JUDGMENT Vinod Prasad, J.—Challenge in these two connected appeals by the seven appellants Rafiq, Abbas, Akhtar, Asgar Ali alias Tunta, Afsar Ali, Kalian and Buddha are to the judgment of their conviction for offences u/s 399/ 402, I.P.C. and imposed sentence of five years R.I. respectively for each of those offences. Four of the appellants Asagar Ali alias Tunta, Afsar Ali, Kalian and Buddha have further challenged their conviction u/s 25 of the Arms Act and imposed sentence of one year R.I. therefor, vide impugned judgment and order dated 20.1.1981, recorded by IInd Additional Sessions Judge. Rampur in Session Trial No. 229/1980 connected with S.T. Nos. 230/80, 231/80, 232/80, 233/80, 300/80 and 356/80 State of U.P. v. Asagar Ali alias Tunta and others. All the sentences were directed to run concurrently. Before proceeding further, it is noted that when Criminal Appeal No. 400 of 1981, Asagar Ali alias Tunta and others v. State of U.P., was called out, nobody appeared to argue it for the appellants and hence Sri Vinay Saran advocate was appointed as amicus curiae to argue the appeal. Learned amicus curiae after perusal of the record informed the Court that in the aforesaid appeal three of the appellants Asgar Ali alias Tunta, Afsar Ali and Kalian had expired and in that respect, there exist on the record a detailed report from C.J.M., Rampur. dated 28.10.2009. Sri Vinay Saran further pointed out that so far as fourth accused Buddha is concerned, he had already served out entire period of his sentence and after serving out the same has been released from Jail on 27.3.1984 and in that respect there is a fax communication on the record of the connected appeal, sent by the C.J.M., Rampur dated 6.9.2007. Perusal of page Nos. 2 and 3 of the aforesaid report supports the said fact. Learned amicus curiae, therefore, submitted that so far as Criminal Appeal No. 400 of 1981, Asgar Ali alias Tunta and others v. State of U.P. is concerned, now there remains nothing in the appeal to be decided. I have perused the record which revealed that the aforesaid fact stated by learned amicus curiae was correct. Learned A.G.A. also supported above factual aspects and submitted that so far as Appeal No. 400/81 is concerned the same be decided keeping above facts into consideration. I have perused the record which revealed that the aforesaid fact stated by learned amicus curiae was correct. Learned A.G.A. also supported above factual aspects and submitted that so far as Appeal No. 400/81 is concerned the same be decided keeping above facts into consideration. In view of above appeal of the three appellants Asgar Ali alias Tunta, Afsar Ali and Kalian are abated. Appeal of Buddha has become infructuous and hence it is dismissed as such. Criminal Appeal No. 400 of 1981 is therefore decided in the above terms. 2. This left this Court to consider the appeal of rest of the three appellants Rafiq, Abbas and Akhtar in Criminal Appeal No. 212/81. Perusal of record of said criminal appeal revealed that for appellant No. 1 Rafiq it has already stands abated vide order dated 1.9.2009. Consequently now only appeals of two appellants Abbas and Akhtar remains to be considered. 3. Turning towards factual aspect, prosecution case against the appellants were that an informer tipped off Station Officer Surat Singh, P.S. Ganj, district Rampur on 11.6.1980 at about 9 a.m. that the dacoits who had committed dacoity in village in Kashipur are assembling near water wheel (Rahat) of Kallu Bagwan in village Ajaypur at 9.30 p.m. to plan and orchestrate dacoity at the abode of Jhunda Pradhan of village Agaypur. On such information Station Officer, Surat Singh, who was accompanied with various Sub-Inspectors and police constables, organised two police parties, one consisting of himself, S.I. Hem Chandra, H.C.P., Ram Saran, S.C. Chandra Pal Singh, C.O. Niranjan Lal, Jagat Singh and Suresh Pal Singh and other consisting of S.I. Praveen Singh, Prahlad Singh. Sahveer Singh and constables Satya Pal. Sartaj Ali Khan and Yash Pal Singh. Both the parties thereafter laid in trap near water wheel to apprehend dacoits. At 9.15 p.m., from the direction indicated by the informer four of the dacoits armed with guns gathered at the water wheel and soon they were joined by other three dacoits. One of the culprits stated that their other associates had not arrived and it was already 9.30 p.m., on which, other culprit replied that since no body in village Ajaypur had any. fire arms, therefore, there will be no difficulty in looting Jhuda Khan Pradhan. One of the culprits stated that their other associates had not arrived and it was already 9.30 p.m., on which, other culprit replied that since no body in village Ajaypur had any. fire arms, therefore, there will be no difficulty in looting Jhuda Khan Pradhan. From the conservations S.O. Surat Singh became convinced that it was a gang of dacoits which was planning to commit dacoity that he challenged them to surrender, on which a police encounter ensued. No body from the police party sustained any injury and four of the miscreants, who were escaping towards south were apprehended at 9.40 p.m. after a small chase of fifteen or twenty paces from water wheel, who later on disclosed their identities as Asgar Ali alias Tunta, Afsar Ali, Kalian (all dead appellants) and Buddha (appellant whose appeal has become infructuous as he has already served out entire sentence). Arrested dacoits disclosed names of their associates as Abbas. Akhtar and Rafiq (dead appellant). From their possessions various fire arms, cartridges and bandolier were recovered. From the possessions of Asgar, Afsar and Buddha three torches of three cell batteries were also recovered. All the arrested dacoits confessed their involvement in the dacoity with murder regarding which F.I.R. of crime No. 173, u/s 396, I.P.C. was already registered. Thereafter, all of them were put in police lock-up. 4. F.I.R. of aforesaid incident was lodged by the Station Officer Surat Singh. P.W. 2 at P.S. Ganj, district Rampur. on the same night at 2.30 a.m., at the distance of two miles north under respective offence under Sections 399/ 402, I.P.C. and 25/ 27 of Arms Act. 5. Ensued investigation was commenced and concluded by S.S.I., I.H. Rizvi, who recorded investigatory statements of witnesses, conducted spot inspection, prepared site plan Ext. Ka-4 and thereafter arrested other accused and closing investigation submitted charge-sheet Ext. Ka-5 u/s 399/ 402, I.P.C. on 19.6.1980. Same day the said Investigating Officer P.W. 4. also charge-sheeted four dacoits under 25, Arms Act vide Ext. Ka-6 to Ka-9. During trial he has also proved sanction granted by District Magistrate, Ram Kishan Singh for prosecution of these four appellants under Arms Act vide Exts. Ka-10 to Ka-13. Against accused Abbas, Afsar, Rafiq and Akhtar separated charge-sheets was submitted by S.I. Beg Raj Singh vide Exts. Ka-14 and Ka-15. Order by CO., to commence investigation was proved as Ext. Ka-16. 6. Ka-10 to Ka-13. Against accused Abbas, Afsar, Rafiq and Akhtar separated charge-sheets was submitted by S.I. Beg Raj Singh vide Exts. Ka-14 and Ka-15. Order by CO., to commence investigation was proved as Ext. Ka-16. 6. Second Additional Sessions Judge, Rampur charged the appellant u/s 399/ 402, I.P.C. and also concerned accused persons u/s 25, Arms Act 2012 in connected Sessions Trials. All the charges were denied by all the accused persons and they all claimed to be tried, and hence, to prove their guilt, their trial commenced. 7. Prosecution tendered in all four witnesses, out of whom, P.W. 1 Sub-Inspector H.C. Dubey, P.W. 2 Sub-Inspector Surat Singh informant and P.W. 3 Sub Inspector Prahlad Singh were fact witnesses. P.W. 4 Sub Inspector I.H. Rizvi is the Investigating Officer. 8. Trial Judge concluded that the appellants are guilty for the offences mentioned in the opening paragraphs of this judgment, is established to the hilt and, therefore, convicted and sentenced them as is referred to hereinabove and hence, challenge in this appeal by the convicted accused is to the aforesaid judgment and order of conviction and sentence. As pointed out above, appeals of only two of the appellants Abbas and Akhtar survives and are to be considered. 9. Learned counsel for the appellants contended that these appellants were not named in the F.I.R. and their identities were disclosed by the co-accused apprehended at the spot but none of the two appellants were put up for identification and hence, their conviction cannot be sustained. It was next submitted that during trial all the fact witnesses embellished prosecution version by naming these two appellants in their examination-in-chief. Their aforesaid testimony is wholly unreliable and unworthy of credence as at the earliest point of time they had not disclosed their complicity in the crime. No recovery has been made from their possession and it is a case of a fake police encounted without any injury and therefore they be acquitted. 10. Learned A.G.A. however, supported the judgment of conviction and sentence and submitted to the contrary. 11. I have considered the argument raised by both the sides. From the perusal of the record and testimonies of quadruple prosecution witnesses it is revealed that it does not inspire any confidence in respect of involvement of two appellants in dacoity. 10. Learned A.G.A. however, supported the judgment of conviction and sentence and submitted to the contrary. 11. I have considered the argument raised by both the sides. From the perusal of the record and testimonies of quadruple prosecution witnesses it is revealed that it does not inspire any confidence in respect of involvement of two appellants in dacoity. S.O. Surat Singh P.W. 2 informant of the case although named them in his examination-in-chief before the Court but very queerly had not mentioned their names in his F.I.R. He stated before the Court that he was acquainted with these appellants prior to the incident but even then he had not named them in his arrest and recovery memo. He had not disclosed their names at the time of registration of F.I.R. as well. To the contrary recovery memo recites altogether a different story. It mentions that the apprehended four accused had disclosed the names of escaped dacoits including appellants. This was not the case which has been brought before the Court either by the informant P.W. 2 or any of other two fact witnesses P.W. 1 and P.W. 3. In such a view, no reliance an be placed at the testimony of informant P.W. 1 that he was known with the dacoits from before. His testimony therefore, is embellished, concocted and unworthy of any credence. I.H. Rizvi Investigating Officer P.W. 4 never made any endeavour to get identification test conducted on these appellants. His entire investigation is slip shod, unsatisfactory and has left much to be desired. No independent witness not even for res gestae was produced by the prosecution to support its version of police encounter and arrest of accused while planning to commit dacoity. Neither the informant nor the Investigating Officer, who both were police personnels could bring on the record any material to indicate that these appellants had criminal proclivity and were convicted of any crime at any earlier occasions. Alteration of prosecution version stated before the Court by the informant does not inspite any confidence and it only gives an impression that the informant is an untruthful and unreliable witness and no reliance can be placed on his version and evidence. 12. Alteration of prosecution version stated before the Court by the informant does not inspite any confidence and it only gives an impression that the informant is an untruthful and unreliable witness and no reliance can be placed on his version and evidence. 12. Reasons for castigation of the testimony of P.W. 1 also holds good for other two fact witnesses H.C. Dubey, S.I., P.W. 1, and P.W. 3 Prahlad Singh, S.I. They also named these two appellants in their examination-in-chief but very queerly they had not divulged the names of these two appellants to the Investigating Officer in their interrogatory statements u/s 161, Cr.P.C. If these appellants were known to these witnesses, they would certainly have named them instead of toeing the F.I.R. version of disclosure of their names by the apprehended accused. Evidence of these two other fact witnesses, therefore, also does not inspire any confidence. 13. There is no other convincing evidence on record to indicate that these appellants participated in the crime and were present at the spot. No recovery has been made from their possession nor they were put up for identification. Since their arrest itself becomes doubtful, their conviction u/s 25, Arms Act also cannot be sustained as the recovery from their possession in absence of established proof of their arrest becomes doubtful. In the result, the appeal of the two appellants are hereby allowed and they are acquitted of all the charges levelled against them. These two appellants Abbas and Akhtar are on bail, they need not surrender their surety and bail bonds are discharged. Let a copy of this judgment be certified to the trial court for its intimation.