1. Since all the appeals are connected with the common judgment, therefore, decided by this common judgment.

2. All of the appellants have preferred the present appeal against the judgment dated 4.5.2007 passed by the Special Judge under MPDVPK Act, Bhind in Special Case No.7/2007, whereby each of the appellants has been convicted of offence under sections 399, 400 and 402 of IPC read with section

11/13 of MPDVPK Act and sentenced to five years rigorous imprisonment with fine of Rs.1,000/-, six years rigorous imprisonment with fine of Rs.2,000/- and three years rigorous imprisonment with fine of Rs.1,000/- respectively. Also appellant Ramshankar and Girraj have been convicted of offence under section 25(1B)(a) of Arms Act read with section 11/13 of MPDVPK Act and sentenced to three years rigorous imprisonment with fine of Rs.1,000/-.

3. Prosecution's case, in short, is that on 21.11.2006 S.I. Ashish Singh Pawar (PW3) received an information that some culprits have gathered near Shashkiya Kratrim Garbhadhan Kendra, village Birkhadi and they were planning to commit dacoity. He recorded the information in a rojnamcha Ex.P-12 and thereafter collecting the force, he left police station Gohad Chauraha. He was mainly accompanied by Constable Jagram Singh (PW1) and Head Constable Brajbhushan (PW5). The police force surrounded the appellants and one Girraj. They heard their talks relating to preparation of planning to commit dacoity on petrol pump. From the accused Ramshankar, one hand-made pistol with a round was recovered, whereas one handmade pistol with a round was recovered from Girraj @ Sethi. One sword from accused Anil Sharma and one sickle each from accused Ravi and Banti were recovered. Appellants were arrested. They were taken to the police station, where a rojnamcha Ex.P-13 was written and case was registered with the FIR Ex. P-14. Various fire-arms were sent to Constable Armour and a report Ex.P-11 was received. The District Magistrate had granted a prosecution sanction Ex.P-16. After due investigation, the charge sheet was filed before the Special Court.

4. The appellants abjured their guilt. They did not take any specific plea but they have stated that they were falsely implicated in the matter. In defence, Bhure Sharma (DW1) was examined.

5. The trial Court after considering the evidence adduced by the parties convicted the appellants as mentioned above, whereas the appellants Banti, Ravi and Anil Sharma were acquitted from the charge of section 25(1B)(a) of the Arms Act.

6. I have heard the learned counsel for the parties at length.

7. In such type of cases, it is for the police to earn the confidence of the Court by making a fair investigation and, therefore, prima facie it is required that independent witness should have been taken at the time of raid. According to rojnamcha Ex.P-12, an intimation was received and SHO Ashish Singh Pawar (PW3) left the police station at 07:45 p.m. However, according to the FIR

Ex.P-14, the spot was seven kilometers away from the police station, where the police force went by motorcycles. First recovery was done by Ashish Singh Pawar at about 8:30 p.m. from the accused Ramshankar and a seizure memo Ex.P-1 was prepared, which indicates that he had sufficient time to call independent witnesses before leaving the police station but neither he called the independent witnesses before leaving the police station nor he called independent witnesses at the spot. Though there was a temple near the spot and priest of that temple could be easily available. He took Constable Jagram Singh (PW1) and Head Constable Brajbhushan (PW5) as witness for preparing of seizure memo and those were the interested witness being police officials and, therefore, due to such tainted investigation, testimony of S.I. Ashish Singh Pawar relating to seizure of weapon goes away. It was not proved beyond doubt that any pistol was recovered from either the appellant Ramshankar or accused Girraj @ Sethi. The trial Court