R. CHANDRA, J. :-Jagnu and Mahesh Singh, residents of village Jamsara, Mina of Chandrapur, Mohan of Kantha, Rampal Singh and Ram Singh of Masurha, Jawahar, Chhotey Lal and Gayari of Virahimpur, Harihar Singh of Jagsura - all within the police circle Sandila - and Sumer of village Sahoria, within the police circle Baghauli, in the district of Hardoi, were tried for the offences under Section 399/402, Indian Penal Code, by the Assistant Sessions Judge Hardoi. The charge against them was that on the night between the 18th and 19th December, 1963 they collected in the grove of Ram Nath in village Bhargahna after having made preparations to commit dacoity at the house of Khurram Chamar, lagnu, Sumer and Jawahar were further charged under Section 25(a) of the Arms Act. Jagnu, Mohan, Sumer and Harihar Singh were acquitted. The remaining seven, namely, Mahesh Singh Minna, Ram Pal Singh, Ram Singh, Jawahar, Chhotey Lal and Gayari were convicted and awarded five years' rigorous imprisonment each under Sections 399 and 402 Indian Penal Code, (each count). Jawahar was also sentenced to one year's rigorous imprisonment under Section 25(a) of the Arms Act. The State has filed Criminal Appeal No. 376 of 1965 against the acquittal of Jagnu and Sumer. No Government Appeal has, however, been filed against the acquittal of Mohan and Harihar Singh. The three other represented Criminal Appeals - Nos. 92 of 1965, 109 of 1965 and 288 of 1965 - have been filed by Ram Singh, Ranipal Singh, Mahesh Singh, Jawahar and Minna against their conviction on the various charges. The remaining two appeals, namely Jail Appeals Nos. 317 of 1965 and 320 of 1965, are the unrepresented jail appeals of Chhotey Lal and Gayari. Since all these appeals arise out of the same trial we propose to dispose them of together.

2. We have heard the learned counsel for the appellants and the Assistant Government Advocate for the State.

3. The case for the prosecution in brief is that on 18th December, 1983, at about 7-30 P.M. Raghubir Singh, Station Officer, Police Station Sandila, got the information from an informant that Jagnu, Mahesh Singh, Minna, Mohan, Rampal Singh, Ram Singh, Jawahar, Chhotey Lal, Gayari, Sumer and Harihar Singh were planning to collect in the grove of Ram Nath in village Bhargahna, police station Sandila that night after having made preparations to commit dacoity at the house of Khurram Chamar of village Pausra Kher, hamlet of Bhargahna. (An entry about that information was made in the general diary vide Extract Ext. Ka-16). He immediately deputed Bhagwati and Baij Nath, constables, to guard the house of Khurram Chamar. (About that also an entry was made in the general diary, vide Extract Ext. Ka-17). At about 8-15 P.M. the Station Officer left the thana with the police party for the grove of Gulab Das situated near village Bhargahna. Some constables were sent to call respectable public witnesses. They brought eight witnesses including Kedar Nath P.W. 3, Shahzade P.W. 4, Bharosey P.W. 5, Rajja P.W. 7, Dayal Shanker P.W. 8, Bashir P.W. 9 and Mewa Lal P.W. 10. Thereafter the entire party was informed of the purpose of their collecting there and necessary instructions were also issued. They were further told that after it was satisfied that the dacoits had collected for committing the dacoity, signal would be given by firing a very light pistol. Then they left for the grove of Rani Nath. There, the entire party was divided into three groups. Party No. 1 was under the leadership of Station Officer Raghubir Singh P.W. 22, and was posted on the western side of the grove. Party No. 2 was headed by S.I. Mukhtar AIR P.W. 6 and was posted towards north of the grove. Similarly the third party was headed by S.I. Chandrapal Singh P.W. 2, and was posted towards east of the grove. The southern side was left open as according to the information received the dacoits were expected to come from that side. At about 11 P.M. the dacoits started coming and they collected