Judgment S.H.S. Abidi, J. 1. The appellauts have filed this appeal against the judgment and order dated 16-9-1985 passed by the Ist. Assistant Sessions Judge saharsa in Sessions Trial No.45 of 1977 by which they have been convicted under Sec.395 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for ten years each. 2. In brief, the prosecution case is that on 17-12-1971 at about 8.30 p. M. while the informant Roop Narain jha (P W.10) was washing his hands and mouth after taking food, he saw five dacoits entering into the house, two of whom moved forward and came to the Angan where the informant was and one of them, gave a blow of split-bamboo on his back and other dacoits assaulted him with lathi on his buttock. The informant himself had a Two-Cell torch in his hand in the light of which, he had clearly identified the dacolts who were Badri Yadav, Jogi Yadav, Mohiuddin iviian and Yusuf mian, all residents of the informants village. He had also Identified Mahgu yadav of village Dight of Murliganj police Station. He has alleged that appellant Yusuf Mian hit him on his left hand with lathi and asked the informant to switch off the torch According to him appellant Mahgu Yadav gave lathi blow in his stomach, Mohiuddln Mian and Jogi Yadav caught hold of him and took him to a room and asked him to lie down on the chouki silrently which was heaitated by the informant on which the informaat got the informant lie down after catching and pressing his neck. The informants wife was also in the same room from before who on the order of the dacoits, handed over the key to them, It is alleged that after some time 2 to 3 dacoiss farther entered into that room and broke open the box kept in that room and took out ornaments, cash, utensils, clothes etc. It has also been alleged that one of the dacoits who came later, had tire-arm, like pistol, and showed it to the informant and asked him to cover up his face otherwise he would shoot him. It is said that on hulla, informants mother also came into that room. It has also been alleged that one of the dacoits who came later, had tire-arm, like pistol, and showed it to the informant and asked him to cover up his face otherwise he would shoot him. It is said that on hulla, informants mother also came into that room. The informant furiher alleged that after taking out goods from that room the dacoits went out of that room and closed it by a bundle from out side and also entered into another room and also looted away all the goods ot that room. After getting an opportunity, he opened the door of the room as the handle of out-side was loose and went out ot the House from its back door and raised hulla. He also heard the noise of cracker at the door of his house. According to the F. I. R. (Exu 4) the informant awoke some villagers who raised hulla on which the dacoits fled away towards south west of the village, on the basis of the said First Information Report, (Ext.4) the investigation of the case was taken up by Ramakaut Jha who has not been examined. 3. After investigation, the police submitted charge sheet showing accused appellant Tarni Mandal, Parmanand Poddar and Sami Ahmad as seat up tor trial and the other accused persons were shown not sent up for trial on which, the informant being dibgusted with the police investigation, filed petition before the D. I. G. of Police on whose instance further investigation of the case was taken up on which again on 6-5-1976, another supplementary charge sheet was submitted in the court. 4. The trial of Tatni Mandal, Parmanand Poddar and Sami Ahmad was separated as they were said to have absconded, 5. In defence, the appellants have denied the allegations levelled against them by saying that they were falsely implicated in the case on account of previous enmity. No witness has been examined in defence. 6. The prosecution, in support of its case, examined fourteen witnesses, namely, Rami Sao and Bichu Sah, P. Ws.1 and 2 who are heaisay witnesses. Bipin Bihari Verma, P. W.3 is a formal witness saying that he knew the writings of Ramakant Jha on the FIR who was still in service. P. W.4 Anirudh mandal has turned hostile and P. W.5 Priyabrat Yadav has been tendered. Bipin Bihari Verma, P. W.3 is a formal witness saying that he knew the writings of Ramakant Jha on the FIR who was still in service. P. W.4 Anirudh mandal has turned hostile and P. W.5 Priyabrat Yadav has been tendered. PWs 6,7 and 8 namely, Hridaya Narain Jha, Anant Jha an Indra Narain Jha, the three brothers of the informant, are the eye witnesses to the occurrence. P. W.9 Mohan Jha is a formal witness, being a Munshi of Murliganj Police station has stated that Bindeshwaii Choubey was the S. I. of that Police station whose signature on Ext.3 is in his own writing. P. W.10 Roop narain Jha is the informant himself. P. W.11 Jai Prakash Jha has proved the Test Identification parade chart (Ext.5; of Bishwanath Yadav. Jaya Devi and Nandika Devi (P. Ws.12 end 13) are the mother and wiie respectively of the informant. P. W.14 Shri Fanish Pd. Roy is a formal witness who has proved the signatures on Ext.2/1 of Anirudh Mandal (not examined) on the affidavit. 7. After considering the entire materials on record, the learned trial court has convicted and sentenced the appellants as said above. 8. The learned counsel appearing on behalf of the appellants has urged that in this case two charge sheets have been submitted but the later charge sheet submitted against them was erroneously accepted by the court below. Even the order of taking cognizance of the offence against the appellants is bad as there is doubt as to whether the court below has applied its mind to the materials. Further there is daiay of four and half hours in lodging the first information report and there is also delay in sending the first information report to the court. There was no means of identification as the torch in possession of the informant, had fallen down on account of injuries having been received on bis hands by the appellants and in the torch light, the identification is doubtful specially when the torch has not been produced before the Investigating Officer nor before the court. It is also contended that when the witnesses are tnterested and hearsay witnesses and their evidence in the background of injuries and enmity between the informant and the accused, their evidence is not to be relitd on. It is also contended that when the witnesses are tnterested and hearsay witnesses and their evidence in the background of injuries and enmity between the informant and the accused, their evidence is not to be relitd on. Oa account of non-examination of the Investigating Officer, prejudice has been caused to the appellants as the objective findings could not be tested in cross-examination. Even the case diary has not been brought on record which could have been of any help, if at all. 9. To appreciate these contentions, first the evidence will have to be scrutinized. P. W.10 is the informant himself who has tried to give out the same evidence as said in the first information report He has admitted that the houses of the informant and the appellants are near and they are also related inter se and there was a proceeding under Sec.107 Cr. P. O. between the informant and the appellants on the basis of the police report. There was also mar-pit on the asking of Badri and Jogi in the April, 1971 in the Panchayat against the informant and others in which the informant party had been arrested though the case was over as there was no evidence in that case. Even a case under Sec.146 Cr. P. C. had been started after the occurrence by the accused but the same had been dismissed. After giving out that the dacoits had come as said in the first information report, he has said that his wifes ear-ring, locket and nose-pin were taken by the da coils, He says that his injury report had been prepared by the Investigating officer. He had identified the three-non-FIlr accused, namely, Bishwanath yadav, Parmanand Poddar and larni Maudal. He also says mat he was knowing the Investigating Officer, Ramakant Jha so he filed protest petition before the Superintendent; of Police, Balvir Jha, who himself had supervised the case and took statement and found the case of the informant correct, the S. P. was then transferred, the accused in collusion with the s. P. got the charge-sheet submitted in which the names of the appellants were not there. Thea the informant made an application to the DIG of police on whose instance, the case was re-investigated and a supplementary charge sheet was submitted in the court. Thea the informant made an application to the DIG of police on whose instance, the case was re-investigated and a supplementary charge sheet was submitted in the court. Regarding the identification of the accused appellants in the light of torch flashed by him, he had stated to the police that the said torch is not there as the dacoits, at the time of fleeing had taken it away forcibly. He has also said mat the choukidar had not come though he came in the next mot mag at about 3 A. M. and he had given out the names of the dacoits to the Choukidar but the Choukidar has not beehn examined. He and his family members have also given out the names of the dacoits. Near about 5 and 6 A. M. next morning, he went to police station and then he came with the police who inspected the place of the occurrence. 10. Besides this witness, the other witnesses P. Ws.6, 7 and 8 are his brothers who said to have seen the occurrence. P. W.6 Hridaya Narain Jha says that on the night of 16/17 of December, 1971 at about 12.30 P. M. when he was sleeping in his verandah, 10 to 12 dacoits came and in the light of torch, the faces of the dacoits were visible out of whom, he identified Bishwanath yadav and Md. Yusuf. Bishwanath Yadav tied his hand by Gamchha and Yusuf got up on his back. Other daccifs went inside the house and began to break boxes and Kothi. One of the dacoits fired from his gun and alter looting the goods, they fled away. Thereafter, he came to know from his mother, sister-in-law (bhabhi) and other family members that they had identified the appellants 1.2, 3, 4 and 6, Villagers had also reached there to whom about identification, information was given out. In cross-examination he has said that one Salamat Mian was Sarpanch and a criminal case was started in course of which, he was being arrested and sent to jail. He was knowing Ramant Jha, the Investigating Officer ana he woke up and indentified the appellants 1 and 5. He had told the Investigating Officer that his mother, sister-in-law and brother had told him about the identification. 11. P. W.7 Anant Jha is the another brother of the informant and the eye witness of the occurrence. He was knowing Ramant Jha, the Investigating Officer ana he woke up and indentified the appellants 1 and 5. He had told the Investigating Officer that his mother, sister-in-law and brother had told him about the identification. 11. P. W.7 Anant Jha is the another brother of the informant and the eye witness of the occurrence. He too says that on the night the occurrence, he was sleeping in the outer room in the bouth and he woke up on the flash of the torch on the door. The dacoits entered into the room and began to break the boxes and loot the kothi He says that he was told by P. W.10 that appellants 2, 3, 4 and 5 and 6 had committed dacoity. He had not heard the sound of the Informant when the dacoity were going on P. W.8 india Narain Jha, the third brother of the informant and also the eye witness says that on the fateful night he was sleeping in the southern room. The dacoits entered the room, gave danda blow on him and asked to remain silent. Some dacoits were standing and some started breaking the boxes and bring out the articles. After committing dacoity, they went away. He said that Badri, Yogi, Mahgu, Yusuf and Mohiuddinhad committed dacoity. He had not seen the dacoits by face. In jail, he has identified Tari as appellant. He said that the dacoits were asking them not to speak. When he had come out from the house, the villagers had reached along with P. W.10 with whom he talked. 12. Besides this witness, two other inmates of the house, namely. Jaya Devi p. W.13) and Nandika Devi (P. W.13) are the mother and wife of the informant respectively. P. W.12 has said that she was sleeping in her room and was awokened on the alarm and the sound of door opening of the room and had seen the dacoits in the Angan m the light of torch Hashed by the dacoits. She saw Badri, Yogi among the dacoits. She had been locked with her son in the room by the dacoits. After that they both managed to get out and then she told the others about the identification. In cross-examination, she has said that she is a Pardanashin lady and did not come out for anything. She saw Badri, Yogi among the dacoits. She had been locked with her son in the room by the dacoits. After that they both managed to get out and then she told the others about the identification. In cross-examination, she has said that she is a Pardanashin lady and did not come out for anything. She had seen Badri and other flashing torches on her eyes. Wife of the informant Roop Naram Jha had also cams and they were sitting out side. Her three sons had also came there and she talked with the informant. P. W.13, is Nandika Devi who has said that she identified Yogi and Badri among the dacoits and her ear-rings, nose pins and ornaments had been taken away by the dacoits. In cross-examination she has said that shs used to come to the darwaza when there was none. 13. Besides these eye witnesses, there are two others i. e. P. Ws.1 and 2 who are hearsay witnesses. P. W.1 Ramji Sao says that he was sleeping in the Angan and woke up on the alarm that the dacoit are being committing dacoity and when he reached the place, the dacoits had gone away. People give out the names of Yusuf, Yogi and Mohiuddin and some others which he did not remember. He says that he did not meet with Roop Narain Jha. Though P. W.10 has said that he had met and he had given out the names of the dacoits. In cross-examination, he has said that the mother of the informant had given out the names of the dacoits. He denied to be the halwaha of P. W.2 Binchu San. Oa hearing the sound of gun shot, ho came out. He has said that Roop Narain Jha met his men in the village from whose he used to take loan. 14. This is the entire evidence led by the prosecution two out-sider witnesses are hearsay witnesses to whom the names of the dacoits had been given out by the informant and others when they had reached the spot after the daeoits had gone arid they had not seen the dacoits. The rest five witnesses are the inmates of the house. Their presence at the spot at the time of dacoity, is natural and it is not unutual. The rest five witnesses are the inmates of the house. Their presence at the spot at the time of dacoity, is natural and it is not unutual. It has come in evidence that the appellants are residents of the same village and there was litigation between the appellants and the informant. So, it will be natural for one to implicate the other. But for that reason evidence is not to be discarded. Rather it will have to be scrutinized to come to the truth. Here, nothing has come out to show from the evidence of the witnesses that any out-sider had reached the spot. When the dacoity was being committed inside the house, only the inmates of the house were there in the house, After the occurrence, cut-siders had come, who have also been examined and who have with-stood the test of cross-examination. 15. P. W.10 has said that only three persons he could identify among the dacoits namely, Yusuf, Yogi and Mohiuddin. The names of other dacoits have been given out to him by P. W.6 as Bishwanath, Mohiuddin. P. W.7 has given out the names of six dacoits and so, was the case with p. W.8 who had not seen the face of the dacoits. P. Ws.12 and 13 have given out the names of Badri and Yogi. So, the names of appellant Yogi has been given out by P. Ws.10, 12 and 13 as well as the name of Badri has been given out by P. Ws.12 and 13, Yusufs name had also been given out by p. W.10. 16. Two things are relevant in the circumstances of the cace. First of all, delay in lodging the report and secondly, the non-examination of the investigation Officer. So far as delay in lodging the report is concerned, it is undisputed that the occurrence had taken place on 16/17th of December, 1971 and fardbeyan had been given on 17-12-1971 at Murliganj Police Station which is just 6 kms. towards south. The informant says that he had gone to the Police Station in the morning at 6 A. M. but fardbeyan had been recorded at 11 A. M. and not earlier than that. towards south. The informant says that he had gone to the Police Station in the morning at 6 A. M. but fardbeyan had been recorded at 11 A. M. and not earlier than that. It may be that on account of night intervening and distance between the place of the occurrence and the Police Station, the informant could not go to the Police Station but in the morning, when had gone at 6 A. M. , then why the recording of fardbeyan was delayed, has not been explained. 17. As regards the delay in sending the first information report, it appears from the colum in the FIR that it had been despatched on 17-12-1971 through Special Messenger. That was Friday. Ihe FIR reached the court on Monday. What happened on Saturday, has not been explained bat it can be said that the FIR had been sent on 17-12-1971 and the delay, in reaching the court may be on account of Special Messenger who might have delayed in taking it to the Court. As such, the delay in reaching the FIR to the court is not very much material. 18. In this case, the Invenigatiag Officer has not been examined although P. W.13 has stated that the Investigating Officer is said to be in service. P. W.7 had proved the FIR and has said that he had seen ramakant Jha writing the FIR. Even the case diary has not been produced before the court, The investigating Officer is said to have inspected the place ol occurrence. The objective findings of the Investigating Officer are of some relevance in a case of dacolty when the allegations are that no dacoity has been taken place and the appellants have been falsely implicated in the case. But, it appears that the Investigating Officer from the beginning was colluding with the accused and so, a protest petition was tiled before the Superintendent of Police who himself supervised the case but in the meantime, he was also transferred, The final form was submitted for the accused on 2-4-1974. But as the application was given to the DIG of Police, the matter was raised again and so, the second charge sheet had been submitted on 6-5-1976. In this situation, from the noa-appearance of the investigating Officer it can be interred that he was interested for the "accused and was not satisfied with the prosecution s case. But as the application was given to the DIG of Police, the matter was raised again and so, the second charge sheet had been submitted on 6-5-1976. In this situation, from the noa-appearance of the investigating Officer it can be interred that he was interested for the "accused and was not satisfied with the prosecution s case. His non-appearance in the case bhowis that in spite of the orders of the superior authority, he was not taking interest the case and so he was determined to spoil the prosecutions case by nou-appearance. By not appearing for evidence, the Investigating officer had given opportunity to the defence to taka me plea that on account ot non-appearance of the Investigating Officer, prejudice has been caused. If the I. O had appeared, the defence could have put question to him about the torch if at all it was shown to him about objective findings and also abouc the knowledge about the complicity of the appellant Bishwanath yadav who was not named in the first information report. Even the statements of the witnesses recorded by him would have been put to him for the benefit of accused and also the prosecution. From the record, it appears that no effort had been made by she Public Prosecutor or by the court to get the appearance ot the investigating Officer. So, neither the prosection agency nor the Public Prosecutor were interested in the examination of the Investigating Officer nor tne court had taken steps to secure the appearance of the investigating Officer. This is a serious matter and so, such tendencies are to be curbed. The case cannot go according to the whims and caprices of the Investigating Agency, it amounts to this that it the investigating Officer does not want to prosecute any one for reasons best to known, inspite of their being evidence to prosecute tne offender, the court should follow his action and deeds which is not permuted oy law. In this case, the investigating agency is responsible lor many latches. Tnere is delay is recording the farubeyan when the in tor man t had reached the police station, then delay in reaching of FIR in the court and then no appearance m court depriving the accused to get material, about objective findings, about the complicity and identmcation ot the appellant Bishwanath Yadav. Tnere is delay is recording the farubeyan when the in tor man t had reached the police station, then delay in reaching of FIR in the court and then no appearance m court depriving the accused to get material, about objective findings, about the complicity and identmcation ot the appellant Bishwanath Yadav. On account ot these latches, definitely, the benefit will have to go to the appellants. 19. In the result, this appeal is allowed. The orders of conviction and sentence of the appellants arc act aside. As all the appellants are oa bail they are discnarged from the liabilities ot their ball bonds. Appeal allowed.