JUDGMENT A.H. Saikia, J. 1. Heard Mr. P.C. Gayan, learned counsel for the petitioners. Also heard Mr. P. Bora, learned Public Prosecutor, Assam. 2. Brief facts of the case are that on 5.10.75 all of these five petitioners were caught at about 1.30 a.m. from a local Namgarh of Diphala Block No. 2 of Karki village by the members of the Village Defence Party (for short, 'the V.D.P.'), who were patrolling in the village. Amongst the accused persons one Osman Ali fled away and escaped from the V.D.P. After having been caught, petitioners confessed before the V.D.P. that they assembled at Namgarh to commit dacoit in the house of one Shri Kolai Bora. On the basis of a FIR lodged by a member of the V.D.P., namely, Hari Kanta Kakati, P.W.2 on 6.10.85, police registered a case against the petitioners under Section 139/399 IPC and on completion of the investigation the police submitted charge sheet against them. 3. During the trial, prosecution examined six witnesses wherein defendant adduced none. In Sessions Case No. 32(N)/81, the learned Assistant Sessions Judge, Nagaon vide his judgment and order dated 16.3.1988 on assessment and appreciation of the evidence on record, convicted the appellants under Section 399 IPC and sentenced them to undergo five years rigorous imprisonment and a fine of Rs. 5000 each in default further rigorous imprisonment for six months. Being dissatisfied with such conviction and sentence, the petitioners moved the learned Sessions Judge, Nagaon on appeal. The learned Sessions Judge vide judgment and order dated 1.11.1989 passed in Crl. Appeal No. 12(N-2)/88 upheld the conviction and sentenced so imposed by the trial court. This revision has been preferred against such conviction and sentence confirmed by the learned Sessions Judge, Nagaon. 4. Being aware of the revisional power of this Court, Mr. Gayan learned counsel for the petitioner has forcefully argued that impugned conviction and sentence suffers from perversity in as much as the learned Courts below failed to assess and appreciate the testimony of the witnesses especially of P.W.1, P.W.2 and P.W.3, in its correct and true perspective relying upon which the impugned conviction and sentence was imposed. According to Mr. Gayan learned counsel for the petitioner has forcefully argued that impugned conviction and sentence suffers from perversity in as much as the learned Courts below failed to assess and appreciate the testimony of the witnesses especially of P.W.1, P.W.2 and P.W.3, in its correct and true perspective relying upon which the impugned conviction and sentence was imposed. According to Mr. Gayan, the basic ingredients to constitute an offence under Section 399 IPC has not been spelt out from the evidence of those witnesses inasmuch as P.W.1, P.W.2 and P.W.3 totally failed to prove the case of making of any preparation by the accused petitioner for committing dacoity. 5. For better appreciation of the issue raised, it is necessary to have a look into Section 399 IPC, which reads as follows : - "399. Making preparation to commit dacoity. - Whoever makes any preparation for committing dacoity, shall be punished with rigorous imprisonment for a term of which may extend to 10 years and shall also be liable to fine." 6. From an ordinary reading of the above Section, it appears that the above section contains two ingredients to constitute an offence referred therein namely, (i) the preparation to be made for doing the act and (ii) the preparation must be for doing dacoity. 7. I have carefully gone through the impugned judgments and orders passed by the learned trial courts and also meticulously perused the material evidence on record. Since the question of perversity has been raised. I have also discreetly examined the evidence of P.W.1, P.W.2 and P.W.3. From the perusal of their evidence, it is seen that the preparation of committing an offence being an essential ingredient to rope a person under Section 399 IPC, has not been proved beyond reasonable doubt and as such on the basis of testimony of P.W.1 P.W.2 and PW.3, the impugned conviction and sentence of the petitioner cannot be sustained. 8. The Apex Court in a case of Chaturi Yadav and Ors. 8. The Apex Court in a case of Chaturi Yadav and Ors. v. State of Bihar reported in exactly in a similar case held that conviction under Section 399 and 402 was not sustainable marely on the ground that eight persons including the appellant were found in a school premises which was quit close to the market at 1.00 a.m. and some of them armed with guns, cartridge and others run away because such assembly by itself did not prove that they had assembled there for the purpose of committing dacoity or for making preparation for such purpose. 9. Having regard to the law laid down in the Chaturi Yadav's case (supra), this Court is of the considered opinion that the ratio in the above case is squarely applicable in this case. In the case at hand, it is seen that there was no evidence to show that the petitioners had assembled at the Namgarh premises for the purpose of committing dacoity or for making preparation for committing the same. The mere fact that these persons were found at the said premises at night in between 1.00/1.30 a.m. did not by itself prove that there was any preparation made by the petitioners to accomplish the object of committing dacoity. 10. That being so, the impugned conviction and sentence passed by the trial court, based an the evidence of P.W.1, PW.2 and P.W.3 appear to have suffered from perversity and based on no evidence. 11. For the foregoing reasons and observations, the impugned conviction and sentence of the petitioners stand set aside and quashed. It is stated at the bar that the petitioners have all along been on bail. Thus the bail bonds so furnished by the petitioners shall also stand discharged. 12. In the result, the appeal stands succeeds and stands allowed. Appeal allowed