D. N. Baruah, J- The appellants Mahesh Kalita, Surendra Haloi, Taran Kalita, Nagen Kalita, Jadab Nath, Sudhan Deka and Prafulla Kalita have preferred this appeal against the judgment dated 12.2.87 passed by the Sessions Judge, Nalbari convicting the appellants under section 396 read with section 395 of the Indian Penal Code and sentencing them to suffer rigorous imprisonment for life and to pay fine of Rs. 2000/- in default to suffer further rigorous imprisonment for one year. Prosecution case has been set out in details in the judgment of the Sessions Judge, Nalbari. Its case in brief is that a gang of about 50 dacoits committed dacoity on 11.2.83 at about 2AM at the house of Gobinda Nath at village Barkhat Uttar Barsiral under Ghagrapar Police Station and during the commission of the dacoity Gobinda Nath was killed by some of the dacoits. One Gobordhan Nath lodged the First Information Report before the Officer-in-charge, Nalbari. Deceased Gobinda was his nephew (brother's son). The FIR was received at the Nalbari Police Station at about 11-30 AM on 11.2.83. on receipt of the FIR, police registered a case and commenced investigation. After conclusion of the investigation, police submitted charge-sheet against the appellants and two others namely Taran Kalita and Mahesh Kalita. All the accused persons along with two others namely Taran and Mahesh Kalita were charge sheeted. Thereafter the case was committed to the Court of Sess­ions for trial. The Sessions Case was registered and numbered as 65 (N) of 1986 arising out of OR Case No. 182 of 1983. In the Court of Sessions, ihe accused persons pleaded not guilty and the learned Sessions Judge proceeded with the trial. If the trial, persecution examined as many as of witnesses namely PWI Gobordhan Nath, PW 2 Jebeswar Nath, PW 3 Smti Rukmini Nath, PW 4 Smti Runu Bala Nath, PW 5 Dr. Khagendra Nath Sarma, PW 6 Jyotish Nath, PW 7 Dineswar Nath and PW 8 Khasnur Ali. After examination of the witnesses, the accused persons were also examined under section 313 CrPC. Khagendra Nath Sarma, PW 6 Jyotish Nath, PW 7 Dineswar Nath and PW 8 Khasnur Ali. After examination of the witnesses, the accused persons were also examined under section 313 CrPC. In the FIR PW 1 Gobordhan Nath informed the police that at about 2 AM on the previous night a group of miscreants comprising about 50 entered into his house and the house of his nephew Gobin Nath by breaking open the wooden door and committed assault and looted away money, gold ornaments, cloths, utensils made of brass and bell-metal. They also assaulted various persons and killed Gobinda Nath Master by cutting his throat with a dagger and there he requested to take proper steps and investigation. In the FIR he mentioned about the goods taken away by the dacoits worth Rs. 27,000/-. In this FIR, although the detail manner of killing and taking away the goods were mentioned, but the names of the dacoits were not mentioned. On examination of the prosecution witnesses the following facts emerge : PW 1 Gobordhan Nath lodged the FIR before the police at Nalbari. According to him on 17th day of Magh (January and February) the occurrence took place at night. His permanent house was in Uttar Barsiral Village. There are three living houses in his compound. His elder son Jibeswar Nath lives in the northern house. His wife lived with her sons and daughters in the western house. His second son Dtneswar Nath lived in the southern house. On the night of occurrence he was not at home; he went to Dhamdhama which is about three miles away from his village. Gobinda's family was in the north from their house. He was his nephew and lived separately. According to him one Annaram on the following morning went to Dhamdhama and informed about the dacoity, committed in the village in the previous night. He was also informed that dacoits tied up his children and looted the belongings. Annaram further stated to him that dacoity was also committed at Gobinda's house and they cut him and looted the articles from his house also. He was also informed that dacoits tied up his children and looted the belongings. Annaram further stated to him that dacoity was also committed at Gobinda's house and they cut him and looted the articles from his house also. After hearing all the information, Gobordhan went to Dhamdhama P.S. aiad Dhamdhama P.S. told him that place of occurrence fell within the jurisdiction of Ghagrapar P.S. and he was asked to go to Majusiral Out-Post under Ghagrapar P.S. When he went there, he was told about the shortage of staff and later asked him to go to Ghargrapar Out-post. On reaching Ghagrapar Police out-post he was asked to go to Nalari P. S. and went to Nalbari. He wrote the FIR at Dhamdhama itself. In his evidence he further stated that his elder son Jibeswar told him that about 30/40 strong gang of dacoits committed dacoity and assaulted Jibeswar and Narayan, and looted away wrist watches, gold ornaments, clothes, brass utensils etc. Thereafter, he went to the house of Gobinda, where he saw cut injuries in his throat. He did not ask anything and returned to his house. PW 2 Jibeswar Nath is the son of PW 1 Gobordhan Nath. According to him dacoity was committed on the new moon night on 17th day of Magha. In his deposition he stated that he was sleeping with the members of his family and at mid night some people knocking his door demanding them to open. They were speaking in Hindi. He thought that they were CRPF personnel. They kicked the door 3 times. Sometime thereafter 15/16 persons came in and one of them held a toy gun in his chest and one grabbed him and assaulted him and looted the gold ornaments, clothes etc. As the dacoity was being committed in his second brother Dinesh Nath's house, he fled away from his house and informed the co-villagers and villagers came to their house in the night itself. Having found the villagers the dacoits fled away. Meanwhile, Gobinda Nath's wife came to him and told him that his elder brother was lying on the ground and asked him to come and see what happened. Gobinda Nath was his father's elder brother's son. He also stated that though the dacoits entered into his oouse, he could not recognise the dacoits. Meanwhile, Gobinda Nath's wife came to him and told him that his elder brother was lying on the ground and asked him to come and see what happened. Gobinda Nath was his father's elder brother's son. He also stated that though the dacoits entered into his oouse, he could not recognise the dacoits. When he asked his sister-in-law, she told him the names of the dacoits whom she could recognise. They were Jadab Nath, Nagen Kalita and Prafulla Kalita. She also told some other names which he bad forgotten. These witnesses further stated that in the morning, he sent their house servant Harkanta Nath to Dhamdhama to inform his father there. He further stated that his father came home it the afternoon along with police. Police asked them about the occurrence. Police also examined the dead body. Police did not seized anything from his house. In his cross-examination he further stated that on the night of the occurence Harkanta Nath was there. Gpbinda's wife told him the names of the accused persons. It was also stated that the quarrel took place previously between his society and the accused persons over some `Reserve land'. PW 3, Smti Rukmini Nath is the wife of Gobinda Nath. In her evidence she narrated the occurrence that took place in her house on that night. She said that she could recognise Jadab from his voice. She also recognised Mohan-KaJita,. Nagen Kalita, Suren Haloi, Maheswar Kalita, Jadab Nath and Sudhan Pas b»y name and face. In her deposition she further stated on that very night, after the'occurrence she told Jibeswar PW 2, Anna Doctor (who is not a witness) and Jyotish .Nath PW 6 and her father-in-law's younger brother that she recognised the dacoits. In cross-examination, she stated that she told Gobordhan Nath (PW) and Anna Doctor and others on the very night that she could recognise the dacoits. She also admitted in her cross-examin­ation tnat she told police that she could not see the dacoits as they were not allowed to raise her head. She however denied that she did not see that the dacoits had struck the lamp which was burning and that she could recqgnise the dacoits by that burning light. She also stated that about 10 or more dacpits surrounded her at that time. PW 4 the daughter of the deceased and PW 3 Rukmini Nath wife of the deceased. She however denied that she did not see that the dacoits had struck the lamp which was burning and that she could recqgnise the dacoits by that burning light. She also stated that about 10 or more dacpits surrounded her at that time. PW 4 the daughter of the deceased and PW 3 Rukmini Nath wife of the deceased. See also narrated the story. However the story told by her is not similar to that of PW 1 She categorically stated, that she recognised four dacoits namely Nagen Kaiita, Prafulla Kalita, Sudhan Deka and Jadab Nath. She could recognise them by their voice as well as by the light of the lamp was burning in the room. In her cross examnation she also stated that the lamp was on a table and table was towards their head. In her evidence she said that police did not take away the lamp which was burning in their house. The police came in the evening on the following day of tne occurrence. PW 5 Dr. Khagendra Nath Sarma held the post mortem examination of the deceased Gobinda Nath. As per his evidence, he examined the dead body on 12.2.83 and found that the dead body was of 55. yeats old male person identified as dead body of Gobinda Nath. At the time of examination the rigor mortis was present, eyes open, mouth open; tongue proturded. He also found one incised wound 8"o then root of the neck, Accofding to his opinion, the death was due to haemorrhage and shock due to injuries sustained. PW 6 Jyotish Charidra Nath in his evidence also stated tfiait occurrence took place in the mid night. He got tip from his sleep and found the villagers camis raising a commotion. He was confronted with the dacoits who warned him. However he and other villagers chased the dacoits. He also stated that he was distantly related to the deceased Gobinda and he used to address Gobinda's wife as `Mami'. According to these witnesses, Gobinda's wife told them that she could recognise Jadab Nath, Nagen Baishya, Mohan Kalita, Taran Kalita, Mahesh Kalita, Nagen Kalita and Sudhir Deka. PW 4 Smti Runubala Nath, the daughter of PW 3 also told him that she could also recognise Jadab Nath, Sudhan Deka, Nagen Kalita and Profulla Kalita. According to these witnesses, Gobinda's wife told them that she could recognise Jadab Nath, Nagen Baishya, Mohan Kalita, Taran Kalita, Mahesh Kalita, Nagen Kalita and Sudhir Deka. PW 4 Smti Runubala Nath, the daughter of PW 3 also told him that she could also recognise Jadab Nath, Sudhan Deka, Nagen Kalita and Profulla Kalita. In her cross-examination she states that he also did not ask any people in Gobinda Nath's house anything about the occurrence at about 9/10 AM. The police had not arrived till then. PW 7 Dineswar Nath also in his evidence stated that he was sleeping in bis house at about 2 PM. He heard the sound that someone striking the door and someone in the outside the door. He stated that when the people gathered at the place of occurrence he also along with the others chased the dacofts. The dacoits retreated by flashing torches and left the field. After his return, he asked about the occurrence. The wife of Gobinda told him that dacoits had cut her husband. She also told him that she recognised some or the dacoits namely. Taran Kalita, Mohan Kalita, Nagen Kalita and Jadab Nath. She also stated that dacoits took away the properties including the gold prna-ments etc. Thereafter he went back. PW 7 is another son of Gobordhan. This witness gave another story. According to him his father wept to lodge the FIR. On the night of occurrence his father had been at Dhamdhama, when informed liis father came home and later lodged the FI 8 PW 8 is the Sub Inspector of Police and O/C. According to him on 11.2.83, he was the Officer-in-charge of Ghagrapar Police Statipu. On that day he received the FIR. `Ext. 1 from Nalbari Police Station. On the basis of registered case, the O/C of Nalbari P.S. entrusted him for investigation. In that connection he went to the place of occurrence. First he held the inquest on the dead body of Gobinda who wfts identified by one Nabin Chandra Nath. Ext. 3 is the inquest report and Ext.3(l) is his signature. After inspection of the place of occurrence, he prepared a sketch map Ext4 and Ext. 4(1) is his signature, and seized articles including a small tin lamp without handle produced by PW 3 in presence of some witnesses. Ext. 3 is the inquest report and Ext.3(l) is his signature. After inspection of the place of occurrence, he prepared a sketch map Ext4 and Ext. 4(1) is his signature, and seized articles including a small tin lamp without handle produced by PW 3 in presence of some witnesses. He again went to the place of occurrence on 7.3.83 i.e. 25 days after the occurrence and he recorded the statement of the witnesses namely Smti Rukmini Nath, Smti Funubala Nath, Smti Runubala Nath, Nijotpal Nath, Shri Jibeswar Nath, Pinesh Nath, Harinarayan Nath, Jyotish Nath, Aditya Nath, Annaram Nath and Shri Gobordhan Nath. Thereafter, he returned to the Out-post. Tn the ejahar, there was no mention to the effect that any dacoits was recognised. He also stated that he did not go to the place of occurrence on any other occasion between 11.2.83 and 7.3.83.He just made a remark that he was busy with law and order. He however did not give any details about how he was busy in maintenance of law and order and why so much time he took in recording the statements of the witnesses. After recording the evidence, the trial Court recorded the statement of the accused persons under section 313. In all the statements the accused persons stated that all the Allegations were false and they were innocent. It may be mentioned here that the Investigating Officer did not examine the neighbouring witnesses who assembled according to the prosecution story immediately after the occurrence took place. He also did not make endeavour in that regard. The learned Sessions Judge believing the PWs 3 and 4 held that the prosecution was able to prove the charges against the accused appellants Jadab Nath, Surendra Hajoi, Nagen Kalita, Sudhan Deka and Prafulla Kalita beyond all reasonable doubt and so the learned Sessions Judge held them guilty under section 396 read with section 395 of the IPC and convicted them thereunder. The other two accused namely Taran Kalita and Mahesh Kalita were acquitted on benefit of doubt; After hearing the sentence, the learned Sessions Judge sentenced the accused persons to suffer rigorous imprisonment for life and to pay fine of Rs.2000/-«ach in default to suffer further R.I. for one year. We have heard Mr.D.N. Choudhury, learned counsel appearing on behalf of the appellants and the learned Public Prosecutor Mr. P. C. Gayan. Mr. We have heard Mr.D.N. Choudhury, learned counsel appearing on behalf of the appellants and the learned Public Prosecutor Mr. P. C. Gayan. Mr. Choudhury, learned counsel for the appellant submits that in the FIR submitted by PW 1, name of the accused persons were not given. He further submits that the statement of the witnesses examined before the trial Court were recorded on 7.3.83 i.e. about 25 days after receipt of the FIR and commencement of the investigation. He also submits that the evidence of the witnesses examined in the trial Court are contradictory to each other and therefore no reliance can be placed on the evidence of the said witnesses and on such evidence the appellants accused cotild not be convicted. He also submits that the accuseda-ppellants were not at all recognised by the witnesses. - Learned Public Prosecutor Mr.P.C.Gayan supported the judgment and order passed by the learned Sessions Judge and submits that the prosecution was able to prove the charge against the accused-appellant and therefore, the conviction and sentence awarded by the learned Sessions Judge is just and proper and no interference is called for. The main question to be determined in this case wherher the accused appellants were recognised and properly identified by the prosecution witne­sses and the name of the accused persons mentioned before the police which was recorded about 25 days after the commencement of the investigation as well as before the Court can be accepted to warrant conviction. In a case of dacoity question of identification is primary matter for consideration although, there is no hard and fast rule can be laid dpwn under what circumstances the identification of the accused cannot be accepted. It will depend on the facts of each case. Every instance of identification in circumstances which usually accompany a case of dacoity has to be judged on the facts of that particular case presented by the prosecution and if after a careful scrutiny, there is the slightest hesitation in the mind of the Court that possibility of mistaken identification or that the statements of the prosecution witnesses are influenced by some other cause, the accused is entitled to the benefit of a reasonable doubt. In the instant case, the FIR was lodged by PW 1 at about 10.30 AM on 11.2.83. In the instant case, the FIR was lodged by PW 1 at about 10.30 AM on 11.2.83. According to him he went to the Police Station on receipt of the information received from one Annaram Nath who told him about the daco­ity. The said Annaram Nath narrated the entire story about the dacoity, but the names of the dacoits were not disclosed. On the basis of that the gave the FIR. FVV I in his evidence stated that he was on the night of occurrence at Dham-dhama which was about 3 miles away from his own village where the dacoity took place. He also stated on the very night that he was informed by Aqnanath about the dacoity. It will be difficult to accept that he the PW 1 krstead of visiting the place of occurrence which is only 3 miles away from the place of occurrence where he resided without visiting the place of occurrence to see his relations who were assaulted by the dacoits straight away went to the Police Station. PW 7 Dineswar Nath, son of the informant PW 1 stated in his evidence that he asked the wife of the deceased about the occurrence who told about the names of the dacoits. He also stated that on the night of occurrence his father PW 1 who was at Dhamdhama came straight to the place of occurrence and from there he went to the Police Station to lodge an ejahar. Before going to lodge an ejahar, he had asked Rukmini Nath PW 3 about the occurrence. In her evidence PW 3 stated that she could recognise the persons. She also informed the names of the dacoits to the other witnesses namely PWs 6 and 7. If that was so, if the PW 1 came to the place of occurrence before lodging the ejahar, surely he would have mentioned the names of the dacoits in the First Information Report. The names of the accused whom PW 3 could recognise were totally absent in the FIR. This itself a serious doubt about the story of recognition of the accused-appellant at the time of occurrence. PW 8 is the Police Officer who investigated the case. According to him he was the Officcr-in-charge of Ghagrapar Police Out-post on 11.2.82 and he received the FIR, Ext 1 from the Nalbari Police Station. This itself a serious doubt about the story of recognition of the accused-appellant at the time of occurrence. PW 8 is the Police Officer who investigated the case. According to him he was the Officcr-in-charge of Ghagrapar Police Out-post on 11.2.82 and he received the FIR, Ext 1 from the Nalbari Police Station. He was also entrusted with the charge of investigation and accordingly he went to the place of occurrence and held the inquest on the dead body on being identified by his brother. He also prepared the inquest report Ext 3. He, further prepared the sketch map Ext 4. He also seized one tin lamp without handle as seizure list Ext. 5. Strange .enough on that day he .did hot record the statement of the impprtant witnesses, the waited till 7.3.83 wnen he went to the place of occurrence again and recorded the statement. Non recording of the statement of the witnesses on that particular day was only because he was busy with maintaining the law and order. He also has not explained in what way he was busy in maintaining the law and order. Under section 157 of the Criminal Procedure Code- "If, from information recceived or otherwise, an Officer-in-charge of a police station has reason, to siispect the commission of an offence which he is empowered under section 456 to investigate, he shall forthwith, send a report of the same to a Magistrate empowered to take cognizance, of such offence upon a police report and shall proceed in person, or shall depute one of his subordinate officers not being below such rank as the State Government may, by general or special order, prescribe in this behajfto proceed, to the spot, to investigate the facts arid circumstances of the case." In this case, the Police Officer most negligently did not record the state­ment on the very first day when he visited the place of occurrence, prepared the sketch map and the inquest report. He waited another 25 days without proper explanation by simply saying that he was busy with maintaining the law and order. This is really a very sad state of affairs in investigating a case. A Police Officer, entrusted with such important duties in a serious case of this nature should not shirk his responsibilities. He waited another 25 days without proper explanation by simply saying that he was busy with maintaining the law and order. This is really a very sad state of affairs in investigating a case. A Police Officer, entrusted with such important duties in a serious case of this nature should not shirk his responsibilities. The FIR having not disclosed and the statement of the witnesses having been recorded long after 25 days after the date of occurrence has cast a serious doubt as to whether the witnesses could actually recognized the accused-appellant? in committing the offence. Learned Sessions Judge, however did not consider this aspect of the matter which we feel is important for the purpose of determining as to whether the accused-appellant had actually participated in the said dacoity where deceased, Gobinda Nath was killed. Regarding the identification also the story given by the PW 3 and PW 4 are not consistent. According to PW 3 the wife of the deceased that she could recognize the voice of Jadav Nath as he shouted "open the door, open the door". She could recognise the accused-persons as the brass lamp of kerosene was burning on a table inside the house. She also stated some one of the dacoits struck the lamp and thus as a result the room got illuminated and in such light she could recognise the accused appellant namely Mohan Kalita, Nagen Kalita, Suren Haloi, friaheswar, Jadav and Sudhan by name! She also stated that there was another person Nagen Baishya. In a case of a dacoity at night it is a usual story of the prosecution that the dacoits could be recognise on the light of a burning lamp. This fact a brass lamp which was burning at the time of dacoity and struck dowrTby one of the dacoits as a result of which the lamp got open and its wiclc burn open was a very important piece of evidence for recognition but the police did not seized the said brass lamp, police only seized the tin lamp that too was not produced. The non seizure of the said lamp and non production of the same cast further doubt about the recognition of the dacoits by the prosecution witnesses. As per prosecution story it was new moon day and therefore, it must be very dark at mid night. The non seizure of the said lamp and non production of the same cast further doubt about the recognition of the dacoits by the prosecution witnesses. As per prosecution story it was new moon day and therefore, it must be very dark at mid night. PW 4 daughter of PW 3 was aged about 16/17 years. On Feb/87 that means she was 12/13 years old on the date of occurrence. This witness also states that she could recognise the dacoits as Nagen Kalita, Prafulla Kalita, Sudhan Deka and Jadav Nath in the light of the lamp that was burning in the room. In her evidence the lamp was on the table. Her story is different. Regarding the lamp she did not say that one of the dacoits struck down the lamp as a result the lamp got open the wick burnt more brightly. But, she was specific that the police did not take away the lamp which was burning in their room, if that be so the question of recognisition of the dacoits in the light of the lamp is very doubtful and no conviction can be sustained on the basis of such evidence regarding identification. From the above it is clear that the FIR submitted by PW 1 who according to PW 7 another son of PW 1 was lodged after having discussion with PWs 2,3 and 7. Therefore, the non appearance of the name in the FIR has created serious doubt about the prosecution story. Regarding ttie identifica­tion of the accused-appellant on the light of the lamp which was burning, that lamp was neither seized nor produced before the Court to ascertain that fact. Besides, there are other contradiction ofthe statements made by tjie prosecution witneses before the police and before the Court. In view of th'? above, the learned Sessions Judge was not correct in his findings that the prosecution was able to bring home to the charge to the accused-appellants Jadav Nath, Surendra Haloi, Nagen Kalita, Sudhan Deka and Prafulla Kalita beyond reasonable doubt and held them guilty under section 396 read with section 395 of the IPC and sentenced to rigorous imprisonment for life and to pay fine of Rs. 2000/- is not sustainable in law. Therefore, we iiet aside the conviction awarded by the learned Sessions Judge. The accused-appellants are set at liberty, and the bail bond are discharged. Dated 9.6.2006