JUDGMENT 1. - All these appeals are directed against the judgment dated 20.9.85 passed by the Additional Sessions Judge, Gangapur City, hence they are disposed of by this common judgment. 2. All the appellants were found guilty of the offence u/S. 395 IPC and each of them has been sentenced to 5 years' R.I. and a fine of Rs. 500/-, in default of payment of fine, to further undergo three months' rigorous imprisonment. 3. Tulsi Ram submitted a written report at the Police Station, Vazirpur on 6.6.84 stating that he was sleeping in his house in the chowk during the night of 5th/6th June, 84 when about 11.30 p. m. in the night he was awakened on shouting by his brother. He saw that two miscreants had caught hold of his brother. When he proceeded towards him he was also caught hold by those miscreants. However, the informant managed to escape. According to him, the miscreants were 6-7 in numbers, and who had gun in their hands. They fired with small gun by which, Ram Kishan and Gangadhar received injuries. Those miscreants entered into the house of Kanji, Kajodia and Bhauria and took away cash and ornaments. It was mentioned in the report that those miscreants were wearing pants and bushshirts. On this report the police registered a case u/S. 395 and 397 IPC. During investigation the S.H.O inspected the site and prepared the site-plan Ex. P 2. He recovered 8 empty cartridges from the spot vide memo Ex. P 3 and one plastic chappal vide Ex. P 4. He also seized one plastic cover having identity card, one photo and some papers and one rupee note vide memo Ex.P 5. The accused-persons after arrest were sent for the Identification Parade and they were identified by the witnesses. The injured persons were medically examined by the doctor. After completing the usual investigation the Police submitted challan against the accused-appellants. The trial Court framed charges against the accused appellants u/S. 395 and 397 IPC. They pleaded not guilty and claimed trial. 4. The prosecution has examined 25 witnesses to establish their case. All the accused persons have denied to nave committed this offence and on account of enmity they have been falsely implicated in this case. The accused-persons have also examined nine witnesses in their defence. They pleaded not guilty and claimed trial. 4. The prosecution has examined 25 witnesses to establish their case. All the accused persons have denied to nave committed this offence and on account of enmity they have been falsely implicated in this case. The accused-persons have also examined nine witnesses in their defence. After concluding trial the learned Additional Sessions Judge found that no case is made out u/S. 397 IPC and he acquitted all the accused-persons from this charge. He found that case u/S. 395 IPC has been established and he convicted and sentenced them as mentioned above. 5. The learned counsel for the appellants have argued that the entire case depends on the identification of the accused. The recovery of the articles as alleged by the prosecution has not been believed by the trial Court. All the recovery witnesses have been declared hostile and they have not supported the prosecution story about the recovery. The trial Court also did not believe this recovery, therefore, there is no evidence about the recovery of the articles from the possession and at the instance of the accused persons. 6. There is only evidence of identification of the accused. Tulsi Ram (PW 1), Chetram (PW 6), Smt. Dulari (PW 17), Smt. Santra (PW 18) and Smt. Sheela (PW 20) have identified the accused-persons during the Identification Parade. 7. It was argued on behalf of the accused persons that they have been shown to the witnesses prior to the Identification Parade. It was also argued that all these persons who had identified them belong to one family of Tulsi Ram informant. Even, their statements are untrustworthy and it is unsafe to rely on their testimony. It was argued that according to all these witnesses they identified the accused-persons in the light of lantern which was hanging in the house. It was also argued that two witnesses have gone to this extent that they had stated that the dacoits were having torch in their hands and in the light of that torch they were identified by them. So there is evidence with regard to torch and lantern in the house. Out of 5 witnesses who had identified them only two have stated that the miscreants were having torch in their hand while others have not stated about the torch. So there is evidence with regard to torch and lantern in the house. Out of 5 witnesses who had identified them only two have stated that the miscreants were having torch in their hand while others have not stated about the torch. So the statement of these witnesses about the torch is a false one which has not been corroborated by the other witnesses. Had it been a fact that the accused persons were having torch in their hand and were throwing the torch light, the other witnesses would have certainly stated above the torch. 8. The report lodged by Tulsi Ram is Ex. P. 1. In this report he has not mentioned that there was a lantern which was hanging in the house and in that light the miscreants were identified. In this report he has specifically mentioned that the miscreants were wearing pants and bushshirts and he can identify them if they come before him. He has not given the description of those miscreants. He has not stated that there was light in the house and he identified those persons in the light of the lantern. This is a very important factor because the night was dark one and in the light of that lantern the miscreants were identified by the witnesses. It is in the evidence that had there been no light of lantern, it would be not possible to identify those miscreants. It means that the night was very dark and only in the light they could be identified. Therefore, this is a very important aspect to be mentioned in the report Ex. P. 1 that there was light of lantern in the house and in the light of that lantern the miscreants were identified by Tulsi Ram and other witnesses. Another important aspect is that the Police had inspected the site and prepared the site-plan Ex.P.2. In this site plan, the place has not been shown where the lantern was hanging. It was the duty of the Investigating Officer to show the place in the site-plan where the lantern was hanging. The place where the lantern was hanging is a very important fact because the accused-persons entered into the Patoor and looted cash and ornaments. Whether the light of the lantern was reaching inside the Patoor or the light of that lantern was spreading through out the chowk, is a very important aspect? The place where the lantern was hanging is a very important fact because the accused-persons entered into the Patoor and looted cash and ornaments. Whether the light of the lantern was reaching inside the Patoor or the light of that lantern was spreading through out the chowk, is a very important aspect? But the Investigating Officer has not shown the place where the lantern was hanging in the site-plan Ex.P. 2. Tulsi Ram informant was present when the site-plan Ex. P. 2 was prepared. He should have shown the Investigating Officer the place where the lantern was hanging but, he too did not indicate the place where the lantern was hanging. 9. Another important aspect is that all these witnesses who identified the accused-persons gave their statements to the Police u/S. 161 Cr. P. C. None of these witnesses has stated in his Police statement that light was in the house and in the light of the lantern they identified the accused-persons. Their answer was that they had stated so to the S. H. O. and he might not have written so. The S. H. O. has stated in his statement that their Police statements have been correctly recorded by him and nothing has been left in their statements. It means that these witnesses have not stated in their Police statements u/S. 161 Cr. P. C. that they had identified the accused-persons in the light of the lantern which was hanging in the house. In the Court statements all these witnesses have stated that there was lantern and in the light of that lantern they identified the accused-persons. This statement of the witnesses is false and made out one. In order to implicate these accused-appellants all these witnesses have given false statements about the identification of the accused persons. Therefore, the identification of the accused-persons during the Identification Parade has no value and the conviction on the basis of this identification is bad and illegal. 10. In case of Ram Kumar v. State of Rajasthan, 1988 RCC 65 the Division Bench of this Court, in which I was one of the member have observed that "In the site-plan the place of the witnesses where from they saw the occurrence has not been mentioned, so the presence of the witnesses at the site creates doubt and no reliance can be placed on their testimony. 11. 11. In the present case also the Investigating Officer has not mentioned the places in the site plan Ex. P. 2 where from these witnesses had witnessed the occurrence and seen miscreants, committing the dacoity. Therefore, serious doubt is created in the testimony of these witnesses and it is unsafe to rely on such witnesses. 12. In the case of Birbal & Others v. The State of Raj., 1988 RCC 355 , the Division Bench of this Court in which I was one of the member, have observed as under:- "In this site-plan, it has not been shown where the lantern was burning at the shop of Mannalal. It has also not been shown where the lantern was burning inside the house of Bhanwarlal. In his report (Ex. P. 10), Mannalal has very specifically mentioned that a lantern was burning outside his shop. When this fact was so important that he and the other villagers had identified the dacoits only in the light of lantern which was burning outside his shop then it was very important for the SHO to have shown in the site-plan as to what place the said lantern was burning. This is very important aspect which should have been shown in the site-plan (Ex. P 12), so that the court could have come to a conclusion whether it was possible for the prosecution witnesses to have identified the miscreants in the light of that lantern Ramgopal PW 4 has also stated in his statement that a lantern was burring at his house also and in the light of that lantern, he had seen that 5 persons had entered the home of Bhanwarlal and looted the property. No other witness has stated that any lantern was burning at the house of Ramgopal PW 4. Then, Mannalal has not stated that there was any light of lantern inside the house of Bhanwarlal or Ramgopal. None of the witnesses has stated in his examination-in-chief that there was any lantern burning outside the shop of Manna Lal, but, very strange and unfortunate that in cross-examination, a question, was put about, and the witnesses stated that a lantern was burning there. Laxmansingh PW 2 also in his cross-examination has said about a lantern, but in his statement recorded u/S. 161 (Ex. D1), he has not stated that any lantern was burning at the house of Mannalal. Laxmansingh PW 2 also in his cross-examination has said about a lantern, but in his statement recorded u/S. 161 (Ex. D1), he has not stated that any lantern was burning at the house of Mannalal. So, what comes out is that the theory of burning of lantern outside the shop of Mannalal is a concocted story, and in order to identify the accused persons, the prosecution witnesses were made to say like this. Therefore, the aspect of burning of lantern is unbelievable and false story." The position of the present case is similar to the position of the case of Birbal & Ors. (supra). 13. Thus, in the light of my above observations I am of this opinion that all the witnesses are liar and they were asked to speak about burning of lantern inside the house. This aspect of burning of lantern is unbelievable and the prosecution has created a false and concocted story. 14. The learned Sessions Judge has discussed in the judgment in detail about the identification of the accused. The conclusion arrived at by him after discussing this evidence is entirely incorrect and illogical. He has committed error in believing the story of burning of lantern and identifying the accused persons in that light. I am unable to agree with the finding of the learned Additional Sessions Judge and the conviction of the accused-appellants u/S. 395 IPC is bad and illegal. 15. There is another aspect also in this case, which is very important one. According to PW 1 Tulsi Ram he was caught by one miscreant so at the most he could identify only one person. But this is not the fact. He had identified three accused persons. How it could be possible? This shows that he is a lie of first-grade. Tulsi Ram in his statement has stated that even after seeing the site-plan Ex. P 2, he cannot indicate the place where the lantern was hanging. He has further stated that when he ran away from the place the dacoits had broken the lantern. If this is a fact that the lantern was broken, the Investigating Officer should have recovered the pieces of the broken lantern. These pieces of broken lantern were important material in this case but they were not recovered from the place. It means that there was no broken lantern in the house. If this is a fact that the lantern was broken, the Investigating Officer should have recovered the pieces of the broken lantern. These pieces of broken lantern were important material in this case but they were not recovered from the place. It means that there was no broken lantern in the house. This shows that the theory of burning lantern is concocted one. Sheela (PW 20) in her cross- examination has stated that the miscreants were having battery and they were throwing light on our faces. Two lanterns were bruiting; one inside the Patoor and one outside the Patoor. This is a false statement. No other witness has stated about the torch. If believed that they were having torch and were throwing the light on their faces, in that position it would not be possible for them to identify the miscreants because if a person receives the light of a torch on his face he could not see what is in front of him. Chetram (PW 6) has stated that lantern was hanging on the nail inside the Patoor and one Chimney was in a Kachcha house. This is also a false statement. (PW1) Tulsi Ram has stated that in the night Dy. S.P. has arrived in the village but he did not submit any report to Dy. S.P. That Dy. S.P has not been examined. It is very important matter that Dy. S.P. reached the village at the first instance to whom the report was narrated by Tulsi Ram (PW 1). What he had stated to Dy. S.P. and what the Dy. S.P. had seen at the site is an important aspect. The prosecution should have examined the Dy. S.P. Inder Raj Singh (PW 25), the S.H.O., has stated that he was informed about this dacoity by a wireless message. The Circle Officer has given this wireless message. What was the wireless message given to the S.H.O. has not been produced by the prosecution. (PW 1) Tulsi Ram has stated that Hansraj was sent to call the Police. This Hansraj has not been examined. So what comes out from all this act of the prosecution that the prosecution has not come with clean hands before this Court. The actual matter has not been brought up. The important witnesses Hansraj and Dy. S.P. have not been examined. So this also creates debut in the story of the prosecution. 16. This Hansraj has not been examined. So what comes out from all this act of the prosecution that the prosecution has not come with clean hands before this Court. The actual matter has not been brought up. The important witnesses Hansraj and Dy. S.P. have not been examined. So this also creates debut in the story of the prosecution. 16. In view of my observation and discussion above I find that the learned Sessions Judge has committed error in finding the accused-appellants guilty u/S. 395 IPC. The prosecution has utterly failed to establish its case. The prosecution witnesses are liar, unbelievable, untrustworthy and no conviction can be based on the testimony of such witnesses. 17. As a result, the appeals are accepted. All the appellants are not found guilty u/S 395 IPC and their conviction and sentence u/S. 395 are set aside. All the appellants are in jail. They be released forthwith, if not required in any other case.Appeals accepted. *******