JUDGMENT Hon’ble Amar Singh Chauhan, J.—This criminal appeal has been filed by the appellants Dev Dutt and Hori against the judgement and order dated 15.12.1984 passed by the Special Judge, Budaun in ST No. 497 of 1981, under Sections 399/402 IPC and 25 Arms Act, PS Rajpura, district Buduan whereby learned Judge convicted and sentenced the appellants to three years RI under Section 399 IPC, two years RI under Section 402 IPC and two years RI under Section 25(1)(a) of the Arms Act. However, all the sentences were directed to run concurrently. 2. The facts giving rise to the present appeal are that in the night of 26.8.1979, Shri D.P. Jual, Station Officer, police station Rajpura rceived a secret information that a gang of dacoits would assemble in the grove of Guava in the night in village Firojpur to commit dacoity at the house of Roop Kishore, Pradhan of the village Shahjahanabad. On the basis of this information, SO, D.P. Jual alongwith SI Yashbir Singh, SI Nand Kishore, some police constables and informer left for above grove. When the police party reached village Sameri, constables Harpal and Suresh Chander have been sent to call public witnesses. After some times, they returned with Ompal Singh, Kalloo Singh and Sipahi Singh residents of village Sameri. Two constables were sent to the house of Roop Kishore, the Pradhan of Shahjahanabad, in whose house dacoity was to be committed. The police party was divided into two groups. One group was headed by SO D.P. Jual while the other was headed by SI Yashbir Singh. Party headed by SO D.P. Jual took position in the north-west of the hut in the grove while other party took position in the north-east of the hut. At about 11.45 p.m. from the southern side three miscreants came and sat near the hut. One of them is alleged to have remarked that he had brought wine for their entertainment. After 15-20 minutes they were joined by three other miscreants and all of them started gaging or murmering. It is also alleged that they were overheard saying that they should not drink much as it is likely to spoil their plan. Thereafter one of them went inside the hut and returned back after keeping the bottle of the wine in the hut. It is also alleged that they were overheard saying that they should not drink much as it is likely to spoil their plan. Thereafter one of them went inside the hut and returned back after keeping the bottle of the wine in the hut. It is also alleged that they were over head saying that one of their companion namely Radhey was late in reaching there. It is further alleged that another dacoit was saying that he had seen the house of Roop Kishore, Pradhan and since they were sufficiently armed and they were sufficient in number they should go ahead with their plan without waiting for the arrival of Radhey. It is also alleged that after some time they were again overhead saying that they are getting late and they should go to commit dacoity. Thereafter, they got up to move away. On hearing the above talks SO D.P. Jual being satisfied that it was a gang of dacoits, he accordingly challenged them and asked them to surrender and VLP shots were fired. Police party apprehended three members of the gang namely Dev Dutt, Hori and Kunwar Pal while three others managed to run away. 3. On search being made of the apprehended accused, from the possession of Kunwar (now deceased) a gun (Ext. 1) and seven live cartridges (Exts. 2 to 8) alongwith a torch (Ext.9) were recovered. From the possession of the accused Dev Dutt, a pistol (Ext. 10) and three live cartridges (Exts. 11 to 13) were recovered, whereas from the possession of accused Hori, a pistol (Ext. 14) and four live cartridges (Ext. 15 to 18 were recovered. A bottle of wine was also recovered from the hut. Recovered articles were sealed and its recovery memo Ext. Ka-1 was prepared. Thereafter the apprehended accused were taken to the police station and a case was got registered against them. 4. After registration of the case and after seeking necessary permission of the District Magistrate, Budaun for prosecution of above accused under Section 25(1)(a) of the Arms Act, they were challaned and separate charge-sheets were filed against them. Charges under Sections 399/402 IPC and 25(1)(a) of the Arms Act were framed against accused Dev Dutt and Hori. 5. To bring home the guilt of the accused, the prosecution has examied as many as four prosecution witnesses. 6. Charges under Sections 399/402 IPC and 25(1)(a) of the Arms Act were framed against accused Dev Dutt and Hori. 5. To bring home the guilt of the accused, the prosecution has examied as many as four prosecution witnesses. 6. PW 1 is SI Nand Kishore, who is an eye-witness of the incident. He deposed that on 26.8.1979 he was posted as SI at police station Rajpura. On that date on the information of the informer that a gang of dacoits will assemble at the grove of guava at about 11.30-12.00 in the night and commit dacoity in the house of Pradhan of villge Shahjahabad. On the basis of said information this witness alongwith SO D.P. Jual and requisite force left for village Firojpur. This witness also called the public witnesses namely Ompal Singh, Sipahi Singh and Kalloo Singh and apprehended the accused there. From the possession of the accused Dev Dutt, Hoti and Kunawar Pal arms and ammunication (Ext. 1 to 18) were recovered and recovery memo (Ext. Ka-1) was prepared and thereafter all above-mentioned apprehended accused were brought to the police station and a case was registered. 7. PW 2 is Moin Uddin, the investigating officer of the case. He deposed that after the case was entrusted to him for investigation, he recorded the statements of the witnesses. On the pointing out of the SO D.P. Jual, he inspected the spot and prepared site plan (Ext. Ka-4) and after completion of the investigation, he submitted the charge-sheet against the accused under Section 399/402 IPC, Ext. Ka-5. He also submitted the charge-sheet separately against the accused under Section 25 of the Arms Act, which he proved as Ext. Ka 6 to Ka-8 and obtained sanction for the prosecution of the aforesaid accused under Section 25 of the Arms Act from the District Magistrate, Budaun, which he proved as Ext. Ka 9 to 11. 8. PW 3 is S.O, D.P. Jual. He deposed that on 26.8.1979 he was posted as Station Officer, police station Rajpura. He corroborated the statements of PW 1 and stated that accused Dev Dutt, Hori and Kunwar Pal were arrested from the grove of village Firojpur where they had assembled to commit dacoity at the house of Roop Kishore of Village Shahjahanabad and they were making preparation to commit dacoity. He further deposed that from the apprehended accused gun, pistols, cartridges and torch were recovered (Ext. He further deposed that from the apprehended accused gun, pistols, cartridges and torch were recovered (Ext. 1 to 18). 9. PW 4, Sipahi Singh is also an eye-witness of the incident. He corroborated the statements of PWs 1 and 3. He further stated that he was present when accused Dev Dutt, Hori and Kunwar Pal were arrested alongwith fire-arm weapons and cartridges. 10. After close of prosecution evidence, the statements of accused persons were recorded under Section 313 Cr.P.C., in which they have stated that they have falsely been implicated in the case due to enmity with the police. However, in defence, they have also produced three defence witnesses. 11. DW 1 is Buddhi Singh. He deposed that he is the resident of village Firojpur. In his village, only he owns a grove of guava and from his grove no gang of dacoits was ever apprehended by the police of police station Rajpura. 12. DW 2, Jaswant Singh, stated that in his presence accused Hori was taken away by the two police constables from his house on the pretext that Station Officer had called him. This witness further deposed that next day when he went to the police station, he was informed that Hori had been challened because he had a connection with one Radhey who was also a dacoit and since he did not help the police in apprehending Radhey, he was falsely implicated in the present case. 13. DW 3 is Jaivir Singh. He deposed that accused Dev Dutt was picked up from his house by one sub-Inspector at about 8.00 or 8.30 p.m. on the pretext that he would sent him back from the police station in the morning. This witness further deposed that later on, he learnt that accused Dev Dutt had been falsely implicated in the present case. 14. The learned lower Court, after perusing the record and hearing the counsel for the parties, convicted the appellants as stated herein-above. 15. Being aggrieved and dissatisfied with the findings of conviction recorded by the learned Special Judge, Budaun, the accused-appellants have preferred this appeal questioning the impugned order. 16. Heard Shri Pradeep Mishra, holding brief of Shri Vinay Saran, learned counsel for the appellants and learned Additional Government Advocate for the State-respondent and perused the trial Court record. 17. Learned counsel for the appellants contended that Sections 399/402 IPC will not be attracted in this case. 16. Heard Shri Pradeep Mishra, holding brief of Shri Vinay Saran, learned counsel for the appellants and learned Additional Government Advocate for the State-respondent and perused the trial Court record. 17. Learned counsel for the appellants contended that Sections 399/402 IPC will not be attracted in this case. The appellants have falsely been implicated in the present case because of their enmity with the police. Learned counsel for the appellants further submits that there are contradictions in the testimony of the witnesses. Only one public witness namely Sipahi Singh has been examined who appears to be a stock witness of the police. Nothing has been recovered from the possession of the appellants and the recovery have been planted on the appellants and recovered weapons were not sent for forensic laboratory for examination. 18. While supporting the impugned judgement, learned Additional Government Advocate contended that the findings of fact recorded by the trial Court is based on evidence, which was clear, cogent and convincing. Hence, the appeal deserves to be dismissed. 19. In the present case, the allegations against the appellants are that they have assembled together in the grove of guava in village Firojpur and were planning to commit dacoity in the house of Roop Kishore, Pradhan of the village, which is punishable under Section 399/402 IPC. 20. For better understanding, Sections 399 and 402 IPC are reproduced herein under: “399. Whoever makes any preparation for committing dacoity, shall be punished with imprisonment for a term which may extend to ten years, and shall also be liable to fine. 402. whoever at any time after the passing of this Act, shall be one of five or more persons assembled for the purpose of committing dacoity, shall be punished with rigorous imprisonment for a term which may extend to seven years, and shall also be liable to fine.” In order to prove the charge under Sections 399/402 IPC, it is necessary for the prosecution to prove that five or more persons have assembled with the intention to commit dacoity, which is punishable under Section 402 IPC, whereas for proving the offence under Section 399 IPC, it is necessary for the prosecution to prove that some additional steps have been taken in the course of preparation to commit dacoity. In the present case, the allegations as well as the evidence led by the prosecution is that Station House Officer, PS Rajpura received a secret information from the informer that a gang of dacoits would assemble in the grove of guava in village Firojpur in the night to commit dacoity in the house of Roop Kishore, Pradhan of the village Shahjahanabad. Accordingly police reached the spot and apprehended only three accused namely Dev Dutt, Hori and Kunwar Pal while three accomplices managed to escape. Despite there being sufficient number of police officials present at the spot, how three accused managed to escape is a question, which the prosecution has failed to give answer and neither any step has been taken by the police to apprehend the remaining accused nor the police constables, who chased the accused were examined so as to establish the charge under Section 402 IPC, i.e. assembly to commit dacoity. 21. Hon’ble Supreme Court in the case of Shridhar Koeri v. State of Bihar, 2001 (43) ACC 5, has held that the mere fact that the accused was arrested on the spot and some articles including fire-arms were recovered from his possession would not be sufficient to prove the charge that he had assembled for making preparation for commission of dacoity. 22. Learned counsel for appellants contended that there are major discrepancies or inconsistency in the evidence of prosecution witnesses; that police witness Sipahi Singh is the stock witness of the police and cannot be relied upon and that the trial Court had discarded the evidence of defence witnesses wrongly. 23. On perusal, I find that there are some contradictions in the statements of PWs. PW 1-SI Nand Kishore in his evidence has stated that police party on receiving secret information went up to Babrala in a Bus and the witnesses of public were joined by the police party from bus stand Rajpura, Whereas PW 3-Inspector D.P. Jual stated that the police party went to the place of incident on foot. Further according to PW 3-Inspector D.P. Jual, public witnesses joined the police party at village Sameri and not at the bus stand as stated by PW 1. PWs 1 and 3 have stated that the accused were tied with rope while they were taken to the police station, whereas PW 4 has stated that the accused were tied with a cloth and not with a rope. PWs 1 and 3 have stated that the accused were tied with rope while they were taken to the police station, whereas PW 4 has stated that the accused were tied with a cloth and not with a rope. 24. As regards contention of the learned counsel for the appellants that only one public witness namely Sipahi Singh has been examined who is said to be stock witness of the police, I find that in the FIR three persons namely Ompal Singh, Kalloo Singh and Sipahi Singh have been mentioned as public witnesses, but only Sipahi Singh has been examined by the prosecution as PW 4. Sipahi Singh has admitted that he had earlier given evidence for the police in a case under the Excise Act and also in another case under Sections 399/402 IPC. Therefore, it cannot be denied that above witness is not the stock witness. 25. It is also contended that defence evidence was discarded or disbelieved by the trial Court because witnesses were resident of the same village of the accused. DW 1 is Buddhi Singh. He stated that in his village only he owns a grove of guava and from his grove, no gang of dacoits was ever apprehended by the police. DW 2, Jaswant Singh, has stated that in his presence accused Hori was taken away from his house because he had a connection with Radhey, who was also dacoit and since he did not help the police for apprehending said Radhey and police had a motive for false implication. 26. It is a matter of fact that DW 1, Buddhi Singh is the grove holder and investigation is silent on this point for the reason better known to the investigating officer. The evidence of the grove holder regarding assembly of the dacoits cannot be disbelieved by saying that no suggestion was given to the prosecution witnesses that grove from where accused were apprehended belongs to DW 1 Buddhi. For assessment or evaluation of evidence of defence witness, separate yardstick cannot be applied, but the efforts are being made by the trial Court to discard the defence evidence illegally. 27. Hon’ble Supreme Court in the case of Dudh Nath Pandey v. State of U.P., (1981)2 SCC 166 , has held that defence witnesses are entitled to equal treatment with those of the prosecution. 27. Hon’ble Supreme Court in the case of Dudh Nath Pandey v. State of U.P., (1981)2 SCC 166 , has held that defence witnesses are entitled to equal treatment with those of the prosecution. And, Courts ought to overcome their traditional, instinctive disbelief in defence witnesses. Quite often, they tell lies but so do the prosecution witnesses. 28. The prosecution case in hand, suffers from infirmity as neither any firing was said to be done by the miscreants assembled with deadly weapon nor the person in whose residence dacoity was to be committed was examined. All these things such as inconsistency, discrepancy and infirmities throw a cloud or doubt on genesis of the case for which appellants are entitled to be acquitted after getting benefit of doubt (Chhotey Singh and others v. State, 2004(50) ACC 101). 29. Learned counsel for the appellants argued that the recovery has been planted on the appellants and the recovered items were not sent to Forensic Laboratory for ascertaining as to whether the weapons recovered were in working condition or not. He has placed reliance on the case law of Jaspal Singh v. State of Punjab, AIR 199 SC 1548, in which it has been observed: “Admittedly, no evidence was led by the prosecution to prove that the gun was in working condition and that the cartridges, which were found from the person of the appellants were live cartridges. Neither ASI Balbir Singh had stated so nor any report from an expert was obtained to establish that the gun was in working condition and that five cartridges were live. What was found in the gun were two empty and not live cartridges and, therefore, it was not proper to presume that it was in working condition. In absence of any evidence to that effect, the conviction of the appellants under both these aforesaid sections cannot be upheld.” 30. Further, reliance has been placed on the case law of State of Punjab v. Jagga Singh, AIR 1998 SC 3113 , wherein, Hon’ble Supreme Court observed as under: “Though the evidence of PW 1, HC Baldev Singh and PW 3, Basant Singh establishes that the respondent was found in possession of one 12 bore DBBL gun and found live cartridges, there is no satisfactory evidence to show that the said gun and the cartridges were sent for examination by the Central Forensic Scientific Laboratory. There is no report from the Forensic Scientific Laboratory nor any other evidence to prove that the said gun was in a working condition or that the said cartridges were live cartridges..... Therefore, in absence of any evidence to show that the respondent was found in possession of one .12 bore DBBL gun in a working condition and four live cartridges, the respondent cannot be convicted.” 31. In the case of State of U.P. v. Punni, 2008 Cr LJ 1028 (SC), Hon’ble Supreme Court held that dacoits were arrested without any resistance or struggle and contents in the FIR that police had received information from an informer was not supported by the sub-Inspector. The accused were held entitled to acquittal. 32. In view of what has been indicated herein above, I am of the opinion that the prosecution has miserably failed to prove the case against the appellants beyond reasonable doubt. Recovery of pistols and cartridges from the appellants are also doubtful in the absence of any CFSL report and benefit of doubt is to be given to the appellants. 33. Accordingly, the appeal is allowed. The impugned judgement and order dated 15.12.1984 passed by the Special Judge, Budaun is set aside. The appellants Dev Dutt and Hori are acquitted of the charges levelled against them. The appellants are on bail. Their bail bonds are cancelled and sureties are discharged. The appellants are directed to comply with the provisions of Section 437-A Cr.P.C. 34. Let a copy of this order be sent to the Court concerned for compliance. ———————