IMPORTANT POINT
The prosecution must prove from some evidence directly or indirectly or from attending circumstances that the accused had assembled for no other purpose then to make preparation for commission of dacoity in charges under sections 399/402 I.P.C. If the evidence fails short of this, the case must fail.

JUDGMENT

Ram Nandan Prasad, J. - These two appeals have been heard together and are being disposed of by a common judgment as they are directed against the same judgment.

2. Mohammad Hussain is the sole appellant in Criminal Appeal No. 192 of 1982, whereas there are two appellants in Criminal. Appeal No. 319 of 1982, namely, Sadique Mian and Jamadar Hajra. Out of these two appellants, Sadique Mian died during the pendency this appeal and as such the appeal abates so far as he is concerned. Now Criminal Appeal No. 319 of 1982 is confined to only one appellant, namely, Jamadar Hajra. Both the appellants, namely, Mohammad Hussain and lamadar Hajra have been convicted under Sections 399 and 402 of the Indian Penal Code and have been sentenced to undergo rigorous imprisonment for 7 years each. On both the courts, their sentences have, however, been made to run concurrently.

3. The prosecution case is that in the evening of 7-2-1975 informant Bachcha Singh officer-in. charge of Raxaul police station, received a confidential information that some dacoits were to assemble in - an orchard of village Bharath Mahl Tola Baluaha with a view to commit dacoity in that village. On receipt of this information, he organised a raiding party and proceeded towards the said place. When he reached near the said orchard, he divided his raiding paI1y into two groups- one of which was led by him and the other by Sub-Inspector Mehdi Abbas. The party led by the informant comprised of 5 persons and the party led by Mehdi Abbas comprised to 8 persons in all. These two groups, proceeded towards the orchard from, two directions-one from southern direction and the other from south-eastern direction. When they were about 50 yards from the orchard, some members of the raiding party flashed torch in the light of which they found about 20 persons sitting in the orchard in suspicious circumstances. On seeing the flash of torch those persons started running but they were chased and. ultimately the raiding party succeeded in apprehending five dacoits and the others managed to flee away. On hearing alarm raised by the raiding party. 7 persons of the locality came and saw those 5 persons to the custody of the police party. These apprehended persons disclosed their names and addresses etc. They also disclosed the names of the persons who-had managed to flee away. Thereafter a search was made and a country-made gun was recovered from the hand of Mangal Kurmi and two live cartridges were recovered from the shirt of Jamil Mian who were remongst those 5 apprehended persons. These two persons however, died during the pendency of the commitment proceeding and consequently only three appellants were put on trial, out of whom, as stated above, one of them, namely Sadique Mian died during the pendency of the appeal. It is said that one Faraa, one Tanqi, three green bamboo Lathis, five Phattaa and some unburnt ends of Bidia and match sticks were also found at the place of the apprehended persons. The informant seized all these articles and drew up his own Fardbeyan at about I a.m. on 8-2-1975 in the orchard itself and took up investigation. Eventually a case was registered on the basis of that Fardbeyan. In due course, charge sheet was submitted and the three appellants were put on trial with the result as stated above.

4. The defence of the appellants was that they were not apprehended in the orchard rather they were arrested by the police at different places and have been falsely implicated in the case. The specific defence of appellant Mohammad Hussain was that he was dealing in eggs at Blrganj and has been falsely Implicated by the Raxaul police as he could not oblige them with eggs.

5. At the trial, the prosecution examined 8 witnesses in all, out of whom. P. W. 8 is a formal witness and P.W. 2 is the Police Officer who had submitted charge-sheet in the case. P.W. 1, Gorakh Thakur is a Dafadar and P.W 6 Bishwanath Singh and P.W 7, Gaya Tiwary are Assistant Sub-Inspectors of