JUDGMENT : Ram Naresh Thakur and S.H.S. Abidi, JJ. - All these three criminal appeals arise out of the same JUDGMENT :. For the convenience of the parties and with their consent they have been heard. together and are being disposed of by this common JUDGMENT :. 2. On 13.8.1978 at about 1.30 P.M. the informant, Ram Chandra Sah was sitting at his darwaza along with his father (P.W. 18) in village Pakaria P.S. Sonbersa, District Sitamarhi. In front of his darwaza labourers were thrashing Marua Crop in the Sahan. At that very time, all of a sudden about 20 to 2l dacoits came from different directions, out of them Kailash Mahto (not appellant) was armed with gun. Kailash Mahto caught hold of the father of the informant (P.W. 13). Other dacoits caught hold of the informant. Kailash Mahto, who is still absconding, stated "Biltu Sah Kal Tumse Panchso Rupia Manga Tha Nahi Dia Aaj Tumhara Bap Dacoit Ko Bula Lia Hai. He demanded keys at the point of death. Some of the dacoits started assaulting his father (P.W. 18). P.W.19 was also assaulted. Appellant Gudari Sah is alleged to have given two lathi blows to the informant. Some of the dacoits enterned into the female apartments and some of them remained at Darwaza. They (dacoits) also fired gun. The informant and his father were locked up in a room. For about two hours, the dacoits ransacked the entire house and looted the properties. Villagers came on hulla. One of the criminals namaly, Nageshwar (not the appellants) went on the roof of the house of the informant and took away his gun. On arrival of the villagers, dacoits took to their heels towards west with looted properties. The villagers chased the dacoits. The informant and his father were also unlocked and they too participated in the chase. While the chase was going on, there were encounters due to which one villager of the informant, namely, Rajdeo Rai, who was also chasing the dacoits received gun shot injury and died. The dacoits thereafter fled away in different directions. Seven of the dacoits were killed in subsequent encounter in village Ghurghura. Three of the dacoits were also killed near village marhia. The dacoits thereafter fled away in different directions. Seven of the dacoits were killed in subsequent encounter in village Ghurghura. Three of the dacoits were also killed near village marhia. One of the dacoits, namely, appellant Surendra Singh was apprehended in a field near village Hanuman Nagar and was brought to the house of P.W. 13 who was the Mukhiya of village Pakaria where the dacoity had been committed. Dead bodies of dacoits, who were killed near Ghurghura village, were brought to the house of the informant. Three of the docoits, who were killed near Marhia, were taken to the Police Station. It is also said that the looted gun of the informant was also snatched away from the dacoits and was handed over to the police. When appellant Surendra Singh was brought to the house of Mukhiya, he confessed his guilt, gave a statement which was recorded by P.W. 13 which is Ext. 5. 3. P.W. 12 Ram Swarth Yadav was the then officer in charge of Sonbarsa Police Station. On 13.8.1978 while he was returning from Block office of the police station, he heard rumour in the Bazar that in village Pakaria, there had been firing and some serious occurrence had taken place. He entered the facts in the station diary entry being Entry No. 216 dated 13.8.1973 and he himself left for village Pakaria along with other police officers and constables. He reached Pakaria at about 8.30 P.M. in the night and found seven dead bodies lying in Sahan of the house of the informant and one dead body was lying on the verandah. He recorded the statement of P.W. 19 Ram Chandra Sah, which is Ext.6 and it was sent to the police station for instituting a case. He took lip the investigation and held inquest report. At about 10 P.M. P.W. 13 handed over Ext. 5 to P.W. 21. Subsequently, appellant Surendra Singh and Ext. 5 was forwarded to the court on the 15th of August 1978. After completing investigation, charge sheet was submitted against appellants and one Bharat Singh. 4. In the trying court 22 witnesses were examined on behalf of the prosecution. Appellants denied the allegations and pleaded that they had been implicated in the case due to previous enmity. Five witnesses were examined on their behalf to prove their innocence. After completing investigation, charge sheet was submitted against appellants and one Bharat Singh. 4. In the trying court 22 witnesses were examined on behalf of the prosecution. Appellants denied the allegations and pleaded that they had been implicated in the case due to previous enmity. Five witnesses were examined on their behalf to prove their innocence. After considering the entire evidence, the learned court below convicted these appellants under section 396 of the Indian Penal Code (hereinafter referred to as the Penal Code) and sentenced them to undergo rigorous imprisonment for life but acquitted accused Bharat Singh. 5. No doubt, that doctor who conducted the post mortem examination has not been examined in this case, but the fact remains that there is sufficient oral evidence to show that ten of the dacoits were killed in encounter and one of the villager Rajdeo Rai while chasing the dacoits received gun shot injury fired by the, dacoits, which resulted in his death. There is also evidence that a dacoity did take place in the house of the informant at the time and on the date as alleged by the date as alleged by the prosecution. The objective findings of the Investigating Officer also go to show that dacoity had been committed in the house of informant at the time and prosecution. Therefore, we find and hold that dacoity did take place in the house of the in formant at the time and on the date as said by the prosecution in which there was chase and encounters in which ten of the dacoits died and one of the members of the prosecution party was also killed. 6. Now, we have to consider whether these appellants participated in the said dacoity. 7. There is sufficient evidence on the record to show that this appellant Surendra Singh was arrested on the day of occurrence in Sareh of village Hanumannagar. This fact is not even denied by the appellant. According to him, he was arrested merely on suspicion. 8. Now we have to see whether he participated in the dacoity and was arrested when he was running away after committing dacoity. Mere arrest will not prove that he actually participated in the dacoity. No witness has stated in his evidence that this appellant was identified while committing dacoity except P.W. 18 who has stated that this appellant assaulted him at the time of dacoity. Mere arrest will not prove that he actually participated in the dacoity. No witness has stated in his evidence that this appellant was identified while committing dacoity except P.W. 18 who has stated that this appellant assaulted him at the time of dacoity. P.W.18 did not state this fact before the Investigating Officer (P.W. 21). The Investigating Officer (P.W.21) has stated in para 19 Gawah Bilat Sah Ne Abhiyukat Bilat Sah ka Nam Nahi liya Tha Yatha Yah Bhi Nahi kaha Tha kee Vassne Isha Gawah Ko Mara. It appears that "Abhiyukta Bilat Sah" has been wrongly written in place of "Abhiyukta Surendra Singh Even in the fardbeyan, it is not mentioned that this appellant had assaulted P.W. 18. Bilat Sah P.W. 1 has stated in his evidence in para 8 that appellant Surendra Singh was brought by the Chowkidar on, the next day of the occurrence in the early morning. Learned counsel appearing for the State has argued that on the basis of Ext. 5 and the statement of the appellant recorded by the trying court it can safely be said that this appellant had participated in the dacoity. Therefore, it is essential to consider Ext. 5 and the statement of the appellant recorded by the trying court. According to the prosecution case Ext. 5 was scribed by the Mukhiya (P.W.13) at his house when this appellant was brought to him. P.W. 10 Anirudh Prasad Yadav was also one of the chasers. He was at the house of P.W. 13 Mahendra Prasad Yadav Mukhiya, when P.W.6 Rajendra Rai brought this appellant there. P.W. 13 took his statement in one of rooms of his house where he (P.W. 10) was also present. Thereafter the appellant was taken to the house of P.W. 18 where the Sub-Inspector of police (P.W. 21) was there. But this P.W. 10 clearly says in para 7 that the Mukhiya (P.W.13) did not record the statement of this appellant in his presence. P.W.1 says in para 8 that this appellant was brought by the Choukidar in the next morning of occurrence. This statement of P.W. 1 falsifies the prosecution evidence that P.W. 6 brought the appellant in the evening and Ext. 5 was recorded in the same night. P.W.1 says in para 8 that this appellant was brought by the Choukidar in the next morning of occurrence. This statement of P.W. 1 falsifies the prosecution evidence that P.W. 6 brought the appellant in the evening and Ext. 5 was recorded in the same night. From the evidence of the Investigating Officer (P.W. 21) and inquest reports it will appear that P.W. 13 was present at the house of the informant when P.W. 21 came and in his presence inquest reports were prepared. But Ext.5 was 'handed over to the Investigating Officer (P.W.21) at 10 P.M. which will he apparent from the endorsement of Ext. 5 itself. Though in the first information report it mentioned that this appellant was arrested and had confessed, his guilt but there is no mention of Ext. 5 in it. Apart from all these Ext. 5 shows that - it was signed by Rajendra Prasad Yadav at Camp Marhia. P. W. 13 has admitted in para 6 that Ext. 5 contains his signature and other writings near his signature are in his pen. Hut according to P.W.21, when Ext. 5 Was handed over to him "Camp Marhia" was not written on it. In support of his evidence P.W. 21 has proved Ext. 5/1 to show that Marhia Camp was not written in Ext. 5 when it was handed over to him (P.W.21). But P.W. 13 falsifies P.W. 21 on this point and does not say that Marhia Camp is not in his pen. According to P.W. 21 Ext. 5/1 is the true copy of Ext. 5 which he prepared to be kept in the case diary. In Ext. 5 one Kewal Sah of village Singharia is described as one of the participants of the dacoity. But in Ext. 5/1 Kewal Sah has been described of village Pakaria. If Ext. 5/1 is the true copy of Ext. 5 why Kewal Sah has been described as of village Pakaria though he was at first instance described of village Singharia. 9. In this connection it has to be seen that Ext. 5/1 was not produced in the court on the first day when P.W. 21 was examined for the first time un 16-4-1981 rather it is produced subsequently on 15.7.1981. 9. In this connection it has to be seen that Ext. 5/1 was not produced in the court on the first day when P.W. 21 was examined for the first time un 16-4-1981 rather it is produced subsequently on 15.7.1981. Moreover, he has admitted in para 12 of his evidence that he did not mention in the case diary that he had prepared the true copy of Ext. 5 to be kept in the case diary. He also does not remember whether Ext. 5 was sent to the court or it was kept by himself. On careful perusal of Ext. 5 it will appear that the timing of its writing 'it first instance was written as "11 Baje" but subsequently on this thing "8 Baje" was written. The attention of P.W. 13 was drawn towards this ova writing to which he denied. All these clearly create suspicion about the genuinness of Ext. 5 and 5/1. 10. As regards the statement of the appellant recorded by the trying court is concerned, we think it cannot be used for corroborating the prosecution evidence. It is, by now well settled principle of law, that the confession of the accused has to be read as a whole. No doubt a part of the confession of the accused, if it is complete in itself and separable from rest of his statements can be used. But when the entire statement is such which cannot be separated, it has to be taken as a whole. In the present case five questions were put to the appellant by the trying court. The first question put to him was "Kaha Jata Hai ki Apne Anay Logo Ke Sath Dinank 13-8-1978 Ko Gram Pakariya Thana Sonwarsa Zila Sitamarhi Me Ramnchandra Sah Ke Ghar Me Dacoity Kee Tatha Dacoity Karke Silaile Me Dacoily Me Se Kailash Mahto Kee Banduk Kee Goli Se Rajdeo Rai Mara Gaya Aapko Kya Kahana Hai". The answer is "Nahi Kiya". Then the next question was put to him Kaha Jala Hai Ki Apko Dacoity Karne Ke Bad Bhagate Hua Logo Ne Pakar Liya Aur Apne Unake Samakch Sabachhata Se sawikar Kiya ki Ap Ram Chandra Sah Ke Ghar Me Dacoity Kiya, Kya Kahna Aai. He replied Han. Therefore in the first question he denied to hae committed dacoity. But in answer to the second question he admitted. He replied Han. Therefore in the first question he denied to hae committed dacoity. But in answer to the second question he admitted. The in second question as quoted above two distinct question were put inform of one question which was not proper. Every distinct question has to be put separately. Then in the answer to the last question the appellant stated before the trying court "Ham Janki Nagar Apane Kutum Ke yaha se An Rahe The To Kuchh Logo Ne Hame Hanuman Nagar Me Pakar Liya The Choukidar ke Habable Kar Diya". Therefore in the last question he denied to have been arrested while he was running away after committing dacoity and he explains how he was arrested. In such a situation the statement made by the appellant before the trying court cannot be used in part to lend support to the case of the prosecution or to prove the guilt of the appellant. In such a situation, the prosecution will have to stand on its own leg to prove the guilt of the appellant. 11. D.W. 3 is the Choukidar of village Hanumannagar. He has stated in his evidence that he had arrested this appellant in Hanumannagar village and he took him to the Office in-charge of Sonbersa police Station in village Pakaria and handed over to him. He does not say that he handed over this appellant to P.W. 13. 12. For the reasons stated above it is difficult to hold that this appellant participated in the dacoity and made voluntary statement as described in Ext. 5 13. Now let us consider the case of appellants, Gudar Sah and Jagdish Sah. They are full brothers. Though they have been named by more than two witnesses but the learned trying court has relied upon the evidence of P.W. 1 and 19 to base their conviction. These two appellants led evidence to show that the informant, had grievance against them in respect of purchase of a piece of land. The trying court after considering the entire evidence came to the conclusion "hence it has been established as fact that permission had been granted first in favour of the family members of the informant which was cancelled and accused Gudar Sah and Jagdish Sah purchased the lands in name of their family members only two days before the occurrence. This might have created ill feelings between the two sides". This might have created ill feelings between the two sides". Therefore, the prosecution evidence in respect of these appellants has to be judged with great caution P.W. 1 has admitted that these two appellants are agriculturists. According to the prosecution case itself, it was Kailash Mahto, who had grievance against the informant and his father. Kailash Mahto had demanded Rs. 500/- from P.W. 18 and on refusal he (Kailash Mahto) came with a mob and committed dacoity. Nothing has been brought on the record to show that these two appellants, who are agriculturists had any manner of concern with Kailash Mahto. No evidence has been led to show that these two appellants belong to the party of Kailash Mahto. According to the prosecution case, appellant Surendra Singh had disclosed the name of his associates in his confessional statement (Ext. 5). But these two appellants are not named in Ext. 5. The conduct of P.W. 1 does not appear to be fair. The trying Court, by his ORDER :dated 2-3-1981, ORDER :ed to recall P.Ws. 1 and 5 for further cross-examination on the petition filed by the appellants. These two witnesses did not turn up. By ORDER :dated 16-4-1981 the trying court ORDER :ed to serve summons on P. Ws. 1 and 5 by special messenger and directed the appellants to deposit the cost thereof. By ORDER :dated 21-4-1981 it will be apparent that though the summons were served on these two appellants but they did not turn up for further cross-examination. This clearly shows that these witnesses (P.Ws. 1 and 5) had no respect for the ORDER :of the court. They did not chose to appear before the court on recall for the reasons best known to them. The trying court has dealt with on this matter. But we feel that the approach of the trying court is not correct in this respect. Once the witnesses were recalled the appellants deposited the cost of special messenger and after service of summons, they did not turn up, this goes to great extent to show that these witnesses are not straight forward. P.W. 19 is the informant himself and it has been found by the trying court that he and his family members had some animosity with these appellants from before. 14. Appellant Anirudh Thakur is uncle of one Chandeshwar Thakur. P.W. 19 is the informant himself and it has been found by the trying court that he and his family members had some animosity with these appellants from before. 14. Appellant Anirudh Thakur is uncle of one Chandeshwar Thakur. This Chandeshwar Thakur is one of the attesting witness on the kebala which was executed in favour of appellants namely, Jagdish Sah and Gudar Sah two days before this occurrence. . It has come in evidence that he is a good agriculturist (Khushhal). The trying court has relied on the evidence of P.Ws.1 and 19 in respect of this appellant as well. As regards P.W. 1 is concerned, we have already dealt with. He is also not named in the Ext. 5. There is nothing to show that he had any concern with accused Kailash Mahto. 15. As regards appellant Ram Kewal Sah is concerned the trying court has relied on the evidence of P.Ws. 1, 13, 18 and 19 to base his conviction. From Ext. 5 it will appear that one Kewal Sah of village Singharia was one of the dacoits and this appellant is not mentioned therein. But in Ext. 5/1, as discussed above, Kewal Sah of village Pakaria has been described. At the first instance in Ext. 5/1 Kewal Sah of village Singharia was mentioned but subsequently village Singharia has been penned through and village Pakaria has been written. Thus it cannot be said beyond all reasonable doubt that this appellant is named in Ext.5/1. P.W. 18 is the father of the informant and P.W. 13 is the Mukhiya. Apart from the aforesaid facts, there are some other circumstances which also do not support the prosecution cases in respect of these appellants (except appellant Surendra Singh). Occurrence is alleged to have taken place in day time. According to the evidence of prosecution itself there were only 15 to 20 dacoits who committed dacoity for about two hours. All these appellants, except appellant Surendra Singh, are co-villagers of the witnesses. But still all the village witnesses did not identify all village appellants. If the dacoity would have taken place in the night the matter would have been somewhat different. But in the present case, it was at about 2 P.M. when the dacoity was committed and all the dacoits were given a good chase but still the aforesaid appellants were not identified by all village witnesses. 16. If the dacoity would have taken place in the night the matter would have been somewhat different. But in the present case, it was at about 2 P.M. when the dacoity was committed and all the dacoits were given a good chase but still the aforesaid appellants were not identified by all village witnesses. 16. P.W. 6 has admitted that Ram Asis, Choukidar of village Pakaria, has his house at a distance of 7-8 laggas from the house of the informant. He has further admitted in para 10 that Ram Asis, Choukidar had lodged the first information report in respect of this very occurrence at the police station. Ram Asis Choukidar has not been examined in this case. The fardbeyan lodged by Ram Asis, Choukidar has been brought on record on behalf of defence which is Ext. A. This Ext. A was lodged at Sonbarsa Police station on 13-8-1978 at 10.30 P.M. It is said that appellants Gudar Sah, Jagdish Sah and Anirudh Thakur are not named therein. True it is that statements contained in Ext. A are not legal evidence, but facts remain that Ram Asis village Choukldar was not examined by prosecution and it has come in prosecution in evidence that he lodged the first information report about the case. 17. From the evidence of P.W.21, it will appear that after bearing some rumour be came to village Pakaria and then recorded the statement of the informant. There is nothing on the record to show that either the informant or Mukhiya (P.W. 13) took any step on their own behalf to give information at the police station about such occurrence in which ten dacoits were killed and one of the villagers was also killed. According to the prosecution case itself three of the killed dacoits were taken to the police station from the place where they were killed. But no evidence has been led as to who took those three dead bodies to the Police Station and in what connection they were taken there. 18. Taking into consideration all the aforesaid facts and circumstances appearing in the case; a reasonable doubt is created about the participation of these appellants in the said dacoity. But no evidence has been led as to who took those three dead bodies to the Police Station and in what connection they were taken there. 18. Taking into consideration all the aforesaid facts and circumstances appearing in the case; a reasonable doubt is created about the participation of these appellants in the said dacoity. No doubt, several persons lost their life in that occurrence but for maintaining the conviction of these appellants in this case, the prosecution has to prove beyond all reasonable doubt that these appellants participated in the dacoity, which according to us, prosecution has failed to prove beyond all shadow of doubt. 19. Accordingly, all the appeals are allowed and the ORDER :of conviction and sentence passed against all these three appellants are set aside. Appellant Surendra Singh is directed to be released from the jail forthwith; if not wanted in any other case. Other appellants are discharged from their bail bonds.