G. S. N. TRIPATHI, J. ( 1 ) ACCUSED Gopal Dubey Shayama Nand and Rama Nand have been convicted on a charge u/s. 395 I. P. C and sentenced to 5 years R. I. They have been further charged and convicted u/s. 412 I. P. C. and ordered to undergo one years R. I. Both the sentences, were ordered to run concurrently. Coaccused Ram Dhan was acquitted of the charge u/s. 395 I. P. C. ( 2 ) THE prosecution case started on the basis of cu a F. I. R. dated 30. 9. 1978 lodged at P. S. Barhal Ganj, Distt. Gorakhpur at 7. 15 A. M. after covering a distance of 5 miles. The incident is said to have taken place in the night 29/30. 9. 1978 around 2 A. M. The accused Rama Nand, Shayama Nand, Gopal and Heeraal with Ram Dhari (acquitted accused) have been named. ( 3 ) IT has been alleged in the F. I. R. lodged by Ganesh Prasad, P. W. 1 that in the night of 29/30. 9. 1978 about 13 or 14 dacoits all of a sudden arrived at his house, where the lantern was burning. The dacoits were armed. The dacoits started terrorising and threatening the inmates of the house. They entered the house through the window and opened the doors and this had facilitated the entry of other dacoits. The dacoits were continuously on move. Alarm was raided, hearing which, the witnesses, namely, Laxmi Shanker P. W. 2 and Amar Nath P. W. 3 apart from others arrived there. They were armed with torches and lathis. After seeing the pressure of the people there, the dacoits retreated after throwing a hand grenade. After a mild chase, the dacoits Rama Nand, Shyaroa Nand and Gopal were arrested by the villagers, who were helped by the police too who accidentally arrived there. The recoveries of several types of clothes from different accused as noted in the F. I. R. in detail, were made. The goods were sealed on the spot and a memo was prepared. The accused were brought to the police station and properly lodged in the lock up. ( 4 ) AFTER usual investigation, a charge sheet was laid by the prosecution. ( 5 ) BEFORE the learned lower court, P. W. 1 Ganesh Prasad, complainant was examined. The goods were sealed on the spot and a memo was prepared. The accused were brought to the police station and properly lodged in the lock up. ( 4 ) AFTER usual investigation, a charge sheet was laid by the prosecution. ( 5 ) BEFORE the learned lower court, P. W. 1 Ganesh Prasad, complainant was examined. He has narrated the entire prosecution story as contained in the F. I. R. He also identified the dacoits from whom the recovery was made. ( 6 ) P. W. 2 Laxmi Shankar is the neighbour of the complainant. He too has narrated the same story. So is the case with Amar Nath, P. W. 3, who happens to be the grand son of the complainant. ( 7 ) OTHER evidence consists of S. I. Parmeshwari Singh, P. W. 4 who was on patrol duty. After hearing the alarm, he arrived along with his constables. The village people arrested the accused. Therefore, they took them in custody. Recoveries were made and documents, were prepared and so on. ( 8 ) P. W. 5 Head Constable Bhadeshwar Prasad has proved the entry in chick and G. D. ( 9 ) P. W. 6 C. K. Verma is the Investigating Officer. ( 10 ) THE accused in their-statements u/s. 313 Cr. P. C. have generally denied the allegations against them. Accused Gopal has additionally stated that on account of enmity, he has been falsely implicated. ( 11 ) ACCUSED Shyama Nand has said that he was arrested from a tea stall. ( 12 ) ACCUSED Rama Nand has alleged that he was arrested from Barhalganj and not from the spot. Both have denied the allegation of recovery. ( 13 ) THE accused have led no evidence in defence. ( 14 ) AFTER perusal of the entire evidence and circumstances on the record, learned Addi. Sessions Judge convicted the accused appellants and sentenced them as noted above. ( 15 ) FEELING aggrieved, the convicted accused have filed this appeal. ( 16 ) I heard learned counsel for the appellants and Sri V. B. Singh, learned A. G. A. at stretch and gone through the record. I find that there is much force in this appeal and it deserves to be allowed. ( 17 ) THE factum of dacoity in this case has not been seriously disputed. ( 16 ) I heard learned counsel for the appellants and Sri V. B. Singh, learned A. G. A. at stretch and gone through the record. I find that there is much force in this appeal and it deserves to be allowed. ( 17 ) THE factum of dacoity in this case has not been seriously disputed. After analysing the evidence, I find that this fact is proved. The assembly of more than 15 persons and their entry in the house of the third person in the mid might is eloquent enough to prove that they had an intention to commit the dacoity. The dacoits removed the articles from the house. They broke upon the locks of the boxes and ultimately escaped only after the pressure of the village people increased. So on this point, I agree with the learned Addi. Sessions Judge that the factum of the dacoity has been established on the evidence on record. ( 18 ) THE most glaring feature of the case is that the appellants were known from before P. W. 1 Ganesh Prasad in the third line of the cross examination has stated that Ram Dhari (acquitted accused) belongs to village Anand Garh. Anand Garh is adjoining village. The difference between Anand Garh and the adjoining village is about 2 or 3 furlongs only. He always visits that village as so is the case with the people of Anand Garh, who too often visit this village. Accused Gopal is the brother of Ram Dhari. He knew accused Gopal also from before. Accused Shyama Nand is also the resident of adjoining village. Another feature of the case is that he was minor on the date of the incident. His age which has been given on 23. 8. 1979 u/s. 313 Cr. P. C. is 18 years this way, the sum total comes to this that known persons committed dacoity in the house of another known person. But there is no whisper in evidence of the prosecution that anyone of them had tried to conceal their faces. There is no evidence that these dacoits were dare devil persons and they were notorious and had committed such crimes earlier. But there is no whisper in evidence of the prosecution that anyone of them had tried to conceal their faces. There is no evidence that these dacoits were dare devil persons and they were notorious and had committed such crimes earlier. In absence of any evidence on the record of this case, it will be difficult to believe that known persons like the accused, would without Dhatas commit dacoity at the house of the adjoining village, the distance of which is hardly 2-3 furlongs. This makes the story of the prosecution unnatural. ( 19 ) TWO brothers, namely, Ram Dhari (Acquitted accused) and Gopal, who was himself about 16 years of age on the date of occurrence, would not normally join his brother in committing the crime of this nature in the house of a known person. The association of the two minors in this episode further makes the prosecution story doubtful. ( 20 ) ANOTHER difficulty in accepting the prosecution story is that the allegedly recovered articles were not put up for test identification. Most of these articles are normally used by ladies of the house and they would be best persons to identify their personal wearing apparels, like Sarees, Blouse, Paticoats etc. Not only this, these persons who could give the best evidence on this point, have been withheld. Only males were associated with the identification of these goods. Not only this, even their evidence becomes shaky as the alleged recoveries were made in their presence. So it will not be safe to place reliance upon the evidence of such persons. ( 21 ) THE learned Addi. Sessions Judge was also conscious of this weakness of the prosecution case. In paragraph 12 while dealing with the case of accused Ram Dhari (acquitted accused), he has disbelieved the prosecution story that there was sufficient light of lantern and torches available to the witnesses to identify the dacoits correctly. Therefore, when this reasoning would not go against Ram Dhari (acquitted accused) there is no reason why it would not be available to their accused, who are appellants in this case. Therefore, when this reasoning would not go against Ram Dhari (acquitted accused) there is no reason why it would not be available to their accused, who are appellants in this case. ( 22 ) ONCE this prosecution story is explained that there was no sufficient light available on the spot, it will be difficult to convict the accused appellants, who have committed the offence u/s. 395 I. P. C of course, if the evidence for recovery u/s. 412 I. P. C had been proved beyond a shadow of reasonable doubt, then with the help of Section 14 of the Evidence Act, these accused could have been convicted. But for the reasons disclosed earlier even the theory of recovery and arrest on the spot or soon after the dacoity, is not proved beyond doubt. Therefore, we cannot take the help of Section 14 of the Evidence Act for proving the charge u/s. 412 I. P. C and with that aid the accused cannot be convicted u/s. 395 I. P. C either. The result is that both the charges fail. ( 23 ) THE presence of the S. I. Parmeshwari Singh was quite accidental. In the G. D. , exhibit Ka 5, the purpose of his departure for the spot is not mentioned. Not only this place where he had to patrol or to Garabandi is also not specified. At a later stage, he assumed the charge of 1. 0. also. That also amounts to an irregularity. ( 24 ) TAKING all these factors into consideration, I find that the prosecution has not been able to prove its case beyond a reasonable doubt. The result is that the accused appellants deserve to be acquitted. ( 25 ) THE appeal is allowed. The accused Gopal Dubey, Shyama Nand and Rama Nand are hereby acquitted of the charge u/s. 395 I. P. C They are further acquitted of the charge u/s. 412 I. P. C The accused are on bail. Their bail bonds and surety bonds are discharged. Appeal Allowed. Convictions set aside. .