A.R. Navkar, J.

This judgment shall govern disposal of Criminal Appeal No. 284 of 1979 (Phool Singh v. The State of Madhya Pradesh) as well.

This is an appeal under section 374 of the Code of Criminal Procedure, arising out of the conviction and sentences passed on 3-8-1979, in Sessions Trial No. 820 of 1978, by the Second Additional Sessions Judge, Guna, whereby all the accused appellants have been held guilty for an offence under section 399, Indian Penal Code read with section 402, Indian Penal Code and sentenced to three years' and three years' rigorous imprisonment each on each count respectively and appellants Nos. 1 and 2 have further been held guilty under section 25(1)(a) read with section 27 of the Arms Act and sentenced to one year's rigorous imprisonment each. All the sentences have been ordered to run concurrently.

Briefly stated, the facts out of which this appeal arises are asunder. On the night intervening 22nd and 23rd June, 1977, R. S. Tiwari (P. W. 6) received an information, on which he proceeded with Police force and Panch witnesses towards the forest, situated between Rahatwas and Hanwas villages. There, he found all the accused persons planning and preparing for committing a dacoity. On being challenged, three accused persons, namely, Mohansingh, Rajaramsingh and Gajendrasingh ran away from the place of the incident. Rest of the accused persons, namely, the appellants and one other, by name Phool Singh, were all apprehended. Two guns (Arts. A and B) and one sword (Art. C) were seized. The seven apprehended accused persons were taken to the Police Station, wherein, the first information report (Ex. P/l) was recorded by R. S. Tiwari (P. W. 6).

Mohansingh, Rajaramsingh and Gajendrasingh were later arrested by the Police. Sanction for prosecution under sections 25 and 27 of the Arms Act (Ex. P/6, P/7 and P/8) were obtained from the District Magistrate, Guna. After the investigation having been completed, Challans under section 399 read with section 402, Indian Penal Code and section 25 read with section 27 of the Arms Act were filed against the accused-appellants along with others. Pooransingh, accused appellant No. 2 was committed to the Court of Sessions, Guna in Sessions Trial No. 17 of 1978. Lalchand, accused-appellant No. 3 was committed to the Court of Sessions, Guna in Sessions Trial No. 18 of 1978 and the rest of the accused-persons were committed in Sessions Trial No. 20 of 1978. All the trials were consolidated into one and all accused have been tried and evidence recorded in Sessions Trial No. 20 of 1978.

At trial, the prosecution examined about seven witnesses, who were the members of the raiding party. A clerk in the Arms Section of the Collectorate, Guna, was also examined to prove the sanctions for prosecution under the Arms Act. Mathura Prasad (P. W. 8) is a witness who prepared the site-plan, which is Ex. P/9.

The accused denied the guilt and in defence, they examined about five witnesses.

After taking into consideration the evidence, the learned trial Court held that Mohansingh, Rajaramsingh and Gajendrasingh are not proved to have committed any offence and hence they have been acquitted. For the rest, the learned trial Court believed the witnesses produced by the prosecution and held the accused guilty of offences mentioned above and passed the sentences against them. Aggrieved by this Judgment of conviction and sentences awarded, the present appeal is filed.

After going through the evidence, there is no dispute that in-between the two villages mentioned above, there is a jungle. There is also no dispute that the accused did not have any house breaking implement or any instrument which can be said to be of use while committing dacoity, that is to say, an instrument to break open a lock or any instrument to break open any room or window. The only evidence against them is that they were having arms with them. The other evidence is that before they could be apprehended, some-one from the gang