G. D. DUBE, J. ( 1 ) THIS is an appeal against the judgment and order of Sessions Judge, Ballia, convicting and sentencing each of the appellants to five years R. I. under section 395, I. P. C. ( 2 ) A first information has been lodged at 8. 30 p. m. on 7. 5. 1975 at police station Bansdih Road, District Ballia. It was alleged in the first information report that at about 1. 00 p. m. in the night between 6th and 7th May, 1975, thirteen to fourteen dacoits including the appellants had raid had the Dera of Suresh (P. W. 3) and forcibly took away four she buffaloes and one calf. When objected, they had assaulted the father of Suresh, the reporter Shea Sagar and Manjesh. After taking the cattle, they had gone towards north. When they were taking the cattle, the witnesses had tried to apprehend them, but they could not do so on account of threats of the dacoits. ( 3 ) AFTER the report, the investigation was taken up by Gautam Shukla (P. W. 4 ). He had sent the injured to Ballia Hospital for medical examination. He had prepared site-plan and, after interrogating the witnesses and inspecting the lantern and the torch allegedly used at the time of occurrence and conducting other investigations had submitted the charge-sheet. ( 4 ) THE accused pleaded not guilty to the charge. ( 5 ) THE prosecution examined Vijayee (P. W. 1), Suresh (P. W. 2) and Sheo Sagar (P. W. 3) as eye witnesses, Gautam Shukla was examined as P. W. 4. The defence has examined Ram Bahadur Singh as D. W. 1 on appraisal of this evidence, the learned Sessions Judge had held the appellants guilty. ( 6 ) IT has been argued by learned counsel for the appellants that the appellants were named in the first information report. They were known persons. It was not expected that they would have come without concealing their identity. In all probability, they would have concealed their faces. Secondly, it was urged that this dacoity was of unusual character. The looted property was a cattle heard. It was a slow moving property. It has not been shown that the cattle were carried on some vehicle. In these circumstances, the villagers could have apprehended the dacoits. In all probability, they would have concealed their faces. Secondly, it was urged that this dacoity was of unusual character. The looted property was a cattle heard. It was a slow moving property. It has not been shown that the cattle were carried on some vehicle. In these circumstances, the villagers could have apprehended the dacoits. It was also urged that no recovery of the property has been made so far. Since the buffaloes are said to have been taken away, the calf is said to nave returned to the house after some-time. In such a situation, non-recovery of the looted property from the possession of any one of the appellants makes the whole prosecution story doubtful. It has also been urged that the appellants have stated a very plausible reason for their false evidence. D. W. 1 has proved that on 12. 4. 1975, Bhulotan had pounded two buffaloes of Vijayee P. W. 1 in the cattle pond of Shehetwar, district Ballia. This had been taken back by Vijayee Chaudhary same day on payment of Rs. 50/- as fine. It was urged that the occurrence had taken place in some other manner. Since several persons on complainant side were injured, the case w\s wrongly started against the appellants. ( 7 ) 117 Five appellants are closely related with each other. Dhanji and Chandrika are sons of Bhulotan. Lakshmi and Sahdoo are fathers brothers sons of Bhulotan. The other two are unconnacted. It has been argued on behalf of the two uncounceted persons that they had no connection with the family of Bhulotan. Their names were got included in the first information report by the intervention of the police, with which they had enmity. ( 8 ) DEO Nandan Tewari has filed Ext. Kha 11, copy of the first information report lodged by Ramji Tewari against two constable of police station Bansdih Road, on 24. 4. 1975. It transpires that a charge-sheet had been submitted against Deo Nandan Tewari (appellant) and Ramji Tewari and others on 6. 5. 1976 under section 147,392,332 and 225, I. P. C. Two constables Bhuman Singh and Han Shanker Singh were shown as witnesses of fact. It was in respect of an offence committee 24. 4. 1975, Babban appellant stated in his statement under section 313 of the Code that one Hridaynand is a man of police. 5. 1976 under section 147,392,332 and 225, I. P. C. Two constables Bhuman Singh and Han Shanker Singh were shown as witnesses of fact. It was in respect of an offence committee 24. 4. 1975, Babban appellant stated in his statement under section 313 of the Code that one Hridaynand is a man of police. He has litigation about a land with said Hridaynand. Hence he was got falsely implicated by Hridaynand. ( 9 ) VIJAYEE (P. W. 1) has denied in cross-examination that Bhulotan had pounded his two buffaloss in the cattle pond. In this way, this witness had not the courage to admit correct facts. That is why the defence had 10 produce Ram Bahadur Singh (P. W. 1) and got the fact relating to pounding of the cattle proved. ( 10 ) THE Statements of the prosecution witnesses were full of contradictions. Vijayee (P. W. 1) had stated before the Court that Pharsa or Gandasa was only in the hand of Bhulotan. Five to six persons were holding spears. Sahdeo had given him spear blow in his hand. When his attention was drawn to his statement under section 161, Cr. P. C. he stated that he had told the Investigating Officer that Sahdeo was holding a spear. This fact was not written by him. On the other hand the Investigating Officer had stated that Vijayee stated before him that Laxman and Babban were holding spears. In paragraph 9 this witness has admitted that he does not know about other person of the family of Dec Narain except Dec Narain. He also does not know the name of the father of Dec Narain. He admitted in cross-examination that the dacoit were wearing turban or Angauchha on their head. If it was so, the dacoits would have certainly covered their faces. ( 11 ) SURESH (P. W. 2) has admitted that Sheo Sagar (P. W. 3) is his uncles son. This witness had also contradicted himself from his statement under section 161, Cr. P. C. He had stated before the lower Court that Sahdeo had given spear blow to Sheo Sagar. The Investigating Officer, However, had noted in statement of witness in the case diary that Lakshmi had inflicted spear blow on Sheo Sagar. It was clearly suggested to him that he had included the names of Babban and Dec Narain on the asking of the Station Officer. The Investigating Officer, However, had noted in statement of witness in the case diary that Lakshmi had inflicted spear blow on Sheo Sagar. It was clearly suggested to him that he had included the names of Babban and Dec Narain on the asking of the Station Officer. ( 12 ) SHOC Sagar (P. W. 3) had also admitted in cross-examination that he had known Babban and Dec Narain coming to the house of Bhulotan. He did not know any other person of their family. He had not shown in his statement as to how he came to know the names of these two persons. ( 13 ) THE witness Vijayee is the father of Suresh. Shec Sagar is the brothers son of Vijayee. The siteplan shows that there were Deras of independent witnesses also. The Deras of Teera and Vishwanath were present towards east of the Dera of Vijayee. The Deras of the Janardhan and Manji were situated at a distance of twenty five yards. Jagannath and Manji were related to the witnesses but Vishwanath and Heera appear to be independent witnesses. One house of Gomti Sarju is also shown towards north of the Dera of Suresh. None of these persons have been examined only close relates of reporter Suresh have been examined. ( 14 ) NO doubt, the five persons had received serious injuries and this fact has not been challenged by the defence. However, this was not sufficient to give support to the prosecution evidence that the occurrence had taken place in the manner as alleged by the prosecution. The dacoits were taking cattle. The site-plan also shows that a halt station existed at a distance of 150 yards from the place of occurrence. The miscreant were taking cattle. They would have been certainly moving with slow speed. They had taken five cattle heads. Out of them one calf had returned after sometime. This shows that the miscreants were feeling some difficulty in taking the cattle and that is why the calf was able to get back to the Dera of Suresh. In such a situation, the villagers could have surrounded the miscreants and apprehended them at some distance. ( 15 ) IT look strange that the police had not been able to recover any one of the Cattle from the possession of the appellants. In such a situation, the villagers could have surrounded the miscreants and apprehended them at some distance. ( 15 ) IT look strange that the police had not been able to recover any one of the Cattle from the possession of the appellants. Nothing has been shown that any attempt has been made to recover the buffaloes. The report of this case was also lodged after a delay of about seven-and-a half hours. The medical examination of injured Suresh, Bharat, Majesh, Shoc Sagar and Yijayee had taken place between 1. 25 p. m. to 2. 30 p. m. at District Hospital, Ballia on 7. 5. 1975. Thus these five persons had been examined at lodging of the report. No explanation was given as to why report was not lodged at the police station soon after the occurrence. The village Semri was only at a distance of five miles from the police station. Inordinate delay in lodging of the report reveals that there was some deliberation between the witnesses and also between the reporter and the police about lodging of the report. This opportunity was availed of implicating Bhulotan and his sons and grand-nephews and two enemies of the police who had started the case against two constables of police-station Bansdih Road a few days before the occurrence. ( 16 ) IN the circumstances, discussed above, I find that the evidence of the prosecution was of not such a character as to instil any confidence in it. The lower Court had placed a very blind folded reliance on it without considering the meritt of the evidence. ( 17 ) IN the result, the appeal succeeds and is allowed. The-judgment and order of the lower court are set aside. The appellants are acquitted of the charge levelled against them. They are on bail. They need no surrender. Their bail bonds are cancelled and sureties discharged. Appeal allowed. . .