A.M. Badar, J.

This is an appeal by accused no.4 before the learned Additional Sessions Judge, Greater Bombay, Mumbai, challenging his conviction for offences punishable under Sections 399 and 402 of the IPC, for which offences he is sentenced to suffer rigorous imprisonment for 3 years and 2 years respectively apart from payment of fine of Rs.1,000/- on both counts.

2. Briefly stated, the case of the prosecution is as follows :

(a) That accused persons along with their associates assembled at Chamarbaug Lane near Mahalaxmi Temple, Parel, Mumbai, for the purpose of committing dacoity while armed with weapons like choppers revolvers etc. and they were making preparations to commit dacoity at Nakoda Jewellers, Parel. Some of them were apprehended on the spot itself and were found in possession of fire arms and arms in contravention of the provisions of Indian Arms Act.

(b) It is the case of prosecution that PW4 Narayan Ingale, Senior Police Inspector of Bhoiwada Police Station received the telephonic message from his Informer to the effect that some persons would be assembling at Chamarbaug Lane, Parel, for the purpose of committing dacoity at the jewellery shop. PW4 Narayan Ingale then formed team of police officers for apprehending robbers by laying a trap. They all then went to Chamarbaug Lane. One taxi came there from which three persons alighted and went near the Mahalaxmi Temple. Soon thereafter, a second taxi arrived from which four persons got down and joined the trio. Police suspected movements of those persons. Hence, PW2 Rajendra Ranmale, Police Officer, with one constable went near them and heard their conversation and found that they were making preparations and had assembled there for committing robbery on a jewellery shop. The police team was then signaled and five persons came to be apprehended from the spot where as two succeeded in fleeing from the spot. In presence of panchas, personal search of apprehended persons came to be taken. Accused Gopal Shetty (who absconded during the trial) was found to be possessing a chopper and a pager. Accused no.2 Sukesh Shetty was found to be in possession of a country made revolver with live cartridges. Accused no.3 Raju Pujari was found to be in possession of one chopper. Nothing was found in possession of the present appellant/accused. All weapons were then seized by preparing panchnama. Routine investigation followed and ultimately accused persons came to be charge-sheeted.

(c) During trial, the prosecution has examined in all five witnesses including panch witnesses and police officials. In rebuttal, the appellant/accused examined defence witness named Jitendra Koli. After hearing the parties, the learned trial court by the impugned judgment and order dated 4th September 2002 in Sessions Case No.375 of 2001 was pleased to convict accused nos.1 to 4 of offences punishable under Sections 399 and 402 of the IPC and they were sentenced as indicated in the opening paragraph of this judgment.

3. Heard Ms. Nasreen Ayubi, the learned advocate for the appellant/accused. She vehemently argued that nothing came to be seized from possession of the appellant/accused and as such it cannot be said that he was in company of co-accused after making preparations to commit dacoity and had assembled with them for the purpose of committing dacoity, while armed with deadly weapons. As against this, the learned APP supported the impugned judgment and order of conviction by arguing that by examining necessary witnesses, offences are proved by the prosecution.

4. I have carefully considered rival submissions and have perused the record and proceedings.

5. PW4 Narayan Ingale, Senior Police Inspector of Bhoiwada Police Station, has deposed that on 30th September 1999, at about 19.00 hours, he received a telephonic message from his Informer to the effect that some persons would be assembling at Chamarbaug Lane, Parel, for the purpose of committing dacoity at a jewellery shop. PW4 Narayan Ingale f