Criminal Appeal (SJ) No.59 of 1999 Against the judgment and order of conviction dated 23. 03. 1999 and order of sentence dated 24. 03. 1999, passed by Shri Amitabh Kumar, Additional Sessions Judge, 5th Gaya, passed in Sessions Trial No. 12 of 1998/120 of 1993 (D.J.) Ramashish Yadav @ Sipahijee, son of Late Dasai Yadav, resident of Village- Jahar Bigha, Tola- Gaj Raj Bigha, Police Station- Kako in the District of Jehanabad. .... .... Appellant. Versus The State of Bihar .... .... Respondent. For the Appellant. : Mr. Ambika Bhagat, Advocate. Mr. Kamal Kumar Sinha, Advocate. For the Respondent State : Mr. Sujit Kumar Singh, A.P.P. PRESENT THE HON’BLE MR. JUSTICE GOPAL PRASAD Gopal Prasad, J. Heard learned counsel for the appellant and learned counsel for the State. 2. The appellant has been convicted for offence under Section 399 I.P.C. and sentenced to undergo rigorous imprisonment for ten years and further convicted for offence under Section 402 I.P.C. and sentenced to undergo rigorous imprisonment for seven years. 3. The prosecution case as alleged in the F.I.R., on secret information that criminals have been assembled for planning to commit crime then police constituted a raiding party and it is alleged that on the raid at the place of occurrence there was firing and cross-firing. 2 Thereafter, the police catch hold of three persons namely, Ramashish Yadav, Balkishun Yadav and Balmit Yadav. Ramashish Yadav carrying a regular rifle, Balkishun Yadav carrying with double bore gun loaded with two cartridges and Balmit Yadav carrying 13 cartridges. Hence the case was lodged under Sections 399, 402 and 307 I.P.C. and Sections. 25 and 27/35 of Arms Act. After investigation charge sheet submitted and charge was framed under Section 307/34, 399 and 402 I.P.C. and Section 25, 27/35 of Arms Act. 4. During trial six witnesses were examined. The trial court however acquitted the accused persons for offence under Section 307 and Section 25 and 27 of the Arms Act as well as acquitted the appellant for offence under Section 307/34, but convicted the appellant for offence under Section 399 and 402 I.P.C. The trial court convicted the appellant for offence under Section 399 and 402 I.P.C. on the score of evidence of P.W. 1, 3 and 4 that they have stated that Ramashish Yadav was apprehended by the police and was identified by P.W. 1, 3 and 4 in the court. 5. Learned counsel for the appellant however 3 contends that only evidence against the appellant is that he was apprehended by the police with a rifle. However, the prosecution story regarding his possession of rifle and firing has been disbelieved and the accused persons have been acquitted for offence under Section 307 I.P.C. and Section 25 and 27 of the Arms Act. There is no other evidence except that appellant was apprehended by the police and hence ingredient for offence under Section 399 and 402 I.P.C. is not made out and has placed reliance upon decision reported in 1979 BBCJ 61 SC. where it has been held that no evidence showing assembly for committing dacoity and preparing for commit dacoity and the possibility of assembly and other purpose may not be ruled out. 6. Here under the facts and circumstance, co- accused Balmit Yadav has already been acquitted and the assembly with other accused persons Ramashish Yadav has not been established except that he was arrested as other allegation against the appellant has been disbelieved and has been acquitted. There is no other evidence to show that the appellant was preparing for committing dacoity. 4 7. Hence order of conviction and sentence under Sections 399 and 402 I.P.C. is not sustainable. Hence order of conviction and sentence recorded by the lower court is hereby set aside and the appeal is allowed. Patna High Court. The 1st December, 2011. NAFR/m.p. ( Gopal Prasad, J.)