JUDGMENT Palok Basu, J. 1. Shiv Singh, the sole appellant in Criminal Appeal No. 3036 of 1979 and Kashmir Singh and Mahesh, the two appellants in connected Criminal Appeal no. 3037 of 1979, have challenged their conviction and sentence, under Section 396 IPC, to life imprisonment awarded by the Additional Sessions Judge, Farrukhabad, in Session Trial no. 187 of 1978. 2. The charge against the appellants was that they alongwith two others, namely Ramesh and Veerpal, committed armed dacoity at the house of Ram Chandra in the night between 18th and 19th of April, 1977. They first set fire to Lalman by pouring kerosene oil upon him and then looted the ornaments and other articles from the house of Ram Chandra and thereby committed an offence under section 396 IPC. Ram Chandra is said to have lodged an FIR of the incident on 19-4-1977 at 9.45 a.m. alleging therein that the aforesaid incident had happened around or after mid-night of 18/19th of April, 1977 at his residence in village Kundpura, police station Kamalganj, district Farrukhabad, In the FIR the informant has named three appellant and two acquitted accused Ramesth and Veerpal. 3. In the instant case the prosecution has examined in all seven witnesses. The trial court had summoned Smt.Phulla as CW 1 who happened to be the wife of PW 1 Ram Chandra. 4. Dr. S. C. Govil (PW 2) had performed the postmortem examination on the dead body of Lalman on 24-4-1977 at 4.30 P.M. and had found second and third degree burn injuries' on the body of Lalman. PW 3 Sheo Sagar Bajpai is the Head Moharrir, who was posted at police station Kamalganj at the relevant time. He alleges that he registered the case under Sections 395/397 IPC initially and vide entry no. 7 made at 20.50 hours on 20-4-1977 the same was converted into one under Sec. 396 IPC because in the meantime informantion was conveyed that Lalman had died. 5. PW 5 Jagdish Prasad Gautam is the Station Officer of police Station Kamal Ganj. He has said that the FIR was lodged in his presence and he had taken down the statement of the informant as also that of Laman, who was carried to the police station. 5. PW 5 Jagdish Prasad Gautam is the Station Officer of police Station Kamal Ganj. He has said that the FIR was lodged in his presence and he had taken down the statement of the informant as also that of Laman, who was carried to the police station. He has further said that with Mazroobl Chitthi, Lalman was sent to the Hospital alongwith Constable Baburam and that the case was registered at his behest by Head Moharrir Shiv Sagar Vajpai and thereafter he proceeded to the spot. Having reached at the spot he took into possession the lantern, burnt quilt, a fired cartridge from one place and another cartridge from another place and ten other fired cartridges from third place. He received the postmortem examination report on 21-4-1977 and made an attempt to arrest the accused, who subsequently surrendered in court. After completing the investigation he filed charge sheet against the accused. 6. PW 6 Baburam is the Constable who had taken the injured Laman to Hospital and has deposed that on reaching the Hospital he was declared dead. He carried that information to police station Kamal Ganj. PW 7 is Deoki Nandan Sharma, who at the relevant time was posted as Sub Inspector, police Station Kotwali, Fatehgarh, and had performed the inquest on the dead body of Lalman. 7. As to the actual incident, the prosecution has examined Ram Chandra (PW 1) the informant, and Dularey (PW 4). It may be mentioned here that Dularey was declared hostile and did not support the prosecution case at all. He has :said that he could not recognize any dacoit. Ram Chandra has tried to nerrate the same story which he had given out in the first information report. Placing reliance on the testimony of Ramchandra as corroborated by the testimony of CW 1 Smt.Phulla, the learned trial Judge has convicted and sentenced the three appellants as noted above. However, giving benefit of doubt to two other co-accused Ramseth and Veerpal, he acquitted them. 8. Aggrieved, these two appeals have been filed It may be mentioned that all the accused have denied the prosecution case and attributed false implication due to emity. No witness was, however, examined by the accused. We have heard Sri H. S. Misra and Sri G. S. Hajela for the appellants and Sri K. C.Saxena, Additional Government Advocate, for the state and examined the entire record thoroughly. 9. No witness was, however, examined by the accused. We have heard Sri H. S. Misra and Sri G. S. Hajela for the appellants and Sri K. C.Saxena, Additional Government Advocate, for the state and examined the entire record thoroughly. 9. So far as Ram Chandra (PW 1) is concerned, it may be mentioned that he himself stands discredited on the point of participation of Ramseth and Veerpal. He has made market improvements in his statement relating to the manner of setting fire to the deceased Lalman. CW 1 Smt. Phulla states that when Lalman laid, down, he was set on fire while Ram Chandra states that his uncle remained in sitting posture and in that state he was put on fire. It transpires from the statement off Ram Chandra that when the incident was to happen, one of the accused remained with Lalman and the other two had gone inside the house to collect kerosene oil. If that is so, in that event, there was no difficulty in the way of Lalman to run away just as other family members had run away from the house alonwith PW 1, Ram Chandra. 10. Moreover, it is the prosecution case that deceased was beaten and assaulted at the roof by the accused. But for the burn injuries there is no other ostensible injury of assault noted by the Doctor in the postmortem examination report. It was rightly emphasized on behalf of the appellants that there was long standing enmity between the nominated accused on one hand and Ram Chandra and his family on the other and, therefore, the appellants must have taken precautions to conceal themselves if they were really participants. The only other public witness PW 4 Dularey having not supported the prosecution case at all and no other witness mentioned in the FIR having been examined, the trial court's effort in seeking corroboration from the statement of the wife of the informant appears to be wholly misplaced. If the husband cannot be belived for the reason that he was highly inimical, his wife would likewise depose against the appellants falsely for the same reason. It was then rightly argued that when two out of five named accused have been acquitted, and there was no other accused participating, the charge under Section 396 IPC automatically fails. If the husband cannot be belived for the reason that he was highly inimical, his wife would likewise depose against the appellants falsely for the same reason. It was then rightly argued that when two out of five named accused have been acquitted, and there was no other accused participating, the charge under Section 396 IPC automatically fails. In view of the aforesaid discussion, the prosecution has not been able to prove its case to the hilt against the appellants by independent and reliable evidence and, therefore, benefit of doubt must be extended to them also just as it was extended to other nominated accused Ramseth and Veerpal. 11. In the result, both the appeals are allowed. The conviction and sentences of Shiv Singh, Kashmir Singh and Mahesh are set aside. They are on bail. They need not surrender and their bail bonds are discharged. Appeal allowed.