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1. This is an appeal by the State of Uttar Pradesh against the judgment of the learned Assistant Sessions Judge, Hardoi, acquitting the respondents, Neel Kanth and Drigpal of the charges under Sections 399 and 402 Indian Penal Code.

2. Briefly stated the prosecution story was as follows: Rajendra Prasad Singh. Station Officer of Police Station Atrauli, was going in connection with the investigation of a murder case and when he reached near village Godenra he received information that the gang of Munnu Lal would assemble at Behta Bridge in the night for committing dacoity at the house of Rameshwar Dayal of village Mahmoodpur. Rajendra Prasad Singh went to Police Station Sandila and communicated this information to Raghubir Singh, Station Officer of that place. An entry of this information was made in the general diary. The station officer of Sandila sent two constables to village Mahmoodpur for keeping guard at the house of Rameshwar Dayal and he himself along with Rajendra Prasad Singh and other police personnel proceeded towards Behta Bridge. The police party collected some non-official witnesses also and went to a grove near Behta Bridge. Necessary instructions were given to all the officials and non-official members of the party and four groups were formed, one of which was under the leadership of Rajendra Prasad Singh At about midnight, being the night between the 12th and the 13th of October. 1963, the dacoits began coming. They sat on the Behta Bridge and began to talk among themselves. They were armed with fire-arms and lathis etc. and were 15 or 16 in number. From their talk it became evident that the gang which had assembled, was of dacoits and they had made preparations for committing dacoity at the house of Rameshwar Dayal. Rajendra Pd. Singh fired his very light pistol and according to the instructions previously given all the four groups rushed towards the dacoits. A shot was fired by the dacoits but it did not hit anyone in the police party. In retaliation Raghubir Singh fired his gun. The leader of the gang Munnu Lal was hit and died at the spot. The present respondents. Neel Kanth and Drigpal were arrested at the spot, while Maiku ran away but he was identified by the raiding party On search of the persons of Drigpal and Neel Kanth, a country-made pistol and five live cartridges were recovered from the possession of Neel Kanth This man did not hold any licence for the country-made pistol A kanta and a torch were recovered from the possession of Drigpal Rccovery memos of the articles recovered were prepared at the spot and the two arrested persons were taken to the police station Sandila along with the recovered articles. A first information report of the occurrence was lodged by Rajendra Prasad Singh at police station Sandila.

5. P W. 2 Rajendra Prasad Singh. Sub-Inspector. P. W. 6 Neel Kanth. Head Constable, P. W. 7 Raghubir Singh, Sub-Inspector, P. W. 9 Baij Nath, Constable and P. W. 11 Irshad Ali and P. W. 12 Munshi Raza non-officials, were examined for the prosecution to prove the participation of the respondents in the assembly of the gang with the object of committing dacoity. The learned Assistant Sessions Judge repelled all the arguments of the defence and relying on the testimony of the aforesaid prosecution witnesses he found it fully proved that the gang of Munnu Lal assembled at Behta Bridge in the night between the 12th and the 13th of October, 1963, as alleged by the prosecution and that the respondents were among the culprits who had gathered there with the intention of committing dacoity after having made preparation for the same. However, relying on a single Judge decision of this Court in Balwant T. State, 1965 All WR (HC) 519 it was contended before the learned Assistant Sessions Judge that because the respondents were not put up for identification lest and their identity as participants in the assembly of dacoits was not established, there was a fatal weakness in the prosecution case. The learned Assistant Sessions Judge accepted this argument and held that the respondents were entitled to acquittal on the strength of the aforesaid decision of this Court. He thus acquitted Neel Kanth and Drigpal respondents of the charges under Sections 399 and 402 Indian Penal Code Maiku was also given benefit of doubt because the evidence of identification against him was not found acceptable. The case under Sections 25, 1 (a) of the Arms Act was however, found established against Neel Kanth and he was convicted and sentenced on that charge. There is no appeal of Neel Kanth before us against that conviction The State has filed appeal against the the acquittal of Neel Kanth and Drigpal alone on the charges under Section 399, 402 Indian Penal Code.

19. There is ample evidence in this case to prove that the respondents were in fact arrested at Behta Bridge in the night in question while they had joined an assembly of miscreants who had collected with the intention of committing dacoity after having made preparation for the same. P. W. 2 Rajendra Prasad Singh, Station Officer of Police Station Atrauli, stated that one of the dacoits was arrested by the first group and on being interrogated he told his name as Drigpal and that Drigpal was the same person who was standing in the dock. The witnes further stated that Head Constable Neel Kanth arrested another person who have out his name as Neel Kanth and that this Neel Kanth was also the same person who was an accused present in the dock. P. W 6 Head Constable Neel Kanlh stated that his group made out of the police party challenged the miscreants and caught hold of Neel Kanth, the accused in the dock. The witness. Neel Kanth further stated that besides Neel Kanth accused Drigpal accused was also arrested at the spot. P W. 7 Raghubir Singh, the then Station, Officer of Police Station Sandila, stated that Neel Kanth and Drigpal accused standing in the dock were arrested at the spot. P. W. 9 Constable Baij Nath stated that two dacoits i.e. Neel Kanth and Drigpal who were present in court, had been arrested at the spot. P W. 11 Irshad Ali, a non-official witness, stated that Drigpal accused present in the dock was arrested by the Sub-Inspector and his person was searched It was suggested to this witness in cross-examination that he was not present at the spot. In this connection he stated that when Neel Kanth was arrested, he saw him in the light and that it is wrong to say that the witness was not present at the spot. Another non-official witness, P. W. 12 Munshi Raza stated that Neel Kanth and Drigpal were arrested at the spot. Further on, the witness said that writing work relating to Neel Kanth and Drigpal accused persons was done at the spot. By accused persons" he meant the accused persons in the dock. The respondents who were present in the dock at the time of their trial were thus duly identified as the two persons arrested at the spot and the fact that they were not put up at an identification parade is of no consequence.

20. As we have stated above, the learned Assistant Sessions Judge found the testimony of the six eye-witnesses examined on behalf of the prosecution believeable and relying on their testimony he found it proved that the respondents had assembled near the Behta Bridge in the night and in the manner alleged by the prosecution. In the view of the learned Assistant Sessions Judge the public witnesses were independent and there was no reason to disbelieve them. The learned counsel for both sides have taken us through the entire evidence adduced for the prosecution and we are of the view, that the finding of the learned Assistant Sessions Judge was fully justified and correct. Of the six eye-witnesses four were police officials. One of them was station officer of police station Sandila and the other of Police Station Atranti. The two other police officials were a constable and a Head Constable respectively of police station Sandila. The witnesses have narrated the entire prosecution case and they stated that when the would be dacoits had arrived and assembled at a place near Behta Bridge and had discussed the whole plan for committing dacoity at the house of Rameshwar Dayal a very light pistol was fired by P. W. 2 Rajendra Prasad Singh, station officer, police station Atrauli. The four groups that were formed out of the police party rushed at the assembly of the miscreants. There upon one of the dacoits fired at Raghubir Singh who in retaliation fired at the dacoits. Munnu Lal died as a result of the shot fired by Raghubir Singh and the two respondents were arrested while the remaining miscreants managed to escape. Learned counsel for the defence has pointed out certain discrepancies in the evidence and has contended that the whole prosecution story is inherently improbable and unacceptable. We do not agree with this contention of the learned counsel and do not find any thing inherently improbable Rajendra Prasad Singh. S. O. Atrauli was, going on some work and on the way he got information that certain miscreants would assemble at Behta Bridge in that night for committing a dacoity Because the place was within the jurisdiction of police station Sandila, it was but natural for Rajendra Prasad Singh to inform Raghubir Singh, S.O. Sandila He went there, informed the station officer and this fact was recorded in the general diary at police station Sandila. The two Sub-Inspectors then organized a raid and they took some official and non-official witnesses with them. The witnesses have further stated that when the would be dacoits collected near the Behla Bridge, they discussed the plans which indicated that they intended to commit dacoity at the house of Rameshwar Dayal. When convinced of the evil intention of the persons who had collected, one of the Sub-Inspectors gave the signal by firing his very light pistol and the four groups which had been made out of the police party rushed at the dacoits.