JUDGMENT Hon’ble Mrs. Poonam Srivastav, J.—The appellants namely Mahendra Singh S/o Kali Charan and Malkhan Singh S/o Phool Singh are two appellants in the instant appeal. The appellants and one another person Sahab Singh were put up for trial. Sahab Singh has been released on two years probation of good conduct on his furnishing one surety and entering into a personal bond for Rs. 1000/- (one thousand only) with an undertaking that he shall maintain peace and good conduct during the period of probation and shall appear in the Court whenever called upon to receive his sentence. Nothing is brought on record to show violation of the aforesaid restriction while he was on probation under surveillance of District Probation Officer. The other accused namely Mahendra Singh and Malkhan Singh were convicted, they preferred the instant appeal and were granted bail. Bail bonds of the appellants were cancelled by this Court on 4.8.2006. Non-bailable warrants were issued for securing and ensuring their presence but despite repeated reminders on several dates thereafter the accused have failed to appear. A direction was given to trace out the sureties but the office report dated 15.10.2009 shows that neither the sureties nor the accused could be traced. Finally Sri Jeevanji Srivastava Advocate was appointed as Amicus Curiae on 24.10.2009. The Chief Judicial Magistrate, Agra was directed to ensure that if there is any property of the accused the same may be attached and sale proceeds be deposited. 2. The appeal came up for arguments today and Sri Jeevanji Srivastava Advocate appeared on behalf of the appellants and learned A.G.A. for the State. 3. The appellants were convicted in Sessions Trial No. 100 of 1981 sentencing them to 2 years R.I. under Section 399 I.P.C., 2 years R.I. under Section 402 I.P.C. and one year R.I. under Section 25 Arms Act. All the sentences were directed to run concurrently. 4. The occurrence is alleged to have taken place in the night of 16/17.9.1980 at mid night but their arrest has been shown on the same day at 12.30 O’ clock at the alleged place of occurrence. The F.I.R. was registered by the Investigating Officer Babu Lal Sharma at 4.00 a.m. on 17.9.1980. Learned counsel for the appellants has placed the F.I.R./recovery memo to demonstrate the prosecution story. According to which accused Malkhan Singh and Sahab Singh are brothers. The F.I.R. was registered by the Investigating Officer Babu Lal Sharma at 4.00 a.m. on 17.9.1980. Learned counsel for the appellants has placed the F.I.R./recovery memo to demonstrate the prosecution story. According to which accused Malkhan Singh and Sahab Singh are brothers. Accused Mahendra is their maternal-uncle being the brother of their mother. In the night of 16/17.9. 1980 S.I. Babu Lal Sharma (PW-4) who was the S.O. Incharge of P.S. Narkhi, was on beat duty with constables Vir Pal Singh, Cheddi Lal Sahukar, H.C. Shiv Ratan of armed police and Vidhya Ram, Om Prakash, Ram Swarup, Banwari Lal and Raghu Raj Singh, all constables of the armed police. When they reached the bus stand of Kapawali, they found S.I. Seva Lal Yadav (PW-3) alongwith one constable Puran Singh, who were there in connection with some investigation in a criminal case, together they proceeded to Kotla-Farah Road. They had hardly covered some distance, when they saw some persons flashing their electric torches from near a Dharmshala at a distance of about 100 paces towards south of the Road. Suspecting that they were bandits assembled for the purpose of committing some crime, PW-4 divided his group of police personnels into two parties, took mutual search to ascertain that none of them was carrying any incriminating article and instructed the parties to proceed towards Dharmshala quietly. PW-3 was made leader of one of the parties and PW-4 himself took the leadership of the other. Reaching near the Dharmshal PW-4 placed his party toward its north-western flank. The other party placed itself on the south-western flank of Dharmshala. Towards the east of Dharmshala they saw as many as 9-10 persons smoking ‘Biris’ and talking among themselves. They over heard their talks. It was about mid night. The conversation over heard by PW-2 and PW-4 was to the effect that it is no use waiting for any one. It has already past mid night. Jogendra Singh is a rich man. We are sufficiently armed. Let us start at once to commit dacoity. Convinced by this conversation that the persons assembled there were making preparation for committing dacoity, PW-4 flashed his electric torch and challenged the dacoits telling them that they were in the cordon of the police, that they should surrender themselves otherwise they would be shot dead. We are sufficiently armed. Let us start at once to commit dacoity. Convinced by this conversation that the persons assembled there were making preparation for committing dacoity, PW-4 flashed his electric torch and challenged the dacoits telling them that they were in the cordon of the police, that they should surrender themselves otherwise they would be shot dead. Even then the dacoits tried to run away but three of them were caught at the spot. The other allegation is that from the possession of accused Mahendra a country made pistol (Ex. 1) and three live cartridges (Ex. 2 to 4) and electric torch (Ex. 5) were recovered. From the possession of accused Malkhan Singh a country made pistol (Ex. 6) and two live cartridges (Ex. 7 and 8) were recovered. From the possession of accused Sahab Singh a ‘Lathi’ (Ex. 9) and electric torch (Ex. 10) were recovered. From the place where the dacoits were sitting and talking among themselves, some burnt butts of ‘Biris’ and match sticks were recovered. All these articles were sealed and kept in separate bundles, except the ‘Lathi’. A recovery memo of all these articles (Ex. Ka 11) was prepared at the spot. Thereafter the accused were taken to the police station where the F.I.R. of this incident was lodged by PW-4. 5. Recovery made by the prosecution is argued by Sri Jeevanji Srivastava Advocate appearing on behalf of the accused to be highly doubtful and no reliance can be placed on the same for the reason that essential requirements to substantiate the alleged recovery were completely missing. The so called recovery from the possession of the appellants was in absence of any public witness. Besides no signature of the accused was taken on the recovery memo which is said to be prepared on the spot itself. The accused have also not been supplied any copy of the said recovery memo to substantiate the actual recovery. Besides, a glaring factor has been pointed out that though the accused were said to be armed with fire arms but no cartridge was found in their pocket and none of the arms were loaded. In the circumstances, it is a recovery which can very well be assumed to be planted by the police itself without any authenticity to corroborate correctness of recovery beyond any doubt. In the circumstances, it is a recovery which can very well be assumed to be planted by the police itself without any authenticity to corroborate correctness of recovery beyond any doubt. It is also a fact that when the accused were being chased and as claimed by the prosecution they were arrested on the spot, none of them ever tried to open fire at the police party. The allegation is only to the effect that they tried to run away when the torch was flashed at them but none of them made any attempt to ward-off the police party even by making an aerial fire. Since the learned Session Judge has also accepted this fact and has concluded that no shots were fired at the time when the accused were captured and live cartridges were recovered from their possession but firearms were neither used nor any preparation was made for using them in defence. 6. Sri Babu Lal Sharma is the Investigating Officer who has admitted that the assailants had seen the torch light just for a second and when they saw the torch light they started running. Besides, learned counsel has also placed the statement of the Investigating Officer to challenge the seizure as no signatures, even of the police officials was present on the seized articles. This part of the statement has been highlighted by the learned counsel to show that the Investigating Officer has admitted that the articles sealed in a cloth does not bear the signatures of witnesses. The so called signature was also not visible. In the circumstances, this itself is sufficient to establish that there was no signature and entire seizure is apparently fabricated. 7. In the end learned counsel has challenged the sanction as the recovered articles which are said to be the firearms for which the appellants have been prosecuted under Section 25 Arms Act, were neither sent alongwith the accused at the time of remand nor it was produced before the sanctioning authority. The witnesses have admitted that the case diary was produced before the sanctioning authority alone but not a whisper has been made about the firearm, if it was produced before the District Magistrate. In the circumstances, the sanction cannot be said to be authentic. 8. Learned A.G.A. has supported the prosecution case and disputed every arguments of Sri Jeevanji Srivastava. The witnesses have admitted that the case diary was produced before the sanctioning authority alone but not a whisper has been made about the firearm, if it was produced before the District Magistrate. In the circumstances, the sanction cannot be said to be authentic. 8. Learned A.G.A. has supported the prosecution case and disputed every arguments of Sri Jeevanji Srivastava. He has tried to place the part of the statement in support of his contention that since no public witness was ready to accompany the police party because it was middle of the night and, therefore, recovery merely, for want of public witness cannot be held to be doubtful. Besides the appellants have been arrested on the spot and, therefore, factum of the arrest can also not be doubted. Learned A.G.A. has also tried to support the sanction which has not been disputed by the accused in their respective statements under Section 313 Cr.P.C. 9. Learned counsel for the appellants has placed a number of decisions. The first decision is Ram Kishan v. State of U.P., 2006 Cri LJ 1775. Paragraph 18 of the said judgment is quoted below : “18. I have considered the submissions made on behalf of the parties and have gone through the entire record including oral and documentary evidence led by the parties. In my opinion, there are some strong factors which rendered the case against all the appellants to be doubtful and the impugned judgment is liable to be set aside. First of all, I find that no public witness in support of the prosecution case was examined. Learned A.G.A. tried to argue that since the police party was patrolling near the scene of incident and felt presence of some criminals the police party decided to take preventive action and succeeded in apprehending six dacoits on the spot. There was actually no time at the disposal of S.O. to call public witnesses from the nearby village. I have considered this contention of learned A.G.A. I am, however, not prepared to accept this submission. The S.O. could call members of public to witness the recovery of arms and ammunitions from the possession of the appellants after their arrest. After effecting arrest of the appellants, one or two constables could be sent to the adjoining villages and some public witnesses could be summoned to witness the incident. But this was not done. The S.O. could call members of public to witness the recovery of arms and ammunitions from the possession of the appellants after their arrest. After effecting arrest of the appellants, one or two constables could be sent to the adjoining villages and some public witnesses could be summoned to witness the incident. But this was not done. It is true that there is no rule that prosecution version cannot be accepted unless supported by public witnesses. I wish to emphasize that in the present case, further circumstances taken together with the absence of public witnesses create reasonable doubt as to the happening, as alleged by the prosecution.” 10. The next decision is Santosh Kumar and etc. v. State of Chhattisgarh, 2006 Cri LJ 1185, where the appellants had not made any attempt to run away or of their resistance at the time of arrest. Recovery from the possession of the appellants was therefore held to be not reliable. 11. In view of these decisions, submission is that in the instant case though the appellants are alleged to be armed with firearms but they had not made any resistance at the time of their arrest, the case in hand is squarely covered by the decision. 12. The next decision relied upon by the counsel is Chhotey (D) and others v. State of U.P., 2004 Crl LJ 2384. The same principles have been followed that the appellants alleged to be fully armed did not resist their arrest by using firearms and therefore, it was held possession of fire arms does not appear to be believeable. In the circumstances, appeal had succeeded. The facts of the present case are also same what identical. 13. The Apex Court in the case of Chaturi Yadav v. State of Bihar, AIR 1979 SC 1412 , had concluded that confession made before the police before making preparation for committing dacoity was held to be not admissible and moreover in absence of public witness the conviction and charges under Section 399 and 402 I.P.C. against the appellants were set at naught and the appeal was allowed. Paragraph 4 of the said judgment is quoted below : “4. Paragraph 4 of the said judgment is quoted below : “4. 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 appellant 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. 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.” 14. I have heard both the counsels and taken into consideration the documents and records as well citations placed by the learned counsel for the appellants where the accused has been given a clear acquittal in a case where the public witnesses were wanted and there was no signature obtained on the recovery memo. I have heard both the counsels and taken into consideration the documents and records as well citations placed by the learned counsel for the appellants where the accused has been given a clear acquittal in a case where the public witnesses were wanted and there was no signature obtained on the recovery memo. The recovery memo cannot be accepted and read against the accused for want of public witness, signature of witnesses or the seal as well as non supply of recovery memo to the accused. Spot arrest can also not be accepted for the reason, despite allegation that the accused were armed but no attempt to ward-off their arrest by use of firearm is also a fact that cannot be ignored, besides firearms not loaded is another aspect. Sanction granted is also not legal for the reasons stated above. 15. In the circumstances, I am of the considered view that the prosecution has not been able to establish and bring home the offence under Section 399, 402 I.P.C. as well as 25 Arms Act. The conviction is therefore bad. The judgment and order dated 13.11.1981 passed by the IXth Additional Session Judge, Agra in Sessions Trial No. 100 of 1981 is quashed. The appeal is accordingly allowed. ————