Preparation for dacoity and assemblage for the purpose of committing dacoity under Ss. 399 and 402 IPC require specific proof of intent and preparation, respectively, and mere presence at a public place with certain items does not constitute an offense.

1. Each of the three appellants of this appeal was sentenced to six years rigorous imprisonment under. S. 399 of the I. P. C. (briefly stated the Code). They were further sentenced to six years rigorous imprisonment under S. 402 of the same Code. The sentences were ordered to run concurrently. The convictions and sentences were recorded by the First Assistant Sessions Judge, Santhal Perganas, Dumka.

2. Briefly stated, the prosecution case is that on September 3, 1968 at about 9-30 P.M. at night the appellants along with certain others were found sitting in the third class waiting hall of Mirzachawki Railway station within Sahebganj Police station in the district of Santhal Perganas and they were talking among themselves in a manner which aroused suspicion in the mind of P.W. 1 Ramdahin Ram, the informant. It appears that some persons including a constable arrived there. The appellants started running away. They were, however, chased and caught. Appellant Brijlal Mandal was apprehended at the time when he was entering into an empty wagon of a goods train. The other two appellants Lakhan Choudhary and Kamdeo Choudhary were apprehended at the Mirzachawki Chauraha. All the three appellants were of the district of Monghyr. Three more persons who also tried to run away were caught. They belonged to the district of Bhagalpur. Two of them died. The third one was also convicted under Ss. 399 and 402 of the Code and was similarly sentenced but it is not known as to whether he has filed any appeal or not. We are, however, concerned only with the three appellants who are of Monghyr district. According to the prosecution case a country made gun was recovered from the possession of appellant no. 1 Brijlal Mandal, a whistle was recovered from the possession of appellant no. 2 Lakhan Chaudhary and a torch of five cells was recovered from the possession of appellant no. 3 Kamdeo Chaudhary.

3. The defence of appellant no. 1 Brijlal Mandal was that he was going to his relation Kedar Singh and Ujagir Singh of village Babupur. The defence of the other two appellants was that they were going to the same village to purchase parwal creepers. According to the plea taken by the defence no boat was available to cross the river and, therefore, they had to wait in the waiting room at the railway station.

4. Learned counsel appearing for the appellants has not disputed the fact that the appellants were caught at the Mirzachawki railway station within Sehebganj police station. I may state here that there is overwhelming evidence adduced by the prosecution to show that the articles aforesaid, namely, a country made gun, a whistle and a torch of five of cells were recovered from the possession of the three appellants respectively. I would, therefore, uphold the finding of the court below with regard to the recovery of the aforesaid articles from the possession of the three appellants as alleged by the prosecution.

5. Learned counsel appearing for the appellants has urged that even on the facts found by the court below no offence either under S. 399 or S. 402 of the Code can be held to have been established. In my opinion, the contention is of substance. Sec.399 of the Code runs as under:

"399. Whoever makes any preparation for committing dacoity, shall be punished with rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine."

6. On a perusal of the provisions of the section it is quite clear that in order to convict a person of the offence under S. 399 the prosecution is bound to prove that he was making or has made preparation for committing dacoity. In the present case all that the prosecution proved was that several persons were sitting in the waiting hall at the railway station, that they started running away at the sight of the constable and were caught after chase. Nothing beyond this was proved by the prosecution. "Preparation" in my opinion consists in devising or arranging the means or measures for the