SURYA PRASAD, J, J. ( 1 ) THIS is a criminal appeal against the judgment and order dated 4. 7. 1979 passed by Sri J. N. Bansal, the then 1st Additional Sessions Judge, Bulandshahr convicting the accused-appellant under sections 395/397 and in the alternative under sections 395/396 I. P. C. awarding a sentence for ten years Rigorous Imprisonment thereunder and one years Rigorous Imprisonment under section 28 Arms Act in Session Trials No. 70 and 71 of 1979 respectively. ( 2 ) THE prosecution case briefly stated is that five dacoits including the accused-appellant Lakhan Singh committed dacoity in the night intervening 2nd and 3rd November, 1978 at the house of the complainant Mahendra Prakash resident of village Ram Biloni alias Qila, police station Narora, District Bulandshahr. The dacoits looted the ornaments etc. , took away the licensed gun of the complainant and caused injuries to the complainant and his wife in the course of dacoity. The complainant and his wife along with their children raised alarm, hearing which Ram Kumar, Har Swarup and certain others reached his house. They threw challenge and chased the accused. Marpeet took place between the dacoits and the village people including Ram Kumar, Har Swarup and Suresh at a distance from his house after the dacoits had come out of his house. Ram Kumar Suresh and Har Swarup also received injuries in the course of the Marpeet. The accused-appellant was caught on the spot. A country made pistol and a cartridge were snatched away from one of the dacoits. A licensed gun of the complainant was also snatched away from another dacoit in the course of the Marpeet. Mahendra Prakash made as oral report at the police station. A case was consequently registered. The investigating ensued. After the completion of the investigation into the case, a chargesheet was submitted against the accused appellant under sections 395/397 I. P. C. and under section 25 of the Arms Act and in another case, which was subsequently consolidated with this case. ( 3 ) THE prosecution examined the complainant Mahendra Prakash P. W. l, Han Shanker P. W. 2, Bhanwar Singh P. W. 3, Har Swarup P. W. 4, Dr. S. C. Singh P. W. 5, S. I. Magloo Singh P. W. 6 and Station Officer Ram Prakash Dakhshi P. W. 7 and relied upon certain documents in support of its case. S. C. Singh P. W. 5, S. I. Magloo Singh P. W. 6 and Station Officer Ram Prakash Dakhshi P. W. 7 and relied upon certain documents in support of its case. ( 4 ) THE accused pleaded not guilty. He has stated that all the allegations levelled against him are wrong and incorrect. He has stated that he had gone to his brother-in-law (Chhiddus) house situate in the aforesaid village Ram Biloni. A quarrel took place there. The complainant and others had beaten him and ultimately got him falsely implicated in this case. He has examined Kishan Pal Singh D. W. 1 in support of his contentions. ( 5 ) THE learned 1st Additional Sessions Judge, Bulandshahr considered the evidence and convicted and sentenced the accused appellant vide his impugned judgment and order as mentioned above. Aggrieved, the accused-appellant preferred this appeal against the same. ( 6 ) HEARD the learned counsel for the parties and perused the record. ( 7 ) ONE dacoit was possessed of a gun and another of a country made pistol. The appellant is alleged to have looted a licensed gun of complainant Mahendra Prakash. Three out of five dacoits were thus possessed of atleast three fire-arms at the time of the alleged dacoity. And yet, some of them opened fire in the course of that dacoity even to save himself or scare the village people. This is something very strange. ( 8 ) THE accused-appellant is said to have told the name of his associates, who participated in the alleged dacoity. But the name of some of other dacoits finds place in the First Information Report. Why? There is no reply to this posed question from the side of the prosecution. ( 9 ) THE handle of the gun alleged to have been snatched away from the accused-appellant, was loose. A dacoit cannot ordinarily be expected to take such a gun with him for the purpose of committing dacoity. The contention of the learned counsel for the appellant to this effect appears to be correct. ( 10 ) THE accused and the gun with a live cartridge, allegedly snatched away from him, should have been taken to the police station immediately after the alleged dacoity. But the complainant Mahendra Prakash kept the gun at his house and went to the police station quite alone to orally inform the police about the dacoity. ( 10 ) THE accused and the gun with a live cartridge, allegedly snatched away from him, should have been taken to the police station immediately after the alleged dacoity. But the complainant Mahendra Prakash kept the gun at his house and went to the police station quite alone to orally inform the police about the dacoity. The explanation given by him that he did not think it necessary to take the appellant-accused and the gun with the cartridge to the police station does not appear to be plausible. ( 11 ) THE complainant Mahendra Prakash is literate. And yet, he did not write the report himself. Instead he made an oral report at the police station about the alleged dacoity as mentioned earlier. ( 12 ) THE Investigating Officer Mangloo Singh P. W. 6 has stated that the check report was prepared on the basis of the oral information given by the complainant Mahendra Prakash P. W. 1 in his presence. He did not ask Mahendra Prakash why the dacoit and the gun were not brought to the police station. He did not make a mention of the injuries received by the accused appellant in the case diary. Nor did he try to know the nature of the injuries caused to the accused appellant or the weapons used in causing them. His act and conduct appear to be suspicious. In view of all this the contention of the learned counsel for the accused-appellant that the First Information Report is an out-come of due deliberation and consultations with the police does not appear to be without substance. ( 13 ) THE complainant Mahendra Prakash has stated that he was sleeping outside his Chakki. The dacoits cannot be said to have woken him. His statement to the contrary does not inspire confidence. ( 14 ) THE complainant Mahendra Prakash P. W. 1 has tried to make material improvements over what has been mentioned in the First Information Report. His statement, if carefully read, does not support it or vice versa. ( 15 ) HAN Shanker P. W. 2 appears to be more vigorous than the complainant Mahendra Prakash. However there are inconsistencies and contradictions between their statements on material points. Har Swarur P. W. 4 has given evasive replies to the questions put to him in his cross-examination. Therefore, the statements of these two witnesses cannot also be implicitly relied upon. However there are inconsistencies and contradictions between their statements on material points. Har Swarur P. W. 4 has given evasive replies to the questions put to him in his cross-examination. Therefore, the statements of these two witnesses cannot also be implicitly relied upon. ( 16 ) CHHIDDUs house is quite adjacent to the house of the complainant Mahendra Prakash. It is suggested that Chhiddu is brother-in-law of the accused-appellant. It is further suggested that there was enmity between Chhiddu and Mahendra Prakash, that the accused-appellant had gone to his brother-in-laws house on the eve of the festival known as Ovuj, that some quarrel took place, that Mahendra Prakash and others had beaten the accused-appellant and that they ultimately got him falsely implicated in this case. After taking into consideration all the facts and circumstances of the case, these suggestions, although denied by the complainant, do not appear to be without substance. This is so because it is quite likely that the accused-appellant might have sided with his brother-in-law in the quarrel or tried to establish his supremacy in his brother-in-laws village and therefore, the complainant and his partymen in order to teach him a lesson might have badly beaten him and cooked and concocted this case of dacoity to implicate him falsely. ( 17 ) IN the result the appeal is allowed. The impugned judgment and order are set aside. The accused-appellant is acquitted of the offences alleged to have been committed by him under sections 395/397 I. P. C. and under section 25 Arms Act. He is on bail. His bail bonds are cancelled and sureties stand discharged. He need not surrender. Appeal allowed. .