JUDGMENT

Anil Sharma, J.— This judgment shall govern the disposal of Criminal Appeal No.129/2006 and Criminal Appeal No.140/2006 arising out of a common judgment dated 17.1.2006 passed by learned Special Judge.

2. These appeals have been filed by the appellants under Section 374 of Code of Criminal Procedure, 1973 against a common judgment of conviction and sentence dated 17.1.2006 passed in SST No.14/04 by learned Special Judge (Dacoity), Datia whereby the appellants have been convicted for the offence under Section 402 of IPC read with Section 13 of Madhya Pradesh Madhya Dacoity Vyapharan Prabhavit Kshetra Adhiniyam (for brevity MPDVPK Act) and under Section 25(1)(1b)(a)of Arms Act and they have been sentenced to undergo 3 years’ RI with fine of Rs.1,000 and 1 year’s RI with fine of Rs.500 respectively each with default stipulation.

3. The brief facts of the case are that on 26.3.2004, Station House Officer U.S. Tomar, Police Station Indargarh District Datia has received an information through informer that some anti-social elements are making preparation of committing dacoity in the house of Ramjisharan. Thereafter, two teams have been formed and police party has arrested four persons including the appellants and two persons have succeeded in escape from the spot. Appellants were armed with firearm. After registering the FIR, challan has been filed and learned trial Court after trial of the case has convicted the appellants as mentioned in paragraph 2 of this judgment. But learned trial Court vide impugned judgment has acquitted the appellants from the offence under Section 399 of IPC and under Section 27 of Arms Act.

4. Feeling aggrieved by the impugned judgment of conviction and sentence, appellants have filed these appeals on the ground that learned trial Court is not justified in convicting the appellants on the sole and uncorroborated testimony of Investigating Officer U.S. Tomar. Learned trial Court is further not justified in convicting the appellants as the seized arms and ammunition have not been produced at the time of trial.

5. The moot question for consideration in these appeals is whether learned trial Court is justified in convicting the appellants by the impugned judgment.

6. Learned counsel for the appellants have submitted that the statement of police officers regarding conversation between the accused persons for making preparation to commit dacoity in the house of Ramji Patsariya on some earlier dispute of Holly Festival has not been confirmed by Ramji Patsariya (PW6). The independent witness Siyasharan (PW2) and Ashique Ali (PW3) who are the witness of whole incident have turned hostile and not supported the prosecution story.

7. Learned counsel for the appellants have submitted that the appellants have been acquitted from the charge of offence under Section 399 of IPC which contains the provisions for convicting the accused for the act of making preparation to commit dacoity on the other hand learned trial Court has convicted the appellants under Section 402 of IPC which relates to assembling for the purpose of committing dacoity. According to learned counsel for the appellants the findings of learned trial Court are self-contradictory as when the appellants have not been found guilty for making preparation to commit dacoity their conviction for assembling for the purpose of committing dacoity is not sustainable.

8. Learned counsel for the appellants submitted that in support of prosecution story there are only statements of police personnel ASI Santosh Sharma (PW1), ASI Parmanand Sharma (PW8) and Station House Officer U.S. Tomar (PW9) who have stated that when they have reached at the spot they have heard the conversation of appellants alongwith other co-accused persons who were talking about commission of dacoity in the house of Ramjisharan. They have also stated that from appellant (Jitendra Soni) one Lohangi and two live cartridges of 12 bore gun have been seized vide seizure memo Ex.P4 and from ap