Judgment 1. The abovementioned Criminal Appeals having arisen out of the judgment dated 15th November, 1996 and order of sentence dated 18th November, 1996 rendered by the Court of learned Additional Sessions Judge, Gurgaon, whereby he convicted and sentenced each of the accused to undergo rigorous imprisonment for two years and to pay a fine of Rs. 500/- each or in its default, the defaulter to further undergo rigorous imprisonment for two months under Section 399 of the Indian Penal Code and further, sentenced each of them to undergo rigorous imprisonment for two years and to pay a fine of Rs. 200/- or in its default, the defaulter to further undergo imprisonment for one month under Section 402 of the Indian Penal Code are being disposed of by this judgment. 2. As set up by the prosecution, on the night intervening 30th/31st January, 1995, a police party headed by Phool Singh, Assistant Sub Inspector of Police Station Sadar Gurgaon happened to be present at Jharsa Chowk on National Highway No. 8 in connection with patrol duty. Meanwhile, he received a secret information to the effect that five persons carrying weapons, after parking a Maruti car near T-point Silokhra near the Highway, were planning to loot a petrol pump. The abovementioned ASI divided the police officials into three sub parties. One was headed by himself, another by ASI Bhoop Singh and the 3rd one by Hari Singh UGC. They Went to the aforesaid place through different directions. On reaching there, they found Maruti car lying parked near the trees and five persons (accused) present there making preparations to commit dacoity at the petrol pump. The police officials overheard their conversation. On getting the appointed signal from Phool Singh, ASI, all those five persons were surrounded and apprehended by the police officials. On search of the accused Ramesh, a spring actuated knife was recovered whereas an air pistol yielded from the personal search of the accused Pardeep. Their rough sketches were drawn and the weapons were taken into possession by the aforesaid ASI. A ruqa was sent to the police station, where on its basis formal FIR was recorded. After completion of the investigation, the charge-sheet was laid in the Court for trial of the accused. 3. Their rough sketches were drawn and the weapons were taken into possession by the aforesaid ASI. A ruqa was sent to the police station, where on its basis formal FIR was recorded. After completion of the investigation, the charge-sheet was laid in the Court for trial of the accused. 3. The accused were charged under Section 399 of IPC as well as Section 402 of IPC, to which they did not plead guilty and claimed trial. 4. In order to substantiate its allegations, the prosecution has examined Mul Chand Punia. Draftsman P.W. 1, Bhoop Singh ASI P.W. 2, Phool Singh ASI P.W. 3 and closed its evidence. When examined under Section 313, Cr. P.C. all the five accused denied the incriminating circumstances appearing against them in the prosecution evidence. They stated in one voice that the prosecution witnesses being police officials have made false statements against them. Without leading any evidence, they closed their defence. 5. After hearing the learned Public Prosecutor, learned counsel for the accused and examining the prosecution evidence, the learned trial Court convicted and sentenced each of the accused as noticed at the outset. 6. Feeling aggrieved with the impugned judgment/order, they have preferred the abovementioned criminal appeals. 7. I have heard the learned counsel for the parties and perused the record with due care and circumspection. 8. Mr. Atul Lakhanpal, Advocate as well as Mr. Hitesh Pandit, Advocate appearing on behalf of the appellants voiced their grievances that as proffered by the prosecution, a secret information was received to the effect that the appellants were holding discussions to loot a petrol pump, but no endeavour was made to join an independent witness. They further put that the investigator has not furnished any explanation for non-joining of independent witness and thus, no implicit reliance can be placed upon the prosecution evidence. They further pointed out that a meticulous perusal of the prosecution evidence would reveal that the witnesses are discrepant and contradict each other on very material points, which strike at the root of prosecution and that there is no evidence to the effect that the appellants were conversing and making preparations to commit a dacoity and that being so, the learned trial Court was not justified in recording conviction. They have placed abundant reliance upon the observations made in re : Chaturi Yadav v. State of Bihar, (1979) 3 SCC 430 : 1979 Cri LJ 1090, Suleman v. State of Delhi through Secretary, 1999 (2) Recent Criminal Reports (Criminal), 377 : 1999 Cri LJ 2525, Baldev Singh v. State of Haryana, 1988 (1) RCR (Cri) 629. 9. Per contra, Mr. A. K. Rathee, Assistant Advocate General, Haryana pressed into service that as is borne out from the evidence trickled from the respective mouths of Bhoop Singh ASI, P.W. 2 as well as Phool Singh ASI, P.W. 3 at the material time, the appellant were conversing and making preparations to commit dacoity. This contention is devoid of any merit for the discussion to fall hereunder : 10. As alleged, the appellants were planning to loot Jain Petrol Pump near Silokhra turning. The investigator Phool Singh ASI, P.W. 3 in his cross-examination has testified that the raiding party of Bhoop Singh ASI was present at about 3-4 feet away from the point, that party of Hari Singh UGC was also at a distance of 2-3 feet : that my (Phool Singh) party was also at about 4-5 feet. The prosecution evidence do not reveal that the appellants were speaking at the high pitch of their tongue while holding the alleged discussions to loot petrol pump. It is unintelligible and inconceivable as to how the investigator or any other police official could overhear the alleged discussions. Phool Singh ASI, P.W. 3 has stated that I heard one of them saying that Ramesh shall use his knife in case of necessity and Pardeep shall fire a shot from his air gun and Dharminder shall keep the car in ready position whereas Ramesh and Sukhpal shall loot cash from the petrol pump. It is unbelievable that the appellants would have been speaking so loudly as would have been audible to the aforesaid ASI. More to the point, his afore-referred evidence has gone uncorroborated on the record. 11. In re : Chaturi Yadav (supra) eight persons were found in the school premises. Some of them were armed with guns, some had cartridges and others ran away. More to the point, his afore-referred evidence has gone uncorroborated on the record. 11. In re : Chaturi Yadav (supra) eight persons were found in the school premises. Some of them were armed with guns, some had cartridges and others ran away. It was held by the Apex Court that "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. It is true that some of the appellants who were caught hold of by the Head Constable are alleged to have made a statement before him that they were going to commit 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, IPC 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". 12. Harking back to the facts of the instant case, it is riot the prosecution case that either appellant had made the statement before the Investigating Officer that they were going to commit a dacoity. In case of Chaturi Yadav and others case (supra) such statement was made before the Head Constable by one of the appellants. The same was held to be inadmissible. But here in this case, there is not even such statement. 13. Further, in re : Suleman (supra), the prosecution case was that the accused were sitting in a room in Dharmasala and were planning to loot a petrol pump. According to the prosecution witness, he had overheard them from outside. The Hon ble Supreme Court observed that it is doubtful that accused were speaking so loudly that their conversation could be heard outside. Here, in the present case as already noticed, if the appellants were to indulge into the alleged activity, by no stretch of speculation, they could be expected to discuss the details of their plan by speaking in a loud manner. So, if the matter is viewed in the background of the afore-extracted observations, the prosecution story is rendered highly doubtful. In re : Baldev Singh (supra), five persons had assembled in an abandoned house at night with arms. So, if the matter is viewed in the background of the afore-extracted observations, the prosecution story is rendered highly doubtful. In re : Baldev Singh (supra), five persons had assembled in an abandoned house at night with arms. It was held by this Court that "without further evidence no inference can be drawn that they assembled for the purpose of committing dacoity. The possibility that they had assembled to commit an assault or murder could not be ruled out." In the present case, it is in the cross-examination of Bhoop Singh ASI, P.W. 2 that there was darkness at that time and that they were doing patrolling on foot. If it was so, the appellants might have heard a sound of feet of the police officials, who were in good number and on hearing such sound, they might have become alert and put on the light of the car to notice as to who was advancing towards them and on sensing that they were police officials, they might have driven off in the car or made good their escape in any other manner. Phool Singh ASI, P.W. 3 has stated in his cross-examination that I cannot say whether there are 5/7 workers at Jain Petrol Pump and I did not call any person from the petrol pump. Some salesmen might have been in attendance at the petrol pump, out of whom someone could have been called by the investigating officer Phool Singh ASI, P.W. 3 has admitted that there is traffic on the National Highway-8 throughout night. It being so, the appellants could not be expected to indulge into such activity by speaking loudly. As per his statement, the car had been taken to the police station from the spot and was driven by a private driver whereas Bhoop Singh ASI, P.W. 2 has testified that he drove the car to the police station from the spot. Obviously, these witnesses are inconsistent and incongruous on a very material point. Phool Singh ASI P.W. 3 in his cross-examination has stated that he did not join the owner of the car in investigation and that he cannot tell his name. Strangely enough that he did not make the efforts to inquire about the ownership of the car though it is in his cross-examination that the car in question has been released on supurdari. Strangely enough that he did not make the efforts to inquire about the ownership of the car though it is in his cross-examination that the car in question has been released on supurdari. As stated by Bhoop Singh ASI, P.W. 2, a country made pistol Ex. P1 was recovered from Pardeep accused. According to Phool Singh ASI P.W. 3, he heard one of them saying that Ramesh shall use his knife in case of necessity and Pardeep shall fire a shot from this air gun. Palpably, they are at variance with each other in relation to the description of the aforesaid weapon. If it was a country made pistol, the prosecution was obligated to get it tested from the Armourer to ascertain its working condition. There is no such report on the record. 14. In the ultimate analysis, it is found that the evidence adduced by the prosecution falls short of establishing the charged offences. Sequelly, these appeals succeed and are accepted. The judgment/order of sentence appealed against is hereby set aside. The appellants are acquitted of the charged offences by giving benefit of reasonable doubt.