Hon'ble Vinod Prasad J. This appeal, u/s 374 ( 2) of the Code ( Cr.P.C.), arises out of judgement and order dated 28.7.80, passed by IV Additional Session's Judge, Fatehpur, in S.T. No. 281 of 1979, State versus Rati Ram and others, P.S. Jahanabad, District Fatehpur, by which impugned judgement learned trial court has convicted all the appellants u/s 399/402 I.P.C. and has sentenced each one of them to undergo 4 years RI on the first count and 3 years RI on the second count. It has further convicted appellants Rati Ram, Moti Lal and Bans Gopal, u/s 25 Arm's Act, and has sentenced each one of them to 1 year RI for that crime. Learned trial court has directed that all the sentences of the appellants shall run concurrently. 2. Briefly stated, prosecution allegations against the appellants were that informant Harbansh Pandey, Station Officer, P.S. Jahanabad, district Fatehpur received information from an informer on 29.12.78 at 8-10 p.m., which was inked by HM Jagdish Prasad, P.W.2 at Rapat No. 30 G.D. entry, in that respect, vide Ext. Ka-2, was recorded by CM Chandra Prakash. Secret information revealed that 7-8 dacoits of gang "of gang" leader Ram Sajivan Kurmi, shall assemble from the east, at Bakeshwar Baba temple situated in the grove of Ram Nath barber, in village Jagdishpur, at mid night at 12 p.m. and at 12.30 a.m., same night, they shall commit dacoity at the house of Raja Ram Yadav of village Jagdishpur. Believing the information to be credible, informant and S.I. Fallauddin, both armed with revolvers, ASI Vishwa Nath Dubey, Const. Maiyyadin, Ram Jatan, all armed with SBBL guns, Shitla Prasad, armed with rifle, Const. Mohd. Hanif, Kallu Ram, Jeet Lal, Pancham Giri, all armed with government muskats, started from the police station to arrest the dacoits and reached Bakewar. From Bakewar outpost, informant requisitioned additional police force which consisted of HC Saman Singh, ( Lathi), Const. Pratap Singh, Nirmal Chandra, ( both SBBL Guns), Const. Udai Raj ( Govt. Rifle) and Satya Prakash ( Govt. muskat). Const. Saman Singh and Pratap singh were dispatched to summon indepedant witnesses from Bakewar village. Const. Satya Prakash, Kallu Ram, Jeet Lal and Pancham Giri were sent to guard Raja Ram Yadav's house. Pratap Singh, Nirmal Chandra, ( both SBBL Guns), Const. Udai Raj ( Govt. Rifle) and Satya Prakash ( Govt. muskat). Const. Saman Singh and Pratap singh were dispatched to summon indepedant witnesses from Bakewar village. Const. Satya Prakash, Kallu Ram, Jeet Lal and Pancham Giri were sent to guard Raja Ram Yadav's house. Thereafter informant alongwith S.I. Fallauddin inspected the spot at 10.30 p.m., where dacoits were expected to assemble and returned back from there at 11 p.m. Meanwhile constables fetched independent witnesses Asha Ram, Bhagwan Deen, Chotey, Jai Narain @ Punni and Mohan, with their clubs and torches. Police party and independent witnesses searched each others to rule out possibility of carrying any illegal weapons. Thereafter three picket parties were formed. First Party was led by the informant, second was led by S.I. Fallauddin, whereas last party was commanded by ASI Vishwa Nath Dubey. All the parties were instructed not to raise any voice or flash un-necessary lights nor will smoke cigarette and Bidi. It was further instructed that nobody will resort to firing unless ordered by the informant and when challenge will be thrown all of them shall apprehend the dacoits by surprise raid and thereafter all the three parties reached at the spot at 11.30 p.m. and they laid in ambush in various directions and started waiting for arrival of the dacoits. After some times dacoits arrived in twos and threes and sat on temple pedestal and started smoking Bidi. They were armed with guns and firearms. One of the dacoits said that Babu Ram had not arrived to which other replied that they were already half a dozen and were armed with fire arms and hence nobody could muster courage to challenge them. Raja Ram is a timid person and hence dacoity could be committed easily uttered the third. Over hearing their convesations, informant became confident that it was a gang of dacoits, which had collected there to commit dacoity at Raja Ram Yadav's house and therefore challenged them to lay down their arms as they were surrounded by the police. There was intermittent exchange of three gun shot fires and thereafter dacoits started fleeing from the spot but, at a short distance, six of them were arrested by the police parties, who later on disclosed their identities as Ram Sajivan, Rati Ram, Raja Ram @ Gorey, Moti Lal, Bansh Gopal and Dhani Ram, all appellants. There was intermittent exchange of three gun shot fires and thereafter dacoits started fleeing from the spot but, at a short distance, six of them were arrested by the police parties, who later on disclosed their identities as Ram Sajivan, Rati Ram, Raja Ram @ Gorey, Moti Lal, Bansh Gopal and Dhani Ram, all appellants. Except from Dhani Ram, from rest of the dacoits fire arms were recovered. From Dhani Ram, a torch and an axe were recovered. In respect of arrest and seizure of weapons and other articles, arrest and seizure memo, Ext. Ka-1 and 2 were prepared by the informant, which was counter signed by independent witnesses. All the recovered weapons including the cartridges are material Ext.1 to 28 and torch is material Ext.29. 3. Arrested dacoits along with recovered firearms and cartridges were brought to the police station Jahanabad, where, on the basis of seizure memo, Ext. Ka-1, chik FIR, Ext. Ka-3, of crime No. 285 of 78, u/s 399/402 I.P.C. and of crime No. 286 to 289, u/s 25 Arm's Act, was registered, against the accused, by HM Jagdish Prasad PW 2, at 5.45 A.M., at the dictation of the informant. P.W. 2 had also scribed GD entry, Ext. Ka 4. Ram Pal Misra, S.I., police station Jahanabad, PW 7, had commenced investigation into the crime and had recorded 161 Cr.P.C. statements of witnesses, prepared site plan, Ext. Ka-5, sketched seizure memos of torches, Ext. Ka-6 and Ka-7 and thereafter charge sheeted accused appellants vide Ext. Ka 8 to 11, for all the offences under sections 399/402, 307/149 I.P.C and 25 Arm's Act. Sanction for accused prosecution under 25 Arm's Act accorded by the District Magistrate on 15.2.79 are Ext. Ka-12 to Ka-14. 4. Accused were summoned on the basis of submitted charge sheets and finding their cases triable by Session's Court, CJM, Fatehpur committed their cases to the Session's Court on 19.11.79 and 29.4.80 where it were registered as S.T. No. 281 of 1979, State versus Rati Ram and others, connected with S.T. No. 190 of 1980, State versus Ram Sajivan and another. 5. All the accused were charged u/s 399/402 and 307/149 I.P.C. and three of them were also charged u/s 25 Arm's Act. Since both these charges were abjured by the accused, hence to bring home their guilt and prove it's case trial procedure was under taken. 6. 5. All the accused were charged u/s 399/402 and 307/149 I.P.C. and three of them were also charged u/s 25 Arm's Act. Since both these charges were abjured by the accused, hence to bring home their guilt and prove it's case trial procedure was under taken. 6. During trial, prosecution relied upon oral testimonies of seven witnessed, which included, Mohan Lal ( PW 1), HM. Jagdish Prasad ( PW 2), Chotey Khan ( PW 3), Asha Ram ( PW 4), S.I. Fallauddin ( PW 5), H.C. Vishwanath Dubey ( PW 6) and I.O. ( S.I.) Ram Pal Misra ( PW 7). Prosecution also relied upon various documentary evidences, mentioned herein above to substantiate its case. 7. Accused denied incriminating circumstances occurring against them in prosecution evidences and claimed their false implication at the behest of the police in their statements u/s 313 Cr.P.C. 8. Learned trial court, after marshalling of facts and circumstances of the case and after critically appreciating evidences, both oral and documentary, held that prosecution has been able to establish it's charges against the accused appellants beyond all doubt only for offences under section 398/402 IPC and 25 Arm's Act and hence convicted and sentenced them as is already mentioned in the opening paragraph of this judgement and consequently this appeal by all the convicted accused. All the accused appellants were acquitted under section 307/149 IPC. 9. Pending consideration of their appeals, two of the appellants, namely Ram Sajivan and Rati Ram, left for their heavenly abode, and hence their appeals were abated by an order dated 11.8.2003. This has now left this court to consider appeals of only Moti Lal, Bans Gopal, Dhani Lal and Gorey Lal @ Raja Ram. Out of these appellants Moti Lal is in jail, Bans Gopal and Dhani Lal are on bail and Gorey Lal @ Raja Ram is not traceable. 10. In the backdrop of preceding facts and circumstances when the appeal was called out for final hearing, nobody appeared on behalf of surviving appellants to argue the appeal and therefore, applying the law laid down by the Apex Court in the case of Bani Singh and others Vs. State of U.P.: AIR 1996 Supreme Court 2639, Mrs. Kamla Srivastava was appointed as amicus curiae to assist the Court in disposal of the appeal. 11. I have heard learned amicus curiae and learned AGA for the State. 12. State of U.P.: AIR 1996 Supreme Court 2639, Mrs. Kamla Srivastava was appointed as amicus curiae to assist the Court in disposal of the appeal. 11. I have heard learned amicus curiae and learned AGA for the State. 12. Castigating the impugned judgement of conviction and sentence, it was argued by learned amicus curiae that conviction of the appellants is unsustainable for the reasons that prosecution story in respect of exchange of firing has been disbelieved by the learned trial Judge himself and consequently the arrest of the accused, as alleged by the prosecution, does not inspire any confidence. All the accused persons were sufficiently armed with firearms and had sufficient number of cartridges with them and therefore, it is very unconvincing to conclude that they will surrender meekly without making any stiff resistance. On this score, it was pointed out that dacoits had not sustained any injury nor anybody from the three police parties were injured and consequently, the allegation of cross exchange of fires and arrest of the accused, does not inspire any confidence. No weapon was sent for the serologist examination to confirm and lend credence to the prosecution version of exchange of fires. Empty cartridges were also not sent to countenance prosecution allegations of firing resorted to during the incident. It was further submitted that there are contradictions and embellishments in the testimonies of witnesses regarding vehicle, which was possessed by the prosecution side as means of transport, by which they had arrived at the place of the incident. It is further submitted that it is very unnatural and unconvincing that the dacoits, who had assembled at a lonely place, in the dead hour of night, will converse in such a loud voice so as to be audible to the entire police party, who were lying in ambush. The number of the police personnels were not small and therefore, it is very unconvincing to rely upon prosecution allegations of dacoits not being able to spot a single police personnel. It was next argued that the appellants had already remained in jail for quite a long time and appellant Moti Lal has already served out three years and seven months of incarceration and therefore, appellant should be released on sentences already undergone by them, in case, they are not awarded clean acquittal, submitted learned amicus curiae. 13. It was next argued that the appellants had already remained in jail for quite a long time and appellant Moti Lal has already served out three years and seven months of incarceration and therefore, appellant should be released on sentences already undergone by them, in case, they are not awarded clean acquittal, submitted learned amicus curiae. 13. Learned AGA, refuting the contentions of learned amicus curiae, submitted to the contrary and supported the judgement in its entirety. He submitted that there was no reason for the police party to falsely implicate the appellants nor in their statements under Section 313 Cr.P.C., any of the accused had come out with any specific enmity so as to motivate the police personnels to create a mendacious version against the appellants and framed them in a fabricated case. In the dead hour of the night, if in the exchange of fires, nobody had sustained any injury, it is not something, which is very unnatural, submitting learned AGA. It was also contended that there was only two or three exchange of gun fire shots and therefore, non sustaining of injury by either sides can very well be explained. Scanty intermittent fire during the incident is a reason for this injury-less incident. It was therefore, submitted that the appeal being bereft of merits deserves to be dismissed. 14. I have considered the rival submissions and I have vetted through the evidences on record. In the present appeal, there are two sets of evidences one is oral and the other is documentary. So far as the oral testimonies of fact witness are concerned, all the fact witnesses have given consistent, cogent and reliable evidences and inspite of best efforts, defence have not been able to shatter their testimonies at all. There was no earthly reason for the police party to fabricate a story against the present appellants. Independent witnesses Mohan Lal P.W.1 and Chotey P.W.3 have supported police personnels in all its material aspects. S.I. Fallauddin have also proved the prosecution case beyond reasonable doubt. In spite of searching cross-examinations, but for some insignificant contradictions, defence has not been able to dislodge the testimonies of all the prosecution witnesses. None of the accused could explain the reasons of their presence at the incident spot in the dead hour of the night. They all were resident of various places. In spite of searching cross-examinations, but for some insignificant contradictions, defence has not been able to dislodge the testimonies of all the prosecution witnesses. None of the accused could explain the reasons of their presence at the incident spot in the dead hour of the night. They all were resident of various places. They also failed to give sufficient and reasonable explanation of possession of firearms in such huge quantities. Their conversation over heard by the ambush party, sufficiently indicates that they had collected at the incident scene with an idea to commit dacoity. The documentary evidences of rapat no. 30, seizure memo and Chik F.I.R. unerringly proved that an information was received by the informant regarding collection of the dacoits and their planning to commit dacoity in village Jagdishpur. Independent witnesses, who formed members of the raiding party were also could not be distracted from the main substantum of the prosecution story and thus, from the critical appreciation of the entire prosecution evidences, both oral and documentary, it is culled out that the same is credible and confidence inspiring and does not suffer from any infirmity. In such a view, there is no reason to take a vary conclusion from that of the learned trial Judge. 15. In view of above, I do not find any merit in this appeal, which stands dismissed. Appellant Moti Lal is in jail. He shall remain in jail to serve out remaining part of his sentence. All the sentences of the appellants are directed to run concurrently. Bans Gopal, Dhani Ram are on bail. They are directed to surrender to their personal and surety bonds forthwith, failing which, learned trial Judge shall issue warrant of arrest against them and get them arrested and send them to jail to serve out their sentences. Learned trial Judge is also directed to issue non-bailable of warrant of arrest against appellant Gora Lal @ Raja Ram and get him arrested and lodged him in jail to serve out his imposed sentence. 16. Appeal is dismissed. 17. Let a copy of this judgement be certified to the trial court for it's intimation.