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A Division Bench of this Court in Mahavir v. State of Haryana 2010 (6) Recent Criminal Reports 3073 held as under:-

1914-SB and 2060-SB of 2010 "15. Now coming to the factum, as to whether, the accused were allegedly making preparation to commit dacoity, while sitting in a room, armed with iron rods, a dagger, and a country made pistol, it may be stated here, that the same is not proved, as would be discussed hereinafter. Sections 399 and 402 of the Indian Penal Code, are confined to making preparation for commission of dacoity and have no reference to any other offences. Therefore, the prosecution must prove, from some evidence, directly or indirectly, or from attending circumstances, that the accused persons had assembled for no other purpose than to make preparation, for commission of dacoity. If the evidence falls short of it, the case must fail. Though the word "preparation" has not been defined, in the Penal Code, the prosecution must show some such conduct, to prove the factum of "preparation" by the assembly, and that the accused persons had conceived any such designs for committing dacoity, and, in fact, intended to achieve the object, for which they had assembled. Therefore, the mere fact that some persons were found sitting at a lonely place, at night, in a house which was under
"19. It is perfectly true that the prosecution must establish, in a case of this kind, that the accused had conceived 1914-SB and 2060-SB of 2010 a design for committing dacoity, but it is equally true that the intention of an individual or a number of individuals who have conspired together is seldom known to others, and can only be established by proof of circumstances from which the intention can be inferred. Witnesses cannot give direct evidence as to the intention of the accused; and, if the legitimate inference from the circumstances which are established is that the intention of the accused was to commit dacoity, it is for them to prove that their intention was different. Illustration (a) of Section 106 of the Evidence Act makes this quite clear. Reliance may be placed in this connection upon Jain Lal v.

                              Emperor, AIR 1943 Pat 82 a case to

                              which    I    will     again     have     to     make

                              reference."
So even from, this decision it is clear that it is for the prosecution to establish that the accused had conceived a design for committing dacoity. Of course, it has been stated therein that if the legitimate inference can be drawn from the 1914-SB and 2060-SB of 2010 circumstances which are established in the case that the accused persons had the intention to commit dacoity, it will be for them to prove that their intention was different. It was in this context that reference was made to Section 106 of the Evidence Act, but the learned Sessions Judge has placed the burden itself on the accused to satisfy, the court regarding the object or intention of their presence in the lonely orchard in the dead of night along with many other persons some of whom were armed with firearms and other weapons. What be aforesaid decision wanted to lay down was that once it was established by the circumstances of the case that the intention of the accused persons was to commit dacoity, then it was for the accused persons to explain that their intention was different from that of committing dacoity and not that the burden lay on the accused persons to explain and to satisfy the court about their presence there.