Criminal Appeal (SJ) No.25 of 2007 With Criminal Appeal (SJ) No.53 of 2007 Against the Judgment of conviction dated 10.11.2006 and the order of sentence dated 14.11.2006 passed by Additional Sessions Judge, F.T.C. No.3, Purnea, in Sessions Trial No.466 of 2006, T.R. No.84 of 2006. 1.Kailash Mandal, S/oBillo Mandal, resident of Village- Katchira, P.S.Chousa, District- Madhepura. ….(Cr.App.No.25/07) 2.Shrawan Kumar Mandal, S/o Bulaki Mandal, resident of Village- Pakru Tola,P.S.Gopalpur, District-Bhagalpur. 3.Anil Mandal,S/o Bonku Mandal, resident of Village-Dhol Bazza Diyara, P.S.Naugachiya, District-Bhagalpur. …. Appellants(Both in Cr.App.No.53/07) Versus State Of Bihar.... .... Respondent(in both appeals) For the Appellants : Mr.S.N.Prasad (Amicus Curiae). For the Respondent/s : Mr.Ajay Mishra,A.P.P. P R E S E N T HON’BLE SHRI JUSTICE DHARNIDHAR JHA Dharnidhar Jha, J. 1. The appellants have been convicted under sections 399,402,414 and 120 (B) of Indian Penal Code and sections 25,26 and 35 of the Arms Act. 2. As regards the conviction of the appellants for offence under the Arms Act, it was conceded by the Additional Public Prosecutor that there was no valid sanction for taking cognizance of offence. As such conviction of the appellants for committing offence under the Arms Act is not sustainable and the same is, accordingly, set aside. 3. So far as the conviction of the appellants under 2 sections 399 and 402 I.P.C. is concerned, it is mere speculation of the information that the appellants had assembled with a purpose of committing dacoity after having prepared for the same. 4. By merely alleging that they had assembled for the purpose so as to committing dacoity is not sufficient to constitute an offence. The appellants might have assembled at the particular place, i.e., the place of occurrence, having made preparation for committing some offence more serious than dacoity and, as such, the conviction of the appellants under sections 399 and 402 of I.P.C. is not sustainable in law. 5. The appellants have also been convicted under section 120 (B) of the I.P.C. I want to note that the very nature of offences, which are alleged to have been committed, i.e., the offences under sections 399 and 402 of I.P.C., those offences presuppose the acts which amounts to doing an illegal act by legal means or a legal act by illegal means. If the main offences may not appear committed, then committing that offence of conspiracy to commit the main offence, which is already blended in the main offence, separately and particularly, under section 120 (B) of I.P.C. may not be constituted. The law is very clear that the common intent or common object or elements of conspiracy are already enshrined in offence of robbery, dacoity or an attempt of committing robbery or dacoity. 6. In the result the two appeals succeed and the same are allowed. The Judgment of conviction and sentence passed against the appellants is hereby set aside and they are acquitted. 3 The appellants are in custody. They are directed to be released forthwith, if not wanted in any other case. Patna High Court, The16th August,2011, AnilKrSinha/N.A.F.R. (Dharnidhar Jha,J.)