Judgment : P.P. Gupta, J. 1. THIS appeal has been filed against the judgment and order dated 27-8-79 passed by II Addl. Sessions Judge Mainpuri in Sessions Trial No. 448 of 1977 connected with Sessions Trial No. 68 of 1978, State v. Ved Ram, Sessions Trial No. 98 of 1978, State v. Nanak Chandra and Sessions Trial No. 325, State v. Nathu convicting all the accused under section 396 IPC sentencing each of them to imprisonment for life. The charge against these accused persons was that they along with 8 or 10 others, in the night intervening 19/20 March, 1977, committed dacoity at the house of Dhani Ram in village Nagla Kehari, helmet Kalhore Pachan, P. S. Ghiror district Mainpuri and in the commission of the said dacoity committed the murder of Shri Krishna, Tika Ram and Raj Kumar. 2. BEFORE proceeding with the prosecution story, it would be appropriate to refer to a small pedegree which is as follows : Phool Singh, the common ancestor had his wife Smt. Kaushalya. He had two sons Tika Ram and Dhani Ram. Tika Ram had two sons Raj Kumar and Shri Krishna. During the commission of the dacoity all these persons namely Tika Ram, Raj Kumar and Shri Krishna was murdered. Tika Ram's wife Smt. Vedwati and Smt. Kaushalya, wife of Phool Singh were also injured. Dhani Ram PW 1, who is the real brother of Tika Ram and his wife Smt. Munni Devi also sustained injuries in the said dacoity. 3. THE prosecution case, in brief, is that Tika Ram deceased and the complainant Dhani Ram had separated but were living in different Kothas in the same house. THE house of Chandra Bhan, PW 3 also lies towards south of the house of the complainant Dhani Ram. In the night of occurrence at about mid night, the complainant Dhani Ram and his wife Smt. Munni Devi were sleeping in the Dupat in front of their house underneath Chappar. His sister's daughter and young Sali Guddi were sleeping in front of Dupat. His mother Smt. Kaushalya was sleeping in Dehliz. Tika Ram was inside the Baithak. Shri Krishna and Raj Kumar, both sons of Tika Ram were sleeping underneath Neem tree in the Angan. A lighted lantern was kept hung on the Neem tree. His sister's daughter and young Sali Guddi were sleeping in front of Dupat. His mother Smt. Kaushalya was sleeping in Dehliz. Tika Ram was inside the Baithak. Shri Krishna and Raj Kumar, both sons of Tika Ram were sleeping underneath Neem tree in the Angan. A lighted lantern was kept hung on the Neem tree. In the mid night, 10 or 11 dacoits entered the house of the complainant and caught hold of his mother Smt. Kaushalya. On raising her alarm, her two grand sons Shri Krishna and Raj Kumar rushed to save her. They started grappling with the dacoits. THE complainant, on her hue and cry was also awakened and flashed torch light. He saw his nephew Shri Krishna and Raj Kumar grappling with the miscreants. Two or three miscreants were unmasked during the struggle as their Dhatas fell down. They were identified as the accused Natou and Badri. Another miscreant, who had covered his face with Dhata was identified as Ved Ram of the complainant's village. THE complainant, therefore, ran to his Angan and flashed torch light on the roof to find one dacoit posted there with a gun. He was identified as Nanak Chand who was also of the complainant's village. THE complainant called Nanak Chandra by name. Immediately thereafter, Nanak Chandra fired which struck the complainant on his right foot. On receiving gun shot wound, the complainant scaled wall of the house of Chandra Bhan and took cover behind it. Although he raised an alarm but none from the village came to their rescue. 4. DURING the course of commission of dacoity, one Sadhu Singh informed the police at the police station Ghiror that a dacoity was being committed at the house of Tika Ram Teli. It was an oral FIR lodged by him in which he also mentioned that he had come running to the P. S. to inform the authorities. This report was scribed by Head Moharair Virendra Singh and is Ex. K.a-5. This report was lodged in the presence of Sri Bhagat Singh Sharma at 1.05 A.M. on 20-3-1977. On the basis of the above information, given at the P. S. Ghiror, the S. O. Bhagat Singh Sharma, PW 5 reached the spot where the dacoity was being committed. The dacoits fired on the police party. The police party also took position and returned the firing. On the basis of the above information, given at the P. S. Ghiror, the S. O. Bhagat Singh Sharma, PW 5 reached the spot where the dacoity was being committed. The dacoits fired on the police party. The police party also took position and returned the firing. Since there existed trees of Babul and Kikir and huts also, the location of the dacoits could not be ascertained and the dacoity taking advantage of the topography ran away. 5. SRI Bhagat Singh Sharma, PW 5 despatched Head Constable Virendra Singh to chase the dacoits and engaged himself in the investigation of the case. To him, written report, Ex. Ka-1 was given by the complainant Dhani Ram. A list of looted articles was also furnished by Smt. Baijanti Devi, Ex. Ka-6 and Smt. Kaushalya Ex. Ka-7. 6. AFTER completing the investigation a charge-sheet was submitted against the accused, who did not plead guilty to the charge and claimed to be tried. In support of its case, the prosecution examined five witnesses, namely PW 1 Dhani Ram, the complainant PW 2 Smt. Savitri Devi wife of Chandra Bhan, PW 3 Chandra Bhan PW 4 Dr. I. S. Tomar and PW 5 Bhagat Singh Sharma, S.S. I. P. S. Haldwani, district Nainital besides filing and proved 52 documents. 7. AFTER considering the entire evidence, oral as well as documentary, lead by the prosecution, the learned Sessions Judge held the charge against the accused fully proved and accordingly convicted and sentenced the appellants as above. 8. FEELING aggrieved, the appellants, named above, have preferred this appeal against the judgment and order of the learned Sessions Judge. Learned counsel for the appellants and the learned Government Advocate were heard at length. The record of the case was also fully scrutinised by us. 9. THE prosecution case is that a dacoity was committed in the house of Tika Ram in the night intervening 19/20 March, 1977 at the house of Dhani Ram, in village Nagla Kehari, P. S. Ghiror, district Mainpuri in which Shri Krishna, Tika Ram and Raj Kumar lost their lives. THE factum of dacoity and the murder of these three persons during the course of commission of dacoity has not been disputed from the side of the appellants. THE factum of dacoity and the murder of these three persons during the course of commission of dacoity has not been disputed from the side of the appellants. THE contention raised on behalf of the appellants is that the appellants did not commit the said dacoity and they have falsely been implicated on account of enmity. THE main thrust of arguments on behalf of the appellants was that the eye-witness examined by the prosecution have had no opportunity to see the faces of the dacoits and identify them. It was only on account of the existing enmity between the parties that the appellants have falsely been implicated. 10. OUT of the above five witnesses examined by the prosecution, Dhani Ram, PW 1, Savitri Devi, PW 2, and Chandra Bhan, PW 3 are the witnesses of facts. Savitri Devi and Chandra Bhan turned hostile and did not support the prosecution story. There is nothing in their cross examination conducted on behalf of the prosecution which may help or assist the prosecution to prove this case in any way. Thus there is the sole testimony of Dhani Ram, PW 1 left. At the very out-set, it was argued on behalf of the appellants that it will not be safe to convict the appellants on the sole testimony of Dhani Ram. We find sufficient weight in this argument. Even otherwise, we find that the testimony of Dhani Ram is Shakey and does not inspire confidence. Dhani Ram has stated that on hearing hue and cry, he was awakened He came out of the Kotha with a torch which he flashed on the dacoits. He saw Shri Krishna and Raj Kumar grappling with the dacoits. According to him, dhatas of 2 or 3 miscreants fall down and these miscreants were unmasked. Out of them he had identified two miscreants who were Nathu and Badri. According to him, the miscreant who was covering his face with a dhata looked like Ved Ram. He ran out of the Angan and flashed his torch on the roof where one miscreant was standing. He appeared to be the 4th accused Nanak Chandra. When he challenged him. he opened fire which hit him on the right foot. Thereafter he scaled the wall of the house of Chandra Rhan and took shelter behind a wall. He cried out but none of the villagers came at the site of the dacoity. He appeared to be the 4th accused Nanak Chandra. When he challenged him. he opened fire which hit him on the right foot. Thereafter he scaled the wall of the house of Chandra Rhan and took shelter behind a wall. He cried out but none of the villagers came at the site of the dacoity. He claimed to have recognised Badri, Nathu, Nanak Chandra and Ved Ram among the dacoits who had committed dacotty in the light of the lantern and torch. He has further stated to have dictated a report to Ram Lal who is his wife's brother and handed it over to the Inspector who had arrived while the dacoity was being committed. This report has been exhibited as Ex.-l. 11. WE shall now proceed to determine whether the eye-witnesses examined by the prosecution have had the opportunity of identifying, the dacoits who had committed the dacotty in the house of Tika Ram and Chandra Bhan. 12. IT may be pointed here that this report Ex. Ka-1 was handed over by PW 1 Dhani Ram after the police has arrived at the scene of occurrence and had started investigation. Earlier to it, one Sadhu Singh had lodged a report at the Police Station which is Ex. Ka-5. IT was lodged on 20-3-77 at 1.05 A.M. informing the police that a dacoity was being committed in the house of Tika Ram, Teli. After this report, the police rushed to the scene of occurrence and there was exchange of fire between the police party and the miscreants who managed to run away and could not be apprehended. Therefore, In fact this was the First Information Report and not the subsequent report which was handed over by PW 1 Dhani Ram to the police after its arrival at the scene of occurrence. This report can be used as a statement under section 161 CrPC made by Dhani Ram to the police. IT was in this statement contained in Ex. Ka-1 that for the first time PW 1 Dhani Ram disclosed the names of the accused-appellants. IT is important to note that this witness has admitted that at the time he entered the house along with the police after the miscreants had run away he had not disclosed the names of the accused-appellants to the Inspector. Ka-1 that for the first time PW 1 Dhani Ram disclosed the names of the accused-appellants. IT is important to note that this witness has admitted that at the time he entered the house along with the police after the miscreants had run away he had not disclosed the names of the accused-appellants to the Inspector. This admission on the part of Dhani Ram PW 1 discredits his testimony to have identified the appellants as being among the dacoits committing dacoity in the house of Tika Ram. Had he in fact identified the appellants, he would certainly have disclosed their names to the Inspector at the time of entering the house along with the police party. IT shows that inclusion of the names of the appellants in the written report, Ex. Ka-1 is an after-thought and so cannot be attached any weight. In his statement on oath the witness has stated that there was a scuffle between the dacoits and Shri Krishna and Raj Kumar. During this scuffle, the masks of 2 or 3 miscreants fell down giving him an opportunity to identify them. This means that all the dacoits at the time of commission of the dacoity had covered their faces with dhatas. On his own version, dhatas of only 2 or 3 miscreants had fallen down. It may be mentioned here that this witness has for the first time during trial made this statement regarding scuffle between the dacoits and Raj Kumar and Shri Krishna. He did not make such a statement to the Investigating Officer. At no point of time, he mentioned in his statement that there was grappling between the dacoits and Raj Kumar and Shri Krishna consequent upon which dhatas of 2 or 3 miscreants fell down. Had it been a fact, he should have made such a statement to the Investigating Officer. It is, therefore, an improvement in his statement and does not inspire confidence. Further, this witness is not sure whether the persons whose dhatas had fallen down, were the accused Ved Ram and Nanak Chandra. According to him they looked like them. Thus this witness was not in a position to say with certainty that the appellants Ved Ram and Nanak Chandra were definitely among the accused committing dacoity in the house of Tika Ram and Chandra Bhan. 13. According to him they looked like them. Thus this witness was not in a position to say with certainty that the appellants Ved Ram and Nanak Chandra were definitely among the accused committing dacoity in the house of Tika Ram and Chandra Bhan. 13. HE claims to have identified the other two appellants namely Badri and Nathu who are related to him. It has come in his statement that only the eyes of these two persons were visible. It cannot be believed that simply with their eyes uncovered, it could be possible for this witness to have identified them as Badri and Nathu. Thus, the statement of this witness that he had identified the appellants as among the dacoits cannot be believed. We have, therefore, no hesitation in holding that these witnesses have no opportunity to have identifying the appellants as being among the dacoits who had committed decoity. 14. THE next question that arises is as to what motive this witness Dhani Ram may have to speak against the appellants. It has come in his statement that his first wife had committed suicide by hanging herself. A suggestion was given to him that it was he who had murdered his wife. He, however, admitted that both the accused Badri and Nathu are close relatives of his wife. THE contention of the prosecution is that after the death of the wife of Dhani Ram, these two accused namely Nathu and Badri being related to the wife had charged Dhani Ram of having committed murder of his wife. It was on account of this enmity Dhani Ram was speaking against these two accused persons. Thus, this witness has a motive to falsely implicate the accused Badri and Nathu. It was argued on behalf of the State that this witness had no motive to falsely implicate the other two accused, namely, Nanak Chandra and Ved Ram and so far as their involvement is concerned, he should be believed. We, however, fail to agree with this argument of the learned Government Advocate. It has been held by us that this witness has a motive to falsely implicate at least two of these appellants Badri and Nathu. We, however, fail to agree with this argument of the learned Government Advocate. It has been held by us that this witness has a motive to falsely implicate at least two of these appellants Badri and Nathu. There is no material on record to separate the case of the remaining two accused, namely, 'Ved Ram and Nanak Chandra with the remaining accused and to believe the statement of this witness so far as these accused are concerned. Moreover, we had already referred to the statement of this witness wherein he has not said with certainty to have identified these accused Nanak Chandra and Ved Ram at the time of commission of dacoity. What he has stated that they looked like Nanak Chaudra and Ved Ram. This statement of Dhani Ram not supported by any other cogent evidence, cannot fix the liability of dacoity on these two accused also. We, are, therefore, of the opinion that the statement of this solitary witness Dhani Ram, PW 1 is Shaky, unreliable and unworthy of credence. No recovery of looted articles was made from either of the accused. In these circumstances it will not be safe to base the conviction of the appellants on the sole testimony of this witness which is not corroborated by any other evidence on record. The prosecution has, in our opinion, failed to prove the charge against any of the accused beyond doubt. 15. CONSEQUENTLY the appeal is allowed. The conviction and sentence of the appellants (1) Badri, (2) Nathu, (3) Ved Ram and (4) Nanak Chand are set aside. They are acquitted of all the charges framed against them. They are on bail. They need not surrender. Their bail bonds are cancelled and sureties are discharged. Appeal allowed.