Hon’ble Amar Singh Chauhan, J.—This criminal appeal has been filed by the appellants Dev Dutt and Hori against the judgement and order dated 15.12.1984 passed by the Special Judge, Budaun in ST No. 497 of 1981, under Sections 399/402 IPC and 25 Arms Act, PS Rajpura, district Buduan whereby learned Judge convicted and sentenced the appellants to three years RI under Section 399 IPC, two years RI under Section 402 IPC and two years RI under Section 25(1)(a) of the Arms Act. However, all the sentences were directed to run concurrently.

2. The facts giving rise to the present appeal are that in the night of 26.8.1979, Shri D.P. Jual, Station Officer, police station Rajpura rceived a secret information that a gang of dacoits would assemble in the grove of Guava in the night in village Firojpur to commit dacoity at the house of Roop Kishore, Pradhan of the village Shahjahanabad. On the basis of this information, SO, D.P. Jual alongwith SI Yashbir Singh, SI Nand Kishore, some police constables and informer left for above grove. When the police party reached village Sameri, constables Harpal and Suresh Chander have been sent to call public witnesses. After some times, they returned with Ompal Singh, Kalloo Singh and Sipahi Singh residents of village Sameri. Two constables were sent to the house of Roop Kishore, the Pradhan of Shahjahanabad, in whose house dacoity was to be committed. The police party was divided into two groups. One group was headed by SO D.P. Jual while the other was headed by SI Yashbir Singh. Party headed by SO D.P. Jual took position in the north-west of the hut in the grove while other party took position in the north-east of the hut. At about 11.45 p.m. from the southern side three miscreants came and sat near the hut. One of them is alleged to have remarked that he had brought wine for their entertainment. After 15-20 minutes they were joined by three other miscreants and all of them started gaging or murmering. It is also alleged that they were overheard saying that they should not drink much as it is likely to spoil their plan. Thereafter one of them went inside the hut and returned back after keeping the bottle of the wine in the hut. It is also alleged that they were over head saying that one of their companion namely Radhey was late in reaching there. It is further alleged that another dacoit was saying that he had seen the house of Roop Kishore, Pradhan and since they were sufficiently armed and they were sufficient in number they should go ahead with their plan without waiting for the arrival of Radhey. It is also alleged that after some time they were again overhead saying that they are getting late and they should go to commit dacoity. Thereafter, they got up to move away. On hearing the above talks SO D.P. Jual being satisfied that it was a gang of dacoits, he accordingly challenged them and asked them to surrender and VLP shots were fired. Police party apprehended three members of the gang namely Dev Dutt, Hori and Kunwar Pal while three others managed to run away.

3. On search being made of the apprehended accused, from the possession of Kunwar (now deceased) a gun (Ext. 1) and seven live cartridges (Exts. 2 to 8) alongwith a torch (Ext.9) were recovered. From the possession of the accused Dev Dutt, a pistol (Ext. 10) and three live cartridges (Exts. 11 to 13) were recovered, whereas from the possession of accused Hori, a pistol (Ext. 14) and four live cartridges (Ext. 15 to 18 were recovered. A bottle of wine was also recovered from the hut. Recovered articles were sealed and its recovery memo Ext. Ka-1 was prepared. Thereafter the apprehended accused were taken to the police station and a case was got registered against them.

4. After registration of the case and after seeking necessary permission of the District Magistrate, Budaun for prosecution of above accused under Section 25(1)(a) of the Arms Act, they were challaned and separate charge-sheets were filed against them.

Charges under S