Honble BANSAL, J.–This appeal is directed against the judgment dated October 18, 1984 passed by learned Additional Sessions Judge No.2, Bharatpur whereby he convicted and sentenced the appellants Asgar and Mazid as under :-

Asgar and Mazid each u/Sec. 399 IPC One years rigorous imprisonment with a fine of Rs. 100/- and in default of payment of fine to further undergo one months rigorous imprisonment.

u/Sec. 402 IPC One years rigorous imprisonment with a fine of Rs. 100/- and in default of payment of fine to further undergo one months rigorous imprisonment.

(2). Both the substantive sentences were ordered to run concurrently.

(3). According to prosecution, both the appellants alongwith co- accused Munna who has absconded during trial, were arrested by the SHO, P.S. Kumher (Distt. Bharatpur) PW-6 Narain Sahai and his party from Kundewali Dharamshala Situated in Kumher town on 29.3.82 at about 2:00 A.M. and one axe, two kattas (country made pistol) and three hand grenades were also seized from the accused. It was alleged by the prosecution that the accused were making preparation to commit dacoity in the house of Harcharan Lal and they assembled in Dharamshala for the purpose of committing dacoity, it was also alleged by the prosecution that on seeing the police, the remaining accused fled away and could not be arrested. A case was registered under Sections 399 and 402 IPC and 3/25 The Arms Act by the SHO, Narain Sahai. FIR is Ex.P.10. During investigation no other accused was arrested. On completion of investigation, a chargesheet was laid against the appellants and the accused Munna in the Court of Judicial Magistrate No.1, Bharatpur who committed the case to the Court of learned Sessions Judge, Bharatpur. The file was received by Additional Sessions Judge No.2, Bharatpur on transfer and he framed charges under Sections 399 and 402 IPC against the appellants and co-accused Munna. Both the appellants and the co- accused Munna pleaded not guilty and claimed to be tried.

(4). The prosecution examined as many as seven witnesses in support of its case. In their statements recorded under Section 313 Cr.P.C., both the appellants stated that after reaching Kumher to purchase cattles they had gone to the house of Munnas brother-in-law but it was found locked and thereafter they reached at the temple. When they were sleeping the police came there, arrested them and took them to the police station. In defence DW-1 Jagdish Prasad Sharma was examined. As stated above, during trial co-accused Munna absconded.

(5). Learned Additional Sessions Judge after hearing the final submissions made by learned counsel for the accused-appellants and learned Public Prosecutor, convicted and sentenced the appellants as indicated here-in-above.

(6). I have heard learned counsel for the appellants, learned Public Prosecutor and have also perused the record of the trial Court as well as the impugned judgment.

(7). Learned counsel for the appellants has contended that the prosecution has failed to prove both the charges framed against the appellants and they have wrongly been convicted by the trial Court. Learned counsel has submitted that from the evidence adduced by the prosecution, it is not proved that the appellants were the members of the assembly consisting of five or more persons and, therefore, the appellants cannot be held guilty under Section 402 IPC. It has also been contended by learned counsel for the appellants that the prosecution has also failed to prove that five or more persons were making preparation to commit dacoity or robbery was to be committed by five or more persons and in these circumstances no offence under Section 399 IPC is also made out against the appellants. Therefore, the appellants are entitled to be acquitted from both the charges and their appeal deserves to be allowed. Learned Public Prosecutor has supported the impugned judgment.

(8). I have given my thoughtful consideration to the submissions made by learned counsel. Dacoity ha

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