Judgment 1. Appellants Rampratap Mahato and Babulal Mahato who are full brothers have been convicted under Sec.395 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for seven years and to pay a fine of Rs. 100.00 each or in default to undergo rigorous imprisonment for four months more. The occurrence, in which they are alleged to have participated, took place at mid-night between 30th April and the 1st of May, 1965 in the house of Gumani Singh (P. W. 2) in village Kothia, some four miles away from Tajpur police station in the district of Darbhanga. The house of the appellants lay in the another Tola of the same village at a distance of about half a mile from the house of Gumani Singh (P. W. 2). 2. The Prosecution version of the occurrence is as follows : On the night in question, Gumani Singh (P. W. 2) was sleeping just outside the Darwaza of his house on a Chabutra of a well. Near him were also sleeping his servant Kewal Singh (not examined) and one of his labourers Jhaman Singh (P. W. 4). He was roused from his sleep by the sounds of foot steps, but as he wanted to get up he was surrounded by three or four dacoits. So, out of fear he kept on lying on his cot and covered his face by means of his Chadar. He heard the sounds of push at the outer door of his house appearing to him to have been caused by the dacoits, whose total number was eight or nine. On hearing the knocks at the door his sister Ram Dulari (P. W. 3) opened the door thinking that the knocks at the door were given by her brother (P. W. 2). As soon as she opened the door of the house eight or nine dacoits effected their entry therein. The dacoits were armed with torches and other kinds of weapons. Among the dacoits were the two appellants, both of whom were identified by Ram Dulari (P. W. 3). Appellant Babulal caught hold of P. W. 3 while appellant Rampratap robbed her of the various ornaments which she was then wearing. Subsequently appellant Rampratap directed his attention towards Mohini Devi (P. W. 1), the elder of the two wives of Gumani Singh (P. W. 2). From her persons also, appellant Rampratap snatched away several ornaments. Appellant Babulal caught hold of P. W. 3 while appellant Rampratap robbed her of the various ornaments which she was then wearing. Subsequently appellant Rampratap directed his attention towards Mohini Devi (P. W. 1), the elder of the two wives of Gumani Singh (P. W. 2). From her persons also, appellant Rampratap snatched away several ornaments. In the meantime Resma Devi (P. W. 11) the junior wife of Gumani Singh (P. W. 2) arrived near her Sautin (P. W. 1). Appellant Rampratap snatched away some ornaments from her person as well. The dacoits ransacked the other portions of the house and looted away articles after breaking open an almirah and some boxes. While the dacoits were still in the house, Mohini Devi (P. W. 1) went outside and raised an alarm which was heard by a large number of villagers and several of them came to the Darwaja of Gumani Singh (P. W. 2). In the mean time the dacoits fired some crackers and after coming out of the house they ran away towards the east. Several of the villagers pursued the dacoits to some distance but the culprits managed to escape. Later on the chasers returned to Gumani Singhs house and on entering into his house they learnt from the female inmates that among the dacoits were the two appellants, who belonged to their own village. 3. The first information report (Ex. 1) was lodged by Gumani Singh (P. W. 2) at 8 a. m. on the next morning. The investigation was taken up by the Assistant Sub-Inspector, Sahabuddin Ahmad (P. W. 14). On visiting the place of occurrence, the police officer noticed various signs of dacoity in the house of Gumani Singh (P. W. 2), such as broken locks, almirah and boxes. After the 11th May, 1965, the investigation was conducted by other police officers and ultimately charge, sheet was submitted against the appellants. 4. At the trial, fourteen persons figured as prosecution witnesses, among whom the witnesses on the point of occurrence were the five inmates of the house, namely P. Ws. 1, 2, 3, 4 and 11 and five of their co-villagers, namely P. Ws. 5,7,9, 12 and 13. 4. At the trial, fourteen persons figured as prosecution witnesses, among whom the witnesses on the point of occurrence were the five inmates of the house, namely P. Ws. 1, 2, 3, 4 and 11 and five of their co-villagers, namely P. Ws. 5,7,9, 12 and 13. The witnesses on the point of identification however, were only the two ladies, namely, Mohini Devi (P. W. 1), who claimed to have identified appellant Rampratap among the dacoits and Ram Dulari (P. W. 3) who claimed to have identified both the appellants amongst the dacoits. 5. The defence was one of false implication on account of some land dispute and bad blood prevailing between the appellants and informant Gumani Singh (P. W. 2). Three defence witnesses were also examined at the trial. 6. The fact that there was a dacoity in the house of P. W. 2 on the night in question stands proved by abundant evidence and the same has not been assailed before me. The evidence is consistent to the effect that 8 or 9 dacoits had raided the house of P. W. 2 and had indulged in violence against the person and property of the inmates. A point was taken in respect of the charge which was framed at the trial wherein it was not specified that dacoity was committed by five or more persons. It was argued by learned counsel for the appellants that the charge was defective as a charge in respect of an offence of dacoity. In my judgment there is no force in this contention. The very fact that Sec.395 of the Indian Penal Code was mentioned in the charge would imply that it was in respect of an offence in which five or more persons had participated. No prejudice was also caused to the appellants on account of the alleged defect in the charge. I must therefore hold that the prosecution case with respect to the factum of dacoity has been proved. 7. The more important question is whether it has been proved beyond doubt that the appellants were among the dacoits who had raided the house of P. W. 2 on the night in question. As I have already stated the identifying witnesses are two ladies (P. Ws. 7. The more important question is whether it has been proved beyond doubt that the appellants were among the dacoits who had raided the house of P. W. 2 on the night in question. As I have already stated the identifying witnesses are two ladies (P. Ws. 1 and 3) and the fact that they had correctly identified the appellants among the culprits has been sought to be corroborated by the evidence of P. Ws. 2 and 4 as also of P. Ws. 5, 9,12 and 13 amongst the co-villagers of the informant. The substance of the evidence of these covillagers is that when they returned to the house of P. W. 2 after the dacoits had been chased away they went inside the house and on that occasion P. W. 3 has given out in their presence that she had identified both the appellants among the dacoite and likewise P. W. 1 had claimed before them that she had identified appellant Rampratap among the dacoits. Nothing has been brought on the record to discredit the testimonies of P. Ws. 5 and 9. There is also nothing against the testimony of P. W. 12, who was the tubewell operator except that he was a tenant in the house of P. W. 2 on a rental of Rs. 3/- per month, his tubewell being situated 500-600 yards away from the house of P. W. 2. If P. W. 12 intended to give false evidence against the appellants, then he might as well have come forward with a story that at the time of raid he was inside the house of P. W. 2 instead of saying as he did that he was then at the tubewell. There can be no doubt therefore, that in presence of P. Ws. 5, 9, 12 and 13, at any rate, the two ladies, P. Ws. 1 and 3 had claimed to have identified one or more of the appellants among the dacoits. 8. Learned counsel for the appellants has put forward a contention that no reliance can safely be placed upon the corroborative evidence of P. Ws. 5, 9, 12 and 13 inasmuch as before they had gone inside the house of P. W. 2 which they had done after returning from the chase of the dacoits. 8. Learned counsel for the appellants has put forward a contention that no reliance can safely be placed upon the corroborative evidence of P. Ws. 5, 9, 12 and 13 inasmuch as before they had gone inside the house of P. W. 2 which they had done after returning from the chase of the dacoits. P. W. 2 himself had gone inside the house and had therefore an opportunity of tutoring his wife (P. W. 1) and his sister (P. W. 3) into naming the appellants among the culprits whom they had identified. This involves consideration of the question as to whether there was such enmity or bad blood between the informant (P. W. 2) and the appellants that the former would resort to indulge in false implication against the appellants in the manner suggested by learned counsel. 9. One fact which has been elicited in the cross-examination of P. W. 2 is that appellant Rampratap had given some land of his in Bharana to P. W. 2 but, subsequently the Bharna land in question had been conveyed to one Issari Mahto who had subsequently redeemed the mortgage of P. W. 2. It was suggested on behalf of the appellants that P. W. 2 was displeased with the appellants on this ground inasmuch as he was anxious to purchase the land himself but appellant Rampratap had preferred not to sell the land to P. W. 2. P. W. 2 of course had denied that he was keen to purchase the Bharna land. A curious step however was taken by the informant in this context. After the evidence had been recorded in the trial Court and the arguments were being heard by the learned trial Judge on the 3rd of August, 1968, the informant came forward with a petition along with a certified copy of a sale deed praying that the document should be taken into evidence on the side of the prosecution. The learned trial Judge heard the lawyers of the informant on the point and admitted the copy of the sale deed as Ext. 4 for the prosecution. The learned trial Judge heard the lawyers of the informant on the point and admitted the copy of the sale deed as Ext. 4 for the prosecution. In course of his judgment the learned Judge dealt with the defence suggestion of ill will on account of redemption of the Bharna of P. W. 2 in the following terms : "It was suggested to this witness in his cross-examination by the defence lawyer that he was displeased with the accused, because a land of village Sadirpur which was given in Bharna to him by accused persons was subsequently sold to Issari Mahto although he himself wanted to purchase that land. But obviously there appears to be no truth in this plea of the defence because from Ext. 4 a certified copy of the sale deed executed by accused Ram Pratap in favour of Issari Singh to which reference was made in the above suggestion it will appear that it was executed on 7-2-1966 about 7 months after the occurrence in question. Moreover P. W. 4 has also denied in his evidence that he was over anxious to purchase that land." Quite naturally, learned counsel for the appellants took strong exception to the course adopted by the learned Judge and the use made by him of Ext. 4. The learned trial Judge was grievously in the wrong in accepting Ext. 4 at the instance of the private prosecutor who as is well known has no locus standi in the trial of a case instituted on a Police report. Secondly Ext. 4 was admitted into evidence without formal proof. Thirdly it was admitted after the defence was closed and without affording any opportunity to the defence to meet the new material brought on the record in course of arguments. Ext. 4 was not a public document which could have been admitted into evidence in the above manner. I must therefore exclude Ext. 4 totally from consideration. However, I see no reason to disbelieve the denial of P. W. 2 that he was anxious to purchase the Bharna land himself. Even if P. W. 2 might have liked to purchase the land, I cannot persuade myself to believe that he was so annoyed at the sale of that land to Issari Singh that immediately after the occurrence of dacoity he has thought of tutoring P. Ws. Even if P. W. 2 might have liked to purchase the land, I cannot persuade myself to believe that he was so annoyed at the sale of that land to Issari Singh that immediately after the occurrence of dacoity he has thought of tutoring P. Ws. 1 and 3 into naming the appellants among the culprits. In the mood in which P. W. 2 must have been immediately after the dacoity it is unimaginable that he would have taken such a serious occurrence as a convenient handle to indulge in false implication against his mortgagors. If he had any intention of indulging in false implication against the appellants then he would himself have given a distorted version of the occurrence so that he might personally become an eye-witness. He would not have indulged in false implication in an indirect manner by setting up his wife and sister as witnesses of identification. Learned counsel pointed out that before P. Ws. 5, 9, 12, 13 and other villagers who had joined in the chase of the dacoits had come back to his Darwaja, P. W. 2 had seen Bankey Mahato, Paryag Mahato, Ram Lakhan Singh and Ram Sharan Singh present there and at that stage the ladies of his house had come out. This was roughly ten minutes after the dacoits had fled away; but these four persons have not come to depose in this case. The implication of this argument is that it was subsequent to the arrival of these four persons and before P. Ws. 5, 9, 12, 13 and others had returned to the village P. W. 2 had coached up P. Ws. 1 and 3 for the purpose of naming the appellants in presence of those corroborative prosecution witnesses. I do not feel impressed by this contention at all, because I have already stated that there is no justification for thinking that P. W. 2 was annoyed with the appellants on account of sale of the Bharna land to Issari Singh and at any rate the annoyance could not have been of such a high pitch as to lead P. W. 2 to implicate the appellants in a grave charge. 10 In support of the defence case that there was bad blood prevailing between one of the appellants and the informant (P. W. 2), reliance was placed upon the evidence of D. W. 2 who was the Surpanch of Chandpur Kothya Gram Panchayat and had proved a complaint (Ext. A) made before him on the 6th April, 1965, by appellant Babu Lal that P. W. 2 was threatening to beat him for some reason. The surpanch, D. W. 2 further stated that at about 2 a.m., on the night in question he had gone to the house of Gumani Singh (P. W. 2) and met both his wives and sister, none of whom had mentioned before him the names of the appellants as dacoits. The evidence of this Surpanch is not at all reliable. Had there been any truth in the fact that he had gone to the house of P. W. 2 about two hours after the occurrence then a suggestion to this effect was expected to have been made in the cross-examination of P. W. 2 and since that was not done I am inclined to think that there is no truth in what D. W. 2 has said about his visit of the informants house on the night in question. The fact that D. W. 2 was not a reliable witness at all is also apparent from the circumstance that it was nowhere suggested to the female witnesses P. Ws. 1 and 3 that any enquiry was made from them by the Surpanch with respect to the names of the dacoits identified by them. D. W. 2 is therefore a wholly unreliable witness. Even with respect to the petition of complaint (Ext. A) which he came to prove, his evidence is curious inasmuch as he was unable to say under what authority he had entertained such a petition of complaint. He was constrained to admit that there was no record in his Panchayat in respect of such petition and that he had not taken any action on its basis. The document does not bear the seal of the Gram Panchayat, I am fully convinced that the Surpanch (P.. W. 2) had come to support wholly a false defence. He was constrained to admit that there was no record in his Panchayat in respect of such petition and that he had not taken any action on its basis. The document does not bear the seal of the Gram Panchayat, I am fully convinced that the Surpanch (P.. W. 2) had come to support wholly a false defence. Considering the materials on the record I am satisfied that the appellants were not implicated in this case at the instance of P. W. 2 or on account of animus or ill will against them. 11. Learned counsel then urged that there is discrepancy in the evidence with respect to the means of identification which was stated in the first information report to be the lights produced by a lantern and torches of the dacoits. According to P. Ws. 1 and 3 they had identified the appellants in the lights of lantern and Dhibri. It must be remembered however that P. W. 2 was not an identifiying witness himself and therefore his statement in the first information report cannot falsify the evidence of P. Ws. 1 and 3 with respect to the means of identification. Besides, as the evidence shows the appellants were not total strangers to the family of P. W. 2 so that even dim light produced by the lantern and Dhibri must have sufficed to lead to a correct identification on the part of P. Ws. 1 and 3. 12. It was then urged that evidence of P. W. 1, at any rate against appellant Ram Pratap is doubtful because it appears from the evidence of P. W. 1 that she had come out of her house and gone to the house of P. W. 9 while the dacoits were still in her house and at that stage she had not named appellant Ram Pratap as a culprit. In my opinion, at that stage it would have been most unnatural for P. W. 1 to give out any name of culprit for the simple reason that at that point of time her uppermost anxiety must have been to raise alarm so that villagers might come to the scene of the occurrence and not to tell any one whether she had identified any one among the dacoits or not. Therefore, there is no force in this comment against the evidence of P. W. 1. 13. Therefore, there is no force in this comment against the evidence of P. W. 1. 13. Another argument advanced by learned counsel for the appellants was that it was highly improbable that the appellants who were co-villagers of P. W 2 would have thought of participating in the occurrence and playing a leading role therein as described by P. Ws. 1 and 3 without taking any precaution to conceal their identity. In support of this contention reliance was placed upon a decision of their Lordships of the Supreme Court in Ram Shankar Singh V/s. State of Uttar Pradesh, ( AIR 1956 SC 441 ). In that case six persons were put on trial on a charge of dacoity; three of them belonged to the complainants village while the remaining three belonged to an adjoining village. All the six accused were well known to the complainants party. The Sessions Judge had convicted all of them under Sec.395 Indian Penal Code. On appeal the High Court acquitted the three accused who belonged to the complainants village on the ground that it was not probable that they would commit dacoity in their own village without taking the least precaution to conceal their identity, but the High Court did not give the same benefit to the remaining three accused persons who belonged to the adjoining village. On appeal by the accused persons who belonged to the adjoining village their Lordships observed that they saw no sufficient reasons for differentiating their case from those of other accused persons who had been acquitted by the High Court. The Supreme Court were not called upon to decide whether the ground given by the High Court for acquitting the accused persons who belonged to the complainants village was sound and so their Lordships said nothing in support of the reasoning of the High Court mentioned above. Their Lordships merely observed that there could be no different standard for judging the case of the accused person who after all belonged to only a neighbouring village. I do not therefore read the decision of their Lordships in, AIR 1956 SC 441 as laying down any principle of general application that the co-villagers are not likely to commit any dacoity unless they take precaution to conceal their identity. I do not therefore read the decision of their Lordships in, AIR 1956 SC 441 as laying down any principle of general application that the co-villagers are not likely to commit any dacoity unless they take precaution to conceal their identity. If the contentions of learned counsel for the appellants were to prevail then as observed by the Judicial Commissioner in Promode Chandra V/s. State, (AIR 1969 Tripura 42) "any neighbour can easily commit dacoity and escape on the ground that he did not conceal his identity before committing dacoity". It is manifest therefore that every case must be decided upon its own facts and circumstances. In the present case, as I have shown, there is no sufficient ground for thinking that the prosecution party has indulged in false implication against the appellants. If the evidence of identification is otherwise acceptable and free from reasonable criticism, then the appellants cannot escape on the mere ground that they are not alleged to have taken any step to conceal their identity. It seems to me that the appellants were emboldened to play a leading role in the occurrence when they found that the inmates of the house were only ladies who were not likely to offer any serious resistance to their activities. 14. A grievance was made on the score that the informants junior wife (P. W. 11) who claimed to have seen the dacoits had not been called upon to identify the appellants at any test-identification parade. Since however, the prosecution did not rely upon the evidence of P. W. 11 on the point of identification this contention loses its force. The mere fact that one witness does not figure as an identifying witness against the appellants cannot be a valid ground for throwing out the evidence of the other identifying witness. 15. Having considered the entire evidence on the record I have come to the conclusion that there is no valid ground for disbelieving the evidence of identification which P. Ws. 1 and 3 have given as against appellant Ram Pratap Mahato. His complicity in the crime has therefore been established beyond reasonable doubt. 16. The case of appellant Babu Lal Mahato stands on a different footing. Only one witness has claimed to identify him among the dacoits and that is P. W. 3. 1 and 3 have given as against appellant Ram Pratap Mahato. His complicity in the crime has therefore been established beyond reasonable doubt. 16. The case of appellant Babu Lal Mahato stands on a different footing. Only one witness has claimed to identify him among the dacoits and that is P. W. 3. In this connection I would refer to the evidence of P. W. 2 who was asked to state as to whether or not the father-in-law of appellant Babu Lal Mahato was the cousin of his own father-in-law. P. W. 2 did not deny the suggestion but only said that he was not in a position to say whether this was a fact or not. After the aforesaid stand was taken by P. W. 2 the prosecution thought fit to rely upon the evidence of P. Ws. 3 and 9, both of whom denied the alleged relationships between Babu Lal and P. W. 2. In view of the unfrank evidence of P. W. 2 on the point the denial of P. Ws. 3 and 9 can carry no weight. If appellant Babu Lal was a Sarhu of P. W. 2 then it would mean that he was the cousin of Mohini Devi (P. W. 1). It is not improbable that it was on account of this relationship between Babulal and herself that P. W. 1 did not claim to identify him among the dacoits. Under the circumstances it would not be safe to convict appellant Babulal upon the sole testimony of P. W. 3. I would therefore give the benefit of doubt to appellant Babu Lal and set aside his conviction and sentence. 17. It appears that the learned trial Judge had also framed a charge of previous conviction against the appellants under S. 75 of the Indian Penal Code. It was urged that the procedure adopted by the learned Judge in framing a charge under Section 75 was contrary to the provision of Sec.310 of the Code of Criminal Procedure inasmuch as such a charge was framed before the learned Judge had recorded a conviction against the appellants. It was urged that the procedure adopted by the learned Judge in framing a charge under Section 75 was contrary to the provision of Sec.310 of the Code of Criminal Procedure inasmuch as such a charge was framed before the learned Judge had recorded a conviction against the appellants. But it is unnecessary to go into this question because even without a charge under Section 75 the sentence that has been awarded to appellant Ram Pratap errs on the side of leniency inasmuch as it has been pointed by this Court on numerous occasions that for an offence under Sec.395 of the Indian Penal Code the minimum sentence ought to be one of rigorous imprisonment for ten years. 18. In the result, the appeal of Ram Pratap Mahato is dismissed and that of Babu Lal Mahato is allowed.