( 1 ) BOTH these appeals are directed against the judgment and order passed by learned Addl. Sessions Judge, Omerga in Sessions case No. 84/2004 thereby convicting the present appellants for the offence punishable under section 399 of the Indian Penal Code and sentencing to suffer r. I. for five years with fine of Rs. 1000/- each, in default of payment of fine, to suffer R. I. for one month and convicting them for the offence punishable under section 402 of the Indian Penal Code and sentencing them to suffer R. I. for three years and payment of fine of Rs. 500/-, in default of payment of fine, to suffer further R. I. for two weeks. Appellant No. 1 in Criminal Appeal No. 407 of 2005 has also been convicted for the offence punishable under section 124 of the bombay Police Act and sentenced to suffer R. I. for three months with fine of rs. 300/-, in default of payment of fine, further R. I. for five days. ( 2 ) THE prosecution story, in brief, is as under : it is prosecution story that when some persons namely; Rajendra Patenge, rajendra Gaikwad and Sunil Gosavi, along with other persons, were patrolling on 19-7-2004 due to incidents of thefts in the area, they found one white trax. They found that two persons had got down from the said trax. These persons suspected them as they were holding something in their hands. The persons on the patrolling duty raised shouts. After the raising of shouts, aforesaid two persons ran away towards the jeep and attempted to flee away. However, persons on the patrolling duty encircled the jeep and also pelted stones on it so that the persons in the jeep should not flee away. It is the prosecution story that air from the front type of the vehicle was also released. Thereafter the police was informed, PW 1, Rajendra, P. S. I. , who was attached to the police station, omerga, was on patrolling duty, accompanied by P. I, Yunus Shaikh and other staff members. When they were patrolling in a jeep, at about 2 Oclock, they received wireless message from the police station to the effect that they should immediately to go Balaji Nagar, Omerga along with the staff. When they were patrolling in a jeep, at about 2 Oclock, they received wireless message from the police station to the effect that they should immediately to go Balaji Nagar, Omerga along with the staff. At that time, they saw Rajendra Patenge, Rajendra Gaikwad and Sunil Gosavi, who had caught and detained about ten persons who were in one vehicle i. e. trax of white colour bearing No. MH-23-C 880. Then they arrested ten persons. It is also the prosecution case that certain weapons; swords and spanner were received from these accused. It is also prosecution case that certain goods were also received from accused No. 1 Yuvraj, (on Memorandum under section 27 ). After the investigation was completed, matter was committed to the Court of Sessions, as the trial was exclusively triable by the Sessions Judge. Prosecution examined in all 8 witness. After considering the material on record, learned trial Court convicted the accused for the offence charged with. Being aggrieved thereby, present appeals are filed by the appellants. ( 3 ) HEARD Shri Sapkal, learned Counsel appearing on behalf of the appellant in Criminal Appeal No. 229 of 2005 and Shri Panale, holding for Mrs. Jadhav, learned Counsel appearing in Criminal Appeal No. 407 of 2005 and Shri Dilip bankar Patil, learned Addl. Public Prosecutor. ( 4 ) SHRI Sapkal, learned Counsel appearing on behalf of the appellants, submitted that the prosecution has failed to prove case for the offence punishable under section 390 and 402 of the Indian Penal Code. He further submits that the prosecution had failed to establish that the articles were sealed as required by law and, therefore, evidence insofar as seizure is concerned, could not be taken into consideration. He further submits that if that evidence is excluded from consideration, then the only case that can be said to be proved by the prosecution is that the appellants were found in night in a vehicle. He, therefore, submits that the prosecution has failed to prove the case beyond reasonable doubt so as to bring home guilt under section 399 and 402 of the Indian Penal Code. ( 5 ) HE further submits that there are material omissions and contradictions in the evidence of the witnesses and as such, the witnesses are not trustworthy and reliable. He, therefore, submits that the prosecution has failed to prove the case beyond reasonable doubt so as to bring home guilt under section 399 and 402 of the Indian Penal Code. ( 5 ) HE further submits that there are material omissions and contradictions in the evidence of the witnesses and as such, the witnesses are not trustworthy and reliable. He further submits that the panch, who has attested the panchanama was not local persons, though the police authorities could have very well arranged for local panch and as such, the panchanama which is attested by panch who is not local panch, itself creates doubt. Shri Sapkal, learned Counsel, relies on the judgment of the Apex Court in the case Salim Akhtar alias Mota vs. State of Uttar Pradesh, 2003 ALL MR (Cri) 1167 (S. C.) in support of the proposition that if an article is not sealed, it raises doubt about factum of recovery. In support of this proposition he also relied on the judgment of the Division Bench of this court in the case of Deoraj Deju Suvama and etc. vs. State of Maharashtra, 1994 Cri. LJ. 3602 and in the case of Tulshiram Bhanudas Kambale and others vs. The State of Maharashtra, 1999 ALL MR (Cri) 1593. ( 6 ) LEARNED Counsel also relies on the judgment of the Apex Court in the case of Chaturi Yadav and others vs. State of Bihar, 1979 Cri. LJ. 1090 in support of the proposition that the prosecution is required to bring on record the evidence to show that the appellants had assembled for the purpose of committing dacoity or they had made any preparations for committing the same. He also relied on the judgment of Delhi High Court in Des Raj alias Dass vs. The state, 2000 Cri. LJ. 2083 in support of said proposition. ( 7 ) SHRI Panale, learned Counsel has adopted the submissions made by Shri sapkal. ( 8 ) SHRI Patil, learned Addl. He also relied on the judgment of Delhi High Court in Des Raj alias Dass vs. The state, 2000 Cri. LJ. 2083 in support of said proposition. ( 7 ) SHRI Panale, learned Counsel has adopted the submissions made by Shri sapkal. ( 8 ) SHRI Patil, learned Addl. Public Prosecutor, on the contrary, submits that the circumstances which have been proved by the prosecution are so interwoven to each other that the only conclusion that can be arrived at is that the applicants had come to the place of incident in the tempo trax armed with the weapons so as to commit offence of dacoity and, therefore, the prosecution had duly proved the case for the offence punishable under sections 399 and 402 of the Indian Penal code. He submits that the prosecution had examined three independent witnesses which would show that the two accused had got down from the trax with arms with an intention to commit dacoity. He submits that only after seeing the mob assembled there, said persons returned to the jeep and had started fleeing away. Only because mob removed air from the front wheel and the tempo trax was hit with stones, the accused could be apprehended. He further submits that the explanation given by accused that they were on way to Tirupati Balaji and that they had stopped at that place as the tyre of their vehicle had punctured, was not plausible explanation. He submits that from the material on record, it was clear that explanation given by the accused was totally unsatisfactory, and as such, conclusion arrived at by learned trial Court was just and proper. He submits that trial Court, after consideration of entire material in its correct perspective has convicted them which needs no interference. ( 9 ) WITH the assistance of learned Counsel for the parties. I have perused the material on record PW 1, Rajendra, P. S. I. , is a complainant who deposes about information received from the wireless to the patrolling party and the patrolling party going to the place of incident. He deposes about swords found in possession of accused Dhajaji Pawar and Raoshaheb Gaikwad. PW 2, dnyaneshwar, deposes about the incident. He states that he found two accused getting down from the trax and that theywere holding something. He deposes about swords found in possession of accused Dhajaji Pawar and Raoshaheb Gaikwad. PW 2, dnyaneshwar, deposes about the incident. He states that he found two accused getting down from the trax and that theywere holding something. He further states that after the persons on patrolling duty raised shouts, the aforesaid two persons ran back to the jeep and started running away. He further submits that they made an attempt to move the jeep and, therefore, persons on the patrolling duty pelted stones on the jeep and also released air from the tyre of the jeep. There are certain material omissions in the evidence of this witness. This witness does not state about releasing the air from the wheel of the vehicle or raising shouts or pelting stone on the jeep in the statement before the police and has deposed about the same for the first time before the Court. PW 3, Balwant, also deposes almost to the same extent. However, there is further addition in his evidence regarding accused showing weapons from his vehicle. He further states that the police took out the persons from the vehicle and seized weapons possessed by them. PW 4 is a panch witness, who deposes about the seizure of the articles. PW 5 also deposes almost to the same effect as that of PW 2 and PW 3. PW 6 and PW 7, who are other panch witnesses, have turned hostile. PW 8, mohamad Shaikh, is an Investigating Officer who deposes about the investigation. ( 10 ) IT can thus be seen that there are certain omissions and contradictions in the evidence of the witnesses stated above. However, that cannot be the only ground for discarding the evidence. ( 11 ) HOWEVER, I find that it is necessary to consider two important submission made by learned Counsel for the appellants. ( 12 ) FROM the panchanama, the deposition of the panch or the deposition of the Investigating Officer. It is nowhere revealed that the articles while seizing or after seizure, were sealed. On the contrary, learned Magistrate has passed the order on list of articles on 28-1-2005 as under : it can thus be seen that the prosecution has failed to establish that the articles were sealed after their seizure. It is nowhere revealed that the articles while seizing or after seizure, were sealed. On the contrary, learned Magistrate has passed the order on list of articles on 28-1-2005 as under : it can thus be seen that the prosecution has failed to establish that the articles were sealed after their seizure. On the contrary, when the articles were submitted to the learned Magistrate, learned Magistrate has himself found that the articles did not have signatures of panchas. In that view of the matter, seizure of the articles itself creates doubt. It is clear from the deposition of PW 4 that who resides in another locality was called by the police to act as panch. The Apex court in Salim Akhtar alias Mota vs. State of Uttar Pradesh, cited supra, has observed thus :"8. . . . It, therefore, shows that the police made no effort to get any independent public witnesses at the time when the alleged recovery was made at the pointing out of A-1 and the only public witness examined, appears to be a person who was not only intimate but was also obliged to them. "in the present case also, I find that though various persons were available from the local area, no efforts were made by prosecution to get independent witness/panch. However, person acquainted with the police was called from another locality to act as panch. In the aforesaid judgment, the Apex Court has also relied on the judgment of Punjab High Court in the case of Amarjit Singh vs. State of Punjab, 1995 Supp. (3) SCC 217, wherein it has been held that the possibility of tampering cannot be ruled out where the recovered articles were not sealed on the spot. The same view has been followed by Division Bench of this court in the case of Tulshrarn Bhanudas Kamble and Des Raj alias Dass, cited supra. It is thus clear that the prosecution has utterly failed to prove that the articles were seized and sealed. On the contrary, from the endorsement of the magistrate, it is clear that the articles did not have the seal and in view of the law discussed hereinabove, recovery of the articles itself creates a doubt, and as such, that part of the evidence will have to be excluded from consideration. On the contrary, from the endorsement of the magistrate, it is clear that the articles did not have the seal and in view of the law discussed hereinabove, recovery of the articles itself creates a doubt, and as such, that part of the evidence will have to be excluded from consideration. ( 13 ) IN the present case, taking the prosecution to be true on the face value, what is proved is that the accused appellants were found at the place of the incident with arms. The Apex Court in the case of Chaturi Yadav has observed thus :"the Courts below have drawn the inference that the appellants were guilty under both the offences merely from the fact that they had assembled at a lonely place at 1 A. M. and could give no explanation for their presence at that odd hour of the night. Mr. Misra appearing for the appellants submitted that taking the prosecution case at its face value. There is no evidence to show that the appellants had assembled for the purpose of committing a dacoity or they had made any preparation for committing the same. We are of the opinion that the contention raised by the learned counsel for the appellants is well founded and must prevail. The evidence led by the prosecution merely shows that eight persons were found in the school premises. Some of them were armed with guns, some had cartridges and others ran away. The mere fact that these persons were found at 1 a. m. does not, by itself, prove that the appellants had assembled for the purpose of committing dacoity or for making preparations to accomplish that object. The High Court itself has, in its judgment, observed that the school was quite close to the market, hence it is difficult to believe that the appellants would assemble at such a conspicuous place with the intention of committing a dacoity and would take such a grave risk. It is true that some of the appellants who were caught hold of by the Head Constable are alleged to have made the statement before him that they were going to commit a dacoity but this statement being clearly inadmissible has to be excluded from consideration. In this view of the matter, there is no legal evidence to support the charge under sections 399 and 402 against the appellants. In this view of the matter, there is no legal evidence to support the charge under sections 399 and 402 against the appellants. The possibility that the appellants may have collected for the purpose of murdering somebody or committing some other offence cannot be safely eliminated. In these circumstances, therefore, we are unable to sustain the judgment of the High Court. "delhi High Court, in Des Raj vs. State in the similar facts, has held as under :"20. Learned counsel for the State submitted that the accused were apprehended with arms and that alone should lead to the inference that they had assembled there for committing dacoity. I find no merit in this submission. 21. The prosecution has to establish that the accused persons had assembled there for committing dacoity or assembled for the purpose of making preparation to commit dacoity. Mere presence of some persons even with arms cannot legitimately lead to the definite conclusion that they had assembled there to commit dacoity. Convicting the accused on such presumption is against the settled principles of criminal jurisprudence. " ( 14 ) FROM the perusal of the evidence, it can be seen that the prosecution has failed to prove that the accused appellants had assembled at the place of incident for committing dacoity or assembled there for the purpose of making preparation to commit dacoity. Firstly, the evidence regarding recovery of the articles itself is doubtful and, therefore, has to be discarded fromconsideration. Secondly, assuming that the accused were found assembled there with arms, it is not sufficient so as to bring home the offence punishable under section 399 and 402 of the Indian Penal Code. In the present case, prosecution has failed to discharge its burden of proving that the applicants had made preparations for committing dacoity or assembled there for the purpose of committing dacoity. ( 15 ) FROM the judgment of the learned trial Court it is clear that learned trial court has arrived at a finding that the present accused have committed the offence on the basis of probabilities. Learned Addl. Public Prosecutor also submits that from the circumstance, it has to be inferred that the applicants had assembled there for the purpose of committing dacoity. ( 16 ) HOWEVER, in criminal jurisprudence, it is the duty of the prosecution to prove the case beyond reasonable doubt. Learned Addl. Public Prosecutor also submits that from the circumstance, it has to be inferred that the applicants had assembled there for the purpose of committing dacoity. ( 16 ) HOWEVER, in criminal jurisprudence, it is the duty of the prosecution to prove the case beyond reasonable doubt. If there is any doubt in the prosecution case, the benefit has to go to the accused. In the present case, as already discussed, evidence regarding discovery has to be discarded being doubtful in nature. Then what remains in the evidence is that accused had assembled there in the tempo trax. I do not find said evidence is sufficient for bringing home offence under sections 399 and 402 of the Indian Penal Code. ( 17 ) CRIMINAL appeals, therefore, succeed. The judgment and order dated 31-3-2005 passed by learned Addl. Sessions Judge, Omerga, thereby convicting and sentencing the accused for the offence punishable under sections 399 and 402 of the Indian Penal Code and under section 124 of the Bombay Police Act is, therefore, quashed and set aside. The appellants, accused, be set at liberty forthwith if they are not required in connection with any other crime. Appeal allowed.