1. This is an appeal on behalf of the Local Government against an order of acquittal passed by the learned Sessions Judge of Mainpuri in respect to two accused, Khushi Ram and Lakhpat. These persons were charged in the alternative with offences, tinder Section 399 or 402 of the Indian Penal Code. The facts in respect of which the Judge and the Assessors were unanimous are as follows:---Two Sub-Inspectors with some assistants were proceeding down a road after visiting the village of Nagla Bhura on November 1st in the Police Circle of Kurra. They came along the canal bank to the Takhrao Bridge. The time was between 8 and 9 P. M. They came upon three men. One was mounted and two were on foot, and tried to run away when challenged. The mounted man was seized upon the spot. The other two ran away, but being pursued, one of them was caught. He was the man Narain, who has been tried with Khusi Bam and Lakhpat and has been found guilty and convicted. On the person of Narain were found four pistols, four powder flasks and some shots and bullets. The mounted man was the approver Thulli, who was subsequently pardoned and has given evidence' in this and other oases. On his pony, ingeniously concealed under a durri, were a short carbine and a gun in two pieces. In his pocket was found a bundle of valuable gold and silver ornaments, the proceeds of certain dacoities. The fire arms were nearly all loaded. Thulli on being questioned apparently saw that the game was entirely up, as he had been caught in possession of re arms and property taken in dacoities. He gave the information at once that he and his companions (the third man he names as being one Antu) were, on their way to a rendezvous, when they intended to commit a dacoity in the village of Sarb. He informed the Police of the, rendezvous which had been selected, The Police Officers collected, some people from the neighbouring villages and with Thulli and Narain proceeded to the rendezvous. The people with the Police were so distributed as to make it possible, to arrest any of the other dacoities, should they come up, Thulli on the order of the Sub-Inspector called out into the darkness certain names which apparently would be recognised by his fellow dacoits. A reply came back from the darkness, Thulli replied and thereupon, five persons approached; three were; in, front and two were further behind. The Police made a dash upon them and secured three of them. Of these three Khushi Ram, and Lakhpat were two and Kalka is the third. Lakhpat was dressed in Khaki and calmly stated that he was a Policeman, Kalka, who has been convicted, was found in possession of two ramrods which, according to the evidence of Thulli, had been made to fit two of the pistols which were found in Narain s possession, and were without ramrods. The evidence of Thulli, if accepted, clearly shows that these persons were collected together at the rendezvous taking with them what arms' they could find, with the intention of committing a dacoity at village Sarb. The learned Judge has found Narain and Kalka guilty under Sections 399 of the Indian Penal Code, holding that they had made preparation for committing a dacoity. In respect of Lakhpat and Khushi Ram he has acquitted them on the following grounds. He says: 'Lakh pat and Khushi Ram cannot be said to be guilty under Section 399 of the Indian Penal Code, for going to a rendezvous at night unarmed is not enough to constitute the offence of preparation of; a dacoity. They can only be convicted under Section 402 of the Indian Penal Code if they were party of a body of five or more persons. Now the witnesses say that five men came up when Thulli called; two of them, however, did not come near, and one witness is not sure whether there; were five or only four, Clearly it cannot be held that the three fines captured were in company with Thulli and Narain, for these were in Police custody and had no longer any intention of committing dacoity. Lakh pat and Khushi Ram can only he convicted if they had two comrades besides Kalka. This is I think doubtful. Moreover, where were the rest of the gang? These men go out in large numbers, not less than thirty. The arrest and search of Thulli had delayed them, so that they were already late, and it is more than likely that part of the gang, if it assembled, had already dispersed, and there would have been no dacoity at all that night at Sarb or elsewhere. This being so, I am not prepared to convict Lakhpat or Khushi Ram.' It is against this acquittal that the Local Government has appealed.
2. The Judge and the Assessors agreed in accepting the evidence for the prosecution as being true and worthy of belief. There was practically no defence whatsoever and certainly the defence evidence carries no weight at all. We cannot agree with the learned Sessions Judge that the facts which lie has found do not constitute the offence of preparation for committing a dacoity. It is clear that the members of the gang had fixed upon a rendezvous; had agreed to meet at that rendezvous taking with them what arms they had; that in pursuance of that agreement Khushi Ram and Lakhpat together with others had arrived at the rendezvous and that Thulli and Narain were on their way to that same rendezvous when they were arrested by the Police. In our opinion it is, therefore, clear and distinct evidence of preparation for the commission of dacoity. Even if the Judge did hot convict under Section 399, it is clear that the offence under Section 402 is proved up to the hilt. The evidence of the witnesses, who have been believed, is to the effect that there were at least five men at the rendezvous, three of whom were arrested. Even the one witness mentioned by the learned Sessions Judge says that four or five men Came from the direction of Kurra and when. they came three were caught and two escaped. There were five of them.' All the other witnesses distinctly say that there were five or six of them. In our Opinion there is not the slightest doubt whatsoever on the evidence that the accused could have been convicted under Section 402 as well as Section 399. We therefore convict Khushi Ram and Lakhpat of an offence under Section 399 of the Indian Penal Code, and we sentence them to seven years rigorous imprisonment each.