Harnam Singh, J
1. The six appellants in this case have been convicted Under Section 399, Penal Code and sentenced to undergo five years' rigorous imprisonment each.
2. The prosecution case is that on the evening of 7th April 1048, Pandit Narinjan Singh, Assistant Sub Inspector, Panipat, received in-formation that a group of six persons would commit dacoity that night at the house of Rafci Bam lambardar of Dimana, police station Samalkha, a fairly wealthy person, and that the dacoits would collect at a well in the area of village Bheri Nan gal alias Garhi Siwah, situate at a distance of about two miles from Panipat, On receipt of this information at about 7 or 7-30 p, M. the Assistant Sub-Inspector of Police deputed Banwari Lai police constable to go to village Dimana, situate at a distance of four fees from Panipat to inform Eati Ram lambardar of the proposed dacoity and at about 10 P.M. formed a raiding party consisting of Assistant Sub-Inspector Chaudhri Harbans Lai P.W. 4, Hari Earn head constable, four constables, Jagdish Bam P.W. 2 and Chandar Bhan P.W. 3 and raided the hacha kotha at the well which was without shutters and found the six appellants sitting in the kotha taking liquor, with two empty bottles, Exs. p. 19 and p. 20, and one glass tumbler, Ex. p. 21, all smelling of liquor lying nearby. On seeing the police the accused stood up and of them Balqara Singh and Devi with piatola in their hands got ready for resistance but before they could fire, the acoused were overpowered by the two Assis-tant Sub-Inspectors of Police with the assistance of the head constable and a constable.
3. The police recovered a loaded pistol, Ex, p. 1, from Balqara Singh and cartridges, Exs. P. 2 to p. 5, from his shirt pocket. The police likewise recovered a loaded pistol, ex. p. 11, from Devi acoused and cartridges p. 13/1-4, from his pocket. Barbara Singh had the loaded gun, Ex. p. 6, and from the folds of his loincloth a packet containing half pound of gunpowder and 68 pellets were recovered. Lakhman acoused had a loaded pistol ex. p. 15 and cartridges Exs. P. 16, P. 17 and p. 18 were also recovered from him. Jagir Singh and Balmukand acouaed had a kirpan each. The articles recovered were taken into possession and recovery memos, Ex. P. A., regarding arms and Ex, p. B. regarding the liquor bottles and glass tumbler were prepared.
4. The accused admit that they were arrested by the police at the well. They, however, state that they were not armed at the time of arrest and were not making 'preparations' for committing dacoity. Balqara Singh, Darbara Singh, Jagir Singh and Devi convicts stated that they had been taken to the well by Dep Chand, a carpenter of Babail, for taking liquor and Balmokand and Lakhman convicts stated that they had been taken to the well by Bija. They examined fourteen witnesses in defence. The trial Court has, however, rejected the testimony of the defense witnesses and counsel for the appellants has not relied upon that evidence in appeal,
5. As stated above, the convicts admit that they were arrested by the police at the well and it appears that there is abundant evidence to sustain the conclusion to which the trial Court has come that the convicts were armed as mentioned above and I not only see no reason for disturbing it, but think it is the right conclusion, one at which I myself would have arrived on. the evidence examined at the trial.
6. There remains the question whether on the facts set out above it can be found that the convicts were making 'preparations' for commit-ting dacoity.
7. Now, Mayne points out in his book, Criminal Law of India, that there is a wide difference between 'preparation' and 'attempt to commit offence. 'Preparation' consists in devising or arranging means necessary for the commission of an offence and an 'attempt' is the direct movement towards the commission after preparations are made. This definition is to be found in para 227, page 033 (4th edition of the book Criminal Law of India). Again, in Jain Lai v. Emperor A. I. R (80) 1943 Pat, 82 at p. 84 : 44 Cr. L. a. 337 Eowland J. said :
It is ordinarily ho offence to make preparation for committing a crime until the stage of preparation has passed and that of attempt has reached. But it is an offence Under Section 399 to make any preparation for committing dacoity. No hard and fast rule can be laid down that any particular act or any particular kind of steps are necessary to constitute 'preparation'. The essential thing is that the Prosecution must show that then were persons who had conoeived the design of committing dacoity. Once the existence of such a conspiracy has been established then any steps taken with the intention and for the purpose of forwarding that design may justify the Court in holding that there has been preparation within the meaning of the section.
Varma J. concurred with the opinion expressed by Rowland J.
8. Now, applying the rule laid down in Jain Lai v. Emperor A.I.R. (SO) 1943 Pat. 82. : 44 Cr.L.J. 337 to the facts of this case I find that the present case does not come within mischief of Section 399, Penal Code, No evidence of any conspiracy to commit dacoity has been examined. There is no evidence in this case that any one of the six appellants was ever seen in village Dimana at any time prior to his arrest from the well. No implements of house breaking were recovered from them. It is in evidence that village Dimana is Situate at a distance of four miles from the place where the appellants were arrested. They had made no arrangements for any conveyance from the well to village Dimana andlback. The appellants were arrested on 7th April 1948 and the Amawas fell on 9th April 1948. From the well no torches or other lights were recovered. In fact, the accused appellants were taking liquor at the time. They were not very far away from their own original houses and were found at a well situate at a distance of 100 karams from the village Garhi Siwah. Jagir Singh was residing in those days in the refugee camp at Panipat and Darbara Singh and Balqara Singh in village Mowali. The distance between the refu-gee camp at Panipat and the well in question is two miles and the distance between Mowali and the well is one mile. Devi appellant hails from Babail situate at a distance of miles from the well in question whereas Balmukand and Lakhman come from Palheri, situate at a distance of 2j miles from the well. Again, none of them ia a previous conviot. The question is whether on those facts it can be said that the accused had made 'preparations' for committing dacoity in the house of Rati Ram in village Dimana, situate at a distance of four miles from the well.
9. Pandit Narinjan Singh, Assistant Sub. Inspector, has stated that he received information on 7th April 1948 that that night a group of six persons would commit daooity at village Dimana, police station Samalkha. The information was that thoEe persons would collect at a well in the area of village Kheri Nangal alias Garhi Siwah. The informer has not been examined at the trial and the statement of Pandit Narinjah Singh on this point does not prove the truth of the facts mentioned to him by his informer. In any case, Pandit Narinjan Singh, Assistant Sub-Inspector, has admitted that he was not given the name of the well nor the names of the accused by the informer. He further states that he did not record the statement of the informer before proceeding to the well. That being the case, I hold that the prosecution has failed to prove that the convicts had conceived the design of committing dacoity.
10. For the reasons given above, I set aside the convictions and sentences of the appellants, and direct that they may be set at liberty.
11. Lest there be some confusion, I make it clear that the accused are being proceeded against separately for the possession of unlicensed arms. This judgment does not affect in any way those proceedings.