JUDGMENT : Hon'ble Mrs. Vijay Lakshmi,J. 1. The present criminal appeal is preferred against the judgement and order dated 2.6.1982 passed by the IVth Additional Sessions Judge, Ghaziabad whereby the appellants have been convicted under Sections 399 and 402 I.P.C. and have been sentenced to undergo three years rigorous imprisonment for each offence. Both the sentences were directed to run concurrently. 2. Out of the three appellants, Shokat and Uttam expired during the pendency of the appeal, therefore, the appeal in respect of them stood abated. Now, the only surviving appellant is Zulfikar who is before this Court, challenging his conviction by the learned trial court. 3. Heard and perused the lower court's record. 4. The brief facts of the prosecution case are that in February, 1980 Sri Albel Singh (P.W.5) was posted as Inspector Incharge at P.S. Garh. At that time S.I. Yogesh Chand Sharma (P.W.1), S.S.I, N.L.Goswami (P.W.2) were also posted at the same police station. It was in the night between 20/21.2.1980 at about 12.42 that Inspector Albel Singh received a secret information by an informer that the gang of Shokat would assemble in a 'kothri' (small room) near Swami Mandir on Allahbux Pur road and would commit dacoity at 1.30 A.M. at the house of Lala Dhanumal Sarraf in Kasba Garh. 5. On receiving this information, inspector incharge Albel Singh, S.S.I. N.L.Goswami, S.I.Prem Pal, S.I. Daya Ram along with some other policemen formed a raiding party and proceeded to arrest the members of the gang after making relevant entries in the G.D. They also took with them the arms ammunition torches and other materials. Near Chopla Garh, S.I. Moti Ram Sharma and two constables all armed, also joined them. S.I. Yogesh Chand Sharma (P.W.1) alongwith constable Dharam Pal was on patrol duty in Kasba Garh. Inspector Albel Singh and his raiding party met them near police out post Garh and asked them to accompany and they also followed the raiding party. One Head Constable and two constables were sent to the House of Dhanumal Sarraf for his protection. S.I. Yogesh Chand Sharma was asked to procure public witnesses but despite attempts, no public witness could be procured as the night had advanced and there was not much time to be lost. 6. On reaching near the 'kothari', the police party tried to overhear the conversation, going on between the dacoits, sitting inside the 'kothari'. S.I. Yogesh Chand Sharma was asked to procure public witnesses but despite attempts, no public witness could be procured as the night had advanced and there was not much time to be lost. 6. On reaching near the 'kothari', the police party tried to overhear the conversation, going on between the dacoits, sitting inside the 'kothari'. One of the dacoits said that it is right time for committing dacoity, that 'Bhedia' will be waiting for them, that they had enough arms and that they may proceed in order to commit dacoity. Another dacoit said that they should depart now. On hearing this conversation the police party became assured that they were the armed dacoits, who had assembled in order to commit dacoity. Inspector Albel Singh immediately flashed torch light at the door of the 'kothri' and challenged the dacoits. The dacoits came out of the 'kothri' and started running. They were about 6-7 or 8 in number. As soon as they came out from 'kothri', S.I. Prem Pal fired twice with V.L.P. which emanated sufficient light on the spot. Five dacoits were arrested on the spot at about 1.30 in the night. Two dacoits managed to escape. Out of the five arrested dacoits, three are the appellants Shokat, Zulfikar and Uttam. 7. Accused Shokat was found in possession of a DBBL English Gun (Ext.1) a belt containing cartridges (Ext.2) and a watch. 8. Accused Zulfikar was found in possession of a bag (Ext.12) containing a country made pistol (Ext.3), 4 live cartridges (Ext.4) and a torch (Ext.5). 9. Accused Uttam is said to have been found in possession of a bag (Ext.11) a country made pistol (Ext.6), 3 live cartridges (Ext.7) and a torch (Ext.8). The search of two other dacoits was also taken. 10. Charges under Sections 399, 402 I.P.C. and 27 Arms Act were framed against the appellants who pleaded not guilty and claimed to be tried. 11. The prosecution in order to prove its case produced as many as five witnesses in all, all of whom supported the prosecution case. 12. After conclusion of the prosecution evidence, the statements of the appellants were recorded under Section 313 Cr.P.C. in which all of them stated that they have been falsely implicated in this case due to village 'party bandi'. 12. After conclusion of the prosecution evidence, the statements of the appellants were recorded under Section 313 Cr.P.C. in which all of them stated that they have been falsely implicated in this case due to village 'party bandi'. The appellant Zulfikar stated that he was arrested by the police from his house at 2 P.M. in the afternoon. He denied the manner of occurrence as alleged by the prosecution and any recovery from his possession. 13. The learned court below found the prosecution evidence partly reliable and trustworthy and accordingly convicted the appellants for the charges under Section 399 and 402 of I.P.C. However, it acquitted the appellants from the charge under Section 27 Arms Act due to insufficient evidence. 14. The legality and correctness of the impugned judgment has been challenged in this appeal by the learned counsel for the appellant on the following grounds: 1. There is no public witness of the occurrence and all the prosecution witnesses are police personnel, whereas there was possibility of procuring public witnesses, which is evident from the statement of the P.W.1 who has admitted that while going to spot through 'Meera Kee Retee' from Police outpost Garh, there is 'Aabadi' on both sides of the road. 2. Nothing has been recovered from the possession of the appellants and the recovery memo is false and fabricated which is evident from the fact that it does not bear the signature or the thumb impression of the appellants. 3. The police constables who were sent to the house of Dhanumal Sarraf to give him protection, have not been examined by the prosecution which falsifies the prosecution story. 4. In preponderence of possibilities, no person would so loudly make a plan for committing dacoity so that it could be overheard by anyone. Thus, the prosecution story that the police officials overheard the appellants making plan about committing dacoity in the house of Dhanumal Sarraf, is unnatural and unreliable. 5. When the learned trial court did not find the prosecution case reliable in respect of the arms and ammunitions, said to be recovered from their possession, then it was neither proper nor justifiable to partly rely upon that part of the prosecution story that the appellants were making preparation to commit dacoity by means of those arms and ammunitions which perhaps were not even in the working condition. 15. 15. Per contra, learned A.G.A. has opposed the aforesaid contention by arguing that the learned court below has rightly convicted the appellants by the impugned judgment. He has further contended that as per the settled legal position, the prosecution evidence cannot be discarded on the ground that all the witnesses are police personnel, unless it is proved by the defence that the police personnel were inmical to the accused. On the aforesaid grounds, learned A.G.A. prayed that the appeal be dismissed and the impugned judgment be confirmed. 16. Considered the rival contentions made by the learned counsel for the parties. 17. A perusal of the evidence available on record shows that admittedly there is no public witness of the occurrence. The prosecution witness Albel Singh (P.W.5) has admitted the fact that he did not make any effort to take some person as a witness from the nearby bus stand and bus depot. He has also admitted that there was a picture hall in the way in which guards were on duty, however, he made no efforts to take any of them with him as a witness. 18. There is no doubt that the prosecution case cannot be discarded only on the ground that all the witnesses are police personnel. However, if the prosecution case lacks any public or independent witness, the statements of police witnesses should be scrutinised carefully. The Investigating Officer, S.I. Hukum Chand who has been examined as P.W.3, has admitted the fact that he himself had not seen any arms or ammunitions recovered from the possession of the accused persons. The arms said to be recovered from the appellants were not sent to any ballistic examiner so as to ascertain the fact that whether those were in working order or not. 19. The learned trial court has also acquitted the appellants from the charge under Section 27 of the Arms Act on the basis of the fact that the prosecution failed to adduce any evidence to show that the concerned arms were in the working order. Moreover, the sanction order issued by the District Magistrate was not found reliable by the learned trial court and it was discarded with a clear finding that the District Magistrate has not perused the case diary, charge-sheet or any other relevant papers before issuing sanction order. Moreover, the sanction order issued by the District Magistrate was not found reliable by the learned trial court and it was discarded with a clear finding that the District Magistrate has not perused the case diary, charge-sheet or any other relevant papers before issuing sanction order. On the basis of the aforesaid finding, the learned court below found the appellants entitled to get acquitted from the charge under Section 27 of the Arms Act. 20. If there was insufficient evidence regarding the fact that the appellants were armed with fire arms at the time of occurrence on the basis of which the appellants were acquitted of the charge under Section 27 Arms Act, how can it be said that the evidence was sufficient to held the appellants guilty under Sections 399 and 402 I.P.C.? 21. Hon'ble Apex Court in the case of Sumersinbh Umedsinh Rajput @ Sumersinh Vs. State of Gujarat, 2008 (1) Crimes 57 (SC), it was held as under: "If the prosecution case of attempt to murder by gun-shot injury fails, resultantly, the prosecution under Section 25 of the Arms Act would also fail." 22. Thus, it is clearly apparent that the findings recorded by the learned trial court in respect of the offences under Sections 399, 402 I.P.C. and Section 27 of the Arms Act are self contradictory. If the learned trial court did not find the charge under Section 27 of the Arms Act proved due to lack of evidence, then how can it be said that the appellants were preparing for committing dacoity with those arms and ammunitions. 23. In Amar Singh & Ors. Vs. State, 2003 Cri.L.J. 1321 Alld, it was held as under: "The accused had arms but they did not use it. Not a single penny was recovered from their possession, there was no public witness to support the prosecution case. It was held that accused were entitled to the acquittal. Dacoits were arrested without any resistance and struggle. Witness could not reveal that they were talking on a high pitch while holding alleged discussions hence it is not possible to the police to overhear them." 24. Neither the constables who were sent to the house of Dhanumal Sarraf nor Dhanumal Sarraf has been examined by the prosecution, which fact also raises a doubt in the prosecution case. 25. In Chhotey Singh & Ors. Vs. Neither the constables who were sent to the house of Dhanumal Sarraf nor Dhanumal Sarraf has been examined by the prosecution, which fact also raises a doubt in the prosecution case. 25. In Chhotey Singh & Ors. Vs. State, 2005 Cri.L.J. 185, Alld, it was held as under: "The accused persons were alleged to have assembled to commit dacoity in dead of night. The person in whose house dacoity was to be committed was not examined as prosecution witness and the public witnesses called by the police were also not examined. When 7 or 8 accused assembled at place for committing dacoity, it cannot be said that no inquiry had taken place on either side. It was held that in view of the infirmities in evidence, story of prosecution was unbelievable and conviction was liable to be set-aside." 26. A perusal of the recovery memo shows that there is no signature or thumb mark of the appellants on it. The copy of the recovery memo was not given to any of the appellants which is a mandatory provision. The information has been given by a police informer. Several police officials have raided at the spot and it appears unnatural that the appellants without showing any apprehension or indication, all of a sudden, started speaking so loudly about their plan for committing dacoity in the house of Dhanumal Sarraf, that it was easily overheard by the police party. Two miscreants are said to have escaped from the spot, but the police has not made any effort to arrest them despite the fact that their faces were seen by the police party in the torch light. 27. For the aforesaid reasons, the impugned judgment is liable to be set-aside and the appeal deserves to be allowed. 28. Accordingly, the appeal is allowed. The impugned judgement and order dated 2.6.1982 passed by the trial court is hereby set-aside and the appellant Zulfikar (who is the only surviving appellant) is acquitted of all the charges. He is on bail. He need not surrender. His sureties are discharged. The arms and ammunitions/case property shall be disposed of under the supervision of the C.J.M. concerned in accordance with the rules. 29. He is on bail. He need not surrender. His sureties are discharged. The arms and ammunitions/case property shall be disposed of under the supervision of the C.J.M. concerned in accordance with the rules. 29. Keeping in view the provisions of Section 437-A Cr.P.C., the appellant is directed to forthwith furnish a personal bond in the sum of Rs.One Lakh and two reliable sureties each in the like amount before the trial court, (which shall be effective for a period of six months) along with an undertaking that in the event of filing of Special Leave Petition against the instant judgment or for grant of leave, the appellant on receipt of notice thereof shall appear before the Hon'ble Supreme court. 30. Let a copy of this judgment along with lower court's record be sent back to the court concerned for necessary action.