MUKTESHWAR PRASAD, J. ( 1 ) ACCUSED Ashok Kumar, son of Uma Shaker Brahman, has come up in appeal to this Court under Section 374 Cr. P. C. and has challenged the judgment and order-dated 28. 2. 1981 passed by sri M. P. S. Tomar, the then Additional Sessions Judge, Mathura whereby he convicted the accused alongwith three others under Sections 399 and 402 I. P. C. and Section 25 of the Arms act and instead of sentencing him to any punishment released on probation of good conduct on executing a personal bond for a sum of Rs. 1500/- and furnishing two sureties each in the like amount for a period of one year. It may be mentioned here that three accused Shrichand, Jutti and Bhura who were also convicted and sentenced alongwith Ashok Kumar filed Criminal appeal No. 527 of 1981 and the appeal was disposed of on 2. 5. 97. ( 2 ) IN brief, the facts of the case leading to the prosecution of the appellant were as under: On 20. 3. 78, S. I. Laxmi Chand and S. I. Babu Ram Yadav were posted as Sub-inspectors at P. S. Raya, District Mathura. An intimation was received at Police Station that an armed gang of dacoits would assemble in the night at Dharamshala to commit dacoity at the house of Gajraj singh in village Rajgela. An entry was made in the G. D. at serial no. 35. The police decided to take preventive action. S. I. Laxmi Chand, S. I. Babu Ram Yadav and constables Ram Veer Singh, malikhan, Ramphal Sharma, Tirath Singh, Ram Narain and Gaya Prasad fully armed with revolvers, rifles and guns and V. L. P. left the Police Station for necessary action vide entry in the g. D. at serial no. 32 on 20. 3. 78. The police force left the Police Station at 8-45 P. M. The police force reached village Anaura. Two constables were sent to village to bring public witnesses. After a few minutes, they brought Ved Ram, Mohan Singh, Charan Lal and Ram Singh, The witnesses were explained the purpose and all gave their search. The entire police force and the public witnesses were divided into two groups. The first party headed by S. I. Laxmi Chand, consisting of three constables and two public witnesses Mohan Singh and Ved Ram took position towards southeast of Dharamshala. The entire police force and the public witnesses were divided into two groups. The first party headed by S. I. Laxmi Chand, consisting of three constables and two public witnesses Mohan Singh and Ved Ram took position towards southeast of Dharamshala. The second party led by S. I. Babu Ram Yadav took position towards southwest of Dharamshala. All were given necessary instructions for the success of raid. After some time, the police force heard conversation of the miscreants. One of them was heard saying that they were getting late and were sufficient in number. He exhorted his associates to commit dacoity at the house of Gajraj Singh. S. I. Laxmi Chand was fully satisfied that a gang of dacoits had assembled there. He, therefore, challenged and asked them to surrender. On being challenged, six dacoits, who had assembled in the Dharamshala, came out and ran towards east. At about 11-15 P. M. , three dacoits were apprehended by the police force at a distance of about fifteen steps from Dharamshala. Out of the dacoits, who succeeded in running away, Bhura was identified. The miscreants, who were apprehended, disclosed their names and arms and ammunitions which were recovered from their possession were as under:-Ashok Kumar- A country made pistol 12 bore and three live cartridges. Jutti- A country made pistol 12 bore and three live cartridges. Shri Chand- A country made pistol 12 bore and four live cartridges. ( 3 ) THE arrested dacoits failed to produce any licence for having in their possession the country made pistols and cartridges. S. I. Laxmi Chand prepared three Fard recoveries on the spot and obtained signatures of all police personnel and public witnesses. The recovered arms and ammunitions were sealed on the spot. ( 4 ) THE entire police force alongwith arrested dacoits, arms and ammunitions reached the Police station and an oral F. I. R. was lodged by S. I. Laxmi Chand. The local police registered a case at crime no, 58 under Section 399/402 I. P. C. Three cases under Section 25 of the Arms Act at crime nos. 59, 60 and 61 were also registered. ( 5 ) THE case was investigated as usual by S. I. B. L. Verma. The local police registered a case at crime no, 58 under Section 399/402 I. P. C. Three cases under Section 25 of the Arms Act at crime nos. 59, 60 and 61 were also registered. ( 5 ) THE case was investigated as usual by S. I. B. L. Verma. He completed investigation and submitted charge sheet against Shrichand, Ashok Kumar, Jutti and Bhura under Section 399/402 i. P. C. A charge sheet under Section 25 of the Arms Act was sent to the court against Ashok kumar. The then District Magistrate, Mathura accorded sanction for prosecution of Ashok kumar. ( 6 ) AFTER committal of the case, Ashok Kumar and three others were charged under Section 399/402 I. P. C. and Section 25 of the Arms Act on 1. 1. 1981. He pleaded not guilty to all the charges and claimed to be tried. ( 7 ) AT the trial, the prosecution examined P. W. 1 Charan Lal, a public witness included in the second party led by S. I. B. R. Yadav. P. W. 2 Mohan Singh another public witness was included in the first party led by S. I. Laxmi Chand, P. W. 3 S. I. Raghunath Singh was posted as Head moharrir at P. S. Raya in the month of March, 1978, He proved entries in the G. D. at serial nos. 31 and 32 dated 20. 3. 78. He further proved chick report and entry in the G. D. dated 21. 3. 78, p. W. 4 S. I. Babu Ram Yadav was leader of the second party and P. W. 5 S. I. B. L. Verma was i. O. of the case. ( 8 ) ACCUSED Ashok Kumar in his statement totally denied all accusations levelled against him by the prosecution and pleaded that he was taken to the Police Station by constables from the bus-station on 20. 3. 78. No recovery was made from his possession. He claimed himself to be a student of High School and was a boy aged about 16-17 years. He was apprehended by two constables while he was going to the house of his Mausa. No evidence was led in defence. 3. 78. No recovery was made from his possession. He claimed himself to be a student of High School and was a boy aged about 16-17 years. He was apprehended by two constables while he was going to the house of his Mausa. No evidence was led in defence. ( 9 ) AFTER having considered the entire oral and documentary evidence on record led by the parties, learned Judge found the appellant guilty for committing offences punishable under Section 399/402 I. P. C. He was found guilty under Section 25 of the Arms Act also. He was however released on probation of good conduct. ( 10 ) I have heard learned Counsel for the appellant and learned Additional Government Advocate and perused the record carefully. ( 11 ) LEARNED Counsel for the appellant has assailed the judgment under appeal mainly on the grounds that S. I. Laxmi Chand, who was leader of the first party and arresting officer, was not produced in the witness box for the reasons best known to the prosecution. It was contended that p. W. 2 Mohan Singh, who was a pocket witness of the police, was not found to be a reliable witness by the court below and the court below did not rely on his testimony. Besides, there are material contradictions in the testimony of prosecution witnesses. It was also pointed out that the police force left the Police Station at 8-45 P. M. on 20. 3. 78 and reached the place where it took position at 11-00 P. M. It means the police took two hours 15 minutes in reaching the place of alleged arrest of the dacoits. It however took one hour 25 minutes only in coming back the Police Station, It means the F. I. R. was ante timed by the police and the appellant was falsely implicated. Lastly, it was submitted that there was no exchange of fire and dacoits did not fire at the police party and none sustained injuries. Consequently, the appellant deserves acquittal. ( 12 ) ON the other hand, learned A. G. A. has supported the impugned judgment and urged that the court below committed no error in convicting the appellant and this appeal must fail. ( 13 ) I have considered the arguments advanced on behalf of the parties. I have also scrutinized the evidence on record with care and caution. ( 12 ) ON the other hand, learned A. G. A. has supported the impugned judgment and urged that the court below committed no error in convicting the appellant and this appeal must fail. ( 13 ) I have considered the arguments advanced on behalf of the parties. I have also scrutinized the evidence on record with care and caution. In the instant case, the prosecution mainly relied on the testimony of P. W. 4 S. I. Babu Ram Yadav, who was leader of the second party, P. W. 1 charan Lal and P. W. 2 Mohan Singh. At the very out set, it may be mentioned that the court below did not find the testimony of P. W. 2 Mohan Singh trustworthy and his testimony was discarded. S. I. Laxmi Chand, who was arresting officer and leader of the first party, was not examined on behalf of the prosecution and there is no explanation on record for his non-appearance in the witness box. ( 14 ) AFTER having gone through the statements of P. W. 4 S. I. Babu Ram Yadav, P. W. 1 Charan lal and P. W. 2 Mohan Singh, I find that there are material contradictions in their testimony and the court below committed error in placing reliance on their testimony. Admittedly, S. I. Babu ram Yadav is a police witness and was highly interested. S. I. B. R. Yadav admitted that the appellant was aged about 16-17 years at the time of his arrest. The appellant pleaded that he was a student of High School and was falsely implicated by the constables. P. W. 1 Charan Lal supported the prosecution story in his examination-in-chief. He however stated that he was included in the second party led by S. I. Shree Ram Singh. It is noteworthy that S. I Babu Ram yadav was leader of the second party in which Charan Lal was included. It is true that one Ram singh, a public witness and a co-villager of Charan Lal, was also summoned by the constables to assist the police force in the raid and he was member of the second party. Charan Lal further failed to disclose the names of the dacoits who were arrested on the impugned night by the police. On the next day, when he was further examined, he disclosed the names of the appellant and others. Charan Lal further failed to disclose the names of the dacoits who were arrested on the impugned night by the police. On the next day, when he was further examined, he disclosed the names of the appellant and others. It means, the witness was tutored in the night or in the morning and he disclosed the names. According to Charan Lal and P. W. 2 Mohan Singh, crops were standing in the fields adjacent to Dharamshala. Contrary to this, S. I. Babu Ram Yadav gave out in very clear words that no crop was standing in the fields adjacent to Dharamshala. Charan Lal gave a deathblow to the entire prosecution case by admitting in his cross-examination that the constables disclosed to him that miscreants had assembled in the Dharamshala and they were to be apprehended. In his own words "sipahiyon NE NAME BATA DIYA THA KI DHARAMSHALA PER badmash HAI UNEH PAKARANA HAI". ( 15 ) THE aforesaid statement of the witness clearly goes to show that the entire case was planted by the police. ( 16 ) P. W. 1 Charan Lal and P. W. 2 Mohan Singh both categorically stated that there were 3-4 licensee of guns in their village Anaura. Besides, there were a number of licensees in the adjoining villages Tambaka, Saras, Khajuri and Nagaura. It is noteworthy that the police did not call the licensee of firearms to assist it in the raid. I fail to understand as to why no licensee was called from the aforesaid villages to assist the police. P. W. 2 Mohan Singh disclosed that after arrest, the dacoits were tied with ropes and were brought to the Police Station. On the other hand, s. I. Babu Ram Yadav testified that arrested dacoits were tied with muffler, safi and tehmad. ( 17 ) BESIDES the aforesaid infirmities in the prosecution evidence, I find that all the three dacoits, who were apprehended on the spot, were carrying at least three country made pistols (Tamanchas) and ten live cartridges. They were ready to proceed to the house of Gajraj Singh with a view to commit dacoity. It means they must have loaded their weapons. As noted above, the police force was also fully armed with revolvers, rifles and guns. Out of six dacoits, three are said to have succeeded in running away from the clutches of the police party. They were ready to proceed to the house of Gajraj Singh with a view to commit dacoity. It means they must have loaded their weapons. As noted above, the police force was also fully armed with revolvers, rifles and guns. Out of six dacoits, three are said to have succeeded in running away from the clutches of the police party. However, neither the police force nor the dacoits opened fire to avoid their arrest or to apprehend the criminals. This mystery does not stand to reason. ( 18 ) IN view of the aforesaid scrutiny and analysis of the evidence on record led by the prosecution as well as circumstances of the case like non-inclusion of any licensee of firearms in the police party and no firing by the police force or by the dacoits I have arrived at the conclusion that the prosecution could not establish its case against the appellant beyond all reasonable doubt. In my considered opinion, the prosecution failed to prove its case to the hilt. Consequently, I find force in this appeal and this appeal must succeed ( 19 ) IN the result, the appeal is allowed. The conviction recorded against the appellant under section 399/402 I. P. C. and Section 25 of the Arms Act is hereby set aside. He is acquitted of all the charges. He is on bail. He need not surrender. His bail is cancelled and sureties are discharged. . .