JUDGMENT : Both these appeals have been filed challenging the conviction and sentence in S.C.No.132 of 2005 on the files of the Additional Sessions Court (Adhoc-III), Kollam (for short 'the court below') . 2. The appellant in Crl.A.No.2083 of 2006 is the accused No.4 and the appellants in Crl.A.No.2187 of 2006 are the accused Nos.2 and 3. 3. The crime was registered by the Punalur police station suo motu against the five accused persons for the offence punishable under Section 402 of IPC. The prosecution allegation is that when PW4, the Sub Inspector of Police, and PW1, the Police Constable, Punalur police station, were conducting patrolling duty on 14.08.2004 at 11.00 p.m., they got reliable information that few persons were assembled at the school near to the Punalur hanging bridge in suspicious circumstances. Accordingly, they reached the said place at 11.45 p.m., where they found the accused Nos. 1 to 5 sitting at the southern end of the veranda of the school building carrying weapons such as iron rod, ring spanner and chopper. According to the prosecution, they assembled for the purpose of committing dacoity. Accordingly, crime was registered against them by PW1 as Crime No.333 of 2004. PW4, who detected the offence, himself conducted the investigation and filed the final report. 4. All the accused appeared at the court below and faced trial for the offence punishable under Section 402 of IPC. On the side of the prosecution, PWs 1 to 4 were examined and Exts.P1 to P10 were marked. MOs 1 to 3 were identified. No defence evidence was adduced. After trial, the court below found all the accused guilty of the offence punishable under Section 402 of IPC and they were convicted for the said offence. They were sentenced to undergo simple imprisonment for two years each. Challenging the said conviction and sentence, the accused No.4 preferred Crl.A.No.2083 of 2006 and the accused Nos.2 and 3 preferred Crl.A.No.2187 of 2006 5. I have heard Sri.K.Abdul Jawad, the learned counsel for the accused No.4, Sri.K.S.Manu, the learned counsel for the accused Nos.2 and 3 and Smt.Rekha S., the learned Senior Public Prosecutor. 6. The learned counsel for the appellants impeached the findings of the court below on appreciation of evidence and resultant finding as to the guilt. I have heard Sri.K.Abdul Jawad, the learned counsel for the accused No.4, Sri.K.S.Manu, the learned counsel for the accused Nos.2 and 3 and Smt.Rekha S., the learned Senior Public Prosecutor. 6. The learned counsel for the appellants impeached the findings of the court below on appreciation of evidence and resultant finding as to the guilt. The learned counsel submitted that there is absolutely no material on record to prove that the accused assembled at the place of occurrence for the purpose of committing dacoity. The learned counsel further submitted that the conviction was solely based on the oral testimony of the official witnesses and two independent witnesses examined did not support the prosecution case. The detection and investigation were conducted by the very same officer, and it has caused prejudice to the accused, added the learned counsel 7. The learned Public Prosecutor, on the other hand, supported the findings and verdict of the court below and argued that necessary ingredients of Section 402 of IPC have been established and the court below rightly convicted the accused. 8. As stated already, PWs 1 to 4 were examined on the side of the prosecution. PW4 is the SI of police who detected the offence, conducted the investigation, and filed the final report. PW1 is the Police Constable, who accompanied PW4, and witnessed the detection of the case and seizure of MOs 1 to 3 from the possession of the accused. PWs 2 and 3 are the independent witnesses. They did not support the prosecution. The court below solely relied on the evidence of PWs 1 and 4 to prove the incident and to fix the culpability on the accused. 9. PW4 deposed that on 14.08.2004 at about 11 p.m., in the night, on getting reliable information that four to five persons had assembled at the school situated near to the Punalur hanging bridge, he along with PW1 proceeded to the spot where they found the accused Nos. 1 to 5 sitting on the veranda of the school carrying weapons in their hands in suspicious circumstances. He further deposed that on questioning them, they gave inconsistent reply, and he was convinced that they assembled there for the purpose of committing dacoity. He also deposed that thereafter he arrested the accused and seized the weapons carried by them as per Ext.P1 mahazar. The weapons were identified as MOs 1 to 3. He further deposed that on questioning them, they gave inconsistent reply, and he was convinced that they assembled there for the purpose of committing dacoity. He also deposed that thereafter he arrested the accused and seized the weapons carried by them as per Ext.P1 mahazar. The weapons were identified as MOs 1 to 3. PW1 gave evidence in tune with the evidence given by PW4 regarding the detection of the case, seizure of MOs and arrest of the accused. True, the evidence of PW1 and PW4 establishes that accused Nos.1 to 5 were found at the veranda of the school situated near to the Punalur hanging bridge carrying MOs 1 to 3 weapons in their hands. But the crucial question is whether mere assembly of the suspects carrying weapons is sufficient to attract the offence under Section 402 of IPC. 10. Section 402 of IPC contemplates a stage when the whole project still lies in the realm of design and intention without there being any intent to give concrete shape to intention. Before it can be attracted, it must be shown that the assembly was for committing dacoity. Mere assembly of five or more persons or mere arrest of the accused at the spot and recovery of weapons from their possession are not sufficient to attract the offence under Section 402 of IPC. The prosecution has to further prove that the said assembly was for the purpose of committing dacoity. The purpose of assembly, of course, could be deduced from the circumstances. Thus, in order to sustain a conviction under Section 402 of IPC, the prosecution must establish beyond reasonable doubt by acceptable evidence, either direct or circumstantial, that there had been an assembly of one of five or more persons constituted for the purpose of committing dacoity and that the accused persons were members of that assembly. 11. Here is a case where apart from the oral testimony of PWs 1 and 4, there is absolutely nothing to suggest that the assemblage by the accused Nos.1 to 5 was for the purpose of committing dacoity. PWs 1 and 4 gave evidence that on questioning the accused, they entertained a suspicion that the assemblage of the accused was for the purpose of committing dacoity. Based on the said suspicion, the crime was registered. PWs 1 and 4 gave evidence that on questioning the accused, they entertained a suspicion that the assemblage of the accused was for the purpose of committing dacoity. Based on the said suspicion, the crime was registered. Mere suspicion on the part of the police officer, who detected the offence, is not sufficient to prove that the purpose of the assembly was for committing dacoity. PW4, in cross examination, deposed that when he questioned the accused, one of them stated that they were sitting there simply and another one stated that his mother was hospitalized at Punalur hospital and therefore, he came there to sleep. The 3rd one stated that he came there after the second show movie. To a specific question, PWs 1 and 4 stated that they did not hear any conversion between the accused. There was no evidence of any preexisting conspiracy pursuant to which the accused had assembled there nor was there any circumstances to indicate that accused were present on the spot with an intention to commit dacoity. Thus, the suspicion entertained by PW4 that the accused assembled at the place of occurrence for the purpose of committing dacoity was without any basis. That apart, two independent witnesses examined did not support the prosecution case. Merely because a group of persons, some being armed, were found at the place of occurrence in suspicious circumstances, it cannot be said that they had assembled there for the purpose of committing dacoity unless there is evidence to show that the association was for the purpose of committing dacoity. As stated already, such an evidence is lacking in this case. The finding of the court below that mere assembly of persons without any proof of other preparation warrants conviction under Section 402 of IPC is wrong and cannot be sustained. 12. In the light of the above findings, I hold that the prosecution has miserably failed to prove the ingredients of Section 402 of IPC. Hence, the conviction and sentence passed by the court below against accused Nos.2 to 4 cannot be sustained and accordingly they are set aside. The appellants/accused Nos. 2 to 4 are found not guilty of the offences charged against them and they are acquitted. Their bail bonds are cancelled. The appeals are allowed as above.