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4. The accused appeared before the court, and charges were framed against the accused under sections 399/402 IPC in case crime number 140/87 and under section 25 Arms Act in case crime numbers 141/87. 142/87 and 143/87 respectively on 08-01-1988. The accused denied the charge and claimed to be tried.

5. The accused were on bail during the trial. The proceedings under s.399/402 IPC and those under s.25 Arms Act, against the three accused viz. Sheo Dutt, Chandrapal Yadav and Azad Singh were consolidated as they were founded on the same evidence.

10. The State preferred no appeal against the order of acquittal of the appellant under s.399/402 IPC, and acquittal under Sections 399/402 IPC has attained finality.

11. PW-1 SI Sharda Prasad Tripathi, in his Examination in Chief, has stated that on 4/5-10-1987, he was posted as SI at Police Station Sikandara and at 10:05 pm, he received information from a Mukhbir that in the vicinity of, towards south of Sikandara Chauraha, a group of 5-6 persons was to assemble in a Berry Orchard and were preparing to commit dacoity in house of Mithelesh Kumar of Sikandra and on information received, he, along with SO Sikandra(PW-3)and a contingent of Inspector Hari Shankar, HC Devi Charan and 7 other constables proceeded towards the spot and also procured the presence of Ram Suresh, Ravindra Kumar to the place indicated and when they reached the place near Microwave tower, they all divided themselves into three teams and surrounded the people assembled there and after a brief challenge, two of the five persons succeeded in escaping and three persons were arrested from the spot and illegal fire arms and cartridges were recovered from their possession. The three arrested persons were Sheo Dutt, Chandrapal and Azad Singh. The memorandum of recovery of the illegal weapons seized and arrest was prepared by him under the directions of the SO Chandrapal Singh(PW-2). The names of two persons who had escaped were disclosed by the arrested persons as Gopal Singh and Digvijay Singh.

15. Heard learned Counsel for the appellant Azad Singh and learned AGA for the respondents/State of UP and perused the record.

16. The appellant along with the other two co-accused Chandrapal and Sheo Dutt was convicted of an offence under Section 25 of the Arms Act, and acquitted of the charge under Section 399/402 IPC. Hence the present appeal.

17. Learned counsel for appellant has submitted that the appellant, along with other co-accused in aforesaid case crime number, have been falsely implicated in the case and the fact of false implication is strengthened by factum of acquittal recorded by the trial court acquitting the appellant of charge under sections 399/402 IPC by reaching a conclusion that in absence of independent corroborative evidence in regard to the fact that the appellant, along with the other co accused, had assembled in preparation to commit offence of dacoity but conviction of appellant on same evidence under s.25 of Arms Act manifests non application of Judicial Mind, is total ignorance of the fact that there was no independent witness of recovery of the alleged illegal fire arms from possession of the appellant and there was no report of ballistic expert to corroborate the fact that the recovered fire arms were in a functional state to classify them as weapon.The fact of the matter is that the police had wrongly roped in the appellant as accused due to personal grudge that the police had against the accused persons.

26. The trial Court Judge, in its Judgment, himself noted discrepancies in the evidence of PW-1, PW-2 and PW-4 regarding what had transpired between the accused while they were planning and preparing to commit dacoity on the date of arrest of the accused persons, and the trial court has acquitted the appellant and the accused Sheo Dutt and the other two accused of charges under s.399/402 IPC on the ground that the witnesses were at such a distance that they could not have heard what the accused were discussing and thereby disbelieved the prosecution's case to that extent and did not find evidence of an independent witness worthy to convict the accused under section 399/402 IPC. The court cannot act selectively and pick and choose between the evidence.