JUDGMENT UDAI SINHA, J. 1. The seven appellants in this appeal have been convicted under Section 396 of the Indian Penal Code and have been sentenced to undergo imprisonment for life. They all belong to the same village in which the victims of the dacoits resided, in fact, they reside only 200 yards apart. 2. The dacoits, for the commission of which the appellants have been convicted, took place on 19/20.4.1980, in the house of the first informant Jai Krishna Rai, P.W. 9. Information of the occurrence was given to the police at village Sumera, the place of occurrence, by P.W. 9 on 20-4-1980, at about 11 A.M. Village Sumera is about 20 KMs. from Police Station Kurhani in the District of Muzaffarpur. The information was given to the police by a written report drawn up by Jai Krishna Rai, P.W. 9, in the pen pf Radha Rai, P.W. 4. The contents of the report were that at about midnight the first informant was sleeping on wheat PAIRA (wheat straw) along with P.W. 1 Ram Lakhan Rai, P.W. 3 Bhuttu Rai, P.W. 8 Sakindar Rai. Kapildeo Rai and Ganesh Rai. All of a sudden about 25-30 persons variously armed, emerged from the maize field of Kapildeo Rai. Besides being armed with lethal weapons, they were also armed with torches. The first informant realising that the persons emerging from the maize field, were dacoits, fled and concealed himself in a brinjal field of Sheoji Rai (deceased) wherefrom he could see the goings on in his house. The dacoits broke the main door of the house and entered his premises. Hearing report of gun fire Yugal Rai, P.W. 5, brother of the first informant, who was sleeping in the southern side of premises, came out with a lathi and proceeded towards the main house in the light of torches of the dacoits, the first informant saw that appellant Mujibur Rahman find at his brother which hit him on the hand When he turned round to flee away the same dacoit i.e. Mujibur Rahman fired a second time which hit him on his left shoulder blade as a result, of which he fell down. The dacoits who had entered the house started damaging articles and looting them. P.W. 12 Chulha Devi, wife of P.W. 9, and Sunaina Devi, P.W. 14 daughter of the first informant were also assaulted. P.W. 1. The dacoits who had entered the house started damaging articles and looting them. P.W. 12 Chulha Devi, wife of P.W. 9, and Sunaina Devi, P.W. 14 daughter of the first informant were also assaulted. P.W. 1. Nageshwari Devi, niece of the first informant, in the meanwhile came out of the lane and started raising hulla. The dacoits entered the house of Indradeo Rai and Fakira Rai P.W. 2 as well, when they had opened their doors on hearing the hulla. On hearing hulla the villagers started gathering. The dacoits warned them not to come near otherwise they would be shot. The villager could not muster courage to confront them. When the dacoits were about to enter the house of Fakira Rai, Sheoji Rai (deceased), a resident to the south west of the home of Fakira Rai, came out and proceeded towards the dacoits with a bhala. Appellant Musa Mian fired at him hitting him on the stomach which brought the latter to the ground. Seeing people assembling, the dacoits fled away through a maize field along with the looted articles. The first informant claimed to have identified appellants Fazal Rahman, Ashraf Sadik, Ram Lal Chamar and Ibrahim Hajam besides Mujibur Rahman and Musa Mian. Fazal Ashraf and Sadik are sons of Md. Israil. The first informant stated in his report that the dacoits were in the age group of 20 to 35 years. They were putting on trousers and tucked up dhotis. Some of them were putting on Ganji and some had worn half shirts and spoke local dialect. The first informant claimed in his report that he had given out to the villagers the names or Fazal, Asharaf, Sadik, Ram Lal Chamar and Ibrahim Hajam. After the dacoits had left, the first informant wall thinking of taking Yugal Rai and Sheoji Rai to the hospital when the villagers procured the Jeep of Brahmdeo Rai. Yugal Rai and the body of Sheoji Rai (who was then dead) were taken off the cot and loaded on the jeep and brought to hospital where Sheoji Rai was declared dead. After some time leaving Yugal Rai at the hospital, the first informant returned back to the village to take stock of the situation there. At the time of leaving Muzaffarpur, Yugal Rai P.W. 5 was receiving medical attention. The first informant apprehended the hand of Md. After some time leaving Yugal Rai at the hospital, the first informant returned back to the village to take stock of the situation there. At the time of leaving Muzaffarpur, Yugal Rai P.W. 5 was receiving medical attention. The first informant apprehended the hand of Md. Yunus and Dharichan Thakur for getting the dacoity committed. The first informant felt that he had been victimised as he used to do pairvi in the ease of Jamun Paswan Chaukidar vs. Idrish. Those in short, were the contents of the first information report. 3. The fardbeyan was handed over to Vidya Bhushan Singh, P.W. 16, who was the Officer-in-charge of Kurhani police station at the place of occurrence itself He deposed that on the night between 19/20th April, 1980, he was returning home after patrolling when he learnt about the dacoity. On learning about it he left for the place of occurrence in village Sumera where he reached on 20.4.1980, at about A.M. There he was handed over the report of Jai Krishna Rai. On the basis of the report of Jai Krishna Rai, Kurhani Police station case no. 5 dated 20.4.1980, was instituted. The investigating officer inspected the place of occurrence. He found a compound wall seven feet high on the eastern side of the house of the first informant. The compound wall had a door. He found a wooden box and other boxes broken and articles scattered hither and thither. The house of appellants Fazal Rahman, Ashraf, Sadik and Mujibur Rahman was about 200 yards south east of the house of Jai Krishna Rai, P.W. 9, P.W. 16 Vidya Bhushan Singh had almost completed the investigation when he was transferred to be succeeded by Umesh Singh who ultimately submitted charge–sheet in the case. 4. After submission or charge–sheet the case was committed to court of Sessions which convicted and sentenced the appellant as stated earlier. Hence, the present appeal by the seven appellants. 5. Twenty witnesses were examined for the prosecution and five for the defence. The eye witnesses to the occurrence were P.W. 1 Ram Lakhan Rai, P.W. 2 Fakira Rai, P.W. 3 Bhuttu Rai, P.W. 5, Yugal Rai, P.W. 6 Harinandan Rai. P.W. 8. Sakindra Rai alias Basudeo Rai, P.W. 9 Jai Krishna Rai, P.W. 12 Chulha Devi and P.W. 14 Sunaina Devi. The eye witnesses to the occurrence were P.W. 1 Ram Lakhan Rai, P.W. 2 Fakira Rai, P.W. 3 Bhuttu Rai, P.W. 5, Yugal Rai, P.W. 6 Harinandan Rai. P.W. 8. Sakindra Rai alias Basudeo Rai, P.W. 9 Jai Krishna Rai, P.W. 12 Chulha Devi and P.W. 14 Sunaina Devi. P.W. 7 Sheo Chandra Rai, P.W. 10 Kaushalya Devi, P.W. 11 Nageshwari Devi and P.W. 13 Hari Rai were tendered at the trial. The evidence of P.W. Hari Rai and of P.W. 19 Bishwanath Prasad were formal in nature. P.W. 4 Radha Rai deposed having written the fardbeyan as dictated by Jai Krishna Rai, the first informant. P.W. 19 Bishwanath Prasad proved the inquest report signed by him. P.W. 15 Dr. R.K. Tondon, Associate Professor of Surgery, S.K. Medical College, Muzaffarpur, deposed having attended to Yugal Rai P.W. 5 at the hospital. He deposed that he had not examined any of the injuries on the person of Yugal Rai but he had advised getting the patient dressed. P.W. 17 Dr. S.K. Verma deposed about having examined P.W. 10 Kaushalya Devi wife of P.W 5 Yugal Rai and P.W. 12 Chulha Devi wife of Jai Krishna Rai, P.W. 9, P.W. 20 Dr. Kameshwar Prasad Sinha, Head of the Department of Forensic medicine at S.K. Medical College, Muzaffarpur, deposed having held post-mortem examination of the cadaver of deceased Sheoji Rai which had been identified to him by constable Dharmnath Jha. Dr. Sinha found multiple pea sized and smaller openings on the abdomen chest and thighs P.W. 16 deposed in regard to the investigation conducted by him and P.W. 18 deposed having submitted charge–sheet in the case. 6. D.W. 1 Suresh Chandra Chaudhary Sub-Inspector of police at Kazi Mohammadpur police station. The Sadar hospital at Muzaffarpur, fell within his jurisdiction. He deposed having received an O.D. slip (officer on duty slip) from the hospital. On receiving it he went to the hospital and there found a cadaver. He deposed that he tried to record the statement of the persons who were near the dead body of Sheoji Rai but no one gave his statement. He also deposed that Arun Kumar son of Brahmdeo Rai had given to him a written report (Ext. A). On receiving it he went to the hospital and there found a cadaver. He deposed that he tried to record the statement of the persons who were near the dead body of Sheoji Rai but no one gave his statement. He also deposed that Arun Kumar son of Brahmdeo Rai had given to him a written report (Ext. A). The evidence of the prosecution itself shows that Arun Kumar was the person who had driven the Jeep on which Yugal Rai, P.W. 5 and Sheoji Rai had been brought from the place of occurrence to Muzaffarpur hospital. D.W. 2 proved the signature of Arun Kumar on the written report handed over by him to D.W. 1, D.W. 3 Rajendra Prasad Sinha was the Judicial Record Keeper. He proved that the records of a complaint petition, filed by Md. Suhaib dated 4.8.1978, against Tula Rai, had been destroyed. D. W. 4 Tula Lal deposed that Md. Suhaib of village Sumera (the place of occurrence) had filed a complaint against Tula Rai in the court of the Magistrate. He used to look after the pairvi of that case as Karpardaz. He proved the copy of the complaint filed by Md. Suhaib. D.W. 5 Md. Harun proved the vakalatnama executed by Fakira Rai and Hiralal in the pen of Jai Krishna Rai. He also proved the wakalatram executed by Yugal Rai in the pen of Jai Krishna Rai. That in short is a resume of the evidence adduced in the case. 7. The defence of the appellants was that they had been falsely implicated out of enmity. The details of the circumstances for showing enmity between the parties, I shall set down later–Suffice is to say that the case of the appellants is that none of the dacoits could be identified by the inmates of the house but the dacoity having taken place, Jai Krishna Rai made the best use of it by implicating his enemies the appellants. 8. It is not in controversy that a dacoity took place in the house of Jai Krishna Rai. In fact learned counsel for the appellants was candid in conceding it. The investigating Officer P.W. 6, found broken boxes and broken doors in the house of Jai Krishna Rai. In paragraph 5 he deposed that a lock was broken and a wooden box was open. In fact learned counsel for the appellants was candid in conceding it. The investigating Officer P.W. 6, found broken boxes and broken doors in the house of Jai Krishna Rai. In paragraph 5 he deposed that a lock was broken and a wooden box was open. The consistent evidence of the eye witnesses is that the dacoits visited the house of Jai Krishna Rai and in course of dacoity Sheoji Rai was shot. According to the prosecution, it was appellant Md. Musa who shot him. Whether other allegations have been established or not is a different chapter but some one amongst the dacoits did shoot him which proved fatal, I therefore, hold in agreement with the findings of the learned Addl. Sessions Judge that a dacoity took place on the night of occurrence as alleged by the prosecution. In the course of dacoity Sheoji Rai was killed and Yuga Rai, P.W. 5, received serious gun shot wounds but he rallied round. 9. I have set out earlier the eye witnesses to the occurrence. To repeat they are P.Ws. 1, 2, 3, 5, 6, 8 and 9. All of them belong to one family Ram Lakhan Rai, P.W. 1 and Bhuttu Rai, P.W. 3 are own brothers. Both of them are grand sons of Brijdhari Rai. Brijdhari Rai had four other brothers, namely, Parmeshwar Rai, Kunj Bihari Rai, Bindeshwar Rai and Khelawan Rai. P.W. 5 Yugal Rai and P.W. 9 Jai Krishna Rai are sons of Parmeshwar Rd. P.W. 2 Fakira Rai is son of Bindeshwar Rai. P.W. 8 Sakindra Rai, Basudeo Rai is son of Khelawan Rai. Thus P.Ws. 1, 2, 3, 5, 8 and 9 are cousins amongst themselves decended from one common ancestor. P.W.6 Hari Narayan Rai was servant of Jai Krishna Rai, P.W. 9 on his own showing. It is thus obvious that the eye witnesses were interested and partisan in character P.W. 12 Chulha Devi was wife of Jai Krishna Rai and P.W. 14 Sunaina Devi was daughter or Jai Krishna Rai. They saw the docoity but they did not claim to have identified any of the appellant. The eye witnesses thus are clearly interested witnesses. That circumstance alone, however, would not be enough to throw out their testimony in regard to the identification of the appellants. Their evidence, calls for close scrutiny. 10. They saw the docoity but they did not claim to have identified any of the appellant. The eye witnesses thus are clearly interested witnesses. That circumstance alone, however, would not be enough to throw out their testimony in regard to the identification of the appellants. Their evidence, calls for close scrutiny. 10. We must now look at the nature of the enmity between the parties. P.W. 1 Ram Lakhan Rai deposed in paragraph 10 that prior to the occurrence appellant Muzibur Rahman and his father Nurul Hoda had filed a Title suit against his grand father Brijdhari Rai and Jai Krishna Rai, P.W. 9. That litigation went up till the High Court. It was ultimately decided in favour or Nurul Hoda, father of appellant Muzibur Rahman. Appellant Muzibur Rahman is cousin of appellants Fazal Rahman alias Fazal, Md. Ashraf and Sadik alias Abdul Sadik Appellants 3, 4 & 5 are own brothers, all sons of Md. Israil Appellant No. 6 Ram Lal Chamar claims to be servant of Muzibur Rahman. Thus only two appellants who have no enmity with the prosecution party are appellants Md. Musa and appellant no. 7 Ibrahim Hajam. All the appellants belong to village Sumera itself where Jai Krishna Rai resided. In fact, the houses of the appellant are within two hundred yards or the house of Jai Krishna Rai. 11. In the background of enmity between the parties and the eye witnesses being partisan and interested, we have to consider whether the assertion of the prosecution that the appellants along with other had taken part in the dacoity is true. Going by mere counting of heads there is plenty of evidence against the appellants. In fact, all the eye witnesses claimed to have identified all the seven appellants. There are however some circumstance which call for consideration in appreciating the prosecution case. In this connection the evidence of Sudhir Chandra Chaudhary, Officer-in-charge of Kazi Mohammadpur police station (D.W.1) is rather significant. He deposed that on receiving the O.D. slip (officer on duty slip) he went to Muzaffarpur Sadar Hospital. There he found a cadaver. He deposed that he tried to regard the statement but the persons who were concerned with the cadaver did not give any statement. Arun Kumar son of Brahmdeo Rai of village Dhota Sumera, however, gave a written report on which he put his signature. There he found a cadaver. He deposed that he tried to regard the statement but the persons who were concerned with the cadaver did not give any statement. Arun Kumar son of Brahmdeo Rai of village Dhota Sumera, however, gave a written report on which he put his signature. The report was marked Ext–A at the trial. In this written report it was written that on the previous night a dacoity had taken place in the house of Jai Krishna Rai of village Sumera. Yugal Rai had received pellet wounds and was unconscious. He was being treated in the sadar hospital. It is further stated in the report that Arun Kumar arrived at the place of occurrence, about half a mile away from his house after the dacoity. It was also mentioned in the report that Sheoji Rai cousin of Jai Krishna Rai had been shot and that he succumbed to his injury. The villagers had gone to Kurhani police station and Arun Kumar had come to the hospital and was attending on the injured. He stated that he could not give full account of the occurrence. That was natural as he had not seen any part of the occurrence. 12. The report is eloquent for what that it does not contain. What is significant is that the report is silent about the participation of the appellants in the dacoity. It is true that consequent upon dacoity and the death of Sheoji Rai and unconscious Yugal Rai, things may have been in state of confusion but in natural course of events the names of culprits would have been given out and known to the person concerned soon after the dacoits had left or thereafter. It is true that Arun Kumar had not seen the occurrence but he had arrived soon after. It was he who had brought the Jeep and had driven Yugal Rai, Ram Lakhan Rai, Basudeo Rai and Jai Krishna Rai to the hospital. I have some difficulty in appreciating the submission urged on behalf of the Stale that in the way between Sumera and Muzaffarpur no talk took place between Jai Krishna Rai and Arun Kumar. P.W. 1, Ram Lakhan Rai had also gone to the hospital along with Sheoji Rai and Yugal Rai in paragraph 4 be deposed that he had taken them on a cot to hospital. P.W. 1, Ram Lakhan Rai had also gone to the hospital along with Sheoji Rai and Yugal Rai in paragraph 4 be deposed that he had taken them on a cot to hospital. This appears to have been said under some confusion because it is the prosecution case clearly that they had gone to the hospital on the Jeep of Arun Kumar son of Brahmdeo Rai. The matter was clarified in paragraph 23 of his evidence where P.W. 1 deposed that Brahmdeo Rai had brought the Jeep and that he had not gone to the hospital Probably Yugal Rai and Sheoji Rai may have been brought up to the Jeep on a cot. In that state of affairs Arun Kumar not having stated in the written report the names of any of the appellants as dacoits in this report is rather significant. One has to stop to ponder whether the appellants had taken part in the dacoity or they had been falsely implicated out of enmity. 13. Learned counsel for the State contended that Sudhir Chandra Chaudhary, D.W. 1 was nobody in the whole affair and therefore, his presence on the scene was rather doubtful. He submitted that no case having been instituted, Sudhir Chandra Chaudhary was not expected or was not called upon to record the statement of anyone. In this connection, the first question is whether Sudhir Chandra Chaudhary had come to the hospital or not. 14. Muzaffarpur sadar hospital where Sheoji Rai and Yugal Rai were taken lies within the jurisdiction of Kazi Mohammadpur police station. Yugal Rai having been received in the hospital with gun shot wounds, the doctor on duty was expected to inform the police about it before taking up the treatment. In the normal course, therefore, an O.D. slip was naturally to be sent. Sudhir Chandra Chaudhary deposed that he arrived at the hospital on receiving O.D. slip. On the receipt of the O.D. slip he turned up at Muzaffarpur hospital. This statement of Sudhir Chandra Chaudhary has not been challenged by the prosecution in cross-examination. There can therefore be no reason to doubt his statement that he arrived at the hospital on receipt of the O.D. slip. On the receipt of the O.D. slip he turned up at Muzaffarpur hospital. This statement of Sudhir Chandra Chaudhary has not been challenged by the prosecution in cross-examination. There can therefore be no reason to doubt his statement that he arrived at the hospital on receipt of the O.D. slip. The statement of Sudhir Chandra Chaudhary receives considerable support from the statement of the investigating Officer, P.W. 16 himself who deposed in paragraph 32 of his evidence that P.W. 9 Jai Krishna Rai had told him that a Sub-Inspector of police of Kazi Mohammadpur police station had come to the hospital and was making enquiries from him but he did not give any statement. Further, the inquest report in respect of the cadaver of Sheoji Rai (Ext–9) was prepared by none other than Sudhir Chandra Chaudhary D.W. 1. The inquest report was subscribed by Basudeo Rai P.W. 8 and Ram Lakhan Rai P.W. 1 deposed in paragraph 5 of his evidence that in the hospital a Sub-Inspector of police had come. The Sub-Inspector prepared an inquest report which was signed by him and Basudeo Rai P.W. 8. It is thus firmly proved that Sudhir Chandra Chaudhary had come to the hospital on receiving the O.D slip. The non-production of the O.D. slip cannot shake the evidence of D.W. 1 that he had come to the hospital. 15. The evidence of D.W. 1 Sudhir Chandra Chaudhary gives quite a stunning blow to the prosecution case. When he had come to the hospital Jai Krishna Rai, Ram Lakhan Rai and all eye witnesses were there. He deposed that he tried to take the statement in the hospital but no one gave his statement. This means that till then Jai Krishna Rai and his brothers had not made up their mind whom to implicate. This point to the conclusion that the appellants had not taken part in the dacoity. If they had, they would have been seen and the first informant or his brothers would have had no difficulty in stating that the dacoity had been committed by these appellants and others From these circumstance there can be no escape from the position that the prosecution party avoided the police in giving their earliest version of the occurrence and the complicity of the appellants. Sudhir Chandra Chaudhary was cross-examined quite seriously by the prosecutor but nothing could be obtained by the prosecution to shake his testimony. It was suggested to him that he did not know who was the 'MUDDAT' (prosecutor), that he did not prepare any supplementary diary nor did he investigate anything. Those are matters of detail. But if no one gave any statement to him he obviously could not say who was the prosecutor. No statement having been given and no case having been instituted, Sudhir Chandra Chaudhary could not have done any investigation. For these reasons the truth of the statement of D.W. 1 cannot be doubted. There is no suggestion to him that his statement in examination in chief was false nor is there any suggestion that he had not tried to record the statement of the persons who were near the body of Sheoji Rai and near the injured Yugal Rai. I am firmly of the view that the prosecution party avoided making any statement to the police. The conclusion from that fact is obvious. The conclusion is that Jai Krishna Rai and his company had not till then made up their mind to implicate the appellants. That would indicate that the appellants were not the dacoits. In his statement to the investigating officer, P.W. 9 Jai Krishna Rai stated that he did not give his statement to Sudhir Chandra Chaudhary because he was worried about the affairs at his residence and therefore he left the hospital. This explanation appears to be a lame excuse for not telling Sudhir Chandra Chaudhary the fact that he had identified the appellants in the dacoity. 16. The evidence of Sudhir Chandra Chaudhary was rather significant. The prosecution was ill advised not to produce him. I hold the prosecutor guilty of withholding very important material evidence. In this behalf, it was incumbent upon the prosecution to examine Arun Kumar as well. The investigating officer was in possession of Ext–A, a report in the pen of Arun Kumar. That report was to say the least, a very relevant material. The prosecution tried to suppress it but the defence brought it before the court. This attitude of the prosecution gives a serious jolt to the credibility of the prosecution case. 17. There is another aspect of the matter which must be considered in its proper perspective. That report was to say the least, a very relevant material. The prosecution tried to suppress it but the defence brought it before the court. This attitude of the prosecution gives a serious jolt to the credibility of the prosecution case. 17. There is another aspect of the matter which must be considered in its proper perspective. The prosecution case is that Muzibur Rahman and his cousins were some of the dacoits who committed dacoity. P.W. 3 Bhutu Rai bad stated before the police that after the arrival of the dacoits out of fear he fled to Majju Mian alias Muzibur Rahman (appellant) and requested him to come with a gun but Muzibur Rahman did not oblige him. Thereafter, he came to place of occurrence along with Bindeshwar Rai, Nagina Rai and Bathu Rai, P.W. 3 Bhutu Rai denied in his evidence at paragraph 16 hewing made such statement to the investigating officer. The evidence of the investigation officer P.W. 16 at paragraph 28 clearly shows that Bhutu Rai had fled to appellant Muzibur Rahman to come out with his gun. This clearly shows that Muzibur Rahman was not one of the dacoits who had taken part in the dacoity. This picture is clearly inconsistent with the prosecution case. It shows clearly that Muzibur Rahman had been falsely implicated in the dacoity. The reason for false implication is to be found in the civil dispute between Muzibur Rahman and his father on the one hand family of Jai Krishna Rai on the other. The false implication of Muzibur Rahman leads one to think that his cousins Sadik, Fazal and Ashraf have also been falsely implicated. The fact that Muzibur Rahman had a gun leads one to think that he was a man of considerable status. P.W. 5 Yugal Rai deposed in paragraph 16 that Majju alias Muzibur Rahman has a pucca house about 40-45 laggies south of the house of Yugal Rai. He did not know whether Muzibur Rahman used to fake contract work but he conceded that daily 10-12 lahourers used to come to the house of Muzibur Rahman and after doing their work used to go back to their homes. This shows that Muzibur Rahman was not a man of straw. His committing dacoity appears rather incredible. 18. The conduct of Jai Krishna Rai after the dacoity was rather dubious. This shows that Muzibur Rahman was not a man of straw. His committing dacoity appears rather incredible. 18. The conduct of Jai Krishna Rai after the dacoity was rather dubious. He claims to have identified the appellants taking part in the dacoity but be did not disclose them when he come in contact with the police or Kazi Mohammadpur police station, He gave his written report at the village at about 11 A.M. to P.W. 16. The latter deposed in paragraph 20 that when he arrived at the home of Jai Krishna Rai and tried to record his statement, he refused to say anything beyond his written report despite serious persuasion by P.W. 16. Jai Krishna Rai was adamant not to give any statement apart from the written report. P.W. 16 therefore had no option but to take written report and to institute a case on the basis of that report. One fails to appreciate the attitude of Jai Krishna Rai. His recalcitrance to be examined by the investigating officer shows that he was apprehensive that the truth may come out if he spoke in answer to questions by the investigating officer. The only conclusion from this attitude appears to be that the appellants had not been identified. The time spent between his arrival at Muzaffarpur sadar hospital at 11 A.M. was utilised in consultation may be with some lawyer at Muzaffarpur. Jai Krishna Rai has tried to conceal himself behind the plea of his anxiety for the condition at his residence. That does not convince me that was the reason why the names of the appellants had not been disclosed at the earliest opportunity. 19. I find that thus there are three very important matters which cast a shadow upon the truth if the prosecution. The first is the non-naming of the appellants at the hospital, the second is the withholding of Sudhir Chandra Chaudhary and Arun Kumar from the witness box and third is the refusal of Jai Krishna Rai to give any statement either at Muzaffarpur hospital or at his village. The evidence of P.W. 1 Ram Lakhan Rai at paragraph 23 also makes the prosecution case doubtful. He deposed that before being examined by the investigating officer, he had not given out the names of the appellants to any one. The evidence of P.W. 1 Ram Lakhan Rai at paragraph 23 also makes the prosecution case doubtful. He deposed that before being examined by the investigating officer, he had not given out the names of the appellants to any one. In regard to the complicity of the appellants he stated that Bindeshwar Sah Dafadar and Ramdeo Paswan Chaukidar belong to village Sum era itself where the dacoity took place. He deposed that Chaukidar Ramdeo Paswan and Bindeshwar Sah Dafadar came to the darwaja of Jai Krishna Rai. P.W. 1 had talked to Bindeshwar Sah but he did not give the names of the appellants to him. This again shows that none of the dacoits had been identified. In this behalf, I would like to observe that non-examination of Dafadar Bindeshwar Sah and Chaukidar Ramdeo Paswan by the prosecution was ill advised. They were material witnesses. At least they should have been produced in court for cross examination by the defence. Now the evidence of Ram Lakhan Rai, P.W. 1 calls for some serious scrutiny. In paragraph 23 has deposed that he did not come to the hospital but remained at his house. This was an excuse for feigning ignorance about Arun Kumar, the author of Ext–A. 20. Learned counsel for the State endeavoured to plug the gaping holes in the prosecution case by contending that the police was hostile to the prosecution and therefore, the investigation was not faithful. In this connection he has relied upon these petitions filed by Jai Krishna Rai against the investigating officer. The first is the petition dated 23.4.1980 (Ext–3) filed before the Sub-divisional Judicial Magistrate (West) Muzaffarpur. In that petition it was stated that incase the police did not sent up the accused for trial this petition should be treated as petition of complaint and for taking cognizance after examining Jai Krishna Rai on solemn-affirmation. In this application it was stated in paragraph 2 that the complainant had brought the dead body and the injured to hospital (at Muzaffarpur) and submitted a written report to Kurhani police. There is no mention in this application of the fact that the police had come at Muzaffarpur itself but no report or statement was given by Jai Krishna Rai to the police. There it no indication in this application whose statement had not been correctly recorded by the investigating officer and in what particulars. There is no mention in this application of the fact that the police had come at Muzaffarpur itself but no report or statement was given by Jai Krishna Rai to the police. There it no indication in this application whose statement had not been correctly recorded by the investigating officer and in what particulars. This application bears the date 23.4.1980, but the court's seal in token of filing is dated 2.5.1980. The second is a petition dated 21.5.1980 (Ext–3/1) and was filed on the same day. In this again the first informant alleged that the officer-in-charge of the police station was out to spoil the case. In paragraph 2 of this application it has been stated that the officer-in-charge of Kurhani police station registered the case reluctantly against the accused mentioned in the first information report. I have discussed earlier that the reluctance to institute a case was not on the side of the police but on the side of Jai Krishna Rai himself. He refused to give any state men, to the police at Muzaffarpur and even at Kurhani. When the police arrived at about 11 A.M. the first informant refused to give any statement apart from the written report in the pen of Radha Rai. The third petition (Ext–3/2) was filed on 20.11.1980. This also was filed in the court of Sub-divisional Judicial Magistrate (West) Muzaffarpur and the prayer once again was that in case the police submitted final report the complainant may be examined on solemn affirmation and process be issued against the accused. In paragraph 4 of this application, it has been stated that the accused had approached the Deputy Inspector General of police who was likely to get final report submitted in the case. This assertion of Jai Krishna Rai was palpably false in as much as, charge-sheet was submitted in the case. Nothing has been brought on record to substantiate the assertion that the Deputy Inspector General of Police, Muzaffarpur was out to help the accused. The assertion of the first informant against the police wag absolutely bald and vague. The petition were filed to cover up serious lacuna in the prosecution case. In my view, the attempt at mudslinging at the police was a crude attempt to patch up the gaping holes in the prosecution case. 21. The assertion of the first informant against the police wag absolutely bald and vague. The petition were filed to cover up serious lacuna in the prosecution case. In my view, the attempt at mudslinging at the police was a crude attempt to patch up the gaping holes in the prosecution case. 21. I have stated earlier that P.W. 1 sated in paragraph 23 that he had not given the name of the seven appellants as dacoits to Bindeshwar Sah. He did not tell the police about Musa Mian having shot Sheoji Rai. He also did not tell before the police that Muzibur Rahman had a gun with which he shot Yugal Rai. These were substantiated by the investigating officer in his evidence at paragraph 26. The attention of the witness was drawn to these facts in his evidence at paragraph 19. Infact, the investigating officer deposed P.W. 1 had told him that he had learnt latter that Sheoji Rai and Yugal Rai had received gun shot wounds. These statements of P.W. 1 of course denied by him-lead me to hold that probably P.W. 1 had not identified any one but had later agreed to support Jai Krishna Rai being a member of his own family. P.W. 1 was a witness to the inquest. He has signed on the inquest report (Ext – 9). The inquest report was drawn up by the officer-in-charge of Kazi Mohammadpur police station at Muzaffarpur at 6 A.M. in the hospital itself and yet he had the temerity to depose in court that he had not gone to the hospital. Having signed the inquest report I have failed to appreciate what alibi he can dish out for not giving his statement to the police of Kazi Mohammadpur. In any view, he is not a witness of truth. For all the reasons discussed above. I would not place reliance upon his testimony in regard to naming of the accused. He is a man of the village and a cousin of Jai Krishna Rai. He must have certainly seen the dacoity being committed but the infirmities in his evidence lead me to hold that he had not identified the appellants al having taken part in the dacoity. 22. He is a man of the village and a cousin of Jai Krishna Rai. He must have certainly seen the dacoity being committed but the infirmities in his evidence lead me to hold that he had not identified the appellants al having taken part in the dacoity. 22. P.W. 2 stated in paragraph 6 that he had not given out the names of the appellants as dacoits to anyone in the village before being examined by the investigating officer. This witness also was inimical to appellant Muzibur Rahman on account of the civil litigation. He also tried to conceal the fact of litigation which is evident from his evidence at paragraph 8 where it has been well proved that there was serious civil litigation between the parties. 23. P.W. 3 Bhuttu Rai was full brother of P.W. 1 and nephew of P.W. 9 Jai Krishna Rai. He also feigned ignorance about the civil litigation between Muzibur Rahman and his father Nurul Hoda on the one side and Baidyanath Rai father of P.Ws. 1 and 3 Brijdhari Rai and Jai Krishna Rai on the other. P.W. 5 Yugal Rai also denied at paragraph 9 any knowledge about the civil litigation. He denied having signed any Wakalatnama in that litigation but that wall admitted by P.W. 9 himself that P.W. 5 also was a party in that civil litigation. He deposed that before being examined by the police he had given out the name of appellants Muzibur Rahman, Md. Musa and Ibrahim Hajam to Ram Lakhan Rai, Bhatu Rai and Jai Krishna Rai. He has however, not been supported in this behalf by either of those witnesses. He falsely slated that he had given out names of the appellants to the Doctor at Muzaffarpur and the Sub-Inspector of Kazi Mohammadpur police station. He did not state before the police that he had identified Majju Mian and that he was the poison who had shot him. In paragraph 20 he asserted that he had stated but his statement it belied by the investigating officer. His assertion that he had given out names of the appellants to Ram Lakhan Rai and Jai Krishna Rai about Musa Mian, Ram Lal Chamar and other dacoits is clearly against his earlier statement. His assertion that be had named, which is not substantiated by the police assume a positive aspect and cannot be glossed over omission. His assertion that he had given out names of the appellants to Ram Lakhan Rai and Jai Krishna Rai about Musa Mian, Ram Lal Chamar and other dacoits is clearly against his earlier statement. His assertion that be had named, which is not substantiated by the police assume a positive aspect and cannot be glossed over omission. According to him he had given out the name or the appellants to Ram Lakhan Rai. P.W.1, Bhutu Rai, P.W. 3, Jai Krishna Rai P.W. 9 Fakira Rai P.W. 2 and Harinandan Rai P.W. 6. His assertion is a clear lie. 24. Sakindar Rai alias Basudeo Rai, P.W. 8 also did not give his statement at Muzaffarpur. His not giving out the names of the appellants at Muzaffarpur is significant in view of the fact that he was one or the witness to the drawing up of the inquest report. He also belongs to the family of Krishna Rai, being brother of deceased Sheoji Rai. 25. The evidence of P.W. 9 the first informant calls for special consideration. He took no steps to inform the Kurhani police. He avoided giving statement to Sub-Inspector of Kazi Mohammadpur police station. Even when the investigating officer came to his village at about 11 P.M. he refused to give any statement but only passed on a written report in the pen of Radha Rai, P.W. 4. He falsely stated that he was examined by the investigation officer. In this behalf I have referred to the statement of the investigating officer P.W. 16 who deposed that Jai Krishna Rai declined to give any statement. The protest petitions filed by him contained vague and false statement against the police. The witnesses tried to water down his ire at Muzibur Rahman and his relations by stating in paragraph 22 that the litigation had taken place 15-16 years earlier. The litigation was not that old. In fact the Second Appeal No. 390 of 1971, filed by Jai Krishna Rai and others against Nurul Hoda (father of appellant Muzibur Rahman) and another was disposed or by Hari Lal Agrawal J. on 16.7.1974 The Second Appeal was thus disposed of six years prior to the occurrence. P. W. 9 further stated that Muzibur Rahman had also realised costs of the suit. This must have been effected after 1974. P. W. 9 further stated that Muzibur Rahman had also realised costs of the suit. This must have been effected after 1974. Thus the civil litigation was not as old as Jai Krishna Rai tried to make out. Further on 3.8.1978, Md. Suhaib, a servant of Muzibur Rahman, had filed a criminal case under Sections 323, 379 and 426 of the Indian Penal Code and Section 24 of Cattle Trespass Act. The accused in this case were Tula Rai, his brother Jai Krishna Rai P.W. 9 and Chandar Rai P.W. 9 denied that there was any such case. The defence, however, has filed the certified copy of complaint case no. 400 of 1978, filed by Md. Suhaib in the court of Sub-divisional Judicial Magistrate (West) Muzaffarpur. The original complaint had been destroyed as deposed by D.W. 3 Rajendra Prasad Sinha. The animosity on accoul1t of litigation thus was not very old. It commenced from 1958 and continued till 1978 i.e. two years prior to the date of occurrence. In Para 30 he deposed that he had concealed himself in a brinjal field. Brinjals plants are not very tall. If it was true as deposed by him he may have been seen by the dacoits and shot. To fill up this lacuna he deposed that he prostrated himself in the brinjal field. If he lay in that manner it is difficult if he could have seen and identified any of the dacoits. In Paragraph 31 he deposed that Muzibur Rahman fired at Yugal Rai from about 10-11 feet. He further stated that when he came out of the brinjal field he saw that Yugal Rai had been placed an a cot and 10-15 persons had collected there which included chamars as well. This evidence of the witness leads me to the conclusion that he had not concealed himself in brinjal field but he had fled far away on seeing the dacoits. If he was nearby in the brinjal filed he would have seen Yugal Rai being placed on a cot. In fact he would have been the earliest person to pick up Yugal Rai and placing him on a cot. This aspect of the matter creates serious doubt upon the credibility of evidence of P.W. 9 Jai Krishna Rai. In paragraph 39 he denied that the Sub-Inspector of Kazi Mohammadpur police station had come to the hospital. In fact he would have been the earliest person to pick up Yugal Rai and placing him on a cot. This aspect of the matter creates serious doubt upon the credibility of evidence of P.W. 9 Jai Krishna Rai. In paragraph 39 he denied that the Sub-Inspector of Kazi Mohammadpur police station had come to the hospital. In this behalf I have not the least hesitation in holding that P.W. 9 was completely lying. I have not the least doubt that the Sub-Inspector of police had come to the hospital. The investigating officer P.W. 16 deposed in paragraph 32 that Jai Krishna Rai had told him that a Sub-Inspector of Kazi Mohammadpur police station had come to the hospital and was making enquiries from him but he was worried about his residence so he went away without giving any statement His statement in court at paragraph 39 that the Sub-Inspector of Kazi Mohammadpur police station had not came, leads me to hold that P.W. 9 is not a witness of truth. 26. Having considered all aspect of the matter my concluded findings are as follows:– (i) The first informant and all the eye witnesses were inimically disposed towards appellants Muzibur Rahman, Fazal, Md. Ashraf and Sadik alias Abdul Sadik on account of Title suit and the criminal case instituted by Md. Suhaib, servant of appellant Muzibur Rahman. (ii) P.Ws. 1, 2, 3, 5, 8 and 9 belong to the same family and are thus interested witnesses, P.W. 6 Harinandan Rai was a servant of Jai Krishna Rai. Thus all witnesses were interested and partisan. (iii) Sudhir Chandra Chaudhary, D.W. 1 had come to the hospital at Muzaffarpur, but the witnesses avoided making any statement which leads me to hold that till then the prosecution witnesses had not made up their mind whom to implicate. (iv) Even in the village, P.W. 9 Jai Krishna Rai refused to give any statement to the investigating officer. All these circumstance lead to the conclusion that the appellants had not been identified as dacoits in the dacoity which took place in the house of Jai Krishna Rai and they bad been falsely implicated in this case. 27. The only question now remains about the complicity of appellants Md. Musa, Ram Lal Chamar and Ibrahim Hajam in the occurrence. No animosity bas been shown between them and Jai Krishna Rai. 27. The only question now remains about the complicity of appellants Md. Musa, Ram Lal Chamar and Ibrahim Hajam in the occurrence. No animosity bas been shown between them and Jai Krishna Rai. The defence case, however, is that Ram Lal Chamar and Ibrahim Hajam were servants of appellant Muzibur Rahman. The prosecution witnesses have denied it but considering witnesses have denied it but considering the nature of the evidence adduced by the prosecution, which has not found favour with us in regard to the complicity of the other appellants, I would not consider it safe to Act, upon the testimony of the eye witnesses as against appellants Md. Musa, Ram Lal Chamar and Ibrahim Hajam as well. I am, therefore, giving benefit of doubt to them as well. I consider it a serious infirmity in the evidence of the eye witnesses, al they avoided giving statement to the police at Muzaffarpur 28. For all the reasons stated above, I am of the view that the prosecution has failed to prove its case beyond all reasonable doubt. The appeal is thus hereby allowed and the conviction and sentences recorded against all the appellants are hereby set aside. Let all the appellants be released from custody forthwith unless required in any other case. I agree. Appeal allowed.