Criminal Appeal (S.J.) No. 89 0f 1997 (Appeal against the Judgment and Order dated 20.3.1997 passed by the 2nd Additional Sessions Judge, Bhagalpur, in Sessions Trial No. 375 of 1987) ------------ 1. MANOJ KUMAR MANDAL, S/O LATE DINESH MANDAL 2. SUBHASH MANDAL, S/O MAHABIR MANDAL 3. KAMLESHWARI MANDAL, S/O LATE TILU MANDAL 4. KAILASH MANDAL, S/O LATE BHUTKU MANDAL 5. DASRATH MANDAL, S/O LATE KOKAN MANDAL 6. JUTHAH MANDAL, S/O MILU MANDAL 7. SHAMBHU MANDAL, S/O LATE BHAGWAT MANDAL 8. NITYANAND MANDAL, S/O BHAGLI MANDAL 9. CHAKRADHAR MANDAL, S/O LATE MAHABIR MANDAL 10. YOGENDRA MANDAL, S/O UMANT MANDAL 11. SUSHIL MANDAL, S/O BHAGLI MANDAL ALL RESIDENTS OF VILLAGE – PURANISARAY, P.S. NATHNAGAR, DISTT. BHAGALPUR. 12. BHAGWAN MANDAL, S/O KARU MANDAL RESIDENT OF VILLAGE – BIHARIPUR, P.S. NATHNAGAR, DISTT. BHAGALPUR. ------- APPELLANTS. Versus THE STATE OF BIHAR ------- RESPONDENT. ------- For the Appellant : Mr. D.N. Jha, Adv. Mr. J.N. Prasad, Adv. For the State : Mrs. I.B. Pandey, A.P.P. P R E S E N T THE HON’BLE JUSTICE SMT. ANJANA PRAKASH Anjana Prakash, J: The Appellants have been convicted under Sections 399/402 of the Indian Penal Code and sentenced to five years rigorous imprisonment under each count by the 2nd Additional Sessions Judge, Bhagalpur, in Sessions Trial No. 375 of 1997 by a Judgment dated 20.3.1997. 2. The case of the prosecution according to Arbind Kumar Singh, Officer Incharge of Nath Nagar P.S. is that on 31.12.1982 at about 4.30 P.M. while he was conducting a raid, 2 he learnt that some persons were planning to commit dacoity and they were rounded up, in which the present Appellant was arrested on the spot. 3. The prosecution in all examined ten witnesses out of whom PW-1 and PW-10 are formal in nature. PW-5 and PW-6 who are independent witnesses have not supported the case of the prosecution and were declared hostile. PW-2 and PW- 3 even though have supported the prosecution case but failed to identify any of the accused persons whereas PW-4 identified by the accused persons but could not name them. PW-7 also supported the prosecution case. PW-8 has supported the factum of occurrence but admitted that he was not present at the place of occurrence. 4. It appears that even though some of the accused persons were charged under the Provisions of Arms Act but they were acquitted of the charges since the prosecution has failed to prove the factum of recovery of Arms from some of the Appellants. In the absence of any proof that the Appellants were Armed with weapons their mere assemblage at the place of occurrence cannot automatically mean that they were sitting around and planning to commit dacoity or some illegal act. 5. In the result, the Appeal is allowed. The order of conviction and sentence passed against the Appellants in Sessions Trial No. 375 of 1987 by the 2nd Additional Sessions Judge, Bhagalpur, is hereby set aside. 3 6. The Appellants are discharged from the liability of their bail bond. (Anjana Prakash, J.) Patna High Court, Patna Dated, the 4th July, 2011. NAFR/S.ALI.