Judgment 1. The aforementioned appellants have been convicted of the charge under S. 396 of the Penal Code (hereinafter referred to as the Code) and they have been sentenced to suffer imprisonment for life. 2. The case against them arose on the statement of P. W. 5 Charitar Singh of village Manjhauli, P. S. Mofassil in the district of Gaya. The case is that these four appellants along with 20-25 dacoits raided his house in the night at about 8.30 P.M. on 2-6-1983, ransacked the whole house, looted away the properties including valuables and while retreating, one of the dacoits exploded a bomb which caused fatal injury to Kishori Singh, brother of the informant and also to his son Ghuran and a nephew named Awadh Singh. The informant himself also got injury due to explosion of the bomb. It is further stated that even one of the dacoits also got injury due to explosion, who was subsequently traced out and was sent to hospital for treatment. Both the informants brother Kishori Singh and also the dacoit died of the injuries sustained by them, due to explosion of the bomb. 3. In appeal before us, the learned Counsel Sri A. N. Sahai has confined his argument only with regard to the identification of these four appellants in the commission of the crime. It has been pointed out that all the four are related to each other. Accused-appellants Nos. 1 and 2 are full brothers and No. 4 Ram Prasad Yadav and appellant No. 1 Basudev Yadav and No. 3 Gaya Yadav are outsiders belonging to different village. This appellant No. 3 was earlier arrested in some other case, but on the petition filed by the State, was remanded in this case as well and, was put on T. I. parade on 4-10-1983. The T.I. parade was conducted by a Magistrate P. W. 6, Sri Munilal Paswan and it was P. W. 5 only, out of all other witnesses attending the parade, who is said to have identified the appellant Gaya Yadav. So there is only one identification against him. 4. Learned Advocate has contended that generally offence like dacoity is committed in darkness and therefore, question of identification assumes prime importance. So there is only one identification against him. 4. Learned Advocate has contended that generally offence like dacoity is committed in darkness and therefore, question of identification assumes prime importance. Possibility of false implication or implicating enemies cannot be ruled out and it becomes onerous duty of the Investigating Officer to investigate and bring on record cogent and positive evidence to satisfy the conscience of the court that particular accused was rightly identified and any doubt therein makes the case suspicious. 5. The factum of dacoity, as stated earlier, is not in dispute. Prosecution has examined seven witnesses in all out of whom the evidence of P.Ws. 1, 2 and 3 is material for consideration. P.W. 1 is stated to be a relation of P.W. 5 and was residing with him in the same house. P.W. 2 is the daughter-in-law of deceased Kishori Singh. P.W. 3 is the daughter-in-law of P.W. 5. She is the wife of one Anand Deo Singh. P.W. 4 is a doctor, who conducted post mortem examination over the dead body of the deceased Kishori Singh. It is this very doctor who had conducted post-mortem examination on the dead body of the dacoit, named Babu Lal, about whom it. has been said that he too had received injuries in the same incident due to explosion of the bomb and had died in the hospital. P.W. 6 Sri Muni Lal Paswan, Judicial Magistrate, had held Test Identification parade on 4-10-1983, in which one of the accused appellants Gaya Yadav was picked up as one among the dacoits by the informant P.W. 5 and P.W. 7 Shyam Kumar is the Investigating Officer in this case. 6. On hearing the Counsel for the parties and on perusal of the evidence on record, we feel that the case of the prosecution is failing due to lapses on the part of the investigating agencies. P.W. 5, who is the informant in this case has said in the F.I.R. (Ext. 4) that he had identified the dacoits in the light of the torches flashed by them at the time of removing the valuables from the house. P.W. 5, who is the informant in this case has said in the F.I.R. (Ext. 4) that he had identified the dacoits in the light of the torches flashed by them at the time of removing the valuables from the house. But while giving statement in Court on oath he made a departure from his earlier stand with regard to the means of identification and the shift in his evidence is that instead of stating identification in torch, he gave out that he identified the accused in the light of the lantern burning in the Angan. P.W. 2 Biraj Devi and P.W. 3 Arati Devi have also attempted to corroborate the informant P.W. 5 in court by stating that they too could identify the dacoits in the light of the lantern burning in the Angan. While commenting on the statements of these witnesses the learned counsel for the appellants has submitted that there is no mention of any lantern in the F. I.R., nor these two witnesses spoke about it before the investigating officer. It has been pointed out that attention of these two witnesses P.Ws. 2 and 3 and also of the informant P.W. 5 was drawn towards the earlier statements, where the prosecution made out a case that the identification was in the light of the torch flashed by the accused appellants. So far the contradictory statements of these witnesses are concerned, it would be sufficient to mention here that no lantern was produced before the investigating officer, nor did he take charge of any lantern, so much so that he did not speak in his statement in court at any stage that he found any lantern in the house of the informant, from which it may be presumed that at the particular time there was any lantern burning making it possible to identify the accused in the light thereof. It is quite evident from the statements of the witnesses made in court that at the earlier stage they did not introduce the story of any lantern and it was the consistent case that they had identified the accused in the light of the torch. It is not known how the prosecution thought it to introduce lantern-at the trial stage, that is, long after in the statements made in court and that also without any explanation of non-production before the Investigating Officer. It is not known how the prosecution thought it to introduce lantern-at the trial stage, that is, long after in the statements made in court and that also without any explanation of non-production before the Investigating Officer. The case for the prosecution therefore, naturally gets a severe jolt so far as the identification is concerned. 7. P.W. 1 has said that he had identified the dacoits both in the light of the lantern as well as in the light of torch. So far the lantern is concerned, we have already seen that according to P.W. 7 the investigating officer, there was no lantern. So far the question of torch is concerned, this witness again made a departure and he did not state that he had identified the dacoits in the light of the torch. This again takes us back to find out if there was sufficient light and if the prosecution has successfully established what was the means of identification and if there was full light making it possible to identify the decoits. 8. Counsel for the State, while reacting to the submission made on behalf of the appellants has argued that there is evidence that at the time of commission of the dacoity the female inmates were preparing meal and were arranging for dinner for the male members of the house and it has been argued that from this it could safely be presumed that there was light in the house as nobody would prepare dinner in the darkness. Facts cannot be denied. If it was so, some light must be there. But the trial court in the judgment impugned has made a conjecture about it by stating that it may be a DHIBRI i. e. an earthen pot or may be even a lantern. We need not state the distinction and difference between may and must. The case has to be accepted as proved only when the evidence is positive and not of hesitating character. If it was a DHIBRI, we cannot expect a bright light and there is no evidence whether it was in a kitchen or in the room or on the verandah. Every circumstance cannot be presumed in favour of the prosecution, when there is no evidence to lead to such presumption. Presumption must be natural and consistent keeping in view the existence of facts and the common course of events. Every circumstance cannot be presumed in favour of the prosecution, when there is no evidence to lead to such presumption. Presumption must be natural and consistent keeping in view the existence of facts and the common course of events. So far as the instant case is concerned, evidence has been led to indicate that lantern was burning in the Angan and it was in that light that the witnesses could succeed in identifying the accused. P.Ws. 2 and 3, who are the two females of the house have said that the two accused appellants Nos. 1 and 2 Basudev Yadav and Jagdev Yadav were seen snatching the ornaments and removing the valuables from the box. Argument is that in that situation identification cannot be ruled out, as the accused appellants were known to them from before and they had an opportunity of seeing the things from close proximity. We will again say that the possibility might be there. But in this case it will be difficult to accept their version on various grounds. First, because they are related to the informant P.W. 5, who was in the house but these facts are missing from the F.I.R. that these two female inmates Biraj Devi and Arati Devi saw and identified the two appellants Basudev Yadav and Jagdev Yadav and they had removed the ornaments from their bodies and other valuables from the boxes. This is a serious omission in the F.I.R. Next, we find that box is said to have been removed from a room but the lantern was in the Angan. No one has said that the females were preparing dinner in the room where the valuables were kept. So, there was no evidence to hold that there was any light in the room. To overcome this difficulty i.e. the paucity of light in the room, the informant and other witnesses have come out with the story of identification in the light of torches. But for the reasons best known to them, they diverted from their earlier stand and took a different stand that there was a lantern and that too was burning, in the Angan and it is not the case that there were several lanterns in different rooms and on verandah and even outside. The fact of lantern has been introduced at a later stage to support the story of identification. 9. The fact of lantern has been introduced at a later stage to support the story of identification. 9. There is one other reason, which is weighing very much against the prosecution. The evidence is that the accused, while retreating threw a bomb which exploded causing injuries to Kishori Singh, who subsequently succumbed to them. It is pertinent to note that there was no light outside. Dacoits were retreating. Even if they were flashing their torches, they were running ahead of the villagers and there was no flash on the back. It would be difficult to find out who among 20-25 persons threw the bomb. Attempt has been made to state that it was appellant Jagdev Yadav, who threw the bomb. This instead of adding strength to the prosecution story, rather weakens it very much. There could not have been any identification in those circumstances. 10. It has been lastly argued that several witnesses have been named in the F.I.R. and they all arrived soon after the commission of the offence including the Chaukidar and the comment is that the prosecution should have produced them all in court to testify to the fact whether these witnesses had named the accused-appellants before them as dacoits. We find that a petition was filed in court below that those named in the F.I.R. were gained over and that one of them was examined as defence witness. Be that as it may, we must observe that mere filing a petition in court below does not absolve the prosecution of the responsibility of producing material witnesses in court if the witnesses have been gained over, the evidence must be brought on the record to state the fact entitling the prosecution not to produce the witness in court for examination. 11. In the end, a point was raised regarding the enmity. It has been admitted by the informant P.W. 5 and also by a female inmate P.W. 1 that there was some dispute over grazing on a piece of land. This comment has been made mainly on the ground that they are known to each other and their houses are intervened by a lane. In that situation, it was not expected that they would commit dacoity without making attempt to conceal their identity, like putting Galmuchha or some cover on their face. There is no evidence that any one of the dacoits had covered his face. In that situation, it was not expected that they would commit dacoity without making attempt to conceal their identity, like putting Galmuchha or some cover on their face. There is no evidence that any one of the dacoits had covered his face. The submission has some force and that creates further doubt in the case of the prosecution. 12. Thus, on consideration of the circumstances as discussed above, we feel that it is a case, which is failing for want of proper investigation by the police. It is true that Sri Jaiswal, in course of his argument pointed out that this officer was newly appointed and was acting as a probationary officer and was probably unaware of the rules and procedures of investigation. Assuming it to be so, the advantage thereof must go to the accused. The case under S. 396 of the Code is investigated not only by a police officer junior in rank but also supervised by a senior police office of the rank of Superintendent of Police. 13. In the circumstances, we find and hold that the prosecution could not successfully prove the charge against each one of the appellants with the result that the appeal succeeds. The orders of conviction and sentence passed against the appellants are set aside. 14. We are told, that one of the appellants namely, accused Gaya Yadav is in jail and others have been granted bail. Those, who are on bail, must be discharged from their bail bonds if any and let an order of release be issued against the appellant Gaya Yadav and he must be released from custody forthwith, if not wanted in any other case.