G.K. SHARMA, J.—This appeal is directed against the judgment dated 13th June, 1980, passed by the Additional Sessions Judge No. 2, Bharatpur, convicting the accused-appe!lants under section 396 & 397, IPC, and sentencing each of them to 10 years rigorous imprisonment and fine of Rs. 100/-, and in default of payment of fine, to further undergo 3 months rigorous imprisonment under section 396, IPC; and to 7 years rigorous imprisonment and fine of Rs. 100/-, and in default of payment of fine, to further undergo* 3 months, rigorous imprisonment under section 397, IPC, respectively. Both the substantive sentences, were, however, ordered to run concurrently. 2. Parma, son of Genda submitted a written report on 27th June, 1979, at PS Uchhain, alleging that on the intervening night of 26th & 27th June, 1979 he was sleeping out of his house. At that time, he woke up hearing some cries (Ghighhi), arid saw 10-15 miscreants armed with deadly weapons. When he forwarded with a Lathi, the miscreants fired a gun shot at him, but, he escaped by shielding behind a pillar. The villagers of Ajitpura then raised hue and cry, and hearing the same, the villagers of Villages-Nagla Peelu and Bhaisa also raised alarming-voices. The miscreants then fired one more gun-shot, to which his nephew Ramjilal died at the spot, and Charan sustained pellet-injuries. They also caused injuries by Lathis and Ballams to Mst. Ramdei, Bissi and Vamniram; and snatched away, the ornaments of Mst. Kalawati, Mst Saraswati, Mst Hukmi, Mst. Bindo and Mst. Phoolwati. They also looted ornaments from his house and from that of Nathi and Charan. He (informant) also stated in the report that he had identified the accused-appellants in the light of torches, and that he could also identify the rest of the miscreants, if they were brought before him. The report further says that seeing the villagers of villages -Nagla Peelu and Bhaisa coming towards them, the said miscreants ran away. 3. On this report a regular FIR was prepared, and a case under sections 396 and 397 IPC, was registered. After usual investigation, a challan was filed against the 6 accused persons. The learned Additional Sessions Judge framed charges against the accused-appellants under sec. 396 and 397, IPC who pleaded not guilty and claimed trial. 4. 3. On this report a regular FIR was prepared, and a case under sections 396 and 397 IPC, was registered. After usual investigation, a challan was filed against the 6 accused persons. The learned Additional Sessions Judge framed charges against the accused-appellants under sec. 396 and 397, IPC who pleaded not guilty and claimed trial. 4. After recording evidence and hearing both the sides the trial court found the accused-appellants guilty and sentenced each of them, as mentioned above. During the pendency of this appeal, Dhala appellant, son of Shobha Ram, has expired; and so, there remained only 5 accused-appellants. 5. The learned counsel for the appellants argued that the trial court has based its conviction on the following four grounds: (a) The names of all these appellants have been mentioned in the report (Ex. P 1); (b) Both the parties, i.e., the complainant-party as well as the accused party, were on inimical terms; (c) On account of old enmity, the accused persons looted the members of the complainant-party, and committed the dacoity; (d) The FIR in this case, was lodged within the reasonable time and therefore, there was no chance for manipulating or fabricating the report (Ex. P 1). So, the learned trial court, after going through the statements of the prosecution witnesses, convicted the appellants on these four grounds. 6. Mr. P.K. Sharma, the learned counsel argued that lodging a prompt report, is not a guarantee of truthfulness. He, in this context, relied on the case of Ramjag & 10 Ors. v. The State of U.P: (1) In that case, argument was raised with regard to lodging the FIR with delay. Therein, it was observed that even a long delay in filing report of an occurrence, can be condoned if the witnesses on whose evidence the prosecution lies, have no motive for implicating the accused; and that on the other hand, prompt filing of the report is not unmistakable guarantee of the truthful of the version of the prosecution. 7. In the present case also, the incident had taken place on the intervening night of 26th & 27th June, 1979, and the report was lodged at the Police Station that very night or say on the early morning of 27th June, 1979, at 3.15 am. The distance from Village—Ajitpura and the Police Station was about 6 miles, as is clear from the FIR (Ex. P 8). The distance from Village—Ajitpura and the Police Station was about 6 miles, as is clear from the FIR (Ex. P 8). Thus, according to the FIR, the report was lodged immediately. But, this is no ground to claim correctness, or truthfulness of the report of the prosecution story. So passing judgment on this aspect that the report of the incident was lodged promptly and basing the conviction of the accused persons, is not correct. A written report was submitted by one Parma, which is Ex P 1. There is no endorsement on this report (Ex. P 1) about its presentation at the Police Station. When, the report (Ex. PI) was submitted at the Police Station, it was the duty of the SHO, to make an endorsement on this report. Thus, it is not clear that the report (Ex. P 1) was. submitted at the Police Station (Uchhain) on 27th June, 1979, at 3.15.a.m. No doubt, the FIR (Ex P. 8) is a copy of the report (Ex.P.1), and thereon, the SHO had made an endorsement as Karyavabee-Police, but, this was not the way of entertaining a report. I find that the original report can be got changed and substituted in this way, by a new one. What is the guarantee that the report submitted by Parma is this very report (Ex.P.1). It may be possible that he might have submitted some other report, and the report (Ex.P.1). has been prepared later on by the police and taken on record. 8. Another point to be see....................................................... stated that the report (Ex. P 1) was got written by him through Charan who belonged to his village, and that when the report was submitted Nathi, Ballabh, Charni, Ramoli, Bhagile and one or two more persons were present at the police station. This report was lodged on 27th June, 79. There is no mention in this report that it was submitted by so many persons. On the FIR (Ex P. 8), in Karyavdhee-Police, it has been mentioned that Nathisingh, resident of Nagla Peelu and Charansingh, resident of Nagla Ajitpur, were present when the report was submitted. But, neither Nathisingh nor Charan Singh has been examined by the prosecution. It creates a suspicion. Nathi Singh was Sarpanch of the Gram Panchayat, and was a reliable person. He and Charansingh were present when the report was submitted at the police station. But, neither Nathisingh nor Charan Singh has been examined by the prosecution. It creates a suspicion. Nathi Singh was Sarpanch of the Gram Panchayat, and was a reliable person. He and Charansingh were present when the report was submitted at the police station. Charansingh was the person who scribed the report. So. these two persons were very important witnesses, and they should have been examined. Parma was an illiterate person. Therefore, Charan (Charansingh) who is the scribe of this report, was an important witness. Hence, the argument that the report was prompt one and so, it can be made a basis for convicting the appellants, has no substance. 9. The ground that both the parties were on inimical terms, is no ground for convicting the accused persons. Enmity is a double-edged sword. It was possible that on account of enmity with the accused persons, the complainant party had named them in the report, in order to take revenge. Then, the prosecution witnesses have stated that 14-15 persons had come there 6-7 of them were covering their faces by Datas, and the appellants were not covering it. This aspect is also unbelievable. If the accused-appellants were along with the other persons who had commit dacoity, and the other persons , were covering their faces then, there could be no reason as to why the accused appellants would not be covering it, more so, because, at that time, they would not like to be identified by anybody, nor would they use torch-lights on each others faces, in order to disclose their identity. This theory is not a probable one, and so, cannot be believed. Thus, it appears that in order to take revenge complainant Parma got the names of the accused-appellants in the report. So the basis of the judgment, i.e., the names of the accused-appellants were mentioned in the report is not a valid ground for their conviction. Conviction can be passed on the other circumstances, if they are established against them. * The circumstance that the accused-appellants names have been mentioned in the report, because, they were identified in the torch-lights on the night of the alleged incident, is not based on any valid reasons. Conviction can be passed on the other circumstances, if they are established against them. * The circumstance that the accused-appellants names have been mentioned in the report, because, they were identified in the torch-lights on the night of the alleged incident, is not based on any valid reasons. Some of the prosecution witnesses have stated that the miscreants had come with 2-3 knives, and some say that 4 of them were having knives, and they were throwing torch-light on each other, and so, they were identified in that torch light None of the witnesses has stated that the appellants were having torches in their hands Apart from this, it cannot be believed that the persons who would come to commit dacoity in a dark night, would throw torch-light on each others faces, so that they may be easily identified in that light, instead, rather they would try to hide their identity: and if they have torches in their hands, then in that case, they would avoid focussing torch-light on any of their companions. It thus be-comes clear that as both the parties were on inimical terms the names of the accused-appellants were, mentioned in the report (Ex. P 1) and in order to esta-blish identification of the accused persons, by the witnesses, the theory of having torches in the hands of some of the miscreants, has been created. 10. In the case of Noor Khan v. State of Rajasthan (2) where it was alleged that the accused-appellants were identified by the prosecution witnesses at the time of their committing dacoity, in the light of torch, the story was not found believable. Justice Sidhu in the case Matka alais, Harprasad vs. State of Rajasthan 3) also observed that it was not possible that the culprits would throw Sight of the torch on the faces of each other in order to give a chance to the inmates, to identify them, and that they would use them for spotting the inmates of house, ornaments and the cash which they wanted to steal, and further that they were least likely to flash the torches on the faces of one another. 11. Therefore, identifying the accused persons in the torch-light, cannot be believed, and whatever statement has been given by the prosecution witnesses in this respect, is an unreliable untrustworthy aspect. 12. It was also argued by Mr. 11. Therefore, identifying the accused persons in the torch-light, cannot be believed, and whatever statement has been given by the prosecution witnesses in this respect, is an unreliable untrustworthy aspect. 12. It was also argued by Mr. Sharma, the learned counsel for the appellants that the learned trial court has based its judgment on the presumption against the accused persons that they had absconded after the occurrence, from their houses. In this context, Mr. Sharma cited certain case-laws, 13. In Rahman vs. State of U.P. (4) it has been observed by their Lordships as under: "It is true that the appellant was concealing himself for nearly a month though he must have known that he was wanted by the police and that he left his wife to face the situation alone, but absconding by itself is not conclusive either of guilt or of a guilty conscience, for a person may abscond on account of fear of being involved in the offence or for any other allied reason." 14. In Rameshwar vs. State of Rajasthan (5) a division bench of this court observed that absconding itself, is no circumstance to convict an accused for murder, and that sometimes, innocent person, out of fear, go away from their bouses. 15. On the point of absconding of the accused persons after the occurr-ence, there is contradiction in the statements of the prosecution witnesses, in this case. Some have stated that the accused persons has no house, nor were their houses near the place of occurrence. But according to Parma PW 1, and also according to the SHO, who investigated the matter, the houses of the accused persons were on the other side of the road, i.e. in front of the house of Parma. So, Parma and the accused persons were close neighbours. The SHO has stated that he had reached the spot after receiving the report, he found that the villagers had collected there, but the accused persons were not amongst them. The houses of these persons were locked, and even the ladies were not at the houses. So, admittedly, the accused persons had their houses in front of that of Parma, It is unbelievable that the accused persons, knowingly, they were very well-known to the members of the complinant party, would dare commit dacoity in the night, and that too, without covering their faces. So, admittedly, the accused persons had their houses in front of that of Parma, It is unbelievable that the accused persons, knowingly, they were very well-known to the members of the complinant party, would dare commit dacoity in the night, and that too, without covering their faces. So they might have had fear in their minds that in the dacoity, they would be unnecessarily involved and their names would be mentioned in the incident, and so, out of fear, they might have left their houses. But, it cannot be presumed that because they had committed dacoity they had absconded. So, on this ground of absconding, the conviction of the accused persons, is not correct. 16. Yogender Singh PW 14 the SHO has stated that they had tried to search for the accused persons right from 26th July, 1979 who were finally arrested from a hut on 1st August, 1979 and that too on the information of one Mahveer. This statement is not believable. The SHO Yogender Singh had not searched for the accused persons, but, they were spotted by the Ramsaran, ASI. The Ramsaran ASI has not been produced by the prosecution. He, if examined, would have certainly stated that he had tried to search out the accused persons but, could not trace them. Therefore, the entire story of absconding of the persons, is a concocted one. 17. Ex.D.7 is an application dated 2nd August, 1979 submitted by the S.H.O. before the Judicial Magistrate, Bayana, for supplying him copies of the statements recorded under section 164, Cr.P.C. where in, it has been mentioned that the accused persons of this FIR; were to be arrested. On 1st August, 1979 the accused persons were arrested, as is clear from the arrest memo (Exs. P. 20 to p. 24). When they had already been arrested on 1 August, 1979 where was the question of filing the application (Ex. D 7) on 2nd August, 1979 that the accused persons were yet to be arrested ? It shows that the accused persons were not arrested on 1st August, 1979 and their arrest memos are the false ones. 18. The SHO could record the statements of the witnesses under section 164, Cr.P.C. The witnesses were not outsiders nor were independent witnesses, but were those persons at whose houses, the dacoity was committed. It shows that the accused persons were not arrested on 1st August, 1979 and their arrest memos are the false ones. 18. The SHO could record the statements of the witnesses under section 164, Cr.P.C. The witnesses were not outsiders nor were independent witnesses, but were those persons at whose houses, the dacoity was committed. Where was the necessity for the police to get statements of these persons recorded under section 164, Cr.PC, ? They were family members, and there was no chance of their becoming hostile to their own case. So, recording of their statements under section 164, Cr.PC reflects otherwise. Actually, the police wanted to manipulate something, and they had the fear that the witnesses might not support the falsehood in the court, and that is why that they got their statements recorded under section 164, Cr.PC. 19. In Rajbahadur v. State of U.P. (6) it was observed that the statements of such witnesses should be received with caution, and that if there are other circumstances on record which lend support to the truth of the evidence of such witnesses, that can be acted upon. 20. So, keeping the principle laid down by Honble the Supreme Court in Rajbahadurs case (supra), I have gone through the statements of the prosecution witnesses, namely, Mst. Hukmi PW 11 Bindo PW 13; and I find that their, statements are not reliable and not of worth for convicting the accused-appellants Mst. Bindo was also looted, and she was caught by one of the miscreants. But, she could not identify the person who had caught her, however, she could identify the accused-appellants. She has given a detailed statement under section 164 Cr.P.C. (Ex. D.6), wherein, she has stated that she could identify the accused-appellants who were having such and such weapons in their hands. Actually, what I feel from reading the statements of the above two witnesses is that Mst. Bindo is a tutored witness,-and thinking that she might resile from her own statement, her statement under section 164, Cr.PC was recorded. Similar is the statement of Mst. Hukmi PW 11. She has given the same statement to the police under section 161, Cr.PC. In her statement, she has stated that the dacoits had not come to her, nor had she seen them. So, this witness is of no help to the prosecution. Her statement under section 164, Cr.PC is Ex. D. 4. Hukmi PW 11. She has given the same statement to the police under section 161, Cr.PC. In her statement, she has stated that the dacoits had not come to her, nor had she seen them. So, this witness is of no help to the prosecution. Her statement under section 164, Cr.PC is Ex. D. 4. In her statement (Ex. D.4), she has given the names of the accused persons and also the details of the dacoits. Why her statement under section 164, Cr.PC was recorded ? She has not given a similar statement in the court and has totally changed her statement given under section 164, Cr.PC. So, it is clear that the prosecution was doubtful about these witnesses and in order to bind them, so that they might not resile in future, from the statements, their statements were recorded under section 164, Cr.PC. Therefore, this fact also creates doubt in the truthfulness of the story. 21. This is an important aspect which need consideration as this creates suspicion in the reliability and credibility of the prosecution witnesses Parma PW 1, Charni PW 2, Mst. Ramdei PW 4, Bissiram PW 5, Smt. Kala PW 7 and Maniram PW 9 have stated that they had identified the accused-appellants the very night when they had come to commit dacoity, and that they had identified them in the torch-light. Their names have been mentioned in the report (Ex. P. 1), and so. whether statements of these witnesses are reliable or not, was scrutinized by looking into the other evidence. These witnesses have stated that after the occurrence,the accused persons had run away from their houses, to other villages, while raising a hue and cry. Parma PW 1 has stated that he had left his house and had gone towards the south of the village, and he did not return till the villagers of villages-Nagla Bhaisa and Nagla Peelu had reached there. When the villagers arrived there, Parma must have told them that such and such accused persons were amongst those dacoits. He had identified the accused persons at the spot, and so, certainly, he must have told the villagers, on their arrival that the accused persons were amongst the dacoits. It cannot be believed that they would not disclose the names of those persons. 22. Similar is the statement of Charni alias Charansingh PW 2. He had identified the accused persons at the spot, and so, certainly, he must have told the villagers, on their arrival that the accused persons were amongst the dacoits. It cannot be believed that they would not disclose the names of those persons. 22. Similar is the statement of Charni alias Charansingh PW 2. He had also run towards Bhaisa Village, but, he too did not tell the names of the appellants to the villagers, though he had also already identified them. 23. Bissiram PW 5 had stated that he had told the villagers of Bhaisa Village that he had identified the accused persons amongst the dacoits. He has also stated that when the other villager collected there, they also told that they had identified the dacoits. Inspite of this fact, the prosecution had not examined any independent witness of village Nagal Ajitpura. 24. PW 6 Girraj has given a different story by stating that he was told that the dacoits had murdered Ramjilal and his daughter, and the children of Nathhi had told him that they had identified the dacoits. In his cross-examination, he has further said that when he reached the spot, the villagers had already collected there, but, no body was saying that the dacoits had been identified. Only the children were speaking that they had identified the dacoits, Parma, Charni. Mst. Ramdei and Bissiram had identified the dacoits. Why they did not tell the villagers that they had identified them? Why only the children were speaking that they had identified the accused parsons ? It is not the case of the prosecution that in the night, the accused-persons were identified by the children only who had then narrated this fact to the adult-members of their families. Then, who were those children, is not known, because, they have not been examined. Mani-ramPW 9, in his statement has stated he had told the villagers of Bhaisa Village that he had identified 5 of the dacoits, but, he did not name to whom he told this fact. None of the villagers of Village-Ajitpura Nagal or Bhaisa, has been examined by the police. This is a great defect in the prosecution case, which creates suspicion. No independent witness has been examined by the prosecution, who have simply examined the family-members, whose statements are also not credit worthy. 25. It was also argued by Mr. Sharma that the FIR Ex. This is a great defect in the prosecution case, which creates suspicion. No independent witness has been examined by the prosecution, who have simply examined the family-members, whose statements are also not credit worthy. 25. It was also argued by Mr. Sharma that the FIR Ex. P. 8 was prepared on 27th June, 1979 at about 3-5 AM, which means that the police started investigation after the receipt of the report, and Parma PW 1 has stated in his cross-examination that he had submitted the report Ex. P. 1 at the police station and that the police had arrived at the spot of the incident, at about 1 Oclock. Mr. Sharmas argument was to how the police had arrived at 1 clock, i.e., before the lodging of the report? The incident had taken place in the night around 12 Oclock. The police station was 6 miles away therefrom. The report was submitted at the police station at 3.15 AM. Then, how did the police arrive at the spot at 1 AM that very night? How was it possible? 26. Yogendrasingh SHO PW 14 has stated that he had reached the very night at about 3.45 Oclock or 4 Oclock Then, the memo (Ex.P. 10) was prepared by the SHO, there I have perused this document (Ex. P. D), wherein it is mentioned that the police had reached the spot on June 27, 1979. The details as mentioned in column No. I of this document, are repetition of the report (Ex. P. 1). Item-2 was written at 6 AM, which says that the SHO had reached the spot at 6 AM, and then, he had started investigation. It means that SHO had reached the spot at 6 AM, and his statement that he had reached at 345 or 4.00 AM, is not correct; and also the statement of Parma that the SHO had arrived at the spot at 1 AM, is also a false statement. So, the arrival of the SHO, at the spot, after the report, according to the witnesses, was another advice creates suspicion in the case of the prosecution. There should not be any doubt in the prosecution story, for convicting an accused person, and if it is there, then its benefit must go to the accused. The report (Ex. So, the arrival of the SHO, at the spot, after the report, according to the witnesses, was another advice creates suspicion in the case of the prosecution. There should not be any doubt in the prosecution story, for convicting an accused person, and if it is there, then its benefit must go to the accused. The report (Ex. P. 8) was prepared on 27th June, 1979, at about 3.15 AM, which was then forwarded to the Magistrate on 29th June, 1979. Why was this report not forwarded on 27th June itself ? There is nothing on the record that 27th June, 1979 was a holiday ? It was Wednesday or Thursday. Then, why the FIR was not sent to the Magistrate concerned on 27th or 28th June, 1979 through Harisingh, LC, who submitted it on that date, to the Reader of the court. Why was this delay in sending the report ? On the written-report (Ex.. P. 1) submitted by Parma, as observed above, there is no endorsement thereon by the SHO. I have perused and discussed above that not making any endorsement on the report (Ex.P. 1), creates suspicion, and that was the reason and possibility that the FIR (Ex. P. 8) might have been prepared later on. Harisingh, if examined, could have stated as to why there was delay in submitting the FIR before the Magistrate concerned. No explanation has been given. by the investigating officer, in this connection. Therefore, this delay is a circum-stance which provides a legitimate basis for suspecting that the FIR was recorded much latter than the stated date and hour affording sufficient time to the prosecu-tion to introduce improvements and embellishments and set up a distorted version of the occurrence. In such circumstances, the evidence of the eye-witnesses, cannot be accepted at its face-value. I am supported in my view by the decision of Honble the Supreme Court in the case of Ishwar Singh v. The State of U. P. etc. (7). 27. Thus, in view of my above discussion, I am of the opinion that the prosecution has failed to prove its case beyond reasonable doubt. The learned trial court has been able to appreciate the evidence on record, in its right per pe-ctive, and has based its finding on wrong basis and misunderstanding, the 1 gal aspects. He has not understood correctly the evidence as well as the principle of law. The learned trial court has been able to appreciate the evidence on record, in its right per pe-ctive, and has based its finding on wrong basis and misunderstanding, the 1 gal aspects. He has not understood correctly the evidence as well as the principle of law. I, therefore, am unable to maintain the convictions and the sentences of the accused-appellants. 28. In the result, the appeal is accepted. The appellants are not found guilty either of offences under section 396 & 397, IPC, and their convictions & sentences for both these offences, are set aside. They are acquitted of those offences. They are on bail. Their bail bonds are cancelled. They need not surrender.