Honble Mrs. Poonam Srivastav, J.—Both the appeals have come up against a common judgment dated 6.6.1981 passed by the Vth Additional Sessions Judge, Varanasi convicting the accused Jabbar, Sadan and Mrityunjai in Sessions Trial No. 189 of 1980, under Sections 399, 402, I.P.C. and sentencing them to four years R.I. and also under Section 25 Arms Act awarding sentence of three months R.I. The two appeals arise out of the same judgment and, therefore, I proceed to decide both the appeals by a common judgment.

2. Despite cancellation of bail of the two appellants, their presence could not be procured and finally Sri Jeevanji Srivastava Advocate was appointed as Amicus Curiae by this Court videorder dated 30.10.2009. He has argued both the appeals today.

3. The occurrence is alleged to have taken place on 18.5.1980 at 3.20 A.M. in the vicinity of Railway Station, Varanasi Cantt., West of the Parcel Office, G.R.P. G.R.P. Police Station is situated at a distance of 300 yards. The F.I.R. about the preparation by the accused to commit dacoity was lodged on the same day i.e. 18.5.1980 at 5.10 A.M. by Sri R.S. Kushwaha, Station Officer, G.R.P.

4. The prosecution case as revealed in the F.I.R. Ex. Ka-4 and the statement of Sri R.S. Kushwaha, the first informant (PW-1) briefly is that Sri R.S. Kushwaha, S.O. G.R.P. Cantt. Varanasi received information from an informer at 2.30 A.M. on 18.5.1980 at the police station G.R.P., Varanasi Cantt. that a gang of dacoits would assemble on that night in the barsati towards the west of the Parcel Office, at the Railway Station, Cantt. and would make preparation for committing dacoity in the ‘Triveni Express’ train which would shortly arrive there. He collected the police force present at the police station, picked up two witnesses, namely Bindheshari and Ram Suresh and proceeded towards Parcel Office. He divided the police force and the public witnesses into two parties on the way near the R.M.S. Office. He kept the first party in his charge and the second party was given in the charge of Sri Paltan Yadava, S.I. After receiving necessary instructions from the S.O., the parties took cover near the Barsati at two different places from were they saw that five dacoits were sitting inside the Barsati, who were heard saying that they were sufficient in number and that Ustad was expert in the art of looting the passengers and that they should proceed to commit dacoity in the train. After being assured by their conversation that they were dacoits, the Station Officer, Sri R.S. Kushwaha challenged them and both the parties pounced upon the dacoits and succeeded in apprehending the three accused. Two of their companions made good their escape. On search, a country made pistol and 3 live cartridges were recovered from the possession of Jabbar accused and one knife each from the possession of the other two accused which were sealed on the spot and separate recovery memos for each accused were prepared on the spot which are Exs. Ka-1 to Ka-3. The sealed property and the arrested accused were brought to the police station where the informant lodged a verbal report on the basis of which Chik F.I.R. was prepared. The case was investigated by Sri Baleshwar Rai, S.I. O.P. G.R.P. Madho Singh, who submitted charge sheet against the accused on completing the investigation. He also obtained sanction from Sri R.N. Srivastava, Additional City Magistrate, Varanasi for the prosecution of the accused Jabbar under Section 25 Indian Arms Act.

5. The prosecution examined four witnesses in support of its case. Sri R.S. Kushwaha PW-1, Bindheshwari Singh PW-2 and Sri Paltan Yadava, S.I. G.R.P. Cantt. Varanasi PW-3 are the witnesses of the occurrence. Sri Baleshwar Rai S.I. PW-4 is the Investigating Officer.

6. The argument of Sri Jeevanji Srivastava is many folds. The first argument is regarding seizure of the knives from the appellants. It is alleged that the knife recovered from the possession of Mrityunjai accused had 6 in