 of 1998) under Secs. 26/35 of the Arms Act and Sec. 5 of the Explosives Substances Act are set aside and he is acquitted of the charge thereunder. So far as his conviction and sentence under Sec. 25 (1-B) of the Arms Act is concerned, it is affirmed. Appellant (Mahendra Choudhury) is on bail. Appeal No. 232 of 1998) under Secs. 26/35 of the Arms Act and Sec. 5 of the Explosives Substances Act are set aside and he is acquitted of the charge thereunder. So far as his conviction and sentence under Sec. 25 (1-B) of the Arms Act is concerned, it is affirmed. Appellant (Mahendra Choudhury) is on bail. He is directed to surrender in the Court below forthwith to serve out the remaining period of sentence under Sec. 25 (1- B) of the Arms Act, as awarded by the trial Court. 16. In view of the recovery of the handmade bombs from the conscious/ exclusive possession of Sahid @ Mustaque @ Ramesh (appellant in Cr. Appeal No. 242 of 1998), Ramesh Mandal (appellant in Cr. Appeal No. 274 of 1998) and Tuntun Bhiyan (appellant in Cr. Appeal No. 318 of 1998), they are liable for the offence under Sec. 5 of the Explosives Substances Act. However, in the facts and circumstances of the case, the convictions and sentences of these three appellants under Secs. 25 (-B) and 26/35 of the Arms Act cannot be sustained. 17. For those reasons the convictions and sentences of these three appellants under Sec. 5 of the Explosives Substances Act as awarded by the trial Court are affirmed. These appellants except appellant Md. Sahid @ Mustaque @ Ramesh are on bail. They are directed to surrender in the court below forthwith to serve out the remaining part of the sentence under Sec. 5 of the Explosives Substances Act. as awarded by the trial Court. However, their convictions and sentences under Sections 25(B) and 26/35 of the Arms Act are set aside and they are acquitted of the charge thereunder. 18. It is made clear that if the appellants above-named fail to surrender as directed above the trial Court shall take all coercive steps for their apprehension. 19. Now it has to be seen whether the appellants are liable for the offences under Secs. 399 and 402 of the Indian Penal Code. No police officer in the case claims that he had over-heard the conversation between the appellants and their other associates regarding plan to commit the dacoity. It has come in the cross-examination of P.Ws. 5 and 6 that the park where the miscreants had assembled is a public place. It is in the written report (Exhibit 4) and in the evidence of P.Ws. It has come in the cross-examination of P.Ws. 5 and 6 that the park where the miscreants had assembled is a public place. It is in the written report (Exhibit 4) and in the evidence of P.Ws. 5.6 and 8 that the accused/ appellant (Mahendra Choudhury) had disclosed to him that they had assembled and made preparation to commit the dacoity at East Basicola Colliery. But this statement made by co-accused (Mahendra Choudhury) is inadmissible in evidence and has to be excluded from consideration. The mere fact that five persons were found at about midnight in children park does not by itself prove that they had assembled for the purpose of committing the dacoity or to make preparation in this regard. It has come in evidence of P.W. 3 that there are numerous houses in Manjhi Basti, which is nearby. There is possibility that the accused appellants might have collected for the purpose of committing some other offence (s) like murdering somebody. Thus, in the circumstances of the case, there is no legal evidence to support the charge under Secs. 399 and 402 of the Indian Penal code against all the appellants. Hence, their convictions and sentences thereunder passed by the trial Court cannot be sustained and are set aside (Ref.: Chaturi Yadav and other V/s. State of Bihar). In the result all these appeals are partly allowed to the extent indicated above.