Hon'ble Arvind Kumar Mishra-I,J.

By way of instant criminal appeal, challenge has been made to the validity and sustainability of the judgement and order dated 19.02.1987 passed by Special Jduge (DAA) and III Additional Sessions Judge, Hamirpur in Special Case No. 27 of 1984 (State Vs. Prem Kishore and others), Police Station- Khanna, District- Hamirpur, whereby the appellants- Prem Kishore, Jagdish and Munna- have been convicted and sentenced to undergo 3 years R.I. under Section 399/402 IPC read with Section 2(B) 10/12 U.P. D.A.A. Act and three years R.I. under Section 307 IPC read with Section 2(B) 10/12 U.P. D.A. Act and one year R.I. under Section 25 Arms Act. All the sentences have been directed to run concurrently.

2. However, the aforesaid sentences shall not be imposed, instead, each of the appellant has been given benefit of probation and has been directed to maintain good behaviour and keep peace for a period of three years and to furnish personal bond for Rs.500/- with two sureties each in the like amount. Thus this appeal is primarily directed against the order of conviction and the aforesaid probation order.

3. Brief facts of the prosecution case, as discernible from record, appear to be that on 10.12.1983 at about 9.40 P.M. The Station Officer Ram Singh received information that a gang of dacoits is about to assemble for committing dacoity at the house of Rajendra Singh Pradhan of the village. Thereupon the said Station Officer took with him S.I. Kewal Singh S.I. Mahesh Babu Gupta, Constable Ram Autr, Constable Babu Lal, Constable Jagdeo Prasad, Constable Kishan Swarup, Constable Behari Lal, Constable Ram Kumar, Constable Jageswar and Constable Arjun Singh and proceeded from the police station at about 10 P.M., to arrest the bandits red- handed. Constable Balbir Singh and Arjun Singh were sent to bring the witnesses. They brought the witnesses Rajendra Singh and Munna Singh within 15 minutes. Thereupon Constable Balbir Singh and Arjun Singh were sent for safety of the hosue of Rajendra Singh Pradhan.

4. Thereafter the Station Officer divided the police force and the witnesses into two separate parties. First one was headed by Station officer Ram Singh himself and the second party was headed by Inspector Kewal Singh.

5. After assuming and being satisfied that it was the same gang of dacoits about which the information had been received, the Station Officer fired shots in the air to scare them away and challenged the bandits, who in retaliation exchanged the fire, and tried to ensure their escape but three of the bandits, namely, Prem Kishore, Jagdish and Munna were arrested on the spot at about 11.30 P.M., whereas, three of the bandits made their escape good from the place of occurrence.

6. In search of accused Prem Kishore, one SBBL Gun factory made and five live cartridges were recovered from his possession. One countrymade pistol and two live cartridges were recovered from the possession of accused Jagdish. One country made gun and two live cartridges were recovered from the possession of accused Munna. The recovered materials were kept in sealed cover and recovery memo was prepared at about 1 A.M. in the said night. The said arrest and recovery memo is Exhibit Ka-1. The accused confessed their guilt before the police.

7. Thereafter report was lodged at the police station and Check report, Exhibit Ka-2, was prepared on 11.2.1983 at 1.45 A.M. in the said night- on the basis of recovery memo Exhibit Ka-1. Simultaneously, entry in the General Diary (Exhibit Ka-3) was made on 11.2.1983 at 1.45 AM under aforesaid sections of Indian Penal Code against the accused and case was registered at Case Crime No.147 of 1983.

8. The investigation ensued and was taken over by Ram Singh, who recorded the statement of the witnesses and inspected the spot and prepared the site plan as Exhibit Ka-7.

9. Upon completion of the investigation, charge-sheets (Exhibit Ka.8 to Ka. 11) were filed against the appellants under af