JUDGMENT B.P. Singh 1. This is an appeal against the judgment and order dated 26-4-1979 passed by Shri M. M. H. Siddiqi, Additional Sessions Judge, Gyanpur, Varanasi, in Sessions Trial No. 42 of 1978 under sections 395/397 IPC and Sessions Trial No. 5 of 1979 under section 25 of the Indian Arms Act. 2. The case of the prosecution may briefly be stated as follows :- Nand Lal PW 1 son of Hoob Lal PW 4 is a resident of village Matakipur P. S. Aurai district Varanasi. The houses of witnesses Jawahir Lal PW 2 and Ram Nath PW 3 are situate near the house of Nand Lal PW 1. On the night of 29/30-5-1978, a dacoity was committed in the house of Nand Lal PW 1 in which five dacoits are said to have participated. During the course of dacoity, one of the dacoits had placed a country made pistol upon the chest of Nand Lal while the latter was sleeping outside the door of his house. Hoob Lal was also brought there. Nand Lal and his cousin brother Jata Shanker raised alarm which attracted witnesses Jawahir Lal PW 2, Chaniya Prasad Kahar, Ram Nath 4, Ram Deo Dhobi, Chaukidar Vikrama and others. The witnesses, and the villagers had come upon the house of Nand Lal PW 1 and were: carrying torches and lantern with them. One of the dacoits was armed with spear while the remaining four dacoits were armed with pistols. On the arrival of the witnesses and the villagers, the dacoits started firing and attempted to escape. While the dacoits were escaping, the villagers succeeded in apprehending one dacoit along with his pistol. The remaining four dacoits managed to escape. Accused Shridhar and Laxmi Kant, who are residents; of the same village, Matakipur, were among the dacoits. The dacoit, who was apprehended on the spot, had given out his name as Dharam Raj. On making enquiries, Dharam Raj had given out that the remaining two dawks were Raja Ram and Jai Shanker. After the departure of the dacoits from the scene of occurrence, Nand Lal proceeded towards the police Station, Aurai where the FIR Ext. ka 1 was lodged on 29-5-1978 at about 10.50 P.M. Head Constable Sahja Nand PW 5, who was posted in police station, Aurai on 29-5-1978 had received the report Ex. ka 1 from Nand Lal and had prepared the FIR Ext. ka 1 was lodged on 29-5-1978 at about 10.50 P.M. Head Constable Sahja Nand PW 5, who was posted in police station, Aurai on 29-5-1978 had received the report Ex. ka 1 from Nand Lal and had prepared the FIR Ext. ka 2. He had also made G. D. entries Exts. ka 3 and ka 4 about the commission of the crimes. According to Sahja Nand, PW 5 S. I. Akhlaq Ahmad had ordered him to register the case against accused Dharam Raj under section 25 of the Indian Arms Act and he had made the relevant G. D. entry Ext. ka 5. 3. S. I. Akhlaq Ahmad, PW 7 who was posted in P. S. Aurai from May 1978 to July, 1978 was the Investigating Officer in this case. He had investigated the crime relating to the offence under sections 395/397 IPC. He had reached the scene of occurrence on the same night and had carried out the routine investigation. He had also taken Dharam Raj in his custody from the custody of the villagers and had also recovered the country made pistol from him. After routine investigation, a charge-sheet Ext. ka 15 was submitted by S. I. Akhlaq Ahmad against all the five accused. S. I. Dina Nath Singh PW 6 conducted the investigation against Dharam Raj under section 25 of the Indian Arms Act. After completing the investigation and after obtaining sanction from the District Magistrate, Varanasi, a charge- sheet Ext. ka 8 was submitted by him against the accused Dharam Raj. 4. Both the Sessions Trials were tried together by the Additional Sessions Judge, Gyanpur. At the Trial, all the accused pleaded not guilty and claimed to be tried. The case of the accused was that they were falsely implicated in this case out of enmity. Dharam Raj stated that he was working as Halwai at the shop of Laxman and on account of non-payment of wages some altercation took place and hence he was falsely implicated in this case at the instigation of Laxman. In all the prosecution examined seven witnesses i.e. Nand Lal PW 1 Jawahir Lal, PW 2, Ram Nath Gupta PW 3, Hoob Lal PW 4, Sahja Nand PW 5, Dina Nath Singh PW 6 and Akhlaq Ahmad PW 7 in the case. The accused did not lead any evidence in their defence. 5. In all the prosecution examined seven witnesses i.e. Nand Lal PW 1 Jawahir Lal, PW 2, Ram Nath Gupta PW 3, Hoob Lal PW 4, Sahja Nand PW 5, Dina Nath Singh PW 6 and Akhlaq Ahmad PW 7 in the case. The accused did not lead any evidence in their defence. 5. The evidence of Head Constable Sahja Nand PW 5, Dina Nath Singh PW 6 and Abhlaq Ahmad PW 7 is more or less of a formal nature and does not connect these accused directly with the crimes in question. The evidence of these witnesses was not challenged by the learned counsel for the appellants at the time of arguments. I also find no reason to disbelieve these witnesses, as nothing has come out in their cross-examination from which any adverse inference could be drawn against their testimony. 6. The case of the prosecution regarding involvement of these five appellants in the crimes in question rests; upon the evidence of four witnesses of fact produced in this case. All these four witnesses, Nand Lal PW 1, Jawahir Lal, PW 2, Ram Nath Gupta PW 3 and Hoob Lal PW 4 have claimed that all the five appellants were among the dacoits and accused Dharam Raj was apprehended by the villagers on the spot. Having gone through their evidence in the light of the arguments, I am of the view that it will not be safe to place any reliance what so ever upon their evidence. In the FIR Nand Lal PW 1 has alleged that Shridhar and Laxmi Kant were recognised by him among the dacoits and the person, who was apprehended by the villagers, had given out his name as Dharam Raj. He has further claimed that the remaining two dacoits were seen by him in the light of the later on and the torches and he was in a position to identify them if they were produced before him but in his evidence before the trial court Nand Lal PW 1 has categorically stated that both Raja Ram and Jai Shanker were among the dacoits. It is significant to note that although the case of the first informant in the FIR was that he had seen the faces of the remaining accused in the light of the torches and lantern and was in a position to identify them if they were shown to him, the investigating agency did not take any step to get accused Raja Ram and Jai Shanker identified in 1st identification parade. The matter does not rest here. All these witnesses have admitted in their cross-examination that both Jai Shanker and Raja Ram were known to them from before, as they had lived in the house of Shridhar accused for about two months a few days prior to the occurrence of this case. Nand Lal PW 1 goes a step further and has categorically stated in his cross-examination that both Raja Ram and Jai Shanker used to come to draw water from his well when they were studying with Shridhar. It is really surprising that no such statement was made by Nand Lal PW 1 either before investigating officer or under section 161 CrPC or in the FIR which was lodged by him at the police station, thus, the involvement of Raja Ram and Jai Shanker in the crime in question is highly improbable. 7. Admittedly, both Shridhar and Laxmi Kant were in the village when the Investigating Officer had reached the village shortly after the occurrence. If these two accused were amoong the dacoits, they must have bolted away from the village after the occurrence had taken place. Furthermore, it is not the case of the prosecution that Shridhar and Laxmi Kant were covering their faces with any cloth. These two accused Shridhar and Laxmi Kant have no past criminal history. Even an Ordinary villager is supposed to be afraid of going to jail and is not expected to commit a heinous crime in his own village without taking precaution to conceal his identity. The position may be different if desperados are involved in a crime. They would not care to conceal their identity. But such is not the case when the crime is said to have been committed by ordinary villagers who had no past criminal history. It is admitted to Nand Lal PW 1 that Shridhar and Laxmi Kant have cultivable land in the village. 8. They would not care to conceal their identity. But such is not the case when the crime is said to have been committed by ordinary villagers who had no past criminal history. It is admitted to Nand Lal PW 1 that Shridhar and Laxmi Kant have cultivable land in the village. 8. Even the evidence of these witnesses regarding source of light appears to be doubtful. In his evidence Nand Lal PW 1 has claimed that Ram Nath Gupta PW 3 had set fire to Marha as a result of which there was enough light. But this fact was not mentioned by Nand Lal in his FIR. If it was a fact that Marha was really burnt by Ram Nath Gupta PW 3, this must have been mentioned by Nand Lal PW 1 in. his FIR. Again admittedly the dacoits were busy in committing dacoity for about one hour and even some shots were fired. It is really surprising that neither any property of Nand Lal PW 1 was looted nor any of the villagers was injured. It is not clear as to what the dacoits were doing for one hour when not a single item of Nand Lal's.' property was looted. It is also some what improbable that Dharam Raj was apprehended on the spot and no effort was made by the villagers to take away the pistol from him. Dharam Raj must have defended himself if he was armed with pistol and his colleagues could not have permitted the villagers, who were unarmed, to apprehend Dharam Raj. On the own admission of these witnesses the dacoits were armed with lethal weapons while the villagers were not carrying any spear or fire-arm. Under such circumstances it was unlikely that Dharam Raj was apprehended by villagers while he was armed with country made pistol. Although Nand Lal PW 1 had denied any enmity with Shridhar and Laxmi Kant, Ram Nath PW 3 has admitted in his cross-examination that Dharam Dooja, brother of accused Shridhar and Laxmi Kant had moved an application to the Tahsildar regarding a pit of the Gram Samaj and that the Tahsildar had come on the spot for local inspection. He further admits that Hoob Lal, Jawahir Lal, Sita Ram and otluers had moved an application before the Tahsildar requesting him not to allot the pit to Dharam Dooja. He further admits that Hoob Lal, Jawahir Lal, Sita Ram and otluers had moved an application before the Tahsildar requesting him not to allot the pit to Dharam Dooja. It is obvious that relations between the family of Shridhar and Nahd Lal's family and others must have been strained on the question of allotment of the pit in favour of Dharam Dooja. The contention of the appellant's counsel that Dharam Raj was the friend of Shridhar and Laxmi Kant and had come to meet them and was apprehended by the villagers in connivance with the police was not without force. Cases are not uncommon when country made pistols are planted upon villagers at the instance of scheming villagers. Under the circumstances, I am not prepared to place any reliance upon the evidence of these witnesses. 9. The prosecution has failed to prove its case. In my opinion, these appellants are entitled to acquittal. Both the appeals are allowed. The judgment and order of the learned Additional Sessions Judge, Gyanpur dated 26-4-1979 passed in S. T. Nos. 42/78 and 5/79 is set aside the appellants are on bail. They need not surrender. Their bail bonds are cancelled and sureties are discharged. Appeal allowed.