1. Heard Sri P.S. Pundir, learned Amicus-curiae for the appellants, Sri R.K. Maurya, learned AGA for the State and perused the record.

2. This appeal has been filed against the judgment and order dated 25.11.1982 passed by IV Add. Sessions Judge in S.T. No.17 of 1981 and S.T. No.205 of 1981 convicting and sentencing each of the appellants under Sections 399, 402 IPC and 25 Arms Act to undergo rigorous imprisonment for 5 years and 2 years respectively. Esch of these sentences shall run concurrently.

3. The prosecution story as has been set-out is that on 10th day of March, 1980 at about 3.30 in the day at the house of Sheodan Singh, in village Jarera, situate within police circle Hasayan, district Aligarh, the accused assmbled for the purpose of commission of dacoity. On an information laid to Sri Horilal, the then Station Officer of police station Hasayan by an informer a raid was organized for the arrest of the miscreants and in such an attempt all the seven accused on trial in this case could be arrested after the police party headed by the Station Officer was satisfied from the talks of the accused as could be heard by them that it was a gang of dacoits which had assembled for the purpose of commission of dacoity somewhere. A search of the arrested accused resulted in the recovery of certain incriminating articles from their possession as detailed in the case.

4. Recovery memo Ex.Ka.1 was prepared on the spot which was attested by the witnesses present there. A case against the accused was registered after they had been brought to police station and was investigated in the routine way. The result of investigation was the prosecution of the accused who now stand charged in the case as aforesaid.

5. To prove its case against the accused, the prosecution examined in all four witnesses.

6. P.W.1 is Inspector Horilal Yadav who was then Station Officer of Police Station Hasayan. He stated that on 10.3.1980 he received an information through an informer that a gang of dacoits was present in village Jarera at the house of one Sheodan Singh. On this information, he along with S.I. Rajendra Singh and seven constables reached village Jarera at the house of Radhey Shyam at about 2.45 in the day. He sought the help of Radhey Shyam in the matter who himself collected seven witnesses including Hakim Singh, Krishna Murari, Ram Prakash, Radhey Kishan, Ram Prakash and Vijaipal out of whom Hakim Singh held a D.B.B.L gun and 20 live cartridges while all others held lathis. Personal searches of all of them were taken and none was found in possession of any incriminating article. At about 3.15 in the day, the police party including Radhey Shyam reached near the spot and took their positions in the house of one Samley where they concealed their presence. He then saw the miscreants sitting under the thatch on the ground in front of the kotha of Sheodan Singh facing towards the North. The dacoits talked among themselves that evening was approaching and that they should go away one by one and that Keshav, Soran and Mahavir would also meet them at about sunset near the Sitapur canal. Accused Sheodan then said that he would reach there later on with torches and bundles of clothes and that the person of the village where dacoity is to be committed would have also come at the canal of Sitapur by now. The talks of the miscreants as could be heard by him gave him satisfaction that it was a gang of dacoits which had assembled for the purpose of commission of dacoity. All of them then pounced upon the miscreants assembled there and arrested all the seven persons on the spot, at about 3.45 in the day, he searched all the arrested miscreants one by one and also inquired about their names and addressed. A search of accused Lal Singh resulted in the recovery of a factory made gun and 22 live cartridges in a Nibarh belt and a wrist watch, the glass of which was broken, all Exts. 1 to 24. Accused Nathuram was found in possession of a country-made