JUDGMENT & ORDER : Harsh Kumar, J. This appeal has been filed against the impugned judgment and order of conviction dated 29.4.1986 passed by 3rd Additional Sessions Judge/Special Judge Dacoity Affected Area, Kanpur Dehat in Special Sessions Trial No. 472 of 1984 State Vs. Virendra Kumar & 5 others, by which all the 6 accused persons were convicted for the offences under Section 399 and 402 IPC and four of them were also convicted for the offence under Section 25 of Arms Act. 2. Feeling aggrieved by the impugned judgment and order of conviction 3 of the 6 convicts preferred this criminal appeal no. 1133 of 1986 while 2 other convicts preferred Criminal Appeal No. 1756 of 1986. 3. During pendency of two appeals both the accused/convicts/appellants namely Nathu and Karor Pati, Criminal appeal No. 1756 of 1986 reported to have died and so the appeal in respect of them was abated and dismissed as abated vide order dated 14.8.2018 passed in Criminal Appeal No. 1756 of 1986. 4. 3. During pendency of two appeals both the accused/convicts/appellants namely Nathu and Karor Pati, Criminal appeal No. 1756 of 1986 reported to have died and so the appeal in respect of them was abated and dismissed as abated vide order dated 14.8.2018 passed in Criminal Appeal No. 1756 of 1986. 4. The brief facts of the prosecution case are that, "Senior Sub-inspector Sri K.S. Verma, Police Station Bilhaur, District Kanpur Dehat during duty at 7:30 p.m. on 5.7.1984 got an information that an armed gang of 8-9 dacoits will assemble in the Shisham grove of Ram Kishore of village Qaziganj Hasauli for committing dacoity at the house of Mool Chand of same village upon which he sent Constable Badan Singh with official jeep for bringing additional force from police outpost Araul & Makanpur and after his return with force, he reached with all police force at the Shisham grove of Ram Kishore at about 11:30 p.m. and divided the force in three teams respectively Ist led by himself, IInd by S.I. A.M. Singh & IIIrd by S.I. B.P. Singh and surrounded the grove from West, North and East side; that after a period of fifteen minutes, 4 miscreants arrived in grove and started smoking and talking each other under the Shisham tree and after 10 minutes 4 more miscreants joined them in smoking and in discussing their plan for dociaty at the house of Mool Chand; that hearing the conversation of the above persons and believing that they belong to gang of dacoits and have made preparations for dacoity, at about 00.15 a.m., the police force calling upon the dacoits to surrender collectively pounced on them and apprehended six miscreants while two managed to flee away; that unauthorized fire arms were recovered from the miscreants, apart from a petty amount of cash." that memo of recovery and arrest was prepared at the spot. 5. The chik FIR was prepared on the basis of memo of recovery & arrest and upon investigation charge sheet was submitted against all the six accused persons and all of them were tried for offences under Section 399 and 402 IPC while accused Virendra, Shyam Manohar, Paras Ram and Nathu from whom unauthorized fire arms were recovered, were also tried for offence under Section 25 of Arms Act. In order to prove its case, the prosecution produced Senior Sub-inspector K.S. Verma as P.W.1, witness of recovery of Ram Narayan as P.W.2, Mool Chand, in whose house dacoity was proposed to be committed as P.W. 3 and Ram Swroop Investigating Officer as P.W.4. After completion of prosecution evidence and recording the statements of accused persons under Section 313 Cr.P.C, the learned Trial Court heard the arguments of parties and passed the impugned judgment and order of conviction, convicting all the 6 accused persons for the offences under Section 399 & 402 I.P.C. and sentenced each of them with rigorous imprisonment for a period of 5 years under Section 399 IPC and 4 years under Section 402 IPC. Apart from it accused Virendra, Shyam Manohar, Paras Ram and Nathu were also convicted under Section 25 Arms Act and sentenced with rigorous imprisonment for a period of 6 months under Section 25 Arms Act. 6. Heard Sri S.N. Singh and Sri. C.P. Tiwari, Advocates, learned counsel for the appellants Sri L.D. Raj Bhar, learned A.G.A. and perused the record, paper book as well as lower court record summoned in the appeal. 7. As per prosecution story the first informant Senior Sub-inspector K.S. Verma got an information at about 7:30 p.m. that an armed gang of 8-9 dacoits is likely to assemble in the Shisham grove of Ram Kishore in village Qaziganj Hasauli at about midnight and will make preparations to commit dacoity at the house of Mool Chand son of Bhajan of village Qaziganj Hasauli. Upon this information he allegedly sent Constable Badan Singh by official Jeep to bring additional force from police outposts Araul and Makanpur and on his coming back with force at about 9:30 p.m., he along with A.M. Singh in-charge of outpost Makanpur and B.P. Singh in-charge of outpost Aural, eight constables and the informers left to police outpost Araul from P.S. Bilhaur by official Jeep. It is stated that after reaching police outpost Araul they taken with them witnesses Babu Khan, Ajay Pal Singh and Ram Narayan P.W.2 and briefed them with the purpose of raid and leaving official Jeep at outpost Aural, they left on foot for 3 kilometers from outpost Araul to Shiv Temple near G.T. Road, where they reached at about 10:30 p.m. It is also stated that from the temple two constables Raj Pal Singh and Ganga Vishnu were sent to the house of Mool Chand for security purposes while three inspectors K.S. Verma, A.M. Singh and B.P. Singh along with informer visited the grove of Ram Kishore and after inspecting the grove returned to Shiv Temple and then they divided themselves in three teams as Ist police party led by S.S.I. K.S. Verma with the two constables Badan Singh, Suresh, witness Ajay Pal and the informer, entered the Shisham grove of Ram Kishore from West, IInd police party led by S.I. A.M. Singh with two constables and witness Ram Narayan P.W.2 entered the grove from North and IIIrd police party led by S.I. B.P. Singh with two constables and witness Babu Khan entered the grove from East and took their positions. After 15 minutes from 11:30 p.m. when the three teams of police party taken their positions on West, North and East boundary of grove, 4 miscreants allegedly came in grove from Southern side and 10 minutes thereafter 4 more miscreants came from the same Southern side and by seating themselves under the Shisham tree, they all started talking and smoking and one of them was heard to say that it is proper time for the dacoity, but Baba has not arrived as yet. They also talked that Mool Chand is a rich man and has no weapon while we have good weapons and are likely to get sufficient booty, so now we should proceed to commit dacoity at the house of Mool Chand. Upon hearing above conversation being satisfied that it is a gang of dacoits, which has assembled to commit dacoity and has made preparations to commit dacoity at the house of Mool Chand, the 3 police parties with all witnesses and simultaneously pounced upon dacoits and caught hold of six of them while two managed to flee away. Upon hearing above conversation being satisfied that it is a gang of dacoits, which has assembled to commit dacoity and has made preparations to commit dacoity at the house of Mool Chand, the 3 police parties with all witnesses and simultaneously pounced upon dacoits and caught hold of six of them while two managed to flee away. Out of the persons caught recovery of a country made pistol of 303 bore with 3 live cartridges from appellant Virendra Kumar, a country made pistol of 315 bore with 3 live cartridges, wrist watch and Rs. 20 from Shyam Manohar, a country made pistol of 12 bore with the 5 live cartridges K.F. Special large range from Paras Ram, one country made pistol of 12 bore with 3 live cartridges, a bundle of Bidi and match box with a 10 rupee note from Nathu, one meter long iron rod and Rs. 15 from Om Prakash and a lathi from Karorepati was allegedly made. 8. Following are the undisputed as well as salient features of the prosecution case:- (i). After return of Constable Badan Singh who was sent for bringing additional force from two police outposts Araul and Makanpur, first informant along with such force left to police outpost Araul. (ii). They left the official Jeep at police outpost Araul and proceeded there from to Shiv Mandir by the side of G.T. Road at a distance of 3 kilometers, on foot. (iii). Shiv Mandir is on side of G.T. Road about 25-30 steps from road. (iv). The grove in question was at a distance of 31/2 furlongs from Shiv Temple. (v). The three teams of police force surrounded the Shisham grove of Ram Kishore from East, West and North and the culprits in two groups of 4 and 4 entered the grove from the Southern side. 9. Upon hearing the parties counsel and careful consideration of evidence on record I find that the prosecution has failed to explain that when the first informant had to proceed to same police outpost Araul, then what was the need/justification for him to send Constable Badan Singh to bring additional force back from P.S. Araul, while it would have been better and convenient to immediately proceed to police outpost Araul and after collecting additional force from two police outposts to reach the Shisham grove of Ram Kishore, much earlier. The prosecution has also failed to assign any reason for leaving the official Jeep at Araul outpost was 3 kilometers away from where the Shiv Temple (which was 25-30 steps from G.T. Road) while the grove of Ram Kishore was at a further distance of 3-31/2 furlongs from Shiv Temple. However, the jeep could have be left away, so that the miscreants may not be able to suspect presence of police. The police party claims to have surrounded the grove from East, West and North merely on information of informer that the dacoits will enter the grove only from Southern side. The Shisham grove is big one in an area of around 5-6 Bighas as per statement of P.W.1 in para 26 at page 44 of paper book and it is not clear as to how the police personnels could come to know as to at which specific place in such a big grove and under which tree the dacoits had to assemble, so as to take their positions for hearing their conversation about preparation for dacoity and thereafter for arresting them. 10. P.W. 1 the first informant in his statement in para 19 at page 41 of paper book has stated that all the 3 teams taken their positions outside the outer mendh/boundary of the grove which was 2 feet high on each side, surrounded by Patwar (a type of wild grass which generally goes up to the height of around 3-4 feet with sharp edges.) In para 20 of his statement at page 41 of paper book he has stated that all the police parties were able to see the other party, which is self-contradictory in view of his own statement in para 20 itself at page 42 of paper book, where he has stated that it was a dark night ¼jkr va/ksjh Fkh½ . As per site plan Ext-A6, the 3 police parties on outskirts of Shisham grove in an area of 5-6 Bighas, at a distance were within view of each other, being at a lessor distance from each police party they were also bound to be within view of dacoits, subject to the alertness of the dacoits. 11. As per site plan of the place of occurrence Ext. 11. As per site plan of the place of occurrence Ext. A6 at page 117-118 of paper book, the 3 police parties shown by letters XI, XII & XIII had taken their position outside the mendh of Shisham grove respectively at a distance of 15, 17 and 20 steps from the place shown by "X" where dacoits assembled under a Shisham Tree. As per site plan Ext. A6 the distance between team XI to XII and XII to XIII was around 20 steps diagonally, and from XI to XIII around 35 steps directly through "X", the place of dacoits. It is highly improbable that the eight miscreants (who being dacoits are supposed to be over smart & alert) could not notice the presence of any of the 3 police parties within a distance of around 20 steps from them while they were within in the vision of the police personnels. It is highly improbable rather unbelievable that all the police personnel including 3 witnesses & one informer overheard the entire conversation amongst the miscreants about their plan and preparations of dacoity clearly, from a distance of between 15 to 20 steps i.e. 35 to 45 feet, while the miscreants being cautious by nature, are supposed be more vigilant and alert and must have been talking in almost whispering manner and are not be supposed to be talking loudly so as to give full and clear audience to the hiding police personnels. Usually, a person can see up to longer distance but can not hear normal voice from the same distance unless someone talking very loudly. For example if he may easily see an object or another person at a distance of even 50 feet or more and at least notice presence of another person from similar distance but may hardly overhear the whispering conversation on the other end, even from half of its distance. 12. Apart from above during the incident in which three teams allegedly caught 6 out of 8 culprits, no fire is alleged to have been made either by the police party or by any of the miscreants. 12. Apart from above during the incident in which three teams allegedly caught 6 out of 8 culprits, no fire is alleged to have been made either by the police party or by any of the miscreants. After arresting six accused persons without any scuffle and in 50-60 yards chase of 2 absconders by 2-3 policemen (as stated by P.W.1 in para 20 of his statement at page 42 of paper book) also no fire is alleged to have been made either by miscreants to fail chase of police party or by police party to fail escape attempt of miscreants. 13. There is nothing on record to show that any of the miscreants has any criminal history or any incident of loot, robbery or dacoity to his/their credit so as to put him/them in category of dacoits. The fire arms allegedly recovered from accused-appellants are neither alleged to have been tested by police nor were sent to ballistic expert for ascertaining as to whether any of them was even in working condition or not. The accused appellants have denied any recovery and have stated that allegedly recovered fire arms etc. were falsely planted on them after their arrest from different places, and there is no independent witness of alleged recovery. 14. Suggestions were made to first informant P.W.1 that accused Paras Ram and Shyam Manohar were picked from station and since Nathu and Bhaiya Lal earlier picked from home had escaped from police custody, so accused Karorepati was asked to give details of their whereabouts and when he failed to provide any information he was falsely implicated. In reply to suggestion with regard to him encounter of Bhaiya Lal, the chacha of accused Karorepati, by police, P.W. 1 shown ignorance and later on denied encounter of Bhaiya Lal during his tenure, and also denied the other suggestions. 15. Apart from it accused appellant Virendra Kumar in his statement under Section 313 Cr.P.C. has stated that S.I. B.P. Singh (leader of second police party) who was earlier posted at P.S. Chaubepur, wrongly detained him in custody, of which he made complaint to higher authorities, and due to this grudge he has been falsely implicated. 15. Apart from it accused appellant Virendra Kumar in his statement under Section 313 Cr.P.C. has stated that S.I. B.P. Singh (leader of second police party) who was earlier posted at P.S. Chaubepur, wrongly detained him in custody, of which he made complaint to higher authorities, and due to this grudge he has been falsely implicated. Accused appellant Shyam Manohar and Om Prakash have stated that they have been falsely implicated due to village party bandi while accused-appellants Nathu & Karorepati have stated that Lakhpati respectively Sala of Nathu and brother of Karor Pati was wanted in several cases and was absconding, so they were detained by police for getting information of his whereabouts, and when they failed to give any information, were falsely implicated, and neither they ever assembled in alleged Shisham grove for making preparations of dacoity at the house of Mool Chand nor were arrested from the Shisham grove of Ram Kishore and the recovery of fire arms, cartridges or iron rod from them has been falsely planted. 16. P.W. 1 the first informant in para 13 and 45 of his statement respectively at page no. 37 and 45 of paper book, has stated that before leaving to the grove in question neither he informed higher officers nor was having VPL (a type of powerful light which produces brightness in a very great and even dense area like jungles, used for chasing and arresting dacoits, in dense forest to see them during dark night). The impugned visit of first informant S.S.I. K.S. Verma at the spot without informing higher officers and without taking VPL a very necessary item. Apart from its his statement in para 20 at page 42 of paper book, he has stated that he can't say as to which policemen caught which culprit and who were the 3 policemen amongst them who chased the 2 culprits also makes prosecution story weak and doubtful. 17. P.W. 2 Ram Narayan is alleged to be pocket witness of police and the other two witnesses Babu Khan and Ajay Pal have not been produced. Undisputedly, the memo of recovery and arrest Ext.-A1 which was allegedly prepared on the spot in the light of torches, bears signature of only accused-appellant Virendra Kumar and other 5 persons allegedly arrested together, were neither provided copy of memo nor were made to sign the recovery/arrest memo. Undisputedly, the memo of recovery and arrest Ext.-A1 which was allegedly prepared on the spot in the light of torches, bears signature of only accused-appellant Virendra Kumar and other 5 persons allegedly arrested together, were neither provided copy of memo nor were made to sign the recovery/arrest memo. P.W. 1 the first informant in his statement in para 24 at page 43 of the paper book has stated, that on the memo of recovery and arrest regarding receipt of its copy signatures of only accused Virendra Kumar were obtained and there was no need for obtaining signatures of other accused persons. 18. The recovery of country made pistols and 3 live cartridges from four of six accused with iron rod and lathi from other two and the different description 303 bore, 315 bore and 12 bore of the 4 country made pistols also makes the recovery doubtful which may also not be relied for want of signatures of 5 accused Shyam Manohar, Paras Ram, Nathu, Om Prakahs ans Karorepati over the alleged recovery memo and also for want of providing its copy to them. It is not only strange but highly improbable that neither alleged eight dacoits armed with deadly weapons, upon being called by the police personnels and making arrest of six of them, no firing was made either on the part of by accused persons or the police party and even no fire was made either on the two persons who managed to flee away or by the above two miscreants for rescuing their association. There is nothing on record to show that any of the accused was a known criminal and there is any criminal history to their credit for holding them to be dacoits. 19. P.W.3 is not the witness of incident rather is the person at whose house the dacoity was proposed to be committed by the accused persons in furtherance of preparations made by them in Shisham grove. There is nothing on record to show the financial status of P.W.3 Mool Chand to assess the quantum of expected booty as well as reason behind choosing his house for dacoity. P.W.4 is I.O. and has stated at page 61 of the paper book that during investigation he did not visit Abadi of village Qaziganj Hasauli and at the time of inspection of place of occurrence no public witness accompanied him. P.W.4 is I.O. and has stated at page 61 of the paper book that during investigation he did not visit Abadi of village Qaziganj Hasauli and at the time of inspection of place of occurrence no public witness accompanied him. He has stated that he visited police outpost Araul but did not go through G.D. with regard to movement of police force. He has denied the suggestion that charge sheet was wrongly submitted by him under influence of Sub-inspector B.P. Singh and further stated at page 62 of paper book that he did not go through the log book of jeep. P.W. 2 Ram Narayan, the alleged witness of the incident has admitted in his statement at page 51 of the paper book that he is Munim on the shop from which Daroga Ji i.e. P.W.1 used to purchase various items. 20. Upon careful consideration of evidence on record I find that in view of inherent defects and material contradictions/discrepancies in prosecution story as discussed in preceding paragraphs, the prosecution story is highly improbable and may not be believed. The prosecution has failed to produce S.I. B.P. Singh, S.I. A.M. Singh or any other police personnel, who would have been best witness of the incident, and in absence of any corroborative evidence, sole testimony of first informant P.W.1 and alleged pocket witness of police P.W.2 is not sufficient to hold the accused persons guilty. In absence of any report of ballistic report the allegedly recovered may not be presumed to be in working condition to hold the accused-appellants dacoits. 21. In the light of provisions of Section 399 & 402 I.P.C. I find that, "Mere fact that a number of persons found collected together, at midnight in grove or jungle or at some other abandoned or lonely place and some of them were in possession of unlicensed fire arms, or other deadly weapons, it does not by itself lead to the inference that they had collected there and made plan and preparations to commit dacoity. Even presuming their intentions to be wrong, the possibility of the purpose behind their assembly for committing murder of someone, or for doing any other wrongful act or offence may not be ruled out and in view of such possibility, in absence of any truthful, reliable, cogent and legal evidence to support the charges for offences under Section 399 & 402 I.P.C., they may not be safely held guilty and convicted for above offences". 22. In view of above observations I am of the considered view that for the mere instance of assembling of 8 persons in the Shisham grove around 12 hours in the midnight, and recovery of country made pistols with live cartridges, lathi and iron rod from them, is not sufficient to hold them guilty for making plan and preparations by them to commit dacoity and for convicting them for the offences under Section 399 and 402 I.P.C. 23. In view of the discussions made above, I am of the considered view that the prosecution has failed to prove the charges against appellants by any independent, cogent and trustworthy evidence beyond reasonable doubt and the accused-appellants are entitled to get benefit of doubt. The learned trial Court has acted wrongly and illegally in relying on the untruthful and self-contradictory evidence and highly improbable & unbelievable story of prosecution in holding the appellants guilty for the offences under Section 399 & 402 I.P.C. The impugned judgment and order or conviction is liable to be set aside and appeal is liable to be allowed The appellants are found not guilty of the charges of offences under Section 399 & 402 I.P.C. levelled against them and are liable to be acquitted by giving them benefit of doubt. 24. The appeal is allowed. The impugned judgment and order of conviction of appellants under Sections 399 and 402 I.P.C. is set aside. They are held not guilty and stands acquitted of the charges of offences under Section 399 & 402 I.P.C. 25. The appellants are on bail. They need not surrender unless wanted in some other case. 26. Material exhibits, if any, will be disposed of after expiry of limitation of appeal, in accordance with the impugned order in this respect. 27. Let the lower court record be transmitted back to court below, along with a copy of this order.