G. S. N. TRIPATHI, J. ( 1 ) THE then Pt Addi. Sessions Judge, Agra, vide his judgment and order dated 4-12-1979 passed in S. T. No. 410 of 1977, State v. Mohan Singh and Man Singh of the district Agra convicted the accused Mohar Singh and Man Singh on a charge u/s. 460 IPC and sentenced them to undergo 4 years R. I. ( 2 ) THE prosecution case started on the basis of the F. I. R. lodged by Bengalee, P. W. 1 at the police station Samsabad, Distt. Agra. The incident is said to have taken place in the night of 16/17-6-1977 around 2 A. M. The F. I. R. was lodged on 17-6-1977 at 6. 30 A. M. after covering a distance of 3 miles. Both the accused have been named as they belong to the same village. It is alleged that in the night of occurrence, the complainant was sleeping in the courtyard of his house along with his wife. At about 2 A. M. he heard some inkling coming out of his house and he got up and saw that thieves were removing the articles from his house towards the roof. He cried hearing which, his brother Sheo Charan, P. W. 2 replied that he was coming to his rescue. Sheo Charan was sleeping with his wife Bhoori, P. W. 4 and children on the roof. Sheo Charan flashed a torch. Upon which one of the miscreants fired from his pistol causing injuries to Sheo Charan, his wife and children. In the light of the torch flashed by Shoe Charan, the accused Mohar Singh and Man Singh, who belonged to the same village, were identified. The thieves bolted away with goods and cash worth Rs. 3200/- ( 3 ) ON the basis of the oral information conveyed by the complainant, a case was registered by the Head Constable of the police station and investigation followed. The injured Smt. Bhoori was examined on 17-6-1977 at 9. 05 A. M. As many as 4 firearm injuries were found on her person (Exhibit Ka-2 ). The child Satish, aged about 11/2 years, was examined at 9. 15 A. M. Two firearm injuries were found on his person (Exhibit Ka. 3 ). Km. Vimla, aged 4 years, was examined at 9. 30 A. M. One firearm injury was found on her person. Sheo Charan was examined at 9. The child Satish, aged about 11/2 years, was examined at 9. 15 A. M. Two firearm injuries were found on his person (Exhibit Ka. 3 ). Km. Vimla, aged 4 years, was examined at 9. 30 A. M. One firearm injury was found on her person. Sheo Charan was examined at 9. 40 A. M. Two injuries were found on his person one of them was caused by firearm. The details of the injuries received by the aforesaid persons have been noted by the learned Addi. Sessions Judge in his judgment. Therefore, they are not being repeated. ( 4 ) AFTER usual investigation, the 1. 0. Han Maya Sharma, P. W. 9 laid down the charge sheet. ( 5 ) THE prosecution has examined Bengalee, P. W. 1, the complainant in support of its case. He has narrated the story as contained in the F. I. R. He has frankly admitted that he did not identify any of the miscreants himself and the report has been lodged on the basis of the information conveyed by Sheo Charan, P. W. 2 and Mohar Singh (not named in the F. I. R. ). The star witness is P. W. 5. ( 6 ) P. W. 5 Sheo Charan in his statement u/s 161 Cr. P. C. said that he was sleeping on the roof of his house along with his family members. Mter hearing the alarm raised by Bengalee, P. W. 1, he replied and flashed his torch towards the miscreants. One of them fired towards him causing injuries to him, his wife and children. He identified the accused Man Singh and Mohar Singh amongst the miscreants. ( 7 ) P. W. 4 Smt. Bhoori is the wife of Sheo Charan. She has virtually corroborated the story given by her husband. ( 8 ) P. w. 8 Mohar Singh is the real brother of Bengalee, the complainant. He has not been named in the F. I. R. He has also said that he saw the incident with his own eyes. ( 9 ) OTHER evidence is formal in nature. For instance, Dr. R. B. Singh, P. W. 3 has proved the injury report, P. W. 6 Dr. He has not been named in the F. I. R. He has also said that he saw the incident with his own eyes. ( 9 ) OTHER evidence is formal in nature. For instance, Dr. R. B. Singh, P. W. 3 has proved the injury report, P. W. 6 Dr. R. K. Sharma has proved the X-ray report of Smt. Bhoori, Constable Rajendra Singh had registered the case in his G. D. and prepared the chik, Constable Tahjibul Hasan, P. W. 8 had conducted the injured persons for medical examination, P. W. 9 Han Maya Sharma is the Investigating Officer. ( 10 ) THE accused in their statement u/s 313 Cr. P. C. have generally denied the allegations against them. They have said that the village pradhan is against them and it is at his behest that they have been falsely implicated on account of partybandi. Accused have led no evidence in their defence. ( 11 ) AFTER appraisal of entire evidence and circumstance on the record, the learned Addi. Sessions Judge found the prosecution story convincing and he convicted the accused as noted above. ( 12 ) FEELING aggrieved, the accused have preferred this appeal. ( 13 ) I have heard learned counsel for the parties. I find that there is much substance in this appeal and it deserves to be allowed. ( 14 ) IT is not very much disputed that an occurrence took place in the night of 16/17-6-1977 at the house of Bengalee, P. W. 1 and properties were looted from there. It is also not disputed that during the course of crime, the criminals had fired towards Sheo Charan and his family members and caused injuries to 4 persons as noted above. There is neither any cross-examination worth the name of this point nor any challenge u/s 313 Cr. P. C. Therefore, the conclusion drawn by the learned Addi. Sessions Judge is confirmed. ( 15 ) THE main question for determination by this Court is as to whether these two accused had actually participated in the crime and their participation is proved beyond a shadow of reasonable doubt. The admitted position is that it was a dark night as admitted by Smt. Bhoori, P. W. 4 towards the end of the cross-examination. The only source of light was a torch flashed by Sheo Charan. The admitted position is that it was a dark night as admitted by Smt. Bhoori, P. W. 4 towards the end of the cross-examination. The only source of light was a torch flashed by Sheo Charan. A look at the site-plan will show that there are three Kothas belonging to Sheo Charan, Bengalee and his brother Mohar Singh. The roof is divided by walls of the height upto 2 or 3 feet. But there is a common passage in the down side of the house. The Kotha of Mohar Singh is towards the extreme south and that of Sheo Charan in the middle and that of Bengalee, complainant towards the extreme north. Therefore, the possibility of Mohar Singh having seen the miscreants, is totally ruled out. Bengalee who, is the complainant, had clearly admitted that he did not identify the culprits. He has named them at the behest of his brother. The significant thing is that the culprits were on the ground floor where Bengalee was sleeping. He had optimum opportunity to identify the culprits. But he has totally failed to do so. Whereas, Sheo Charan and Smt. Bhoori are said to have identified the culprits from their roof. The distance of the miscreants from Sheo Charan, according to the learned Addi. Sessions Judge (para 6 of the judgment) was 25 feet at least on the ground floor. Whereas, Smt. Bhooriand Sheo Charan were sleeping on the roof of their house. So Sheo Charan and Smt. Bhoori have claimed to have identified the culprits from the said distance of 25 feet in the light of a solitary torch flashed by Sheo Charan. That by itself shows that it is difficult, if not impossible, for these witnesses to have identified the culprits from the roof of their house. Apart from it, another important feature of the case is that the culprits belong to the same village in which the crime was committed. They were known figures. They have made absolutely no efforts to conceal their identity by wearing some mask or having some dhata upon their faces. Normally unless the accused are proved to be dare devils, which is not a case at present, such known persons will not commit such a crime without making any effort to conceal their identity. ( 16 ) APART from it, there has been considerable improvement made in the prosecution story. Normally unless the accused are proved to be dare devils, which is not a case at present, such known persons will not commit such a crime without making any effort to conceal their identity. ( 16 ) APART from it, there has been considerable improvement made in the prosecution story. The F. I. R. says that one of the miscreants fired at Sheo Charan causing injuries to him and his family members. Who was the person who fired this shot towards Sheo Charan and his family members, has not been specified in the F. I. R. Although, Bengalee, P. W. 1 says that he could not see the appellants Mohar Singh and Man Singh himself. Rather, he named them on the statements of Sheo Charan and Mohar Singh, P. W. 5. These are the persons who have specified the role of the individual accused and specially, the role of Mohar Singh, who had fired from his pistol. There is no earthly reason why he would not have named Mohar Singh in F. I. R. as the person solely responsible for firing towards them. This special feature of the case shows that these persons had not known by them as to who had fired at them. They were not at the behest of or the inspirations provided by somebody. But it is not very difficult to find out because the Pradhan of the village has played a leading role in this case. He had taken the culprits to the police station. He had gone inside the police station where the F. I. R. was lodged orally by Bengalee, P. W. 1. Even then the specific role played by Mohar Singh has not been given in the F. I. R. when Sheo Charan was cornered as to why he did not tell the role played by Mohar Singh to his brother Bengalee before lodging report, he has given very whimsical reply. In paragraph 4 of his statement, he has said that he had not openly said to Bengalee that Mohar Singh had fired at him from his pistol. Not only this, he did not tell this fact even to the 1. 0. Why this important secret was kept inside the bosom of this witness for such a long time, is not explained by the prosecution in this case. Not only this, he did not tell this fact even to the 1. 0. Why this important secret was kept inside the bosom of this witness for such a long time, is not explained by the prosecution in this case. That shows that the prosecution case has undergone improvements and embellishments at the stage of trial. In his statement u/s 161 Cr. P. C. Sheo Charan has stated that someone amongst the miscreants had fired at him. He admits in paragraph 7 of his statement that his this statement is correct and he has correctly stated the same to the 1. 0. It means that the statement made that Mohar Singh had fired at him, was made at the behest of somebody else and that is a total lie. That again shows that since Shoe Charan had not by then identified the real culprits, therefore, he kept this fact totally ambiguous. In the normal course since the culprits were known and the role was also known, this fact must have been noted in the FIR. It was definitely lodged at the pointing out of Shoe Charan. When further cornered in paragraph 7, he said that when he saw the accused for the first time on the roof of Bengalee, he did not see any weapon with them. That again shows that these accused were not present there otherwise the witness would not have missed the salient feature. Therefore I discard the statement of Sheo Charan as unworthy of credence. ( 17 ) SMT. Bhoori is the wife of Sheo Charan. She says that when her husband flashed the torch, she saw the culprits and amongst them were Mohar Singh and Man Singh. Thereupon, Mohar Singh fired towards her. The reasons for discarding the statement of Sheo Charan as noted above apply matatis mutandis to the statement of Smt. Bhoori equally. She was interrogated after 15 days of the occurrence. That by itself shows that enough time was available to the prosecution to brain wash her. She did not name these accused before the 1. 0. u/s 161 Cr. P. C. She has simply said that there were 4 miscreants. She did not says before the 1. 0. that Mohar Singh had fired from his pistol. Further she says that she did not see any weapon in the hand of accused Man Singh. She did not name these accused before the 1. 0. u/s 161 Cr. P. C. She has simply said that there were 4 miscreants. She did not says before the 1. 0. that Mohar Singh had fired from his pistol. Further she says that she did not see any weapon in the hand of accused Man Singh. It is difficult to believe that accused Man Singh would have gone to commit theft without having any weapon in his hand. Thereafter, further she says that immediately after receiving fire shots, she became unconscious and could not see things thereafter. It was a dark night. Therefore, I find that she was not in a position to identify the culprits correctly. ( 18 ) P. W. 5 Mohar Singh is the real brother of the complainant and Sheo Charan. His name did not find place, in the F. I. R. as one amongst the witnesses, who have seen the crime and criminals. On this ground alone, his statement is liable to be rejected. He also did not say before the 1. 0. that Mohar Singh accused had fired from his pistol towards Sheo Charan and his wife. Further he says that he did not see any weapon in the hand of Mohar Singh and other co-criminal. ( 19 ) ANOTHER salient feature is that although the culprits belonged to the same village and they were seen and allegedly identified on the spot, no effort was made to trace them at their houses in the same night, although efforts were made to go to the house of Pradhan of the village. If it were a fact that the accused had committed crime and they were identified on the spot with the aid of the Pradhan, their houses must have been raided in the same night. But that was not done. Under these circumstances, I find that the findings of the learned lower court that the witnesses could have identified the culprits in the light available, is not sustainable. It deems that the learned trial court had not gone deeper into the matter and has ignored the salient features of the case as noted above. Therefore, the findings recorded by him, cannot be maintained. The appeal deserves to be allowed. ( 20 ) THE appeal is allowed. The judgment and order passed by the learned trial court is set aside. Therefore, the findings recorded by him, cannot be maintained. The appeal deserves to be allowed. ( 20 ) THE appeal is allowed. The judgment and order passed by the learned trial court is set aside. The appellants are acquitted of the cbargeuls 460 I. P. C. They are on bail. Their bail bonds and surety bonds are discharged. Appeal allowed. .