H. C. MITAL, J. The above named appellants preferred this appeal against their conviction and sentence under Section 396, I. P. C. to ten years rigorous imprisonment and a fine of Rs. 2,000 each passed by Sri B. P. Mahrotra, IV Addl. Session Judge, Mainpuri on 1st March, 1979. 2. The facts of the case in brief according to the prosecution are that the dacoity had taken place at the house of Hori Lal in village Nagla Hari Ram, P. S. Kotwali, district Mainpuri in the night between 31st December, 1975 and 1st January, 1976 wherein Hori Lal had been murdered while his wife Scot. Phulmati and daughter Smt. Premwati (PW 1) had received injuries. Written report of the occurrence (Ex. Ka-1) is alleged to have been lodged in the morning of 1st March, 1976 at 6-40 a. m. by PW Phulan Singh, husband of Smt. Premwati and son-in-law of the deceased Hori Lai, on the basis of which case was register ed and investigation started. In the F. I. R. . six accused, namely Chakki, Vijai Ram, Gaya Prasad, Panna Lal, Ram Dayal and Subedar were named. Besides that presence of several other unknown dacoits was alleged. Out of them nine accused, namely, Gaya Prasad, Ram Dayal, Subedar, Chakki, Raja Ram, Maharaj Singh, Ganga Ram, Lala Ram and Matadeen were arrested on 1st March, 1976 by PW 13 S. I. Jagdish Prasad Goswami near a brick-kiln (Bhatta) at about 8-30 p. m. and from them looted properties (Ex. 1 to 43) were also re covered. The accused were made in pardah and thereafter the unknown accused were put up for identification. Accused Vijai Ram appears to have been subsequently arrested. All the ten accused were subsequently committed to the Court of Sessions. They were charged under Sections 412 and 396, I. P. C. to which they pleaded not guilty. At the trial the prosecution in all examined 13 witnesses, of whom PW 1 Phulan Singh is the complainant, PW 2 Smt. Premwati, PW 3 Tej Singh, PW 4 Sri Ram, PW 9 Jaiveer Singh and PW 11 Durgai are the other eye- witnesses of the occurrence. PW 5 Ram Swaroop had accompanied the police party when the nine accused were apprehended PW 6 Sri Krishna is the S. D. M. who had conducted the test identification parade of the accused and that of the property recovered. PW 5 Ram Swaroop had accompanied the police party when the nine accused were apprehended PW 6 Sri Krishna is the S. D. M. who had conducted the test identification parade of the accused and that of the property recovered. PW 13 J. P. Goswami had apprehended the nine accused as stated above and recovered the properties from their possession. PW 12 Sri Jambu Singh was S. H. O. , Mainpuri and had conducted the investigation of the case. The remanding are the formal witnesses. That apart the prosecution also tendered in evidence the following documents, genuineness of which was duly admitted by the defence : (1) Inquest report of Hori Lal dated 1. 1. 76 marked as Ex. Ka. 25. (2) Injury report of Premwati dated 1-1-76 marked as Ex. Ka. 26. (3) Injury report of Phoolmati dated 1-1-76 marked as Ex. Ka. 27. (4) Post-mortem report of the dead-body of Hori Lal dated 1-1-76 marked as Ex. Ka. 28. (5) Sketch of dead-body dated 1-1-76 marked as Ex. Ka. 29. (6) Letter to C. M. O. dated 1-1-76 marked as Ex. Ka. 30. (7) Challan dead-body marked as Ex. Ka-31. 3. The version of the accused has been of total denial and false implica tion. It was alleged that they had been apprehended from their houses even prior to the alleged time of occurrence and have been falsely roped in this case as well as in the case under Sections 399 and 402, I. P. C. The accused filed some documents in defence to show that there was enmity in between the complainant and some of the named accused. 4. The learned Sessions Judge after a consideration of the entire evidence on record disbelieved the arrest of the accused and the recovery of stolen articles from their possession as set up by the prosecution and also held doubtful presence of the named dacoits, namely, Vijai Ram, Panna Lal and Subedar. Hence acquitted seven of the accused namely, Matadeen, Subedar, Ganga Ram, Maharaj Singh, Lala Ram, Pannal Lal and Vijai Ram. The learned Sessions Judge, however, believed the participation of the present appellants Chakki, Gaya Prasad and Ram Dayal, hence convicted and sentenced them under Section 396, I. P. C. to ten years rigorous imprisonment and a fine of Rs. 2,000 each. On being aggrieved this appeal has been preferred. 5. The learned Sessions Judge, however, believed the participation of the present appellants Chakki, Gaya Prasad and Ram Dayal, hence convicted and sentenced them under Section 396, I. P. C. to ten years rigorous imprisonment and a fine of Rs. 2,000 each. On being aggrieved this appeal has been preferred. 5. Of the three appellants, Gaya Prasad and Ram Dayal have died since after the filing of the appeal, hence their appeal has been abated. Now the only appellant is Chakki before this Court. He was named in the F. I. R. according to the prosecution he was known to the complainant and other prosecution witnesses and he was clearly seen and recognised in the light of the torches and the fire set by the dacoits themselves in the house, a burning lantern in the house and the fire set to a heap of karbi out side the house on the road by Jaibeer Singh and Kishori Lal. On behalf of the appellant it is argued that the entire prosecution case is fabricated and concocted, that in fact the F. I. R. was also not lodged by that time as alleged, but subsequently was prepared that it was apparent from the record that the accused had been apprehended even before the lodging of the F. I. R. that the prosecution evidence regarding the fire set to the karbi out side the house was also not reliable and that on other circumstances also the evidence of the prosecution witnesses who have named this appellant Chakki among the accused was not free from suspicion. On behalf of the appellant it was urged that the learned trial Court had itself disbelieved the prosecution evidence regarding seven of the accused includ ing three of the known accused. Hence on the ground of parity also the evidence of the same prosecution eye-witnesses against the present appellant should also not be relied upon. The learned Session Judge did not find sufficient evidence against the three other named accused as they were nominated by Phulan Singh (PW 1) and Jaiveer Singh (PW 9) only and the learned Sessions Judge had suspicion regarding the presence of Jaiveer Singh (PW 9) and therefore, on the single testimony of Phulan Singh gave benefit of doubt to the named three accused, namely, Panna Lal, Vijai Ram and Subedar. This appellant Chakki has been named by PW 1 Phulan Singh - complainant PW 2 Smt. Premwati, PW 3 Tej Singh, PW 9 Jaiveer Singh and PW 11 Durgai. 6. According to the appellant it was not disputed that he was known to the complainant (PW 1) Phulan Singh. His version was that he had been falsely named because his father Narain Singh had given evidence against Pothi Ram uncle of Phulan Singh. The learned court below rejected that plea of the defence on the ground that in fact Narain Singh had turned hostile and had not stated a single word against Pothi Ram and there could be no cause for the complainant to falsely implicate Chakki on that account. 7. According to the prosecution the other witnesses knew Chakki as about twenty days prior to the incident these three appellants, namely, Chakki, Gaya Prasad and Ram Dayal had come to his field and stayed there over-night with him, hence the witnesses came to know him. It is also there in the statement of PW 1 Phulan Singh that Chakki had been his class fellow. PW 2 Smt. Premwati wife of the complainant Phulan Singh stated that she knew Chakki when he along with Gaya Prasad and Ram Dayal and come to meet Phulan Singh at the field when the boring was being done. She did not say that they had stayed there over-night. When she was asked how she came to know their names, she stated that her husband had told their sames separately by pointing out the colour of their clothes. This indeed appeared to be funny particularly because when Chakki was his class fellow he would have told that fact to her. That apart, Srnt. Premwati could not name any other person whom her husband might have introduced to her. It indeed appears very doubtful that Chakki and others had once gone to that village and there the witnesses also perchance happened to be there at the field of Phulan Singh and remembered the names of this appellant and others. 8. According to the prosecution none of the dacoits had covered their laces, that is, even the known dacoits had not made any attempt to conceal their identity. 8. According to the prosecution none of the dacoits had covered their laces, that is, even the known dacoits had not made any attempt to conceal their identity. It is true that how the old decision wherein it was held that if known accused had not taken any prosecution to cancel their laces, they would be entitled to acquittal in cases of dacoity is no longer held to be good law, but the facts of this case are exceptional as the present appellant had no reason to commit dacoity at the residence of his class fellow. It is also true that one would not falsely implicate his class-fellow. However, according to the prosecu tion this appellant was a bad character and was apprehended in a case under Section 399/402, I. P. C. . If that was so then normally such person if he was going to commit dacoity at the house of his class fellow would take some precaution to conceal his identity. That apart, though the prosecution case is that none of the dacoits, had taken any precaution to conceal their faces, but PW 4 Sri Ram in his cross-examination has specifically stated that five or six dacoits had covered their faces, while the remaining had not covered their faces. That clearly indicates that some of the dacoits had indeed covered their faces. This witness Sri Ram (PW 4) has not named this appellant Chakki among the dacoits in fact he did not know any of the known accused. That is indeed a strong circumstance in favour of the appellant. 9. No specific role has been assigned to this appellant even by the com plainant Phulan Singh. In the F. I. R. (Ex. K. a-1) which he had himself scribed, he did not mention even the weapon, if any, was in the hand of the appellant. The F. I. R. simply contains that along with his wife he was sleeping on the roof when he felt the presence of some miscreants at about 12 in the night and saw that the dacoits had caught his father-in-law, mother-in-law and his wife then he jumped from the roof and took shelter behind the house of Balak Ram and from there in the light of fire of karbi and torches he recognized Chakki this appellant and others. He even did not state that this appellant and armed with any weapon or that he was carrying anything in his hand. In his statement on oath also he did not assign any weapon or anything in the hand of the appellant, whole he was running PW 2 Smt. Premwati his wife is alleged to have seen him inside the house in the light of lantern and torches of the dacoits, but she also did not state any part played by this appellant nor any weapon in his hand. PW 3 Tej Singh also stated that when the dacoits were running then lie had seen this appellant among them. He also did not state that he was carrying any are or anything PW4 Sri Ram did not made him. The other witness who armed him is PW 9 Jaiveer, but his presence has been laid doubtful by the learned Sessions Judge himself. He along with Kishori Lal is also alleged to have set fire to the karab. However, Kishori Lal had not been examined. Lastly PW 11 Durgai who also named this appellant simply stated that he saw the appellant among the dacoits. He also did not state that he was carrying any are or anything in his hand. Thus, the entare evidence of the eye witnesses regarding this appellant does not specify any weopen or anything in his Land nor part, if any, played by him. 10. That apart, even the prosecution version as contained in the F. I. R. is also not free from suspicion. According to the F. I. R. Hori Lal (deceased) was thrown from the roof in the courtyard of the house and the injuries so received due to his fall caused his death. From the postmortem report it is clear that there were following six anti mortem external injuries. 1. Contusion 3 cm X 1. 5 cm on front and outer side of right arm upper fore-arm middle 2. Contusion 2 cm X 1 cm the outer side of right and middle. 3. Deep contusion 8 cm X 4 cm on the front of chest right side and middle part upper half 2 cm below the right clavicle. 4. Deep contusion 3 cm X 2 cm on the front and outer part and left side chest middle. 5. Contusion 2 cm X 1 cm the outer side of right and middle. 3. Deep contusion 8 cm X 4 cm on the front of chest right side and middle part upper half 2 cm below the right clavicle. 4. Deep contusion 3 cm X 2 cm on the front and outer part and left side chest middle. 5. Deep contusion 7 cm X 5 cm on the outer part and left side chest lower third 6. Contusion 4 cm 1. 5 cm on the front and right thigh middle. 11. All were contusions and only two of the contusions were 5 cm and 4 cm wide. Of these two contusions one was on the front of chest right side and middle part upper half 8 cm x 4 cm, 2 cm below to right clavicle and the other contusion was 7 cm X 5 cm on the upper part of left side chest lower one third. The other four contusions were 1 cm, 1. 5 cm, 2. 5 cm wide only. These injuries rule out the possibility that they were caused due to throw from the roof. No injury was received on the head. That apart, some of the ribs were fractured. The plura and laungs were also lacerated which caused the death. 12. It is further alleged that the dacoits had threatened the deceased in the Aangan, by throwing burning puwal on him, but neither in the postmortem report nor in the inquest report any burn injury was noted. In the inquest report it is specifically mentioned that there was no apparent mark of injury and the death was apparently caused due to some internal injury. It is also not noted therein that any ash or any burnt piece of puwal was found on the dead-body. However, PW 1 Phulan Singh in paragraph 11 of his examination-in-chief stated that over the deadbody some ash was lying, PW 2 Smt. Premwati has also stated that after throwing her father from the roof in the courtyard the dacoits had dragged her and her mother down through the stair case. There they had inflicted knife blows on them and they had also thrown burnt puwal over her father for enquiring about the valuables. In view of the above it is highly doubtful that the prosecution version as stated regarding the death of Hori Lal is worthy of credence. 13. There they had inflicted knife blows on them and they had also thrown burnt puwal over her father for enquiring about the valuables. In view of the above it is highly doubtful that the prosecution version as stated regarding the death of Hori Lal is worthy of credence. 13. According to the prosecution profuse light was caused on account of the fire of the heap of karab lit by PW 9 Jaiveer Singh and Kishori Lal. On this point PW 1 Phulan Singh, the complainant, stated that after escaping from his roof he took shelter behind the southern wall of the house of Balak Ram that at the distance of five or six paces to the east from the place where he was standing (i. e. , behind the southern wall of Balak Ram some poolas of karab of bajra was kept in which fire was lit by his brother Jaiveer and his Behnoi Kishori Lal. PW 9 Jaiveer or also stated that he himself and his Behnoi had set fire to the heap of karab which stacked on the Chak road to the south of the house of Balak Ram. In his cross-examination, however, he stated that the house of Balak Ram was towards east from the place where he had lit the fire. He further stated that he and his Behnoi had taken the poolas on the Chak road and then had set fire to the. The learned trial Judge doubted the very presence of PW 9, Jaiveer Singh. Hence, he did not place any reliance on his testimony. 14. PW 3 Tej Singh, another eye-witness also stated that karab was lying besides the Chak road near the house of Balak Ram at a distance of 20-25 paces from the house of Hori Lal which was lit by Jaiveer Singh. In his cross-examination also he maintained that the karab was besides the Chak road and the wall of Balak Ram. PW 4 Sri Ram stated that the karab was lying to the north of the house of Hori Lal which burnt by Jaiveer Singh and Kishori Lal PW 11 Durgai, however, stated that the karab was in the field of Hori Lal and he also specifically further stated that it was not besides the house of Balak Ram. PW 4 Sri Ram stated that the karab was lying to the north of the house of Hori Lal which burnt by Jaiveer Singh and Kishori Lal PW 11 Durgai, however, stated that the karab was in the field of Hori Lal and he also specifically further stated that it was not besides the house of Balak Ram. The Investigating officer admitted in his cross-examination that he did not find any half burnt or burnt piece of karab, but simply found a heap of ash. If a heap of karab is burnt then some pieces of burnt and half burnt karab would certainly remain there even after the fir2 is extinguished. Kishori Lal who is admittedly Behnoi of the complainant was not examined and as already staled above, the trial Judge has his about doubt the presence of PW 9 Jaiveer Singh, hence did not reply on his testimony under the circumstances it would be very unsafe to believe such a contradictory evidence of witnesses regarding the light caused due to burning of a heap of the karab. 15. That apart, according to the complainant he and his wife were sleeping on two separate cots on the roof and in the melee he had even left his lathi on the roof. The investigating officer did not notice the presence of cots or Lathi on the roof. He however, stated that he had found some empties there while the complainant has stated that he had collected al the empties from the roof and had taken them to the police station. According to the prosecution eye witnesses they had thrown many brickbats towards the dacoits but the Investigating Officer has denied to have found any of them there. The Investigat ing Officer has stated to have checked ths torches of the witnesses but Phullan Singh PW 1, the complainant, has said that he did not notice any torch with any witness. Admittedly all the witnesses had taken cover of the wall of Balak Ranis house when the dacoits started firing towards them on their cries and had left the scene firing with their weapons. 16. According to the prosecution all the nine accused except Vijai Ram were apprehended on 1st March, 1976 at about 8. Admittedly all the witnesses had taken cover of the wall of Balak Ranis house when the dacoits started firing towards them on their cries and had left the scene firing with their weapons. 16. According to the prosecution all the nine accused except Vijai Ram were apprehended on 1st March, 1976 at about 8. 30 p. m. which P. W. 4 Sri Ram had specifically admitted in his crass-examination that in the morning after the dacoity he had come to know about the arrest of the dacoits. He further clarified that then lie was in the hospital and Phulan Singh had taken him to the hospital there Phulan Singh had told him that the deceits had been arrested and they were in the Kotwali. 17. No doubt, the learned Sessions Judge has not found substance in the contention that the F. I. R. was ante-timed. However, from the record of the cases it is clear that copy of the F. I. R. was not sent along with the inquest report and other papers for postmortem. The inquest report is also conspicuous by the absence of the mention of the crime number or name of any of the named accused, when the F. I. R. is alleged to have been recorded at 3. 40 a. m. in the name of Chakki and others and it was registered as Crime No. 1 under section 396, I. P. C. Only right papers had reached the Doctor at the time of postmortem as noted in the postmortem report. All these eight papers are on record, containing the endorsement of the Doctor, which further clearly substantiates the defence version that the F. I. R. had not been recorded by them. This fact corroborate the defence contention that the appellant along with others had been apprehended even prior to the lodging of the F. I. R. and was not falsely named in this case as well. 18. On a conspectus of the above evidence and circumstances on record the irresistible conclusion follows that evidence against Chakki, appellant, is not free from suspicion and his impugned conviction under Section 304, I. P. C. is liable to be set aside. 19. In the result, the appeal is allowed. The conviction and sentence under Section 396, I. P. C. are hereby set aside. The appellant, Chakki, is OR bail. He need not surrender. 19. In the result, the appeal is allowed. The conviction and sentence under Section 396, I. P. C. are hereby set aside. The appellant, Chakki, is OR bail. He need not surrender. His bail bonds are cancelled and suerties discharged. 20. The appeal of appellants Gaya Prasad and Ram Prasad stands abated due to their death. Appeal allowed. .