JUDGMENT K. Nath, J. - Appellant Bramhadin been convicted for an offence under Section 396 of the Indian Penal Code and has been sentenced to undergo imprisonment for life. In the night between 10/11.3.80, a dacoity was committed in the midnight at the house of Awadh Ram in village Mathura Purwa, Police Station Huzurpur, district Bahraich, by a gang allegedly consisting of Bramhadin and 12 or 13 other unknown persons. They looted the house of not only Awadh Ram but also some other houses. In the course of commission of dacoity, they murdered Mahadeo, Bhabhuti and Dwarika; they also fatally injured Sant Ram, who died later. The first information report of this incident is said to have been lodged by Awadh Ram at the said police station, 10 miles away, on 11.3.80 at 8.30 a.m. in which Bramhadin was named and rest were described as unknown persons who were put up for identification lantern, torch and fire of heap of maize stalks were said to provide the necessary light. Appellant Bramhadin surrendered in court on 28.3.1980. In course of time eleven other persons, namely, Banwari son of Bharosey, Ram Das, Girwar, Ram Deo Singh, Mohan Lal , Balak Ram Banwari son of Ram Dayal, Awadh Rai Singh, Yadunath Singh and Ram Tej were arrested as suspects and were put up for identification. Ram Tej could not be identified; the case against him was dropped with a report under Section 169 of the Code of Criminal Procedure. The rest of the culprits were identified. All of them along with appellant Bramhadin were put up for identification. All the accused denied the prosecution case. The prosecution examined P.W.1 Awadh Ram, the maker of the first information report, his son Sahaj Ram P.W. 2, his brother Prithvi Nath P.W. 4 and one Bihan P.W.3. The evidence also consists of the identification magistrate, the doctor who conducted the post mortem examination, concerned constables and the Investigating Officer. The learned Additional Sessions Judge found that not only Bramhadin but all other accused who were put up for identification, except Girwar, were known by name to witnesses since before the commission of the offence. P.W. 1 Awadh Ram, the informant even admitted that Girwar (though not known by name) was the son-in-law of accused Ram Deo Singh. The learned Additional Sessions Judge found that not only Bramhadin but all other accused who were put up for identification, except Girwar, were known by name to witnesses since before the commission of the offence. P.W. 1 Awadh Ram, the informant even admitted that Girwar (though not known by name) was the son-in-law of accused Ram Deo Singh. It was also noticed that in the course of the statements of these witnesses under Section 161 of the Code of Criminal Procedure, all these accused persons had been named. The learned Additional Sessions Judge remarked that for this reason the prosecution did not place any reliance upon the evidence of identification. It may be mentioned in this context that P.W. 1 Awadh Ram had admitted in the examination-in-chief that he knew the names of all the accused except one since before the commission of the crime. In these circumstances, the learned Additional Sessions Judge placed no reliance whatsoever upon the evidence of identification and acquitted all the accused except appellant Bramhadin. Dealing with the case of appellant Bramhadin, the learned Additional Sessions Judge observed that there had been ill feeling between him and his neighbouring inhabitants because he, being an outsider, had purchased agricultural land in his very village, which the village people did not like. He noticed that appellant Bramhadin and his son Shanker has been prosecuted by the police for killing one Beni in which Prithvi Nath P.W. 4, Siya Ram, Ganga Prasad, injured Sant Ram (who later died) and Chet Ram were prosecution witnesses. The learned Additional Sessions Judge observed that Bramhadin did not want these witnesses to depose against him in the case of murder of Beni and it was for that reason that Bramhadin had organised and laid dacoity to wipe away the prosecution witnesses against him. He noticed that all the four eye witnesses had specifically said that appellant Bramhadin had dragged out Mahadeo, brother of Prithvi P.W. 4, out of the house and shot him dead, a case which has been stated in the first information report. It was observed that there was nothing in the cross-examination of these four eye witnesses to doubt their testimony so far as the participation of Bramhadin is concerned. On this basis he convicted Bramhadin. We have heard learned counsel for the parties. It was observed that there was nothing in the cross-examination of these four eye witnesses to doubt their testimony so far as the participation of Bramhadin is concerned. On this basis he convicted Bramhadin. We have heard learned counsel for the parties. We find that the view taken by the learned Additional Sessions Judge in the matter of Bramhadin is absolutely incorrect and cannot be sustained. Once it is found that all these witnesses came forward in their statement under Section 161 of the Code of Criminal Procedure and again in the court during trial to name eleven persons (excluding Bramhadin) as persons known before the incident and yet they were not named in the first information report, their testimony could not carry any credit. Indeed, it is remarkable that P.W. 1 Awadh Ram admitted that it took two hours to dictate the first information report to his son and yet the names of accused other than Bramha din were not mentioned in it. Further, Awadh Ram admitted in his cross-examination that his report was written by the Sub-Inspector at police station whereon he affixed his thumb-mark. The upshot is that neither first information report corroborates the prosecution witnesses, nor it can be said to be a fairly written document. The learned Additional Sessions Judge appears to have been led by the concept that Bramhadin wanted to do away with the witnesses of prosecution against him in the case of murder of Beni. The witnesses were Siya Ram, Ganga Prasad, Sant Ram, Chet Ram and Prithvi Nath. Except Sant Ram, no body was attacked, even Sant Ram died later. Other three persons who were not witnesses, had been killed at the spot. The learned counsel for the appellant has produced before us a copy of judgment of this Court in Criminal Appeal Nos. 752 and 753 of 1980, in which Bramhadin and his son Shanker had been acquitted by this Court of the offences under Section 302 of the Indian Penal Code, arising out of the murder of Beni. This indicates false implication of Bramhadin even as a precedent history. The only significant circumstance against appellant Bramhadin is the role in the commission of this crime, namely, dragging out Mahadeo from his house and to shoot him down with a gun. This indicates false implication of Bramhadin even as a precedent history. The only significant circumstance against appellant Bramhadin is the role in the commission of this crime, namely, dragging out Mahadeo from his house and to shoot him down with a gun. This fact is stated in the first information report also, but since the credibility of all the prosecution witnesses is totally shaken, and the genuineness of the F.I.R. is disproved no reliance can be placed upon this part of the prosecution case and evidence. In our opinion, the appeal succeeds. The appeal is allowed and the conviction and sentence of appellant Bramhadin for the offence under Section 396, of the Indian Penal Code is set aside and the appellant is acquitted. He is in jail. He shall be released forthwith, unless wanted in some other case.