IMPORTANT POINT
Mere fact that five persons were found at about midnight in children park and were armed with pistol with live cartridges and live bombs does not by itself and prove that they had assembled for committing dacoity.

JUDGMENT

A.K. Prasad, J. - Cr. Appeal Nos. 242. 232. 274 and 318 of 1998 which arise out of the common judgment have been heard together and are being disposed of by this common judgment.

2. The sole appellant in Cr. Appeal No. 242 of 1998 is Md. Sahid @ Mustaque @ Ramesh, whereas the lone appellant in Cr. Appeal No. 232 of 198 is Mahendra Choudhury. Romesh Mondal and Tuntun Bhuiyan are the appellants in Cr. Appeal Nos. 274 and 318 of 1998. All the appellants have been convicted under Sections 399 and 402 of the Indian Penal Code. They have been further convicted under Sections 25 (1-B). 26/35 of the Arms Act and under Section 5 of the Explosives Substances Act and have been sentenced to rigorous imprisonment for five years under Section 399 three years under Section 402 of the Indian Penal Code three years under Section 25 (I-B) of the Arms Act, three years under Sections 26/35 of the Arms Act, and five years under Section 5 of the Explosives Substances Act, by the impugned judgment and order in S.T. No. 246 of 1997 passed by Sri Md. Khursid Alam then Additional Sessions Judge. Hazaribagh. However, the sentences have been ordered to run concurrently.

3. The prosecution case, briefly stated, is that on 28/29-3-1997 at about 11 p.m. when Vivekanand Thakur (P.W. 5/the informant), the then officer-incharge, Dhansar Police Station, with police force, including Anejani Kumar (P.W. 6), the Assistant Sub-Inspector of Police and Civil Paswan (P.W. 8) the Junior Sub-Inspector of Police, was on patrolling duty and while on way near Chandmari Colliery. around 11.15 p.m. he got confidential information that some miscreants had assembled in the children park at Manjhi Basti for committing some crime, where upon he picked up Ramasis Bhuiyan (P.W. 1) and Jago Raja (P.W. 2) the residents of the locality and went to the children park at about 11.45 p.m. overheard the whispers coming from the northern side corner of the park, surrounded the assembled miscreants, and challenged them by flashing his torch. whereupon the miscreants fled in commotion and five of the miscreants including the appellants/accused were apprehended. It is alleged that one unlicensed country made pistol, loaded with one live cartridge, was recovered from the possession of the appellant/Mahendra Choudhury, which was hidden round his waist while the live-bomb each, was seized from the possession of the other four accused/appellants and three bhujalis and iron rod some empty wine bottles, glasses and two patties (leaf plates) were found abandoned, near the place of assemblage of the miscreants, which were seized under the seizure list (Exhibit 3/5). It is further alleged that the loaded fire-arm and the hand-made bombs were seized from the possession of the accused/appellants under the separate seizure lists, in presence of the witnesses. . Further allegation is that on inquiry, the accused/appellant (Mahendra Choudhury) disclosed before the informant that they had assembled and made preparation to commit dacoity in East Bastacola. Sri Ram Nagar. Ultimately the informant prepared a written report (Exhibit 4) on the basis of which the present case came to be instituted, a formal first information report (Exhibit 5) was drawn up, investigation of the case as entrusted to P.W. 8 (Civil Paswan), the seized unlicensed pistol, loaded with live cartridge were sent to the Sergeant Major (P.W. 7) for examination and expert's opinion the seized bombs were deactivated and a sample of deactivated bombs was sent to the Regional Director, Forensic Science Laboratory, Ranchi for examination and report, intimately, on completion of investigation and after obtaining sanction from the competent authority for prosecution under the Arms Act as well as Explosives Substances Act, charge-sheet was laid in Court against the accused/ appellants, including the co-accused/convict (Biswajit Rajwar). The case was, ultimately, committed to the Court of Sessions by Sri S.P. Pandey the then Judicial Magist