(i) That five or more persons had assembled; (ii) for the purpose of committing dacoity and (iii) that the accused was one of the persons who had so assembled. All these elements have to be proved before a person can be convicted under Section 412. In Chaturi Yadav v. State of Bihar [AIR 1979 SC 1412], the accused had assembled at a lonely spot in the school premises when they were detected by the patrol squad. One of the accused was found to be in possession of a gun and a live cartridge, and others had merely one live cartridge in their pockets. There was absolutely no evidence to establish that the accused had assembled there for the purpose of committing dacoity. In the absence of such evidence, it was held that since one of the ingredients of the offence had not been established by the prosecution, no offence under Section 402 was made out. In R v.
Bohlu [(1900) 23 All 124], several persons were found at eleven O’clock at night on a road just outside the city of Agra, all carrying arms (guns and swords) concealed under their clothes. None of them had a licence to carry arms, and none of them could give any reasonable explanation of his presence at the spot under the particular circumstances. All that period the district of Agra was notorious as the scene of frequent and recent dacoits. It was held that they were guilty under Section 402. The offence under Section 402 is cognizable and warrant should, ordinarily, issue in the first instance. It is both non-bailable and non-compoundable, and is exclusively triable by the Court of Session. Section 399 differs from Section 402 of the Code. Section 402 applies to mere assembling without proof of other preparation.
A person may not be guilty of dacoity yet guilty of preparation and not guilty of preparation yet guilty of assembling. The difference between Section 399 and 402 is that while under Section 402 mere assemblage without preparation is enough Section 399 requires some additional steps by way of preparation. There can be cases where there may be an assembly for the purpose of dacoity without even a fringe of preparation.
The mere fact that the appellants are acquitted of the charge under Section 399 is no ground to knock off the charge under Section 402 IPC.