JUDGMENT Shamim Ahsan, J.- The appellant has been convicted of the offence under Section 394 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for five years. The appellant was charged under Sections 394 and 397 of the Indian Penal Code but later the court below did not find him guilty for the alleged offence under Section 397 of the Indian Penal Code, but as shown above, held him guilty for the offence under Section 394 of the Indian Penal Code and convicted and sentenced him as indicated above. 2. The prosecution case, in brief, is that in between the night of 7th and 8th of October, 1980 the appellant Baijnath Dome along with Shahid Mian, Sheopujan Dome and Mallu Dome entered the house of the informant (P. W. 7) with the intention of committing theft, and that Sheopujan Dome tried to snatch the silver hasuli and golden nose ring from the person of the informant's mother on which she raised alarm and the informant including other inmates of the house rushed to the place where the aforesaid persons had assembled, and out of them Sheopujan was snatching the ornaments from the informant's mother. The aforesaid persons including the appellant are said to have assaulted the informant's mother, who went on alarming. Thereafter the villagers assembled there and an encounter took place between the aforesaid persons and the villagers, in which Shahid Mian succumbed to the injuries sustained by him at the hands of the villagers. The appellant along with Sheopujan and Mallu Dome are said to have fled away. This has come in evidence that this appellant snatched the torch from the informant. 3. The defence case is that no occurrence, as alleged, took place and that Shahid Mian was murdered at the informant's house because he had illicit connection with the. informant's wife and that only to save themselves from the aforesaid murder, a false case was hatched in consultation with the Sarpanch and Mukhiya of the village, to which the appellant and others also have been entangled. 4. The prosecution has examined a witnesses, out of whom P.W. 8 is a formal witness. It is important to note here that neither the Investigating Officer nor the doctor has been examined in the case. 5. P.Ws. 4. The prosecution has examined a witnesses, out of whom P.W. 8 is a formal witness. It is important to note here that neither the Investigating Officer nor the doctor has been examined in the case. 5. P.Ws. 1 and 3 are not the witnesses of the alleged occurrence, because they have stated that they reached there after the alleged occurrence and saw the dead body of Shahid Mian there, and that they heard from the informant Inar Manjhi (P.W. 7) that Shahid Mian along with the appellant and two others had committed the offence and that during the course of encounter with the villagers Shahid Mian sustained such injuries, which resulted in his instantaneous death. 6. No doubt, the aforesaid three prosecution witnesses have named the appellant also as one of the persons whose names were disclosed by the informant before them, but the point is that when they also reached there on hearing Halla and when encounter is said to have taken place outside the informant's house, they would have at least seen and witnessed the encounter and would have themselves identified the appellant or other accused persons. 7. P.W. 4 is also a formal witness, because he has only proved his signf1ture on the seizure list and has stated that one knife was seized from the waist of the dead body of Shahid Mian by the police officer. He has very categorically stated that he did not know about the alleged occurrence. This is also some-how surprising that when he reached the place of the alleged occurrence and that when the police made seizure and that too from the dead body of Shahid Mian, how it can be said that he remained unaware and ignorant about the alleged occurrence and about the alleged encounter, in which Shahid Mian was killed. 8. P. W. 5 admittedly is the uncle of the informant. According to him, he saw the• appellant along with Sheopujao, Mallu and Shahid Mian in the house when he reached there on hearing the alarm raised by the informant's mother. He has claimed to have seen the snatching of ornaments of the informant's mother, but the sequence of time as gathered from his evidence of bearing the alarm and of his reaching there would not make it probable for P.W. 5 to have seen the alleged snatching of ornaments. He has claimed to have seen the snatching of ornaments of the informant's mother, but the sequence of time as gathered from his evidence of bearing the alarm and of his reaching there would not make it probable for P.W. 5 to have seen the alleged snatching of ornaments. For the first time the allegations to snatching of torch by the appellant has been introduced in his evidence. No witness has said that the appellant and others were identified in the torch light, and from the Fardbeyan it also does Dot appear that torch light was flashed by the informant. Instead it is found in the Fardbeyan as well as in the evidence of the prosecution witnesses that no lamp in the house is said to have been giving light for identification. From paragraph 6 of his evidence it appears that he saw the appellant and others whi1e he was rushing from his house towards the place of occurrence. When this statement is compared with the statement of the informant that he woke up on hearing alarm raised by his mother, it appears improbable that this P.W. 5 would have been able to see the appellant and others in the house. It is to be kept in mind that the alarm is alleged to have been raised by the informant's mother when all the four persons surrounded her and when Sheopujan tried to snatch the ornaments from her. He bas stated that encounter took place between the dacoits on one side and the villagers on other, in which Shahid Mian was killed. No villager has come forward to speak about it that he was the participant of the encounter or that any encounter took place in his presence. Curiously enough, no injury is said to have been inflicted on the villagers in the said encounter. This fact is evident from paragraph 5 of the evidence of P. W. 7 (informant). 9. P. W. 6 is the informant's father. He has stated that on hearing Halla he saw the appellant, Sheopujan and Mallu and that Sheopujan was snatching the ornaments from his wife Gulachi Devi. He has also stated that the appellant snatched the torch from his son (informant). 9. P. W. 6 is the informant's father. He has stated that on hearing Halla he saw the appellant, Sheopujan and Mallu and that Sheopujan was snatching the ornaments from his wife Gulachi Devi. He has also stated that the appellant snatched the torch from his son (informant). He has also alleged that he along with other inmates of the house sustained injuries at the hands of the dacoits, and that in the encounter which took place between the dacoits and the villagers Shahid Mian sustained injuries which resulted in his instantaneous death. He has also stated that the appellant and others were beggers and Jived in the village and that Shahid Mian was a butcher, who used to come in the village for purchasing goats. From his evidence it appears that Shahid Mian was caught hold of by the villagers while he was trying to escape, but inspite of the fact that he was over-powered by the villagers he was done to death and the villagers are not said to have taken him to the Mukhiya or to the police station. This circumstance which is corroborated by the evidence of the informant also casts serious doubt regarding the prosecution version in respect of the death of Shahid Mian. 10. P. W. 7 is the informant, as discussed earlier. 11. The defence has also examined one witness in support of its case and D.W. 1 is found to have said that the deceased Shahid Mian had illicit connection with the informant's wife, because of which he was done to death. He has also stated that the informant Inar Manjhi (P.W. 7) is a poor man and so the dacoity in his house is unbelievable. 12. On the facts and in the circumstances discussed above and the evidence adduced on behalf of the parties, I find that the prosecution cannot be held to have succeeded in establishing the case made against the appellant. The Investigating Officer has not been examined. He could have at least thrown some light on the point of death of Shahid Mian. 13. As shown above, no person sustained Injuries in the village encounter and non-examination of the doctor in this case has created a lacune for prosecution for proving that the informant's mother and other inmates of the house sustained any injury at the hands of the appellant. 14. 13. As shown above, no person sustained Injuries in the village encounter and non-examination of the doctor in this case has created a lacune for prosecution for proving that the informant's mother and other inmates of the house sustained any injury at the hands of the appellant. 14. In the result, this appeal is allowed and the judgment and order of conviction and sentence passed against the appellant Baijoath Dome is, accordingly, set aside. The appellant is on bail. He is discharged from his bail bond.