JUDGMENT Honble Mrs. Poonam Srivastav, J.—Both the appeals have come up against a common judgment dated 6.6.1981 passed by the Vth Additional Sessions Judge, Varanasi convicting the accused Jabbar, Sadan and Mrityunjai in Sessions Trial No. 189 of 1980, under Sections 399, 402, I.P.C. and sentencing them to four years R.I. and also under Section 25 Arms Act awarding sentence of three months R.I. The two appeals arise out of the same judgment and, therefore, I proceed to decide both the appeals by a common judgment. 2. Despite cancellation of bail of the two appellants, their presence could not be procured and finally Sri Jeevanji Srivastava Advocate was appointed as Amicus Curiae by this Court videorder dated 30.10.2009. He has argued both the appeals today. 3. The occurrence is alleged to have taken place on 18.5.1980 at 3.20 A.M. in the vicinity of Railway Station, Varanasi Cantt., West of the Parcel Office, G.R.P. G.R.P. Police Station is situated at a distance of 300 yards. The F.I.R. about the preparation by the accused to commit dacoity was lodged on the same day i.e. 18.5.1980 at 5.10 A.M. by Sri R.S. Kushwaha, Station Officer, G.R.P. 4. The prosecution case as revealed in the F.I.R. Ex. Ka-4 and the statement of Sri R.S. Kushwaha, the first informant (PW-1) briefly is that Sri R.S. Kushwaha, S.O. G.R.P. Cantt. Varanasi received information from an informer at 2.30 A.M. on 18.5.1980 at the police station G.R.P., Varanasi Cantt. that a gang of dacoits would assemble on that night in the barsati towards the west of the Parcel Office, at the Railway Station, Cantt. and would make preparation for committing dacoity in the ‘Triveni Express’ train which would shortly arrive there. He collected the police force present at the police station, picked up two witnesses, namely Bindheshari and Ram Suresh and proceeded towards Parcel Office. He divided the police force and the public witnesses into two parties on the way near the R.M.S. Office. and would make preparation for committing dacoity in the ‘Triveni Express’ train which would shortly arrive there. He collected the police force present at the police station, picked up two witnesses, namely Bindheshari and Ram Suresh and proceeded towards Parcel Office. He divided the police force and the public witnesses into two parties on the way near the R.M.S. Office. He kept the first party in his charge and the second party was given in the charge of Sri Paltan Yadava, S.I. After receiving necessary instructions from the S.O., the parties took cover near the Barsati at two different places from were they saw that five dacoits were sitting inside the Barsati, who were heard saying that they were sufficient in number and that Ustad was expert in the art of looting the passengers and that they should proceed to commit dacoity in the train. After being assured by their conversation that they were dacoits, the Station Officer, Sri R.S. Kushwaha challenged them and both the parties pounced upon the dacoits and succeeded in apprehending the three accused. Two of their companions made good their escape. On search, a country made pistol and 3 live cartridges were recovered from the possession of Jabbar accused and one knife each from the possession of the other two accused which were sealed on the spot and separate recovery memos for each accused were prepared on the spot which are Exs. Ka-1 to Ka-3. The sealed property and the arrested accused were brought to the police station where the informant lodged a verbal report on the basis of which Chik F.I.R. was prepared. The case was investigated by Sri Baleshwar Rai, S.I. O.P. G.R.P. Madho Singh, who submitted charge sheet against the accused on completing the investigation. He also obtained sanction from Sri R.N. Srivastava, Additional City Magistrate, Varanasi for the prosecution of the accused Jabbar under Section 25 Indian Arms Act. 5. The prosecution examined four witnesses in support of its case. Sri R.S. Kushwaha PW-1, Bindheshwari Singh PW-2 and Sri Paltan Yadava, S.I. G.R.P. Cantt. Varanasi PW-3 are the witnesses of the occurrence. Sri Baleshwar Rai S.I. PW-4 is the Investigating Officer. 6. The argument of Sri Jeevanji Srivastava is many folds. The first argument is regarding seizure of the knives from the appellants. Sri R.S. Kushwaha PW-1, Bindheshwari Singh PW-2 and Sri Paltan Yadava, S.I. G.R.P. Cantt. Varanasi PW-3 are the witnesses of the occurrence. Sri Baleshwar Rai S.I. PW-4 is the Investigating Officer. 6. The argument of Sri Jeevanji Srivastava is many folds. The first argument is regarding seizure of the knives from the appellants. It is alleged that the knife recovered from the possession of Mrityunjai accused had 6 inches blade and one recovered from accused Sadan consisted of 5 ½ inches blade. It is submitted that the entire seizure stands belied for the reason that the recovery memo does not bear the signatures of the accused and therefore doubtful. In support of this argument, Sri Jeevanji Srivastava has placed reliance on a decision of this Court in the case of Ram Kishan v. State of U.P., 2008 Cri. LJ 1775. The entire recovery was disbelieved for a number of reasons, first that there was no public witness summoned, second no signatures of accused was obtained on the seizure memo nor copy thereof was furnished to either of the accused. 7. The next argument is that the seizure stands belied also because there were no public witness. The prosecution has placed reliance on the statement of PW-2 namely Bindheshwari who is claimed to be a public witness. The other public witness namely Ram Suresh mentioned in the recovery memo has not been examined by the prosecution, therefore, it can safely be concluded that he had not come forward to support the prosecution case. So far witness Bindheshwari is concerned, the submission is that he has deposed in a number of cases on behalf of the police and the learned Session Judge has also mentioned in his judgment accepting the contention of the defence that Bindheshwari did appear in a number of cases on behalf of the police. Thus he is just a pocket witness. However, this has specifically been denied by the witness Bindheshwari in his statement. Sri Jeevanji Srivastava has emphatically argued that his evidence cannot be accepted, besides on the face of it, the entire prosecution story appears to be very weak without any corroborative evidence. In such a circumstance, the evidence of witness Bindheshwari is of no consequence. Reliance has been placed on another decision of this Court; Ram Sewak v. State, 1999 (2) A.Cr. R. 1280 while emphasizing and discrediting statement of the pocket witness Bindheshwari. 8. In such a circumstance, the evidence of witness Bindheshwari is of no consequence. Reliance has been placed on another decision of this Court; Ram Sewak v. State, 1999 (2) A.Cr. R. 1280 while emphasizing and discrediting statement of the pocket witness Bindheshwari. 8. The next argument is that admittedly one of the accused Jabbar was armed with fire arm and at the crucial moment when challenged by the police while all of them had prepared to commit dacoity and proceeded, they were challenged by the police and apprehended. No overt act was done on the part of the accused to make good their escape despite being armed. There was no encounter whatsoever, not even an aerial fire. Two knives alleged to be in possession of the accused were also kept in their pockets only to be recovered by the police. Once again reliance has been placed in another case of this Court in the case of Yasin and Shanker v. State of U.P., 1999 (2) A. Cr. R. 1263. In the said case also no fire was opened from the side of the accused to save them from their spot arrest by the police . The Court was of the view that the prosecution case goes a long way to establish that the case of the prosecution is nothing but hollow allegation. Besides PW-1, who has lodged the F.I.R., has come forward and admitted in his evidence that he had given his statement to the Investigating Officer under Section 161, Cr.P.C. after considerable lapse of time. In fact he did not even remember that how much time had lapsed when he was examined by the Investigating Officer, which was the first version to have been recorded by the Investigating Officer. Coupled with this, another argument has been advanced that the G.D. Entry at the police station is completely silent and no such information had been entered about the incident. This again substantiates that no such incident had ever taken place. It is only to vindicate the grudge and falsely implicate the accused, the instant F.I.R. was lodged. Learned counsel has also placed cross examination of the Investigating Officer in support of his argument that there is no entry regarding communication from the informer (Mukhbir) which is the sole basis of his apprehension that the accused had a plan to commit dacoity in ‘Triveni Express’ train. Learned counsel has also placed cross examination of the Investigating Officer in support of his argument that there is no entry regarding communication from the informer (Mukhbir) which is the sole basis of his apprehension that the accused had a plan to commit dacoity in ‘Triveni Express’ train. In support of this argument, two decisions have been cited; Gholtu Modi and etc. v. State of Bihar, 1986 Crl. LJ 1031 and Des Raj alias Dass v. The State, 2000 Cri. L. J., 2083. On the basis of the two decisions, argument on behalf of the appellants is that merely possession of illicit arms is not sufficient to come to a conclusion that preparation for dacoity was being made specially when the first informant is a police officer who may not be impartial and investigation is also conducted by the police official of the same police station. The prosecution should have taken pains to produce some direct or circumstantial evidence that the accused persons were making preparation for committing dacoity. Another case relied upon by the counsel which relates to a train dacoity, is Brijlal Mandal and others v. State of Bihar, 1978 Cri. LJ 877, where the Court was of the view that no conviction under Section 399, I.P.C. could be recorded only on the basis of the fact that a certain number of persons some being armed were apprehended at the platform of the Railway Station or nearby. Similar view was adopted by the Apex Court in the case of Chaturi Yadav v. State of Bihar, AIR 1979 (SC) 1412 . 9. Learned A.G.A. has tried to support the judgment of the learned Session Judge and also the prosecution case and disputed each and every argument of Sri Jeevanji Srivastava. However, he has not been able to substantiate that why the other public witness Ram Suresh was withheld and he has also not been able to deny the fact that the at least in two cases PW-2 did appear on behalf of the prosecution, the two session trials in which he had given evidence are mentioned in the judgment itself. 10. 10. After hearing the respective counsels at length and going through the citations cited by Sri Jeevanji Srivastava and also taking into consideration the facts and circumstances, I am of the considered view that mere possession of two knives is not sufficient to convict the appellants for the offence under Sections 399, 402, I.P.C. The prosecution must show such conduct and prove the factum of “preparation” by the gang of persons that they had conceived a preplanned programme to commit dacoity in train. There must be some evidence which may manifest the main charge to satisfy the conscience of the Court and as discussed in the previous paragraphs herein before, I do not find any such circumstance which would go to prove that there was any preparation to commit dacoity. The recovery of the arms has also not been substantiated for a number of reasons such as want of public witness as well as the signatures of the accused on the seizure memo from whose possession the arms were recovered and no copy was supplied thereof. 11. In view of what has been stated above and taking into consideration the various decisions, I am of the view that the prosecution failed to establish its case for want of convincing evidence and in the circumstances, the appellants are entitled for a clear acquittal. The appeals are allowed and the judgment dated 6.6.1981 passed by the Vth Additional Session Judge, Varanasi in Sessions Trial No. 189 of 1980, under Sections 399, 402, I.P.C. is set at naught. The appellants are acquitted. They need not surrender. ————