JUDGMENT

H.L. Capoor, J. - This judgment shall govern all these appeals as they arise out of the same incident.

2. Mohd. Yaqoob, Ram Dhani, Chhedi Lal, Ram Kripal, Mukhtar, Matiullah, Bashir Ahmad, Baijnath, Haneef and Noor Mohammad have preferred these appeals against the judgment and order, dated September 23, 1970, of Sri S.D.N. Singh, Civil and Sessions Judge, Allahabad, convicting all the appellants under sections 399, 402 and 325 read with section 149 I.P.C. and sentencing each of them to four year's and one year's R.I. respectively, and, also convicting Mohd. Yaqoob, Baijnath, Haneef and Noor Mohd., appellants under section 25 (1) (a), Arms Act, and sentencing each of them to two year's R.I. the sentences of all the appellants, how- ever to run concurrently.

3. The prosecution story, in brief, is that Sri Ram Singh Tewari, S.I. Dhumar.gan j, got an information through an informer on May 28, 1968 at 1 1.30 O'clock in the morning that three persons were sitting near the temple at Ganga Ghat Ghiyasuddinpur in suspicious circumstances, one of them having a gun with him He, accordingly, in the company of Harbansh Singh, S.I. and several constables proceeded to that place and arrested Zulfikar Haider alias Achchhan and Hukum Ali from near the said temple. It was disclosed by them that they had decided to commit a dacoity on the following night within police circle Soraon. They also dis- closed that one Atar Singh, who happened to know the name of the village where the dacoity was to be committed, was to meet them at about 6 O'clock in the evening. From the possession of Zulfikar Haider a 32 bore rifle and five cartridges were recovered. Both these arrested persons were then taken to P.S. Dhumanganj where the necessary entry in the general diary was made. According to the prosecution, Sri Tewari, S. I., then arrested Atar Singh from near the temple of Ganga Ghat Ghiyasuddinpur the same evening at about 6 O'clock and on the basis of an information given by Atar Singh also captured one truck No. 3116 along with its driver, Noor Mohammad, appellant. Both Atar Singh and Noor Mohd. were also taken to P.S. Dhurrranganj where an entry in regard to them was made in the general diary. It was disclosed by Atar Singh that he along with several others had planned to commit a dacoity at the house of one Babu Lal in village Deoria, P.S. Soraon and that the miscreants were to collect, before the commission of the dacoity, at the well of a grove situated to the east village Deoria. Sri Tewari then sent Harbansh Singh, S.I. in the company of five constables to P.S. Soraon with the direction that they should apprehend the miscreants with the assistance of Sri Mushir Abbas, S.I., P. S. Soraon. Sri Harbansh Singh, accordingly, contacted Sri Mushir Abbas S.I. at Phaphamau and gave out to him the information he had received. After collecting some more constables from there, the police party proceed. ed to P.S. Soraon on a truck Sri Mushir Abbas also took with him certain constables who were on patrol duty near the railway line to check the wire cutting. He had also given directions to bring Lalta Prasad and Jamuna Prasad, gun licence holders and public witnesses. Thereafter, as usual, the force was divided into four parties. The first party consisting of Head Constable Mahabir Prasad Sharma and the members of the arm- ed police was deputed at the house of Babu Lal to keep a watch over it. The rest of the parties headed by S.I. Mushir Abbas, S.I. Harbansh Singh and the Head Constable Kamlapal Singh respectively were posted to the south west, north and west of the well situated in the grove belonging to Ram Kripl at a distance of about 1 furlongs in village Deoria. The prosecution story further is that after waiting in ambush for about half an hour about 16-17 miscreants came to the grove and sat near the well. One of them was overhead saying that Atar Singh, their chief man, who had planned the dacoity, had net arrived there till then, and it appeare