JUDGMENT Ramnandan Prasad, J. These two appeals have been heard together as they arise out of the same judgment and are accordingly being disposed of by a common judgment. 2. All the five appellants of Criminal Appeal No. 372/86 have been convicted under section 396 of the Indian Penal code (hereinafter referred to as the Code) and have been sentenced to undergo rigorous imprisonment for life. It appears that they were also charged under section 396 of the code but they have been acquitted therof by the trial court. 3. The prosecution case is that the informant Mohan Lal (P.W. 9) and his family members were sleeping in their house in village Mohini mandal in the night between 4th and 5th of December, 1981. At about 11 P.m. their sleep was disturbed by the sound of breaking of the main door whereupon the informant liked through the window and found that some 20-25 persons were standing in the open Sahan and the verandah of his house. Apprehending them to be the docaits, he along with his family members went on the roof of the second floor and, in the meantime, some 14-15 dacoits entered into his courtyard after breaking open the entrance door, some of the dacoits entered into the room of the informant and started ransacking the articles. Indeed, they entered into almost all the rooms of the house and looted articles. While they were doing so, the informant and his family members were pelting brickbate upon them from the roof. While they were engaged in doing so, the electric went off but soon after the connection was restored and the informant and others of his house identified these five appellants as they were their Co-villagers. The docoits also fired gun from the courtyard which hit his brother Ramchandra Prasad Sah who succumbed to that injury. The infoemant and his brother Krishnadeo (P.W. 3) had also sustained pellet at the hands of the dacoits. Hearing the gun sound the mukhiya of the Panchayat, namely, yogendra Prasad Yadav came there and fired two shots from started retreating. After their retreat the informant and other came down and found Ramchandra Sah laying dead. A number of village had also arrived there in the meantime to whom he informant and others narrated the occurrence the dacoits had carried away clothes, ornaments, cash, ‘Philips’ radio and utensils etc. valued at Rs. After their retreat the informant and other came down and found Ramchandra Sah laying dead. A number of village had also arrived there in the meantime to whom he informant and others narrated the occurrence the dacoits had carried away clothes, ornaments, cash, ‘Philips’ radio and utensils etc. valued at Rs. 75,000/- to 80,000/-. 4. On receipt of some information P.W. 11 A.K. jha of Majorganj police station reached the place of occurrence at about 5 hrs. and recorded the fardbeyan of mohan lal Sah (P.W.9) at 5 A.M. On the basis of this fardbeyan a case was registered at Majorganj Police Station. In course of investigation the police recovered some arricles from the hous of the appellants of Crimial Appeal No.417. After completing investigation the police officer submitted charge-sheet with the result as stated above. 5. At the trial the prosecution produced fifteen witnesses, out of whom, P. Ws, 1, 2, 3, 4, 7, 8 and 9 have figurd as eye witnesses to the occurrence. They have proved the factum of occurrence. They have proved the factum of occurrence. P.W.6 Dr. Lakshman Jha is the medical Officer who had conducted the Postmortem examination on the dead body of Ramchandra Sah, From his evidence it is clear that he had died of gun shot injuries in course of the occurrence, P.W.10 is another medical Officer who had examined the information and his brother P.W.3 who had also sustained gunshot pellet injuries in course of the said occurrence. The investigation officer (P.W. 11), who had visited the place of occurrence the same night, had found mark of violence at the entrance door and other places in the house. The evidence of these witnesses is sufficient to prove the factum of dacoity was not challenged before the trial court and Sri Braj Kishore Prasad, the learned counsel for the appellants, frankly conceded that he would not challenge the factum of dacoity and his submitted would be that the appellants have been falsely implicated in this case. We have, therefore no hasitation in holding that a dacoity did take place in the house of the informant in that night. 6. Now the question which arises for determination is as to whether appellant nos. 1 to 5 of Criminal appeal No. 372 had participated in the dacoity or they have been falsely implicated in the case. We have, therefore no hasitation in holding that a dacoity did take place in the house of the informant in that night. 6. Now the question which arises for determination is as to whether appellant nos. 1 to 5 of Criminal appeal No. 372 had participated in the dacoity or they have been falsely implicated in the case. For proper appreciation of this point it would be relevant to state here that all the witnesses who have deposed as eye witnesses in the case belong to one and the same family and are inmates of the same house P.W.1, 5, 8 and 9 are full brothers and P.W. 4 asha Kumari is the daughter of P.W.9. The remaining eye-witnesses, to wit, P.Ws. 2, 3, and 7 are the first cousins of the same family and no outsider has come to support them. It is these witnesses of one and the same family who have named all these five appellants as the participants in the dacoity here it would be pertinent to mention that no witness has assigned any particular role to these appellants and they have also not stated that they were armed with any weapon. Their simple evidence is that they had identified them in course of the dacoity. Prima facie, there is sufficient evidence of identification against these five appellants in as much as there are some five to six identification against each of them and, if these witnesses are believed, the appellants cannot escape the punishment. 7. So, the most important question which needs consideration is whether the evidence of these witnesses on the point of identification of these five appellants is reliable and acceptable. 8. The submission of the learned counsel for the appellants is that the relationship between the witnesses and the appellants was so strained that the witnesses might go to the extent of implicating the appellants falsely in this case taking advantage of the commission of dacoity in their house. The existence of enmity between the parties has been admitted by P.Ws. 1, 2, 3, 7 and 8 P.W. 1 Mohan Prasad, has admitted that Phul Kumari, sister of appellant no. 4, Srichand Ram, and niece of appellant no. 2, Surendra Ram, had filed a criminal case against him and his three cousins, only two and a half months prior to this occurrence, and appellant no.3, Musafir Ram, and appellants no. 1, 2, 3, 7 and 8 P.W. 1 Mohan Prasad, has admitted that Phul Kumari, sister of appellant no. 4, Srichand Ram, and niece of appellant no. 2, Surendra Ram, had filed a criminal case against him and his three cousins, only two and a half months prior to this occurrence, and appellant no.3, Musafir Ram, and appellants no. 5, Nandipat Sah, are witnesses on her behalf in that case. He has further admitted that at the very time his cousin, Kishorilal Sah (P.W.7), had also instituted a criminal case against appellant no.1 Laxman Ram, appellant no.4 Srichand Ram, and appellant no.1 Laxman Ram, appellant no.3 Musafir Ram, appellant no. 4 Srichand Ram, and appellant no.5 Nandipat Sah. Both these cases were quite fresh when the present dacoity took place and both these cases are pending trial before different courts, has further stated that they have got enmity with the appellants since then. It was alleged that Mahendralal Sah, the first cousin of the informant and full brother of P.Ws. 2, 3 and 7, was severely beaten by some of the appellants for which the said case was instituted by Kishorilal (P.W 7) against the aforesaid appellants. Similar admissions have been made by P. WS. 3, 7 and 8. So the position is that One criminal case was filed by the Sister or One Of the appellants against the members of the prosecution wit• nesses of this case arid P. W. 7 had instituted another criminal case against some of the appellants, and both these case were instituted only two and a half months prior to this occurrence. Two of the appellants, namely, Nandipat Sah and Lakshman Ram have figured as witnesses in the case of Phul Kumari against the prosecution witnesses. So, the enmity between the prosecution witnesses arid these appellants was quite fresh when this dacoity took place. In this back ground the possibility of false implication of the appellants cannot be ruled out. 9. It has also come in evidence that at last two of the appellants are men of status. It is the admitted position that appellant Surendra Ram, had been an M. L. A. for about seven and a half year from the constituency in which the village in question lies then appellants, Srichand Raw, is a teacher. There appears some force in the submission of the learned counsel for the appellant. It is the admitted position that appellant Surendra Ram, had been an M. L. A. for about seven and a half year from the constituency in which the village in question lies then appellants, Srichand Raw, is a teacher. There appears some force in the submission of the learned counsel for the appellant. that ordinarily these two appellants could not be expected to participation in a dacoity. 10. In view of the aforesaid circumstances, the evidence of the prosecution witnesses on the question of identification witnesses on the question of identification has to be scrutinized very cautiously. As stated above, all the material prosecution witnesses belong to one and the same family and no outsider had come to support them. Had it been a case in which there was no chance for any outsider to see anything or to hear anything from these witnesses, something could be said in favour of the prosecution but here the position is quite different. According to the fardbeyan itself the village Mukhiya, namely, Yogendra Pd. Yadav, had arrived at the scene of the occurrence before the retreat of the dacoits. Indeed, he is said to have fired two rounds from his gun, whereupon one of the dacoits ordered his companions to retreat, and it was only thereafter the dacoits left the place. So, naturally he would have been a very competent witness in the case. Not only that, P.W.7 had admitted that the Mukhiya and the Sarpanch had arrived at the place of occurrence, immediately after the retreat of the dacoits and at that very time he had told the names of the identified dacoits to the informant in presence of these two persons. It is also the admitted position that besides these two persons a number of villagers had arrived at the house of the informant, and P.Ws. 1, 2 and 4 have admitted to have told the names of the identified dacoits to all the villagers inculuding the Mukhiya. P.W.1 has also given out the names of some the villagers who were present at that time. 1, 2 and 4 have admitted to have told the names of the identified dacoits to all the villagers inculuding the Mukhiya. P.W.1 has also given out the names of some the villagers who were present at that time. In such circumstances, it was expected the mukhiya, Sarpanch and some of these villagers indeed the investigating officer has admitted to have examined the Mukhiya and the Sarpanch in course of investigation, but not one of these persons has been examined by the prosecution to corroborate the partisan prosecution witnesses of this case undoubtedly, the evidences of the Mukhiya and other villagers would have lent great weight to the evidence of these prosecution witnesses. The failure of the prosecution to examine these persons may indicate that they were not prepared to support the prosecution witnesses had not given out the names of the appellants to them soon after the occurrence. If they did not dispose the names of names of these appellants to these persons when they arrived at their house, which would be a natural presumption in this circumstance, it would be difficult to accept their evidence of identification in view of the enmity between them and the status of some of the appellants. 11. It would also be pertinent to mention that informant (P.W.9) has admitted that some of the dacoits had covered their faces with Galmocha, but none of these appellants had tried to conceal their faces. So the position is that unknown dacoits had concealed their faces, whereas the appellants, who were the co- villagers and were on enimical terms with the prosecution witnesses had gone to their house without concealing their faces. This conduct of the appellants does not appear to be quite natural. Normally, a man would not like to go to the house of another Co-villager to commit dacoity without concealing his face, and only unknown dacoits would try to conceal their faces. In this connection it would be relevant to repeat here that almost all the witnesses have claimed to have identified these appellants, but they have not assigned any specific role to them Indeed, they have not even stated as to whether they were armed with any weapon. If they had really seen and identified them they could have been the weapon in their hands and would have also stated about the roles played by them. If they had really seen and identified them they could have been the weapon in their hands and would have also stated about the roles played by them. The failure of the prosecution witnesses to give these particulars makes their evidence of identification rather doubtful. Indeed, it is difficult to conceive as to how the prosecution witnesses could identify the appellants clearly, as it the admitted position that they had identified them from the roof of the second floor which was about 16 cubits high from the place where the dacoity was being committed Realising the difficulty some of the witnesses have stated that had identified the appellants by looking down wards by standing at the extreme end of the roof . This roof was admittedly unfenced and so standing at the extreme and of the roof by these witnesses was fraught with danger and it is difficult to conceive how they could identify the appellants from that position. 12. It would also be signification to point out that even though the fardbeyan was recorded on the following morning at 5 A.M., there is no mention of the name of any of the prosecution witnesses excepting P.W. 3 Krishnadeo Prasad. Regarding him also there is no statement in the fardbeyan that he had identified the dacoits. In this connection, I would once particularly of P.Ws 4 and 7 who have stated categorically that had told the names of the identified dacoits to the informant in presence of the villagers. If it was so, it was expected that the informant would have stated in the fardbeyan about the identification made by these witnesses, but his fardbeyan is completely silent in this regard this would naturally create some doubt about the claim of the witnesses about the identification of the appellants and also about telling the informant the names of the appellants before recording of the fardbeyan. 13. Indeed, the informant appears to be very keen for prosecuting these appellants, as he had filed a protest petition only six days after the occurrence and long before the submission of the final form by the police. 13. Indeed, the informant appears to be very keen for prosecuting these appellants, as he had filed a protest petition only six days after the occurrence and long before the submission of the final form by the police. In this protest petition he went to the extent of saying that it is the appellant Surendra Ram, who had fired and killed, Ramchandra Pd, Sah, ever though there is no such statement in his fardbeyan and he himself did not make such statement in his evidence in court. He has also made him self unreliable by stating that he had no knowledge about phul Kumari’s case although it is the admitted position that his brothers and cousins were attending the court in connection with that case on every date. 14. There is yet another aspect of the matter. Had the prosecution witnesses really identified these appellants an attempt would have been made by the mukhiya sarpanch and the villagers to raid their house the same night and to recover the stolen articles and also to find out if they were absent from their houses that night. Not only that no such attempt wall made by any of the villager. Even the investigating officer did not try to raid their houses on the following morning. 15. Thus, the following glaring circumstances emerge from the evidence: (i) All the identifying prosecution witnesses belong to one and the same family and had got fresh enmity with the appellants immediately before this Occurrence. (ii) only the inmates of the house have come to support die prosecution story regarding identification of the appellants and no outsider has come to corroborate them, even though some of them had claimed to have told the dacoits of the dacoits (appellants) to them soon after the retreat of the dacoits. (iii) No attempt was made by the appellants to conceal their faces while unknown dacoit had concealed their face. (iv) The witnesses have claimed to have identified the appellants from the extreme end of the unfenced second floor of the building. (v) No attempt was made to raid the house of the appellants either by the villagers or by the police. (vi) No claim has been made in the fardbeyan that any of the witnesses had identified any of the dacoits. 16. (v) No attempt was made to raid the house of the appellants either by the villagers or by the police. (vi) No claim has been made in the fardbeyan that any of the witnesses had identified any of the dacoits. 16. The aforesaid intrinsic circumstances, which• speak for themselve, create sufficient suspicion about the prosecution story regarding the participation of the appellants, and on the other hand, make the defence case of false implication quite probable. In almost similar circumstances their lordships the Supreme Court, in the case of Lakshman Prasad Vs. State of Bihar while acquitting the accused person made the following observation:- "............These intrinsic circumstances speak volumes against the prosecution case and raise considerable amount of suspicion in our minds regarding the complicity of the appellants in the dacoity. It is well settled that while witnesses may lie, circumstances do not." 17. In view of what has been said above, the order of conviction and sentence recorded against all the five appellants of Criminal Appeal No. 372 of 1986 cannot be sustained and it is, accordingly, set aside, and these five appellants are acquitted of the charge 18. The two appellants of Criminal Appeal No. 417 of 1986, namely, Ram Sunder Rai and Gayani Paswan, have been convicted under Section 412 of the Code, as some of the articles taken away by the dacoits Art. said to have been recovered from their houses. The investigation officer raided the houses of Ram Sunder Rai on 16-12-1981 and recovered as many as 43 articles from his house. Some of these articles were put on test identification parade held on 31-1-1982 at which P.Ws 7 and 8 are said to have identified some of them as stolen articles belonging to their family. The evidence of P.W.7, Kishorilal Sah, is that the two pain of Dhoti, recovered from the house of Gayani Paswan (Material Exts. I and I/l) belongs to him. Both these Dhoti had green border. One of them was completely new whereas the other was used for a day or two. He had also identified two Polyester Kurtas, but I need not consider these articles, as the learned Sessions Judge has not convicted this appellant in respect of this item. Then, he has also identified one new red Ekranga piece of cloth (Material Ext. III), one printed bed-sheet (Material Ext. IV) and one Bauarsi Sari (Material Ext. He had also identified two Polyester Kurtas, but I need not consider these articles, as the learned Sessions Judge has not convicted this appellant in respect of this item. Then, he has also identified one new red Ekranga piece of cloth (Material Ext. III), one printed bed-sheet (Material Ext. IV) and one Bauarsi Sari (Material Ext. V) which are said to have been recovered from the house of the said appellant Ram Sunder Rai. Regarding Banarsi Sari he had said that it belonged to the wife of Rohan Prasad Sah (P. W. 8) who happens to be his younger brother, but she has not been examined, and it is difficult to Act, on the identification of this witness regarding a Sari belonging to one female of his house in which larger number of females reside, specially when it belonged to the wife of his younger brother. 19. P. W. 8, Rohan Pd. Sah, has also identified the aforesaid two Dhotis and two Polyester Kurtas, red Ekranga piece of cloth, printed bed sheet and pillow case, which have been identified by P. W. 7. Besides these, he has also identified the Banarsi Sari (Material Ext. V) as belonging to his wife. 20. So, the position is that only a pair of washed Dhoti having green border out of the large number of looted articles was recovered from the house of Gyani Paswan. It is evidently a common place article easily available in market and then, one of them was completely unused and the other was used for a day or two. So far appellant Ram Sunder Rai is concerned, the only articles identified by P.Ws. 7 and 8 amongst the articles recovered from his house are one red Ekranga piece of cloth and one printed bed-sheet said to belong to P. W 7 and one Banarsi Sari said to belong to the wife of P.W. 8 and one embroidered pillow case having flower on it as be longing to P. W. 8 himself. Evidently all these articles are also common place articles easily available in the market. Evidently all these articles are also common place articles easily available in the market. It has been contended by the learned counsel for the appellants that these articles cannot be termed as stolen articles as no list of stolen articles finds place in the fardbeyan and neither of these two witnesses appear to have submitted any list of stolen articles to the investigating officer of course, other member of their family are said to have furnished the list of stolen articles to the investigation officer (Ext. 1 to 1/7) on 5-12-1981, but these two witnesses did not' furnish any list of stolen articles to, the investigating officer, Even the lists furnished by other members of the family do, not contain any particular of the aforesaid articles said to have been recovered from the house of these two appellants and identified by P. Ws. 7 and 8. Even the trial court had noticed that these lists of looted cloth, the embroidered pillow case having flower on it and the pair of Dhoti having green border. Obviously these articles had peculiar features of their own which could be easily described in the list of looted articles, but it was not done, and only a vague statement has been made in the list of articles that a number of Dhoties and Kutas etc. were looted away by the dacoits. It is worth consideration as to whether the conviction of the appellants can be sustained on such vague lists, of stolen article having no specification thereof. Nor only that the very submission of the lists of stolen articles (Exl. 1to 1/7) to the investigating officer is not free from doubt, as the latter has admitted that these is no mention about these lists having been submitted to him in the case diary. 21. There is yet another aspect of the matter. The seizure list (Evt. 8/1) goes to show that the articles were recovered from the house of two brothers, namely, Ram Sundar Rai and Kailsh Rai. It does not appear therefrom as to who was in exclusive Possession of these articles, rather on the face of it indicates that the recovery was made from both of them. The seizure list (Evt. 8/1) goes to show that the articles were recovered from the house of two brothers, namely, Ram Sundar Rai and Kailsh Rai. It does not appear therefrom as to who was in exclusive Possession of these articles, rather on the face of it indicates that the recovery was made from both of them. But, surprisingly Kailash Rai was not put on trial and only Ram Sunder Rai has been put on trial When the articles were recovered from the common house of two persons, it is difficult to hold that these article were in conscious possession of only one of them, namely, Ram sunder Rai, who is one of the appellants in this appeal. 22. In face of the aforesaid circumstances it is difficult to hold that the articles identified by P.Ws. 7 and 8 were looted from their house in course of the dacoity in question or that they were some authorities. That being so it is not possible to sustain the conviction of these two appellants under section 412 of the code. 23. In the result both these appeals are allowed and the seven appellants of the two appeals are asquitted of the charges for which they have been convicted and the order of conviction and sentence recorded against them is set aside. The five appellants of Cr.App. No. 372 of 1986, who are in custody, shall be released forthwith, if not wanted in connection with any other case. The two appellants of Criminal Appeal No. 417/86, who are on bail, are discharged from the liability of their bail bonds. Appeal allowed.