M.R.HARIHARAN NAIR, J.

The challenge in the revision ism with regard to the conviction entered against the petitioner as 4th accused in SC 144/1993 of the principal Assistant Sessions Court, Trivandrum, which was confirmed by the Third Additional Sessions Judge, Trivandrum in Crl.A. 245/1993.

2. The prosecution alleged that a about 3.30 am, on 23.2.1993, the six accused in the case were found assembled in front of the outer gate of the office building of the goods transport near Thampanoor Overbridge, Trivandrum and that their presence was for the purpose of committing dacoity. Though the petitioner and the other accused denied the charges, they were found guilty of the offence under Section402 of the I.P.C. and sentenced to undergo R.I. for three years each.

3. There is nothing to show that the other accused in the case have filed any appeal or revision and hence this appeal was heard separately.

4. Sri. Pirappancode V.S. Sudheer, who appeared for the petitioner submitted that the court has proceeded to convict the petitioner based on assumptions and not based on any legal evidence. According to him sustaining the conviction under sec. 302 of the I.P.C. the prosecution is bound to show, besides the fact that the petitioner was one of six persons assembled there, that such assembly was for the purpose of committing dacoity and there is absolutely no evidence available in the case to establish the latter aspect.

5. On the arguments advanced in the case, the points that arise for decision are:-

1. Whether there is reliable evidence to find that the accused has committed the offence under Sec. 402 of the I.P.C.?

2. Whether the conviction and the sentence imposed on the petitioner deserves to be set aside?

6. Point No.1:- Sec. 402 of the I.P.C. reads as follows:-

“Assembling for purpose of committing dacoity:- Whoever at any time after the passing of this Act, shall be on of five or more persons assembled for the purpose of committing dacoity, shall be punished with rigorous imprisonment for a term which may extend to seven years, and shall also be liable to fine.”

It is obvious from the definition itself that for sustaining a conviction under the section, the prosecution has to establish reliable evidence to show that the assembly of five persons or more was for the purpose of committing dacoity. It is not always possible to find out the intention and purpose of the persons assembled. The purpose has hence to be deduced from the facts and circumstances established in the case. Such facts and circumstances must show that the assembly of the persons was only for the purpose of committing dacoity. If there is evidence to show that they have assembly after conspiring to commit dacoity that will certainly justify the court in inferring that the Assembly was for the purpose of committing dacoity though no other overt Act, is evident. Since the essence of the crime lies in the assemblage of men with particular purpose, it is for the prosecution to establish that aspect through acceptable evidence; may it be direct or circumstantial. Suffice it to say that such evidence should point invariably t the purpose aforementioned. The established facts and circumstances must therefore justify an inference with regard to the existence of an intention to commit dacoity.

7. In the instant case the established facts are that:-

1. There was an assembly of six persons of whom the first accused had a dagger at his waist underneath the shirt worn by him.

2. They were seen at an untimely hour and they tried to run away on seeing the police.

3. There is no satisfactory explanation to justify their presence at the spot.

4. Accused Nos. 1and 4 were convicted previously for the offence under sec. 48© of the Act.

8.As against the said aspects the points in favour of the accused are:-

1. There was no previous incident of dacoity in which these accused were involved.

2. Excepting the first accused, the others had no weapon in their possession.

3. There was