U. K. VARMA, J, J. ( 1 ) RAM Sanehi, Madhur, Ram Chandra, Suresh, Anganu and Raja Ram were convicted by Sri P. S. Chhabra, Special Judge, Dacoity Affected Area, Etawah under section 396 I. P. C. and sentenced to imprisonment for life on 28-7-1986 in Sessions Trial No. 10 of 1983. Aggrieved thereby Ram Sanehi, Madhur, Anganu and Raja Ram filed the Criminal Appeal No. 2006 of 1986 and Ram Chandra and Suresh filed the Criminal Appeal No. 2031 of 1986. Both these appeals were taken up and heard. ( 2 ) A prosecution case briefly stated is that at 1 a. m. in the night between 30-6-1979 and 1-7-1979 the appellants along with a few others committed dacoity at the house of Babu Ram son of Surjan Singh sitriated in village Adda which is a hamlet of Balampur, police station Ekdil, District Etawah. During the dacoity, on the alarm raised, the dacoits fired. Munna Lal, Darbari Lal, Ram Charan and many others persons of the village arrived at the scene of the occurrence. Darbari Lal ignited fire in the tree, as a result of which enough light was created. There was also a kerosene lantern hanging on the jackfruit tree outside the house and another kerosene lamp inside the house. The appellants Ram Sanehi and Madhur of village Gohans, Munna Lal, resident of Nay a Nagla, Ram Chandra Resident of Nagaria and Anganu, Raja Ram and Suresh of Balampura in the hamlet of which the informant himself resided, were identified. The other dacoits, who had participated, had been clearly seen and on being produced could be ascertained. The dacoits while fleeing had fired again, injuring the brother of the informant names Sugar Singh, his relative Babu Ram and also Surendra Singh. The dacoits decamped with the cash, ornaments and article detailed at the foot of the F. I. R. When the injured were being taken to the police station Sugar Singh died but before his death, the Investigating officer had examined him and his statement is Ex. Ka. 6. ( 3 ) THE post-mortem-report of Sugar Singh, the genuineness of which was not challenged, is Ex. Ka. 5 and the medical reports of Surendra Singh and Babu Ram are Ex. Ka. 3 and Ka. 4. The memo in respect of the kerosene lamp and the divri is Ex. Ka. Ka. 6. ( 3 ) THE post-mortem-report of Sugar Singh, the genuineness of which was not challenged, is Ex. Ka. 5 and the medical reports of Surendra Singh and Babu Ram are Ex. Ka. 3 and Ka. 4. The memo in respect of the kerosene lamp and the divri is Ex. Ka. 2 and the memos in respect of the empty catridge, blood stained and plain earth and the ashes of the burnt tree are Exs. Ka. 8, Ka. 9 and Ka. 10. ( 4 ) THE prosecution had examined Baburam information, Surendra Singh, injured and Darbari Lal who had allegedly burnt the tree as the witnesses of the occurrence who claimed to have seen the appellants participation in the dacoity in question. Harihar Singh (pw-4) and Ramesh Chanqra Kannaujia (PW-5) narrated as to how they had investigated the case. Dr. K. P. Singh, Senior Superintendent. District Hospital, Etawah, who was examined as an Expert pointed the Sugar Singh about an hour before his death could be in a position to give statement. ( 5 ) THE counsel for the appellants submitted that the prosecution case was a cooked one and the evidence adduced to substantiate the guilt was unworthy of any reliance. He also tried to show how the prosecution case had been improved upon to fasten the guilt on the appellants. ( 6 ) THE prosecution in order to prove the factum of dacoity did not lead evidence to this effect that the cash and valuables etc. , detailed at the foot of the F. I. R. had been looted. The prosecution witness Surendra Singh (P. W. 2) however, did state that the decoits after looting articles had filed away. In the F. I. R. it had not been alleged that the appellants were aggrieved with the informant or any of the injured persons for some reason. From it, it merely follows that they had come for committing dacoity. The circumstances that Sugar Singh had been shot at fatally and Surendra Singh and Babu Ram too had sustained firearm injuries when they tried to apprehend the bandits corroborate the allegations made in the first information report about loot. The appellants in the cross-examination of Surendra Singh (PW-2) did not suggest that there was no dacoity at all. They had merely challenged their participation in the crime in question. The appellants in the cross-examination of Surendra Singh (PW-2) did not suggest that there was no dacoity at all. They had merely challenged their participation in the crime in question. In the cross-examination of Babu Ram informant (PW1) it had been put to him that the scoundrels had come to take away his wife forcibly and it was in that connection that the incident had taken place. In the cross- examination of Darbari Lal (PW-3) also it was not put to him that his statement about the loot given in the examination-in-chief was a concoction. The prosecution certainly was expected to lead clear evidence with regard to the loot of the articles mentioned in the frist information report but their failure to do so when statements of Sugar Singh and Darbari Lal about loot had not been subjected to cross-examination only leads us to the conclusion that the factum of dacoity had not been really seriously challenged and could be safely accepted. ( 7 ) WE shall now examine whether there are any general infirmities in the case. The frist point that strikes us in this connection is that neither in the first information report nor in the evidence adduced it has been indicated as to what specifically had been done by the known dacoits. It had not been revealed at any stage as to what were the weapons which were being carried by the known dacoits and against which of the injured they had used the same. The known dacoits besides it has also not been suggested had made any effort to conceal their identity by trying dhatas around their face. The prosecution witness Darbari Lal in his cross-examination admitted that Sukh Lal the father of the appellant Suresh was the Pradhan of the village and he had prosecuted him for offence under section 6/7 of the Untouchability Act, 1975 and that Raja Ram, appellant was a witness in that case. He further did not deny that Shanti Devi, wife of Raja Ram appellant had purchased land from his cousin Anant Ram Although he was himself interested in its purchase from him and that the appellant Anganu was a witness of the sale-deed. The prosecution besides Darbari Lal (PW-3) who admittedly was hostile to the appellants did not examine any other person of the village to substantiate that Ananu, Raja Ram and Suresh had participated in the loot. The prosecution besides Darbari Lal (PW-3) who admittedly was hostile to the appellants did not examine any other person of the village to substantiate that Ananu, Raja Ram and Suresh had participated in the loot. The non production of any other person of the village assumes significances when we find Babu Ram, informant acknowledging that his father-in-law had not been allowing his wife Munni Devi to go to his house and he has a feeling that Raja Ramwas responsible for it. Babu Ram informant it next is to be noted, tried to conceal the fact which was admitted by Darbari Lal that he had been prosecuted by the father of the appellant Suresh. The witnesses Surendra Singh (PW -2) and Darbari Lal (PW-3) to show the motive for the crime introduced this case although not testified to by the informant that Ram Sanehi appellant wanted to marry his daughter with the deceased Sughar Singh and as his father Surjan Singh did not agree to it he had shown his resentment by hitting and burning his effigy and threatening that Sughar Singh would not be spared. The conduct of the informant in not disclosing his ill-feelings and those of his witness Darbari Lal towards some of the appellants in the first information report does show that there could be reasons for false implication and the informant himself had the feeling that if he would do so his story would not be accepted, particularly when independent witnesses were not willing to affirm the same. ( 8 ) WE shall next examine whether the prosecution witnesses had opportunity to identify the dacoits on the basis of the evidence adduced. The Additional Sessions Judge in his judgment writes that he had personally inspected the spot and found that from the place shown with letter Gin the site plan which was to the south east of the house of the informant, it was not possible to see the dacoits who had escaped from the door towards north. The Additional Sessions Judge had presumed that the dacoits would have been identified for Surendra Singh (P. W. 2) had been shot at from a close range as was evident from the medical report wherein it was mentioned that there was blackening around the fire arm injury sustained by him. The Additional Sessions Judge had presumed that the dacoits would have been identified for Surendra Singh (P. W. 2) had been shot at from a close range as was evident from the medical report wherein it was mentioned that there was blackening around the fire arm injury sustained by him. Surendra Singh (P. W. 2) and the informant Babu Ram (P. W. 1) admittedly had not seen the dacoits entering the house of the latter or looking inside it. The dacoits on alarm having been raised, had started firing. It was unlikely that during the continuance of firing any witness was likely to have gone near the dacoits. The prosecution evidence that the dacoits fired when pressure was put upon them and that the injuries had been sustained by the witnesses when they were chasing the dacoits does not inspire confidence. Surendra Singh (P. W. 2) did not state as to who was the dacoit who had fired at him and the other injured. If a known dacoit would have caused injuries he was likely to have named him. Surendra Singh to us does not appear to have given a factual account and the medical report too is not consistent with his statement. It would be not justifiable to infer only on the basis of the circumstance the Surendra Singh (PW-2) had been fired from a close range that he would necessarily have identified all the seven dacoits whom he had named. ( 9 ) SURENDRA Singh claimed that he came to know the appellants as he had seen them at the house or Sukh Lal on two to four occasions and had been informed by Shri Krishna, his brother-in-law, as to who they were. Surendra Singh did not state as to when he had seen them at the house of Sukh Lal. If his statement was to be believed that he knew them from three to four years before the incident, it would bellow that Shri Krishna, his brother-in-law would have told him about them prior to that when there was no reason for Surendra Singh to enquire about the appellants. The story that the appellants had burnt the effigy of the father of Sughar Singh and threatened to kill Sughar Singh was given out by him for the first time during trial. The story that the appellants had burnt the effigy of the father of Sughar Singh and threatened to kill Sughar Singh was given out by him for the first time during trial. The counsel for the applicants stated that it was an innovation to explain that he could know the appellants. The contention of the counsel for the appellants could not be brushed aside for the effigy of the father of Sughar Singh had not been burnt more than three to four years before the incident admittedly but merely six months prior to the incident has given out by Surendra Singh. Surendra Singh admittedly had never talked with any of the appellants. He could not tell the name of any family member of the appellants. Surendra Singh who on his showing lived at a distance of 13 miles from the village wherein incident took place had no good reasons to know Anganu Raja Ram and Suresh who were residents of Balampur or Ram Sanehi and Madhur who were residents of Gohana and Munna and Ram Chandra who were residents of Nagaria. He had merely in our opinion repeated the tutored tale. ( 10 ) SO far as Babu Ram and Darbari are concerned they have already been shown to be inimical to the appellants. They could be interested in their false implication. If they would have, given an ocular account the site-plan prepared by the investigating officer at their pointing would not have indicated that the witnesses saw the dacoits from the place as noted therein, not injuries could have been sustained by Surendra Singh Babu Ram and Sughar Singh with blackening around them. Babu Ram informant (PW-1) had no idea that Ram Sanehi appellant was a teacher and that adhur appellant was taking training at Lucknow. He gave the distance of their house from his house to be 30 miles. The distance of the house of the appellants Munna and Ram Chandra was stated to be 12 miles. It has not been shown that the appellants Munna, Ram Chandra, Anganu, Raja Ram and Suresh had any common interest or belonged to a gang. It appears that the names of the appellants had been introduced in the crime in question by persons other than these who had actually seen the occurrence. It has not been shown that the appellants Munna, Ram Chandra, Anganu, Raja Ram and Suresh had any common interest or belonged to a gang. It appears that the names of the appellants had been introduced in the crime in question by persons other than these who had actually seen the occurrence. ( 11 ) LAST of all it is to be seen whether the alleged statement of the deceased Sughar Singh could be accepted as having been given by him and treated as his dying declaration. The Investigating officer Harihar Singh (PW-4) admitted that when he had recorded it Sughar Singh was already dead. It is thus, at best an account from memory. The prosecution witness Surendra Singh stated that Sughar Singh had signed the statement which admittedly is not a fact. Had any statement been given by the deceased Sughar Singh, there would not have been such a mistake on the part of Surendra Singh. Besides with such serious injuries as noted in the post-mortem report Ex. Ka. 5, Sughar Singh could not have given such a detailed account. His statement had not been signed by any witness or by him. The contention of the counsel for the appellants that it was a highly suspicious document unworthy of reliance could not be brushed aside. ( 12 ) THE above discussion shows that the prosecution had not substantiated the guilt of the appellants by any cogent and reliable evidence. ORDER ( 13 ) THE appeals are allowed. The judgment and order of the Special Judge (D. A. A.) Etawh dated 28-7-1986 convicting the appellants under section 396 of the IP. C. and sentencing them to imprisonment for life as set aside. The appellants are on bail. They need not surrender to their bail bonds which are discharged. ( 14 ) LET a copy of the judgment be placed on the record of Criminal Appeal No. 2031 of 1986. Ram Chandra and another v. State of U. P. Appeal allowed. .