1. Both the appeals arise out of the one and the same judgment of the trial Court. The appellants have been held guilty and convicted of the charges under Ss. 399 and 402 of the Penal Code (hereinafter to be referred to as the Code) and each one of them has been sentenced to undergo rigorous imprisonment for seven years under each count.

2. According to prosecution, the Police Patrol Party, while on round duty got some scent that a few persons had assembled in a house which was under construction, made a raid and succeeded in apprehending all the three appellants. But a few of them numbering about four could manage to escape. Incriminating articles like firearms, some bombs and Bhujali were recovered from their possession. The prosecution alleges that the appellants along with others had assembled for the purpose of committing dacoity and that they were making preparation for the same.

3. The appellants were taken into custody. The incriminating articles recovered by the police were seized and a seizure list was also prepared in presence of two independent witnesses, namely, P. Ws. 5 and 6. The accused appellants were taken to police station. S.I. of police Ram Rekha Singh (P.W. 4) who was in the raiding party gave statement before the Officer-in-charge of Dhanbad Police Station. On the basis of that, the first information report was drawn up and the case under S. 399 read with S. 402 of the Code was registered. The same witness i.e. the informant (P.W. 4) was entrusted with the job of investigation. After completing investigation, charge-sheet was submitted and the accused-appellants were thus put on trial. In the first information report, it has been said that the appellants had confessed before them that they had assembled there for the purpose of committing dacoity.

4. Seven witnesses were examined at the trial stage. P. W. 1 is a witness of formal character. P.Ws. 2 and 3 are the police officials who were in the raiding party along with P.W. 4 S. I. Ram Rekha Singh. P.Ws. 5 and 6 were brought in Court to speak about the arrest and seizure but they did not support the prosecution version and both of them were declared hostile by the prosecution. P.W. 7 is another police constable who was also in the raiding party.

5. Mr. M.K. Laik appearing in Criminal Appeal No. 10 of 1984 (R) for appellant Gholtu Modi has submitted that the prosecution could not prove the fact that there was any assemblage for the purpose of commission of dacoity or the appellants were making any preparation for commission of such offence. It has also been urged that even if the entire evidence of the prosecution is taken into consideration, all that can be gathered is that the appellants had assembled in a house at some odd hour but it could not be said that they were making any preparation for commission of dacoity or the assemblage was for that purpose.

6. Mr. Chhabra, counsel for the other two appellants in Criminal Appeal No. 49 of 1984 (R) has also advanced similar argument. The learned Advocate has further submitted that even recovery of incriminating articles from the possession of the appellants or from the place where they were sitting would not prove the charge. It has been argued that even the trial Court was probably conscious of the fact that mere assemblage and recovery of some incriminating article do not prove the charge. The learned Judge in para 10 of the judgment impugned has said that the simple fact that the accused persons were found sitting in a lonely place in the dead hour of night and some firearms were recovered from their possession cannot lead to the conclusion that the accused had assembled for the purpose of committing dacoity.

7. The trial Judge was also conscious of the fact that the statement in the first information report that the accused persons had confessed that they were sitting there for the purpose of committing dacoity is inadmissible in law. But it appears that the learned Judge while appreciating the