KUNDAN SINGH, J. ( 1 ) THIS appeal has been preferred by Kishan Pal and Anwar against the judgment and order dated 30. 1. 1979 of Sri B. B. Singh, the then Vth Additional Sessions Judge, Aligarh, in Session Trial No. 255 of 1979, whereby he has convicted both the appellants and co-accused Uttam Singh under Sections 399 and 402 I. P. C. and Section 25 of the Arms Act and sentenced each of them to undergo four years, two years and one years rigorous imprisonment, respectively. During the pendency of this appeal, appellant Anwar died and his appeal stood abated. It was got inquired from the office whether co-accused Uttam Singh has also filed any appeal against the aforesaid judgment but the office reported that no such appeal has been filed by him. ( 2 ) THE prosecution case, in brief, is that Ramvir Singh Station Officer, Police Station Jawan, district Aligarh, alongwith Sub Inspector Ram Singh, A. S. I. Ram Kumar Gautam and six constables, namely Chetram, Mahavir Singh, Mahesh Prasad, Ramraj Singh, Ram Kripal Singh and Ram Deo Singh, went to make arrest of some accused persons in connection with a case under Sections 395 and 397 I. P. C. They all left the police station at 8. 15 p. m. on 17. 1. 1977 vide G. D. entry No. 34. The aforesaid police party had taken arms and ammunition with it to effect arrest of the accused of that dacoity case. When they reached near C. D. F. road crossing, they were informed by an informer that a gang of dacoits is likely to commit dacoity at the house of one Jwala Singh in village Chandaukh and the dacoits were likely to assemble in a Kothari of a brick-kiln near that village at about mid-night The police party including station officer and two Sub Inspector proceeded towards village Chandaukh and in the way they picked up three public witnesses, namely Deoraj Singh, Virendra Singh and Babu Lal. On reaching near the Bhatta, they divided into three parties. First party was headed by Station Officer Ramvir Singh himself, second was headed by Sub Inspector Ram Singh while the third party consisting of two Constables was sent to the house of Jwala Singh in village Chandaukh. Both the parties took position near the Kothari at the Bhatta when the dacoits were likely to assemble at 11. First party was headed by Station Officer Ramvir Singh himself, second was headed by Sub Inspector Ram Singh while the third party consisting of two Constables was sent to the house of Jwala Singh in village Chandaukh. Both the parties took position near the Kothari at the Bhatta when the dacoits were likely to assemble at 11. 00 p. m. At about 11. 45 p. m. five persons entered that Kothari and they started talking that enough time has elapsed but their companions had not arrived, hence there was no use of waiting further for their arrival and that they have got enough arms and ammunition, which was sufficient to loot the entire village and, therefore, they should proceed for committing the dacoity. This conversation of the dacoits was heard by the Police Party and they being satisfied that they were dacoits and had assembled there with the object of committing dacoity, the Station Officer Sri Ramvir Singh challenged and asked them to surrender. The dacoits then started running away from the Kothari and one of them fired a shot towards the Police Party. In response, the Station Officer Sri Ramvir Singh also fired a shot from his Revolver. The police party tried to arrest the dacoits and was able to arrest three of them on the spot but two of them were successful in evading their arrest. The three dacoits arrested on the spot, disclosed their names as Anwar, Uttam Singh and Kishan Pal. On search of their person, a country made pistol and some live cartridges were recovered from the bag of each accused person. Recovery memo was prepared on the spot and the accused persons were then brought to the police station Jawan where Station Officer Sri Ramvir Singh lodged an F. I. R. at about 4. 35 A. M. on 8. 1. 1977 and a case was registered against them at the police station and the accused were challaned. ( 3 ) THE investigation of the case was entrusted to Sri Khaliq Ahmad Usmani, Sub Inspector. He recorded the statements of the witnesses, prepared a site plan and obtained sanction of the District Magistrate for prosecution of the accused under Section 25 of the Arms Act and submitted a charge sheet against the accused persons after completion of the investigation. He recorded the statements of the witnesses, prepared a site plan and obtained sanction of the District Magistrate for prosecution of the accused under Section 25 of the Arms Act and submitted a charge sheet against the accused persons after completion of the investigation. ( 4 ) THE appellant Kishanpal pleaded not guilty to the charges and claimed to be tried. In his statement recorded under Section 313 Cr. P. C. he further stated that a Sub Inspector, who earlier was posted as a constable at police station Shahganj, district Agra, was on inimical terms with him and due to that enmity he has falsely implicated him in the present case. ( 5 ) THE prosecution, in all, examined five witnesses. Three of them are eye witnesses. They include Sri R. K. Gautam, Sub Inspector, as P. W. 2, and two public witnesses, namely Deoraj Singh and Virendra Singh, P. Ws. I andj, respectively. The rest two, are formal witnesses. Sri Khaliq Ahmad Usmani (P. W. 5) had investigated the case while Pahalwan Singh, Constable, P. W. 4 examined to prove the chick report. ( 6 ) THE learned trial Judge after taking stock of the entire evidence held the appellant and other coaccused guilty of the charges levelled against them and convicted and sentenced all of them as mentioned above. ( 7 ) THE learned counsel for the appellant placed before me the evidence of eye witnesses and argued that the entire case has been concocted and the appellant was not arrested at the time, place and in the manner alleged by the prosecution. In that connection he drew my attention to certain discrepancies in the statements of the prosecution witnesses and argued that P. W. 1 has stated that the incident had taken place in the month of January in night and it was, a moon-lit night, while R. K. Gautam, P. W. 2, has deposed that the dacoits were arrested in the torch light flashed upon them. P. W. 3 Virendra Singh also stated that there was no source of light on the spot except that of torches. P. W. 3 Virendra Singh also stated that there was no source of light on the spot except that of torches. With reference to those statements, the learned counsel urged that actually the witnesses had not assembled at the place of alleged occurrence in order to effect arrest of the dacoits as alleged by the prosecution and had they been to the spot, they must have had a clear vision in their mind whether it was a dark or moon-lit night that day. From the moon chart that is available here, I find that in that night the moon rose at 7. 21 p. m. and set down in the next morning at 7. 40 a. m. , which means that it was a moon-lit night that day. ( 8 ) THE learned counsel also argued that the public witnesses are said to have been picked up by the police party from the Bus stand of Chandaukh where they had dropped from a Bus coming from the direction of Aligarh, Virendra Singh P. W. 3 has admitted in his statement that all the public witnesses were residents of his village and Deoraj Singh who is his caste fellow was an accused in a case and in that connection he too had gone to Aligarh with Deoraj Singh to hear arguments in his case; and that Deoraj Singh was a gun licence holder and consequently, according to the learned counsel, he was under the thumb of the police in as much as his gun licence would have been cancelled and he would have been involved in some other case had he refused to appear as a witness for the police in the instant case. I have carefully examined the statements of public witnesses Deoraj Singh and his fellow villager Virendra Singh. On the own showing of Deoraj, he was facing trial in a criminal case at Aligarh at the instance of Jawan Police and also that he was holder of a gun licence on the relevant date when he is alleged to have been picked up by the police from the Bus Stand of Chandaukh in order to help and witness the arrest of the dacoits in this case. The probability of this witness being under the thumb and influence of the police could not be ruled out from his own conduct. The probability of this witness being under the thumb and influence of the police could not be ruled out from his own conduct. On one side he was facing trial at the instance of Jawan Police in the Aligarh Court and on the other he was appearing as a witness for the police in a dacoity case. Further Virendra Singh and Deoraj Singh are residents of the same village and are said to be caste fellow. Virendra Singh has tried to justify his presence at the Bus Stand by saying that Deoraj Singh was his companion and he had accompanied him to Aligarh to hear the arguments in his case. The presence of this witness at the Bus Stand or at the scene of alleged incident is highly doubtful in view of the variance in the statements of all the public witnesses on the question of existence of light. P. W. 1 Deoraj has deposed that it was a moon-lit night when the dacoits were arrested but Virendra Singh stated that the dacoits were arrested in the light of torches flashed by the witnesses and the police party. Similar is the statement of R. K. Gautam P. W. 2 that the accused were arrested in the torch light when it was dark. Thus it appears that Virendra Singh who is admittedly a villager and caste fellow of Deoraj Singh, who is under the thumb of police for the reasons disclosed above, has appeared as a witness for the police on the persuasion and at the instance of Deoraj Singh and hence the statements of either of them cannot be termed as that of an independent public witness and be relied upon for basing the conviction of the appellant. ( 9 ) IN the present case undisputedly no V. L. P. fire was made by the police to create light for effecting the arrest of the accused persons and the explanation furnished by the learned State Counsel was that at that time the police party was not having any V. L. P. with it as it had not gone with the intention of arresting the accused of the present case and in case the police party on getting information about the assemblage of dacoits to commit dacoity at the house of Jwala Singh had gone back to police station for arranging the V. L. P. it could get late and the dacoits might have succeeded in their mission. The explanation furnished by the learned State Counsel is belied by the G. D. entry Ext. Ka 6 on record which clearly indicates that on 7. 1. 1977 at 8. 15 P. M. when the police party left the police station to effect arrest of the culprits of another case they took with them one V. L. P. and its ten cartridges. The non-use of the V. L. P. on the spot reflects a great doubt on the prosecution case especially when the prosecution witnesses are not independent and their testimony does not inspire confidence. ( 10 ) THE statements of the prosecution witnesses are at variance from each other and the presence of the public witnesses on the spot appears to be highly doubtful and suspicious. It is of torches and non-use of V. L. P. on the spot in order to recognise and apprehend the dacoits cast a great doubt on. the prosecution case and I feel myself declined to agree with the learned trial Judge that the prosecution has succeeded in proving its case beyond any reasonable shadow of doubt and consequently the appellant is entitled to his acquittal. ( 11 ) ACCORDINGLY, the appeal is allowed. The conviction and sentence of the appellant under Sections 399/402 I. P. C. and Section 25 of the Arms Act are set aside. He is on bail and he Reed not surrender. His bail bond is cancelled and sureties are discharged. Appeal allowed. .