JUDGMENT 1. By this appeal under section 374 of CrPC appellants have challenged the judgment dated 30th April, 2003 in Sessions Trial No. 187/2002 by which the appellants have been held guilty of offences under sections 399 and 402 of IPC and have been awarded for each of the offence sentence of four year's RI and fine of Rs. 300 with default sentence of one month. 2. The charge against the appellants is that on 18.3.2002 they had assembled armed with weapons for committing dacoity at society Gram Bhan Bharud. 3. Prosecution story is that on 18.3.2002, PW7 H.S. Chouhan, SHO Sanawad had received the intimation that some persons were planning to commit dacoity at society Bhan Bharud and were sitting in the agricultural field of Anoop Chand alongwith weapons. He after intimating his seniors and nearby police stations and taking Om Prakash and Mishrilal from Bhan Bharud reached to the spot and had found that below the khanti the accused were talking about committing loot of cash of Bhan Bharud society and they were armed with axe, bow and arrow, laathi etc. In the torch light he had surrounded the appellants and had seized the weapons and had prepared the spot map on the next day. After completing the investigation challan was filed and appellants were charged for offence under sections 399 and 402 of IPC and they had abjured guilt. Accordingly trial had taken place in which they have been convicted and sentenced in the manner mentioned above. 4. I have heard the learned counsel for the parties and perused the record. 5. Before entering into merits of the case, it would be appropriate to examine the legal position in respect of nature of evidence and standard of proof required in such an offence. 6. Supreme Court in the matter of Jasbir Singh v. State of Haryana, reported in (2015) CriLJ 2476, in a case where there was no independent witness of arrest of the accused, the arrest or recovery was not made in the presence of gazetted officer, the complainant himself had investigated the crime and unnatural conduct of accused who were armed with deadly weapons in not offering resistance nor trying to run away before they were apprehended by the police, has found to be a fit case for giving the benefit of reasonable doubt and setting aside the conviction. The circumstances noted in that case are similar to the present case. In that case it has been held that : 12. Strangely, even after observing as above, the High Court has believed the prosecution story in respect of offences punishable under sections 399 and 402 IPC, and one in respect of offence punishable under section 25 of Arms Act. The High Court has erred in law in not taking note of the following facts apparent from the evidence on record : (I) In a day light incident at 1.20 p.m. within the limits of City Police Station, Karnal, there is no public or any other independent witness of the arrest of the appellant along with other accused from the place of incident nor that of the alleged recovery of fire arm said to have been made from two of them. (It is not a case where arrest or recovery has been made in the presence of any Gazetted Officer.) (II) Complainant (PW6) has himself investigated the crime, as such, the credibility of the investigation is also doubtful in the present case, particularly, for the reason that except the police constables, who are subordinate to him, there is no other witness to the incident. (III) It is not natural that the six accused, four of whom were armed with deadly weapons, neither offered any resistance nor caused any injury to any of the police personnel before they are apprehended by the police. (IV) It is strange that all the accused were wearing blue shirts, as if there was a uniform provided to them. (V) It is hard to believe that the appellant and three others did not try to run away as at the time of the noon they must have easily noticed from a considerable distance that some policemen are coming towards them. (It is not the case of the prosecution that police personnel were not in uniform.) 7. Patna High Court in the matter of Gholtu Modi and etc v. State of Bihar, reported in 1986 CriLJ 1031, has held that for making out the offence under section 399 and 402 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. If the evidence falls short of it, the case must fail. In that case the circumstances that place was not lonely, the independent witnesses had not supported the prosecution case and informant himself had taken up the investigation in his own hand has been considered the relevant circumstances for holding that the case of prosecution had failed. 8. Bombay High Court in the matter of Sadashiv @ Shiva Antappa Pujari v. State of Maharashtra, reported in 2003 CriLJ 3661, in a case the accused were villagers/labourers and possession of chopper, knife, axe, dagger i.e. day to day use weapons was planned and there was no sufficient material to show that the accused possessing such weapons were members of gang of dacoit or had assembled for committing dacoity has held that evidence was not enough to convict them. Bombay High Court in this regard has held : 4. The possession of chopper, knife, an axe, a daggar, spear by itself would not be sufficient to come to a conclusion that the persons possessing such weapons had assembled for the purpose of committing dacoity. They could have been assembled for assaulting somebody else at the most. If proper explanation is offered for possession of such day to day use articles, and if there is no convincing evidence to show that such persons had assembled for the purpose of committing robbery or dacoity, they cannot be punished for the charge in context with other offences spelled out such persons cannot be punished under sections 399, 402 of IPC They would be guilty if guilt is proved but for some other offences connected with the evidence adduced by the prosecution against them. If the charge for committing the offence punishable under section 399 of IPC Or section 402 of IPC is to be held as proved, some more evidence is needed and that should be also natural evidence. The attitude of proving such charge by putting some one or two sentences in their mouth alone has to be deprecated because involvement of innocent persons who are not possessing deadly weapons, by use of such sentences cannot be ruled out. Some persons of acquaintance of each other may assemble and out of them some may poses knives, axes, in villages or near jungles. They may posses such articles for the purpose of saving themselves from the attacks from wild animals. Some persons of acquaintance of each other may assemble and out of them some may poses knives, axes, in villages or near jungles. They may posses such articles for the purpose of saving themselves from the attacks from wild animals. If they offer proper explanation, they cannot be roped in, for the charge of offences indicated by the provisions of section 399, 402 of IPC. 9. Patna High Court in the matter of Brijlal Mandal and others v. State of Bihar, reported in 1978 CriLJ 877, in a case where accused persons were sitting and talking in waiting hall of railway station which arose suspicion in the mind of informant and were caught by the police in possession of gun, vessel, torch, etc. has held that conviction cannot be recorded only on the basis of the fact that such a number of persons, some being armed were apprehended at the platform of the railway station. 10. Similarly Punjab and Haryana High Court in the matter of Ramesh and others v. State of Haryana, reported in 2008 CriLJ 1663, in a case where the prosecution evidence did not reveal that accused persons were speaking at high pitch of their tongue while holding alleged discussion to loot the petrol pump has held that it was not possible for police official to overhear alleged discussion. 11. Having examined the record of present case, it is noticed that trial Court has based the conviction of appellants on the statements of PW7 H.S. Chouhan, investigating officer, PW1 Pramod Kumar Patil, PW2 Chhagan Sarade, Head Constable, PW3 Ramesh Kumar Singh SHO, PW4 Ramesh Gahlot SHO and PW6 Constable Sanjeev Kumar as also on the basis of seizure of bow and arrow, axe, stick vide seizure memo Exs. P-3 to P-8. 12. There is no independent witness to support the prosecution case. Trial Court has placed reliance upon the statement of hostile independent witness PW5 Om Prakash but he has clearly stated that he did not know that police had arrested the appellants because they were planning to commit dacoity. He also stated that when he reached to the spot, hands of appellants were tied and police party was present on the spot and he had signed the Panchanama on the next day and he did not know the papers which he had singed. 13. He also stated that when he reached to the spot, hands of appellants were tied and police party was present on the spot and he had signed the Panchanama on the next day and he did not know the papers which he had singed. 13. That apart, PW7 H.S. Chouhan, is the complainant who himself had investigated the matter and conviction of appellants is mainly based upon his statement. As per statement of PW7, H.S. Chouhan, the appellants were making preparation for dacoity sitting in the field of Anoop Chand Gujar. Anoop Chand Gujar has been examined as DW1 who has stated that his agricultural field is on both side of road and there are no pits on his agricultural field and pits are on the eastern side of the road and if a person is sitting in the pit then he can see the person going on the road and person on the road can also see him. Statement of PW7 H.S. Chouhan is that he had seen the appellants sitting in pits (khanti). Hence it is highly improbable that appellants may not have seen the police party coming near them or no other independent witness passing from the road could have seen it. 14. Statement of DW3 Roop Singh reveals that appellants are tribal Tadabi by caste who normally carry bow and arrow, axe and lathi with them. Hence seizure of said weapons from them alone is not a circumstances for making out the alleged offence. 15. That apart, the conduct of appellants as reflected in the statement of prosecution witness is also not such from which a conclusion can be drawn against them. There is no cogent evidence of offering any resistance by appellants or making any attempt to run away. On the contrary the evidence is that the appellants were making preparation of dacoity in an agricultural field on the road side. Such circumstances create suspicion on the prosecution story. 16. The circumstances which are noted above are almost similar to the circumstances in the judgments which have already taken note of by this Hon'ble Court in former part of this judgment. 17. Hence on the basis of material available on record, I am of the opinion that prosecution has failed to prove the offence under section 399 and 402 of IPC beyond reasonable doubt. 17. Hence on the basis of material available on record, I am of the opinion that prosecution has failed to prove the offence under section 399 and 402 of IPC beyond reasonable doubt. Hence the conviction of appellants for said offence cannot be sustained and is hereby set aside. They be released forthwith if in custody and not required in any other case. 18. At the end, I appreciate the efforts put in by learned Amicus Curiae and valuable assistance rendered by him in the matter. The appeal is accordingly allowed.