JUGDMENT - CHITRE J.G., J.:---Heard Shri Shringarpure, A.P.P. for the prosecution. The appellant is hereby assailing correctness, propriety and legality of the order of conviction and sentence passed against him, in Sessions Case No. 160 of 1996, wherein the appellant has been convicted for the offence punishable under provision of sections 399 and 402 of Indian Penal Code. The appellant has been sentenced to undergo rigorous imprisonment for four years and to pay fine of Rs. 1000/-, in default to undergo rigorous imprisonment for one month in context with provisions of section 399 of Indian Penal Code. He has been sentenced to undergo rigorous imprisonment for three years and to pay fine of Rs. 500/-, in default to undergo rigorous imprisonment for fifteen days for the offence punishable under section 402 of Indian Penal Code.

2. The prosecution case, in brief is that on 16-10-1995, at 3.30 p.m. the Station House Officer, P.S.I. Gavaonkar, attached to R.K. Kidvai Police Station, received secret information that some seven unknown persons armed with dangerous weapons have assembled at Comrade, G.L. Patil, Municipal Corporation Market, Acharya Gonde Road, Seweree, Mumbai for committing dacoity at Lokmanya Jwellers Shop, situated in the near vicinity. After receiving said information, the police staff of the said Police Station went to the said spot, they divided themselves in two groups, and P.W. 1 Gaonkar went ahead near those persons. He heard the said persons giving instructions as to how they should behave at the time of said dacoity. He gave a signal to other persons, and all members of the raiding party caught 4 of them. However 3 out of them managed to run away. Panch witnesses were called. The person, of apprehended persons searched. They found a country made revolver in possession of one Irshad, a chopper in possession of the present appellant and some other weapons in possession of other accused. After investigation, the appellant was put to trial with other associates and after trial the learned trial Judge, passed the order of conviction and sentence mentioned above.

3. The prosecution evidence shows a great deal of variance in respect of the evidence about Irshad giving instructions to other members as to how the said dacoity is to be effected. Had there been truth in the prosecution evidence, the evidence of other prosecution witnesses would have been consistent with the evidence of P.W. No. 1 who claims that he heard the said person giving instructions to those persons. Apart from that, the evidence adduced by the prosecution in this case touching the case of this appellant is so unnatural that it cannot be accepted for basing a conviction, because it is alleged by the prosecution that this appellant was possessing a chopper, which was seized from him under panchanama. There is absolutely no mention of it in the statement of P.W. 1. The F.I.R. has been lodged by him two hours after reaching the Police Station, for which the prosecution was unable to give any satisfactory explanation. Had there been a chopper in possession of the present appellant, it would have been certainly mentioned by him in F.I.R. But that has not been done and there is no acceptable explanation coming from the prosecution. The possession of the chopper is the only evidence against the appellant so far as the said crime is concerned.

4. The possession of chopper, knife, an axe, a dagger, 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 convicting 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, if spelled out. Such persons cannot be punished under s

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