JUDGMENT Kundan Singh, J. - This appeal has bee preferred by the appellants against judgment and order dated 17.5.79 passed by Sri K.P. Sinha, VI Additional Sessions Judge Fatehpur, whereby they have been convicted under Section 395 I.P.C. and sentenced to undergo R.I. for a period of 6 years. 2. The brief facts of the prosecution are as follows: 3. A dacoity took place at the house of Mahabir in village Baniya Khera, Police Station Kalyanpur, District Fatehpur, at about mid-night on 16/17.2.75. At the time of occurrence the informant Mahabir and other members of his family were sleeping. One burning lantern was hanging at the door. About 10 or 12 miscreants armed with country made pistols, hockey sticks and axes entered into the house of the complainant and they looted the property from the inmates of the house. The informant slipped away and made hue. and cry. The witness Babu Lal, Chhote Lal, Mewa and Hira Lal after hearing the hue and cry rushed to the place of occurrence and flashed torches. Some "Powal" was also set on fire in order to create light on the spot. Kailash and Raghunath also arrived with their licensed guns and fired shot towards the miscreants. The miscreants after looting the ornament, clothes etc. made their good escape from the place of occurrence and it is said that the appellants Jamuna and Sukhram, resident of a village, adjacent to the village of occurrence, were recognised amongst the miscreants and it is also said that the appellants had muffled faces with dhatas, but during the scuffle their dhatas fell down and they were recognised by the witnesses at the spot. 4. The first information report of the occurrence was lodged by Mahabir, the informant at 8.30 a.m. on 17.2.75 at the Police Station Kalyanpur. Ved Vyas Tiwari (P.W. 6) investigated the case and submitted charge sheet against the appellants and some other persons. The other persons against whom there was evidence of identification, were acquitted by the trial court. The appellants denied the charges, pleaded not guilty and claimed to be tried in the trial court. 5. The prosecution examined Mahabir, Babu Lal, Raghunath Singh and Kailash Narain, P.Ws. 1, 2, 3 and 4 respectively, as witnesses of fact in order to prove its case besides Ved Vyas Tiwari (P.W.6), who investigated the case, other witnesses are of formal nature. 6. 5. The prosecution examined Mahabir, Babu Lal, Raghunath Singh and Kailash Narain, P.Ws. 1, 2, 3 and 4 respectively, as witnesses of fact in order to prove its case besides Ved Vyas Tiwari (P.W.6), who investigated the case, other witnesses are of formal nature. 6. The P.W. 1, Mahabir, stated about the dacoity committed at his house by the miscreants and he also stated that both the appellants were recognised amongst the miscreants. They were putting on dhatas on their faces but during the scuffle the dhatas opened and they were recognised. Bott, the appellants were residing in a village at a distance of 4 or 5 furlongs from the place of occurrence. Similarly, Babu Lal also stated about the dacoity and stated that the appellants were recognised when their dhatas fell down. Raghunath Singh (P.W.3) and Kailash Narain (P.W.4) also stated the facts in the similar manner. They have also stated that the appellants were recognised amongst the miscreants, who committed the dacoity, when their dhatas fell down. Kailash Narain (P.W. 4) stated that he recognised Bashir and Jamuna who were muffled faces while Sukhram and Jamuna, the appellants, who were already known to him were not putting on any muffler on their faces at the time of occurrence. He was declared hostile by the prosecution. He was cross-examined by the prosecution and admitted that both the appellants were known to him and were resident of his own village. He admitted that a case of dacoity was pending against him and one Raghunath. On behalf of the, appellants, Sheo Bodhan was examined and D.W. 1 in order to prove the fact that Jamuna appellant had worked as servant with him while Sukhram had cultivated his land on batai. The defence witness also stated that the informant Mahabir was on enemical terms with him and due to enmity with him, Jamuna and Sukhram had been falsely implicated in this case. On cross-examination by the prosecution, he admitted that a case under Section 307 I.P.C. was instituted by him against Mahabir in which Mahabir was convicted and sentenced to 6 years rigorous imprisonment. 7. The trial court after having considered the evidence on record found both the appellants guilty of the offence and convicted and sentenced them as mentioned above. During the pendency of this appeal, Jamuna appellant has died and his appeal has been abated by order dated 10.1.91. 8. 7. The trial court after having considered the evidence on record found both the appellants guilty of the offence and convicted and sentenced them as mentioned above. During the pendency of this appeal, Jamuna appellant has died and his appeal has been abated by order dated 10.1.91. 8. On behalf of the appellant Sukhram, it was argued that the appellant is said to have been recognised by the witnesses at the spot when his dhata opened during the scuffle. The dhata story has not been believed in the case reported in Dadua v. State, 1977 ACR 371 It was also argued by the learned counsel for the appellant that the Hon'ble Supreme Court has dis-believed the participation of the known persons in the dacoity at the house of a known person on the ground that it was not probable for the known persons to have committed the dacoity without concealing their identity muffling their faces In the present case, as the appellants were already known to the witnesses, in case they had gone to commit dacoity, the evidence of the prosecution witnesses should have been dis-believed on the ground that it was not expected of the appellants to commit the dacoity at the house of the known persons without putting on dhatas on their faces in order to conceal their identity. But in the present case, the appellants are said to have put on dhatas during dacoity as their dhatas fell down in the scuffle between the inmates of the house and the accused persons. Now it has to be examined carefully whether the appellants participated in the dacoity and they were recognised when their dhatas fell down during the scuffle. It is said that dhatas of the appellants fell down during the scuffle between the inmates and the informant on one side and the appellants on the other. But not a single inmate who is alleged to have scuffle with the appellants due to which the dhatas fell down, has been examined by the prosecution. When the miscreants were running from the place of occurrence after commission of the dacoity, the appellants had not re-muffled their faces. But not a single inmate who is alleged to have scuffle with the appellants due to which the dhatas fell down, has been examined by the prosecution. When the miscreants were running from the place of occurrence after commission of the dacoity, the appellants had not re-muffled their faces. It does not appear to be probable on the parts of the appellants that if they had committed dacoity after putting on dhatas on their faces only in order to conceal their identity when their dhatas felled down inside the house where the dacoity was being committed why they did not muffle their faces again, particularly when they were already known to the villagers, outside the house, now I have to examine how far the story regarding the falling down of dhatas is believable in the present case. It does not appear probable that the appellants after falling down of the dhatas remained unmasked during the dacoity and at the time when they were running. Admittedly, the persons who grappled with the appellants have not been examined in order to prove the story of falling down' of the dhatas of the appellants 'during the scuffle. In case the appellants were putting on dhatas and their dhatas had fallen down during the scuffle then there was no difficulty for the prosecution witnesses to assign their specific role about looting the various properties and causing injuries to the inmates of the house. The appellants could easily be assigned the arms and their use by them, but prosecution witnesses have not described specific role of the appellants and use of specific weapon by them during the incident. Thus does not appear that the appellants had participated in the incident, otherwise the prosecution must have come with the allegation that which of the appellants was armed with that weapon and what was the role of each of them during the course of dacoity. In the absence of specific allegation regarding the arms of weapon, which were used by appellants during the course of dacoity, I am declined to accept prosecution version regarding participation of the appellants in the dacoity. 9. Mahabir (P.W. 1) admitted in his statement that when the miscreants came out from the house of dhatas of the appellants were opened and they had not again muffled their faces. 9. Mahabir (P.W. 1) admitted in his statement that when the miscreants came out from the house of dhatas of the appellants were opened and they had not again muffled their faces. Just after falling down of the dhatas from their faces the miscreants had left the place of occurrence within 2 or 4 minutes. Babu Lal (P.W. 2) stated that Kailash and Raghunath fired towards the miscreants at the spot and within 4 or 6 minutes, the miscreants ran away from the place of occurrence. At that time, 2 dacoits were with muffled faces and at the time when they were running, their dhatas has fallen down and they did not put on muffle again. Thus according to P.W. 2 Babu Lal dhatas of the appellants had not fallen down during the scuffle of the appellants with the inmates of the house but has fallen down when the miscreants were retreating from the place of occurrence. Raghunath Singh (P.W. 3) also admitted that just after falling down of the dhatas, the miscreants had run away from the place of occurrence towards north and they did not stay at the place of occurrence thereafter as villagers had come. From the evidence of P.W. 3, Raghunath Singh, it does not appear that the dhatas fell down during the scuffle. While P.W. 4 Kailash Narain stated that he had not seen the appellants muffling their faces during the dacoity. 10. The prosecution evidence in my opinion is not believable and acceptable. Hence the prosecution has failed to bring home guilty to the appellants on the basis of evidence adduced by the prosecution in the instant case and the appellant Sukhram is entitled to his acquittal. 11. Consequently, the appeal succeeds and is hereby allowed. The conviction and sentence of the appellant Sukhram as recorded by trial court are set aside. He is on bail, he need not to surrender, his bail bonds are cancelled and sureties discharged.