JUDGMENT: B. N. Sinha, J. All these appellants Were tried by 5th Additional Sessions Judge, Arrah in Sessions trial no 82 of 1984 on the charge of commiting dacoity with murder in the house of the first informant-Thakuri Singh Yadav of village khoalpur, P. S.-Sandesh, District-Bhojpur allegedly on the night between 4th & 5th October, 1983 and they have been found guilty under section 396 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for life. 2. The prosecution case was initiated on the basis of the first information report lodged by Thakuri Singh Yadav (not examined as dead). The prosecution case may be briefly stated. On the alleged night of Occurrence, the first informant-Thakuri Singh Yadav was sleeping in his house. At about 10 P. M there was sound of knocking on the door of his house, as a result of which the first informant woke up. Soon thereafter the out-door of the house was broken and the dacoits who were 15-20 in numbers entered into the house of the first informant, Dacoits Were armed with lethal weapons including country-made guns. They broke open the door of the room in which Parmeshwar Singh (the deceased) grand-son of the first informant was sleeping with his wife and accused Awadhesh Yadav fired at Parmeshwar Singh, as a result of which he (Parmeshwar Singh) sustained in• juries and died. The accused persons ransacked the house of the first informant, broke open the boxes and took away two boxes containing ornaments and other articles including utencils and clothes. The first informant was armed with torch and the decoits were also lighting their torches, in the light of which the first informant identified the accused persons. After commiting dacoity the dacoits fled away. The cause of commiting this dacoity Was that the deceased-Par mesh war Singh was married to the daughter of the Ramayan Yadav and about a year before the occurrence she died and Ramayan Yadav and his two brothers, namely, accused Police Yadav and Rishideo Yadav suspected that she has been poisoned to death by the first informant and his family members and they threatened the first informant with dire consequences. 3. On the following day the first informant went to Sandesh P. S. situated at the distance of 15 K. Ms. and lodged first information report (Exhibit-2) at 9A. 3. On the following day the first informant went to Sandesh P. S. situated at the distance of 15 K. Ms. and lodged first information report (Exhibit-2) at 9A. M. After usual investigation the police submitted charge sheet against the accused and thereafter the case was committed to the court of Sessions and trial proceeded. 4. Accused persons pleaded not guilty to the charge and claimed to be tried. Their defence was that they have been falsely implicated due to enmity. 5. The prosecution in order to prove its case examined four witnesses. The first informant was dead before the trial commenced and; therefore, he could not be examined. P. W. 1 Dr. V. N. Yadav had conducted autopsy on the dead-body of the deceased Parmeshwar Singh, P. W. 2 Vyaso Devi, mother of the deceased, P. W. 3 Sugandhi Devi, sister of the deceased' deposed as eye-witness of the occurrence. P. W. 4 S. I. Ramanand Ram is the Investigating Officer of the case. 6. Learned trial court after taking into consideration the evidences produced by the prosecution -accepted the prosecution case and found these accused-appellants guilty for the offence of commiting dacoity with murder. 7. Learned counsel for the appellants has not challenged the factum of dacoity and it is also fully established on the evidence of P. ws. 2, 3 & 4. The Investigating Officer (P. W. 4) found the door of the house of the first informant broken and the dead-body of the deceased Parmeshwar Singh lying in a pool of blood in a room of that house. The door plank and the hook of that house was also found broken. He held inquest over the deadbody of the deceased Parmeshwar Singh and prepared inquest report (Exhibit-3) in presence of two witnesses. The objective findings of the Investigating Officer at the place of occurrence fully corroborates the evidence of P. Ws. 2 & 3 on the point of commission of dacoity with murder by the dacoits On the alleged night of occurrence. The prosecution case, thus, stands fully establisned so far the factum of dacoity is concerned. 8. But the learned counsel for the appellants has very vehemently assailed the findings of the trial court regarding participation by these accused in the said occurrence of dacoity and he has submitted that the trial court ought not to have relied upon the evidence of P. Ws. 8. But the learned counsel for the appellants has very vehemently assailed the findings of the trial court regarding participation by these accused in the said occurrence of dacoity and he has submitted that the trial court ought not to have relied upon the evidence of P. Ws. 2 and 3 so far the identification of these accused by them is concerned. There appears substance in this submission made on behalf of the appellants It may be mentioned at the very out set that P. W. 3 Sugandhi Devi was not examined during investigation as is apparent from the evidence of P. W. 4, the Investigating Officer. Learned trial court has committed an error in relying upon the evidence of this witness in spite of her non-examination during the investigation. P. W. 3 has for the first time in court deposed about the occurrence after lapse of four years of the occurrence and she claims to identify all the accused. If a P. W. claiming to be an eye-witness of the occurrence has not been examined during the investigation and that P. W. comes for the first time in trial to depose regarding the occurrence it will not be safe to act on her testimony and to rely upon her evidence. 9. So far P.W. 2 is concerned, she claims that she was sleeping in the house in which her son was sleeping along with his wife; and her evidence is that she identified accused Awadhesh yadav who shot at her son. Her further evidence is that she came to learn from her father-in-law (first informent) that he had identified 8 accused amongst the dacoits. Learned trial court has accepted this part of the evidence also This witness is not named in the F. I. R. It appears from her evidence that number of villagers reached at the place of occurrence immediately after the dacoits had fled away, but she did not disclose the name of the accused to any of them and for the first time she gave out the names of the accused to the Investigating Officer. Under these circumstances, it does not appear safe to rely on her evidence. Under these circumstances, it does not appear safe to rely on her evidence. I earned trial court has accepted even that part of the evidence which could be used as corroborative evidence, if the first informant had been examined as a witness for the prosecution in the trial But in view of his non-examination, as he was dead, her evidence regarding what she learnt from her father-in-law (the first informant) can not be used as substantive piece of evidence. 10. Lastly, the widow of the deceased who according to the prosecution case was sleeping along with the deceased at the time of Occurrence and who was examined by the Investigating Officer during the investigation could have been most competent witness regarding identification of the accused but she was not examined during the trial. 11. Thus, on the evidence of P. Ws. 2 & 3, I find and hold that the case of the prosecution so far the identification of these accused amongst the dacoits is concerned, is not established beyond reasonable doubt and the conviction and sentence passed against them cannot be sustained. 12. In the result, the appeal is allowed. The conviction and sentence passed against the appellants is hereby set aside. Accused Awadhesh Yadav is still in custody. He is directed to be set at liberty forthwith, if not required in any other case. The remaining accused stand discharged from the liabilities of their bail bonds. R. N. Sahay, J. I agree Appeal allowed.