IMPORTANT POINT
Same person or same set of persons may be committed either under section 399 or under section 402, I.P.C.

JUDGMENT

H.G. Chaudhuri, J.-Six appellants upon their conviction under sections 399 and 402. Indian Penal Code and sentence of four years' R.I. for each of the offences and a fine of rupees one thousand each, in default, R.I. for one year each by Assistant Sessions Judge, Birbhum in Sessions Trial No. 2 of September 1978 filed this appeal from jail. The sentences have been ordered to run consecutively. One of the appellants Sunil Bagdi (appellant No. 3) is reported to have died in jail in the meantime. Mr. H.P. Jaiswal the learned Advocate volunteered to argue the appeal on behalf of the appellants as an Amicus Curiae and we appreciate his service and spirit. Mr. Mukti Prosonno Mukherjee the learned Advocate represents the State Government as respondent.

2. The prosecution case may be briefly stated as follows: On 23.6.1971 corresponding to 8th Asar, 1378 B.S. the appellants along with some other numbering in all 15 or little more were seen assembled below a tamarin tree on the Western bank of a tank locally known as Gutinga tank in village Bilashpur, P.S. Murari. It is alleged that the accused and others were Been preparing bombs under the tree. Some villagers organizing themselves as resistence party were then patrolling the village to keep off undesirable and anti-socials. The suspicion of the members of the said party arose because they saw the accused flashing their torch lights from beneath the tamarinds tree and they were also whispering amongest themselves suspiciously. It is alleged that the said villagers pursuaded some more villagers to join them and they encircled the Western bank of the tank and came near the accused to arrest them. As a matter of fact they managed to arrest nine persons of whom six eventually faced the sessions trial. Others, however, managed to escape. It is alleged that the accused bad powders of different kinds suspected to be gun-powder or explosive substance, sheets of paper, cloth bags, torch lights and quantity of thread with them and railway tickets. After their arrest, they disclosed their names and made a further disclosure that they had come to the village to commit a dacoity and were preparing themselves for the said operation. A police officer (P.W. 7) came on patrol duty to the village at 12.30 mid-night and P.W. 1 made over to him- a written complaint giving the hour of occurrence as 22 hrs. on 23.6.1971. The formal F.I.R., however, was drawn, up on 24.6.1971 at 5 A.M. The learned Assistant Jugde at the commencement of the trial framed three-fold charges against the accused, firstly, under section 40l, Indian Penal Code, secondly, under section 399, Indian Penal Code and thirdly, under section 6(3) of the Indian Explosives Act. At the conclusion of the trial upon materials on record, including evidence, the learned Judge held that the charge under section 6(3) of the Explosives Act was not proved. He accordingly found the. accused not guilty of the said charge. In respect of the other two charges the learned Judge has concluded that the charges were proved. The learned Judge, however, bas not recorded his findings with regard to the charges under' sections 402 and 399 separately nor has he discussed in details each of the constituent elements of offences which were proved beyond reason able doubt.

3. Section 354 of the Criminal Procedure Code requires that a judgment shall contain the point or points for determination, the decision thereof and the reasons for the decision and shall specify the offences of which and the section of the Indian Penal Code under which the accused is convicted. Unmindful of the said provision the learned Judge formulated the point for decision as follows:

"The' point for determination is if the prosecution has been able to prove its case beyond reasonable doubt.

We take exception to the above formulation because it does not indicate that the learned Judge had in his mind free-fold offences alleged against the accused. If he had that in mind he would hav