JUDGMENT Kanwaljit Singh Ahluwalia, J. - Raghuveer @ Bichchhuda son of Ram Narayan Kanjar, Radhey Shyam @ Kabra and Vikram @ Vikara both sons of Lakhma, Bala son of Kanwariya @ Kanwar Lal Kanjar and Roopchand @ Dadiya son of Ram Lal were tried by the court of Sessions Judge, Jhalawar in Sessions Case No. 206/2016. The trial Judge vide impugned judgment dated 1.7.2017 held the appellants guilty of offences under Sections 399 and 402 IPC. Raghuveer @ Bichchhuda was also convicted for the offence under Section 3/25 of the Arms Act, whereas remaining four accused were convicted for offence under Section 4/25 of Arms Act. 2. Having convicted the accused for the aforesaid offences, the trial Judge vide a separate order of even date, sentenced the accused as under:- U/s. 399 IPC- to undergo seven years RI and to pay a fine of Rs. 1000/- each, in default thereof to undergo additional three months SI each. U/s. 402 IPC- to undergo five years RI and to pay a fine of Rs. 1000/- each, in default thereof to undergo additional three months SI. Raghuveer @ Bichchhuda: U/s. 3/25 Arms Act to undergo two years RI and to pay a fine of Rs. 1000/-, in default thereof to undergo additional three months SI. Radhey Shyam @ Kabra, Vikram @ Vikara, Bala @ Kanwar Lal and Roopchand @ Dadiya: U/s. 4/25 Arms Act to undergo two years RI and to pay a fine of Rs. 1000/- each, in default thereof to undergo additional three months SI. All the sentences were ordered to run concurrently. 3. Aggrieved against their conviction and sentence, the appellants have filed the present appeal to question their conviction and sentence. 4. The case of the prosecution can be summed up from the charges framed against the accused/appellants. 5. The first charge stated that on 9.10.2016 at 12:40 AM, near bridge of Khakhodiya Khal, Police Station Sadar, Jhalawar, Raghuveer @ Bichchhuda armed with one loaded iron country made pistol and two live cartridges, Radhey Shyam @ Kabara armed with one incised sword, Vikram @ Vikara armed with one incised Knife, Bala armed with one incised knife and Roopchand @ Dadiya armed with one incised sword were planning to commit dacoity on Royalty Naka situated at Jhalrapatan - Bhawani Mandi Highway, when they were apprehended by Manoj Singh (P.W.2), SHO Police Station Sadar, Jhalawar. Thus, they committed offence punishable under Section 399 IPC. 6. The second charge stated that on the said date and time, all the above-mentioned five accused armed with weapons gathered to commit dacoity and thereby committed offence punishable under Section 402 IPC. 7. The third charge under the Arms Act was also framed against the accused. Raghuveer @ Bichchhuda who was armed with fire arm was charged for the offence under Section 3/25 of Arms Act, whereas, remaining four accused namely Radhey Shyam @ Kabra, Vikram @ Vikara, Bala and Roopchand @ Dadiya were charged for the offence under Section 4/25 of Arms Act. 8. The prosecution to secure conviction of the appellants, in all examined eight witnesses namely Armor Yashwant Singh (P.W.1), SHO/investiging officer Manoj Singh (P.W.2), ASI Abdul Latif (P.W.3), Constable Ramswaroop (P.W.4), Head Constable Shambhu Lal (P.W.5), LDC Mohan Lal Shekhawatiya (P.W.6), Constable Dilip Kumar (P.W.7) and Head Constable Madan Lal (P.W.8). 9. The prime witness of the prosecution is Manoj Singh (P.W.2), who at the relevant time was posted as SHO, Police Station Sadar, Jhalawar. This witness in the court deposed that on 9.10.2016 at about 12:10 AM he along with companion police officials namely Shambhu Lal (P.W.5), Ashok (not examined), Ramswaroop (P.W.4), Sandeep (not examined), Dilip (P.W.7), Maninder (not examined) proceeded on a patrol duty in government jeep from police station. At 12:40 AM when they reached village Bhilwara, special informant met and relayed him information that at Kanwada Road, below Khakhodiya Khal on culvert, some anti social elements of Kanjar community have gathered and they are hatching a planning to commit dacoity. Accepting the information, Manoj Singh (P.W.2) parked Jeep at a distance of 500 meters from the spot, where accused had gathered and divided the policemen into two separate parties. One party consisted of Head Constable Shambhu Lal (P.W.5), Constable Ashok and Dilip, whereas second party consisted of Manoj Singh (P.W.2), Constable Sandeep and Maninder. They along with dragon light and torch proceeded towards the spot. When they reached near Khakhodiya Khal, above the culvert, they saw and heard that below the culvert five persons were sitting and they were talking in local language and were saying that Royalty Naka Post situated in City Colony be looted. They said that in case Royalty Naka Post in the City Colony is looted, they will gather handsome amount. When they reached near Khakhodiya Khal, above the culvert, they saw and heard that below the culvert five persons were sitting and they were talking in local language and were saying that Royalty Naka Post situated in City Colony be looted. They said that in case Royalty Naka Post in the City Colony is looted, they will gather handsome amount. One of the person was telling another that he will show the pistol and whereas others will take out the money and in case somebody resist then Raghuveer @ Bichchhuda shall fire the shot. Police party in the dragon light and torch called the accused to remain sitting, upon which all accused jumped from the small culvert into Khaal. This witness stated that police party encircled the accused and caught hold of all the persons. On asking, the persons gave their name as Raghuveer @ Bichchhuda. From Raghuveer @ Bichchhuda one pistol was recovered and when the same was unloaded, two live cartridges were found. Another person gave his name as Radhey Shyam @ Kabra and from his search one naked iron sword was recovered. From third person named Vikram @ Vikara one iron incised knife was recovered. From fourth person who gave his name as Bala son of Kanwariya @ Kanwarl Lal, one incised iron knife was recovered. Fifth person gave his name as Roopchand @ Dadiya and from his search one naked iron sword was recovered. 10. In the cross-examination, Manoj Singh (P.W.2) admitted that from the place of occurrence, stone mines are at distance of 4-5 kms. This witness stated that he is not aware whether in the night mining is undertaken or not. This witness stated that he cannot remember that on the passage there is lot of traffic. This witness stated that in the night he did not meet any person. This witness stated that on the night of occurrence, near the place from where accused were apprehended, tea vend was not open. This witness stated that he had sent Constable Sandeep (not examined) to call independent witness. Sandeep returned after fifteen minutes. This witness admitted that he had not asked anybody to search him. 11. Manoj Singh (P.W.2) in further cross-examination stated that special informant had relayed information orally. After receipt of the information in village, no person was called to join as independent witness. Sandeep returned after fifteen minutes. This witness admitted that he had not asked anybody to search him. 11. Manoj Singh (P.W.2) in further cross-examination stated that special informant had relayed information orally. After receipt of the information in village, no person was called to join as independent witness. This witness admitted to be correct that information given by the special informant was not recorded. This witness admitted that where Jeep was parked, there were numerous shops but due to night all were closed. This witness admitted that the place where accused were sitting was open and accessible place. 12. Ramswaroop (P.W.4) in the court stated that he was posted as Constable at Police Station Sadar, Jhalawar. He was member of a police party, which had gone on patrol duty. This witness corroborated the testimony of Manoj Singh (P.W.2), investigating officer of the case. In cross-examination, this witness admitted that the special informant had given the information to SHO on telephone and said telephone was received near village Bhilwara. This witness stated that the phone came at the place where they stopped. This witness admitted that no independent witness was taken along by the police party. This witness stated that they they heard the accused talking from a distance of 5 meters. 13. Head Constable Shambhu Lal (P.W.5) was a member of the police party. He is the one who headed one party after the policemen were divided into two separate parties. In cross-examination, this witness stated that as to how information was received from special informant, he is not aware. This witness stated that the place where the information was received, there were 3-4 shops at Chawraha, but no efforts were made to associate any independent witness. This witness stated that what the accused were talking, was only heard by SHO. 14. Mohan Lal Shekhawatia (P.W.6) was posted as LDC Grade-I in the office of District Collector. He in the court stated that he had attested the prosecution sanction (Exhibit-P/12), qua accused Raghuveer @ Bichhuda. 15. Constable Diliip Kumar (P.W.7) was also member of the police party. This witness in cross-examination stated that they heard accused talking from a distance of 100 meters. 16. He in the court stated that he had attested the prosecution sanction (Exhibit-P/12), qua accused Raghuveer @ Bichhuda. 15. Constable Diliip Kumar (P.W.7) was also member of the police party. This witness in cross-examination stated that they heard accused talking from a distance of 100 meters. 16. Thus, Manoj Singh (P.W.2), Ramswaroop (P.W.4), Shambhu Lal (P.W.5) and Dilip Kumar (P.W.7) four members of the police party had appeared in the court to support the initial version unfolded in FIR (Exhibit-P/10), contents of which were reiterated by Manoj Singh (P.W.2) investigating officer of the case. 17. Yashwant Singh (P.W.1) was posted as Armor in the Police Line, Jhalawar. This witness deposed that he had mechanically examined the country made pistol and same was in working condition. 18. Abdul Latif (P.W.3) in the court stated that he had prepared the site plan of the spot (Exhibit-P/8). 19. Madan Lal (P.W.8) was Malkhana Incharge. On 9.10.2016, he deposited five packets in Malkhana by Manoj Singh (P.W.2) and same were sent to FSL through Constable Vineet Kumar (not examined). 20. In the present case, conviction of the appellants rests on the testimony of police officials. It is admitted fact that no independent witness was joined even though information was received by investigating officer Manoj Singh (P.W.2) in the village. 21. The learned counsel for the appellants has submitted that no implicit reliance can be placed on the official witnesses as story unfolded by them is inherently improbable. It is contended that it is difficult to believe that at the nick of moment when police party reached, accused were talking about their plan to commit dacoity and same was heard by the police officials from distance. It is contended that taking antecedents of the accused, in a usual round-up of anti social elements, accused were apprehended and were falsely implicated in the present case, which is nothing but contains a stereo type story. 22. The learned counsel for the appellants has relied upon the judgment rendered by this Court on 7.12.2017 in the case of Sannu & Anr. vs. State of Rajasthan (SBCRLA No. 542/1991) along with connected appeal, Totaeya vs. State of Rajasthan (SBCRLA No.548/1991). 22. The learned counsel for the appellants has relied upon the judgment rendered by this Court on 7.12.2017 in the case of Sannu & Anr. vs. State of Rajasthan (SBCRLA No. 542/1991) along with connected appeal, Totaeya vs. State of Rajasthan (SBCRLA No.548/1991). In the said judgment, this Court observed as under:- "The learned counsel for the appellants has relied upon a judgment rendered by me in bunch of appeals, lead case being Salamuddin alias Patla and Others vs. State of Haryana, Criminal Appeal No. 1038-SB of 2010 decided on 29.11.2011. In the said judgment, case law regarding Sections 399 and 402 IPC had been noted as under:- " Chaturi Yadav vs. State of Bihar 1979 Supreme Court Cases (Criminal) 502 is a celebrated judgment on the subject upon which various High Courts have placed reliance to determine the facts and circumstances of each case whether the offence under Sections 399 and 402 IPC are made out or not. Learned Single Judge of this Court in Baldev Singh vs. State of Haryana 1988(1) Recent Criminal Reports 629 relied upon the observations made in Chaturi Yadav's case (supra) and noticed as under:- "8. Requirement of section 402 IPC is that five or more persons must have assembled for the purpose of committing a dacoity. Apart from the fact that the appellants are said to have been found armed present on the first story of an abandoned building there is no evidence that this assembly of five appellants was for the purpose of committing dacoity. The trial Court has merely drawn an inference that the said assembly was only for the purpose of committing dacoity. A similar case came up before their Lordships of the Supreme Court ( Chaturi Yadav and Others vs. State of Bihar, 1979 SCC (Crl.) 502 ) where it was observed:- "The Courts below have drawn the inference that the appellants were guilty under both the offences merely from the fact that they had assembled at a lonely place at 1.00 a.m. and could give no explanation for their presence at that odd hour of the night. Mr. Misra appearing for the appellant submitted that taking the prosecution case at its face value, there is no evidence to show that the appellants had assembled for the purpose of committing a dacoity or they had made any preparation for committing the same. Mr. Misra appearing for the appellant submitted that taking the prosecution case at its face value, there is no evidence to show that the appellants had assembled for the purpose of committing a dacoity or they had made any preparation for committing the same. We are of the opinion that the contention raised by the learned Counsel for the appellants is well founded and must prevail. The evidence led by the prosecution merely shows that eight persons were found in the school premises. Some of them were armed with guns, some had cartridges and others ran away. The mere fact that these persons were found at 1.00 a.m. does not, by itself, prove the appellants had assembled for the purpose of committing dacoity or for making preparations to accomplish that object. The High Court itself, has in its judgment, observed that the school was quite close to the market, hence it is difficult to believe that the appellants would assemble at such a conspicuous place with the intention of committing a dacoity and would take such a grave risk. It is true that some of the appellants who were caught hold of, by the Head Constable are alleged to have made the statement before him that they were going to commit a dacoity but this statement being clearly inadmissible has to be excluded from consideration. In this view of the matter, there is no legal evidence to support the charge under Section 399 and 402 against the appellants. The possibility that the appellants may have collected for the purpose of murdering somebody or committing other offence cannot be safely eliminated. In these circumstances, therefore, we are unable to sustain the judgment of the High Court. In Pahalwan Singh vs. State of Madhya Pradesh, 1987 MP LJ 449 , the facts were that on the night of 2010 intervening 22nd and 23rd June, 1977, RS Tiwari received an information and with police force and Panch witnesses proceeded towards the forest situated between Rahatwas and Hanwas villages and found all the accused planning and preparing for committing a dacoity. On being challaned, three accused persons ran away and the rest of the accused were apprehended. Two guns and one sword were seized and all the seven persons were apprehended and taken to the police station where First Information Report was recorded. The three persons who absconded, were arrested later. On being challaned, three accused persons ran away and the rest of the accused were apprehended. Two guns and one sword were seized and all the seven persons were apprehended and taken to the police station where First Information Report was recorded. The three persons who absconded, were arrested later. Sanction for prosecution under sections 25 and 27 of the Arms Act was obtained from the District Magistrate. All the trials were consolidated into one, and, thus, all the accused were tried and evidence recorded in one trial. In these circumstances, High Court of Madhya Pradesh observed as under:- "After going though the evidence, there is no dispute that in between the two villages mentioned above, there is a jungle. There is also no dispute that the accused did not have any house breaking implement or any instrument which can be said to be of use while committing dacoity, that is to say, an instrument to break open a lock or any instrument to break open any room or window. The only evidence against them is that they were having arms with them. The other evidence is that before they could be apprehended, some one from the gang said in a loud voice that the time is up to commit dacoity and, therefore, we must proceed. Excepting this, there is nothing to show that the appellants, in any way, were preparing to commit dacoity." Cases Veer Singh and three others vs. The State of Madhya Pradesh, Crl. Appeal No. 142 of 1980 decided on 26.11.1980, Chamariya vs. State of M.P., 1976 WN(1) 306 and Chaturi Yadav vs. State of Bihar 1979 SC (Crl.) 502 , were referred to by the Court for similar facts and with above observations the appellant were acquitted of the charges under Sections 399/402 IPC. So far as the cases under sections 25 and 27 of the Arms Act, the appellants were also acquitted thereunder on the above-referred to facts." A Division Bench of this Court in Mahavir vs. State of Haryana 2010 (6) Recent Criminal Reports 3073 held as under:- "15. Now coming to the factum, as to whether, the accused were allegedly making preparation to commit dacoity, while sitting in a room, armed with iron rods, a dagger, and a country made pistol, it may be stated here, that the same is not proved, as would be discussed hereinafter. Now coming to the factum, as to whether, the accused were allegedly making preparation to commit dacoity, while sitting in a room, armed with iron rods, a dagger, and a country made pistol, it may be stated here, that the same is not proved, as would be discussed hereinafter. Sections 399 and 402 of the Indian Penal Code, are confined to making preparation for commission of dacoity and have no reference to any other offences. Therefore, the prosecution must prove, from some evidence, directly or indirectly, or from attending circumstances, that the accused persons had assembled for no other purpose than to make preparation, for commission of dacoity. If the evidence falls short of it, the case must fail. Though the word "preparation" has not been defined, in the Penal Code, the prosecution must show some such conduct, to prove the factum of "preparation" by the assembly, and that the accused persons had conceived any such designs for committing dacoity, and, in fact, intended to achieve the object, for which they had assembled. Therefore, the mere fact that some persons were found sitting at a lonely place, at night, in a house which was under construction, and incriminating articles like firearms, some bombs and a Bhujali were recovered from their possession would not be sufficient to prove the charge that they had assembled for making preparation for commission of dacoity. The evidence must be such, which may plainly manifest the main charge to satisfy the conscience of the Court that the members of the assembly did some such act, or acts, which may lead to irresistible presumption, that they had assembled for the purpose of committing dacoity and were making preparation for the same, but, in absence of any such evidence, mere assemblage and recovery of firearms do not prove the charge..." Chaturi Yadav's case (supra) has also been relied upon by the Delhi High Court in Des Raj alias Dass vs. The State 2000 Criminal Law Journal 2083 to hold that mere assembly of five or more persons at a deserted place armed with weapons is not sufficient to hold that the accused had committed any offence falling within the ambit of Sections 399 and 402 IPC until by direct or circumstantial evidence, purpose of the assembly is proved. Nothing is brought on the record by the prosecution that the accused were making preparation or had gathered for the purpose of committing dacoity. In Asgar and Another vs. State of Rajasthan 2003 (3) Recent Criminal Reports 359 , a Judge of the Rajasthan High Court had noticed the law propounded by this Court as under:- "10. In Karam Dass vs. State, AIR 1952 Pun 249 : (1952 Cri LJ 1119) , the Punjab High Court held that :- "To bring the case within Section 399 of the Code, it is not necessary that persons shown to be making the preparations should be five or more in number. It is, however, necessary for the prosecution to prove that the raid for which the persons prosecuted were making preparation was to be committed by five or more persons, for otherwise it would not be dacoity but merely robbery, and mere preparation for committing robbery, unless it ends in an actual attempt, is not punishable by law. Thus, it is evident that mere assembly of five or more persons armed with weapons ipso facto will not be sufficient to record and uphold conviction for the offence under Sections 399 and 402 IPC. In the present case, the prosecution has brought one glaring circumstance on the record to say that when the Government vehicle, driven by a Police Constable in plain clothes, reached where the Santro Car and Bolero Jeep were parked, one person had signalled the vehicle and thereafter other companion co-accused surrounded the Government vehicle. This circumstance, according to Mr. Anupam Sharma, Assistant Advocate General, Haryana, appearing for the respondent/State, is sufficient to infer that the accused had made preparation to commit dacoity and furthermore the purpose of the assembly. It is further submitted that the Bolero Jeep and Santro Car were without number plates, therefore, the presumption should be drawn that the accused had assembled there to commit the offence of dacoity. Where such a presumption can be drawn against the accused was considered in Mohammad Hussain and etc. vs. State of Bihar 1987 Criminal Law Journal 1391, wherein it was held as under:- "11. The learned Counsel for the appellants, however, submitted that Section 106 of the Evidence Act could not be invoked for supplementing the evidence adduced by the prosecution. Where such a presumption can be drawn against the accused was considered in Mohammad Hussain and etc. vs. State of Bihar 1987 Criminal Law Journal 1391, wherein it was held as under:- "11. The learned Counsel for the appellants, however, submitted that Section 106 of the Evidence Act could not be invoked for supplementing the evidence adduced by the prosecution. On the other hand, learned Counsel for the State placed reliance on a single Bench decision of this Court in the case of State vs. Dhanpat Chamara, AIR 1960 Patna 582 in support of the view of the learned Sessions Judge. In my opinion, even this decision does not help the prosecution to the extent the learned Sessions Judge has gone. The legal position has been explained in paragraph 19 of this judgment which is as follows:- "19. It is perfectly true that the prosecution must establish, in a case of this kind, that the accused had conceived a design for committing dacoity, but it is equally true that the intention of an individual or a number of individuals who have conspired together is seldom known to others, and can only be established by proof of circumstances from which the intention can be inferred. Witnesses cannot give direct evidence as to the intention of the accused; and, if the legitimate inference from the circumstances which are established is that the intention of the accused was to commit dacoity, it is for them to prove that their intention was different. Illustration (a) of Section 106 of the Evidence Act makes this quite clear. Reliance may be placed in this connection upon Jain Lal vs. Emperor, AIR 1943 Pat 82 a case to which I will again have to make reference." So even from, this decision it is clear that it is for the prosecution to establish that the accused had conceived a design for committing dacoity. Of course, it has been stated therein that if the legitimate inference can be drawn from the circumstances which are established in the case that the accused persons had the intention to commit dacoity, it will be for them to prove that their intention was different. Of course, it has been stated therein that if the legitimate inference can be drawn from the circumstances which are established in the case that the accused persons had the intention to commit dacoity, it will be for them to prove that their intention was different. It was in this context that reference was made to Section 106 of the Evidence Act, but the learned Sessions Judge has placed the burden itself on the accused to satisfy, the court regarding the object or intention of their presence in the lonely orchard in the dead of night along with many other persons some of whom were armed with firearms and other weapons. What be aforesaid decision wanted to lay down was that once it was established by the circumstances of the case that the intention of the accused persons was to commit dacoity, then it was for the accused persons to explain that their intention was different from that of committing dacoity and not that the burden lay on the accused persons to explain and to satisfy the court about their presence there. 12. The applicability of Section 106 of the Evidence Act was considered by the Supreme Court in the case of Sawal Das vs. State of Bihar, AIR 1974 SC 778 . In this case the husband had been convicted for committing the murder of his wife who had died of burn injuries. The defence of the husband was that the wife had met her death because her nylon Sari had accidentally caught fire by a kerosene stove. The following observations of the Supreme Court would explain the obligation of the accused under Section 106 of the Evidence Act:- "Neither an application of Section 103 nor of 106 of the Evidence Act could, however, absolve the prosecution from the duty of discharging its general or primary burden of proving the prosecution case beyond reasonable doubt. It is only when the prosecution has led evidence which, if believed, will sustain a conviction, or, which makes out a prima facie case, that the question arises of considering facts of which the burden of proof may lie upon the accused. It is only when the prosecution has led evidence which, if believed, will sustain a conviction, or, which makes out a prima facie case, that the question arises of considering facts of which the burden of proof may lie upon the accused. The crucial question in the case before us is: Has the prosecution discharged its initial or general and primary burden of proving the guilt of the appellant beyond reasonable doubt?" To draw an inference under section 106 of the Indian Evidence Act, 1872 that stopping of the vehicle and surrounding of the same is sufficient to infer that the accused were intending to commit dacoity, this Court will have to appreciate as to whether this part of the evidence is reliable or not. PW.4 Amarjeet Singh, Sub Inspector, has submitted that the place of occurrence was a lonely place and hardly one or two persons had passed there throughout the investigation, whereas PW.5 Ayub Khan, E. Assistant Sub Inspector, stated that the place of occurrence was a busy place and is frequented by public. He has further stated that no independent witness was joined at the time of arrest of the accused and recoveries effected from them. "The witness has volunteered to say that for not joining the independent witness, reasons were best known to the Investigating Officer." As to whether there is a material discrepancy between the two police officials and what is the effect of non-examination of the independent witness is another fact on which this Court has to ponder. A Division Bench of this Court in Mahavir's case (supra), in case of an offence under Sections 399 and 402 IPC, has held as under:- "14...Their evidence, in these circumstances, is required to be scrutinized carefully and cautiously. If the Court, after such scrutiny, comes to the conclusion, that the same is reliable, then mere non-joining of independent witness, pales into insignificance. The other evidence, produced by the prosecution, as would be discussed hereinafter, on scrutiny, has been found to be unreliable. Since an independent witness was not joined, despite availability, though there was sufficient time, with the Investigating Officer, to do so, the case of the prosecution became doubtful. In State of Punjab vs. Ram Chand 2001 (1) RCR (Criminal) (DB) (P&H) , no independent witness was joined despite availability, at the time of effecting recovery. Since an independent witness was not joined, despite availability, though there was sufficient time, with the Investigating Officer, to do so, the case of the prosecution became doubtful. In State of Punjab vs. Ram Chand 2001 (1) RCR (Criminal) (DB) (P&H) , no independent witness was joined despite availability, at the time of effecting recovery. In these circumstances, it was held that it was imperative, in the given circumstances, to join and examine an independent witness to vouchsafe the fair investigation. On account of this reason, the accused was held entitled to be given the benefit of doubt. In State of Punjab vs. Bhupinder Singh, 2001 (1) RCR (Criminal), 356 (DB ) (P&H) , no independent witness was joined, though the recovery was effected, in a busy locality. Under these circumstances, it was held by this Court that the case of the prosecution became doubtful. In Ritesh Chakarvarti vs. State of Madhya Pradesh, 2006 (4) RCR (Criminal) , 480 (SC) , no effort was made to join an independent witness despite availability. The names of the persons, from the public, who were present and asked to join the investigation, were not recorded in any document. Under these circumstances, it was held that the case of the prosecution was doubtful and ultimately, the accused was acquitted. The principle of law, laid down, in the aforesaid authorities, is fully applicable to the instant case. As stated above, a cloud of doubt, was cast, on the prosecution case, on account of non-joining of an independent witness, despite availability, at the time of the alleged raid. The trial Court failed to take into consideration, this aspect of the matter, as a result whereof, it fell into an error in recording conviction and awarding sentence." 23. In the context of law noted above, it is required to be noticed that there are major contradictions in the testimony of the witnesses. Manoj Singh (P.W.2) investigating officer of the case in the court deposed that he received secret information from the special informant at village Bhilwara. This witness stated that special informant met him and divulged the information. Whereas, Ramswaroop (P.W.4) stated that special informant had given information on the phone when they reached at village Bhilwara. Shambhu Lal (P.W.5) stated that he is not aware as to when secret information was relayed by the special informant. This witness stated that special informant met him and divulged the information. Whereas, Ramswaroop (P.W.4) stated that special informant had given information on the phone when they reached at village Bhilwara. Shambhu Lal (P.W.5) stated that he is not aware as to when secret information was relayed by the special informant. Dilip Kumar (P.W.7) stated that information was received on the phone when they were near Singhania Maal. 24. In the context of above major contradictions regarding the place where the secret information was received and the manner in which it was received, it is required to be noted that the secret information, as per admission made by Manoj Singh (P.W.2) was not reduced into writing. On the basis of secret information, Ruka (information in writing) was also not sent to the police station. It is also admitted fact that after receipt of secret information, no effort was made to associate independent witnesses. Even Constable Sandeep who was sent to call independent witnesses, after the raid was effected and accused were apprehended was not examined and was withheld by the prosecution. Constable Sandeep who had allegedly gone to call independent witness is a material witness to explain to whom he contacted and who were persons who refused to become independent witnesses. 25. It is true that by passage of time, contradictions do emerge in the testimony of witnesses, but in the present case, contradictions which have emerged put the court on guard to examine and appreciate the testimony of witnesses, as the story divulged by the witnesses that on secret information they proceeded to raid and apprehend the accused itself becomes doubtful. 26. Another contradiction in the testimony of witnesses was that the investigating officer Manoj Singh (P.W.2) heard what the accused were talking from a distance of 5 meters. Another witness Constable Diliip Kumar (P.W.7) stated that they heard from a distance of 100 meters. Manoj Singh (P.W.2) himself stated that he was standing on the bridge and the accused were hatching conspiracy beneath the same. It is improbable that the accused will blurt out their planning when the police party reach there. It cannot be ruled out that hearing of the planning has been introduced after consultations and deliberations. 27. Manoj Singh (P.W.2) himself stated that he was standing on the bridge and the accused were hatching conspiracy beneath the same. It is improbable that the accused will blurt out their planning when the police party reach there. It cannot be ruled out that hearing of the planning has been introduced after consultations and deliberations. 27. Taking totality of circumstances, this Court is of the view that it is not safe to rely upon the testimony of the witnesses, especially when it cannot be ruled out that the accused who were involved in other cases can be taken into custody as easy targets and thereafter a case can be coined upon them. Thus, on the touch stone of the case law, appreciation of the evidence and improbabilities which have emerged in the testimony of witnesses, this Court shall extend benefit of doubt to the appellants. 28. Consequently, the present appeal is accepted. The conviction and sentence of the appellants is set aside and they are acquitted of the charges. Appellants who are in custody be released forthwith, if they are not involved in any other case, after the trial Judge comply with the Section 437-A Cr.P.C.