JUDGMENT G. S. N. Tripathi, J. 1. The then Vth Additional Sessions Judge, Etah vide his judgment and order dated 11-9-1979 convicted the accused Raghubir Singh, Karan Singh, Man Singh and Suraj Pal under Section 399, I. P. O. and sentenced them to undergo 5 years' R. I. He further convicted and sentenced them under Section 402, I. P. C. and ordered them to undergo a 3 years' R. I. The accused Raghubir, Karan Singh and Man Singh were also convicted under Section 25, Arm Act and sentenced to undergo one year's R. I. Accused Suraj Pal was convicted under Section 25, Arms Act and sentenced to undergo six months' R. I. All the sentences were ordered to run concurrently. 2. The prosecution case started on the basis of F. I. R. lodged at the police station on 28-12-1976 at about 5 a. m. The incident is said to have taken place in the night of 27/28-12-1976 around 1. 30. The distance of the police station is 5 miles. According to the prosecution case, the police party consisting of Sri Babu Lal Verma, PW 4 then S. O., Charan Singh, PW2, Vanni Singh, PW 3 and S. I. Netrapnl Singh, PW 5 along with other police staff were out to arrest some accused. They raided some places. But no culprit was available. Thereafter, that started patrolling and arrived near the village Nagla Thakuria around 0. 30 a. m. near the bamba on the road. They heard some murmuring and conversation. They also found a log of wood placed on the record and suspected that some docoits might have assembled for committing road held ups and dacoity. They divided themselves into two parties. Party No. 1 was headed by Sri Verma himself and consisted of Charan Singh. PW 2, Ram Autar and others. This pary took his position towards the north of bamba shown by letter D. The other party was headed S. I. Netrapal Singh, PW 5. H. M. Vanni Singh, PW 3 and others. This party took is position towards the west of the road shown as place B in the site plan. After having taken their position, they heard the dacoits talking amongst themselves that "the time was ripe for committing the dacoity. H. M. Vanni Singh, PW 3 and others. This party took is position towards the west of the road shown as place B in the site plan. After having taken their position, they heard the dacoits talking amongst themselves that "the time was ripe for committing the dacoity. " The police party headed by Sri Verma was convinced that this was the gang of dacoits, who were waiting for committing road docoity add hold ups. He challenged them. But the dacoits instead of surrendering started escaping. However, they were over-powered and arrested on the spot at distance of few paces. Their searches were taken. From the possession of Karan Singh, one country-made pistol and six cartridges, from Raghubir Singh one country-made pistol and five cartridges, from Man Singh, one country-made pistol and four cartridges and from Suraj Pal, one spear were recovered. These articles were separately sealed on the spot and memos were prepared there. Thereafter the police party started for the police station along with the accused and the recovered goods and the F. I. R. was lodged at 5 a. m. on the basis of recovery memo, which had been prepared on the spot. 3. After usual investigation, the prosecution laid the charge-sheet against the accused. Before that, the permission of the District Magistrate for prosecuting the accused under Section 25, Arms Act was also obtained. 4. The prosecution examined PW 4 Sri Babu Lal Verma, then S. O., the leader of party No. 1. He has given the detailed version of the prosecution story as contained in the recover memo. PW 2 H. C. Charan Singh was also in his party. He has also sup ported him. 5. PW 5 S. I. Netra Pal Singh was leader of the party No. 2 headed by him and consisted of Vanni Singh and others. PW 3 H. M. Vanni Singh, who was in his very party, has also supported the version given by Natrapal Singh. 6. The I. O. Sri Geetam Singh is PW 6. After interrogating the witnesses, he laid the charge-sheet. He has proved the process of investigation from the beginning till end. The accused have denied the allegations against them under Section 313, Cr. P. C. and have said that on account of enmity with the police, they have been falsely implicated. The accused have not led any evidence in defence. 7. After interrogating the witnesses, he laid the charge-sheet. He has proved the process of investigation from the beginning till end. The accused have denied the allegations against them under Section 313, Cr. P. C. and have said that on account of enmity with the police, they have been falsely implicated. The accused have not led any evidence in defence. 7. After evaluating the entire evidence and circumstances on the record, the learned lower court found the prosecution case credible. He accordingly convicted and sentenced the appellants as noted above. 8. Feeling aggrieved, the appellants have filed this appeal. I have heard learned counsel for the parties at stretch and he gone through the record. I find that there is much force in this appeal and it deserves to be allowed. 9. The site-plan in this case is very helpfull in coming to the truth. According to prosecution, the party headed by Sri Babu Lal Verma was positioned at point D and the party headed by Sri Netrapal Singh, PW 5 had taken its position at point B. Both these points are towards the north of bamba and on the road. Whereas, the dacoits had taken positions towards the south of the bamba at places A. B. It is the places D and E where the conversation were going on amongst the dacoits were heard by Sri Verma and other police personnel from their places, which convinced them that this was an assembly of dacoits assembled thereafter having made preparation for committing dacoity. But it appears that from places E and D, the conver sation could not be heard. Therefore, the entire basis of the prosecution will tumble down and it will become difficult to accept the prosecution version. 10. PW 2 H. C. Charan Singh has admitted in paragraph 4 of the cross-examination that the accused were at a distance of 50 to 60 yards towards the south from them. They were positioned at a distance of about 40 yards from the bamba. Therefore the total distance according to Charan Singh between the police party and the deceits was about 60 yards. From such distance, it was difficult for the police party to have the conversation going on amongst the dacoits. He has further said that even the party by S. I. Netra Pal Singh was at a distance of about 60 yards from the dacoits. From such distance, it was difficult for the police party to have the conversation going on amongst the dacoits. He has further said that even the party by S. I. Netra Pal Singh was at a distance of about 60 yards from the dacoits. It is nobody's case that the dacoits were shouting. After all they had to remain silent, conceal themselves and watch for the passersby in order to commit dacoity. There fore, they would not shout. Otherwise that will frustrate the vary purpose of assembly. The result is that this part of the prosecution story is not acceptable that the conversation going on amongst the dacoits could have been audible to the police parties which were positioned towards the north of the bamba. This way, the vary basis of the prosecution story falls. There are other unnatural facts added in the prosecution case, which make to same incredible and impossible to believe. The dacoit were arrested at a distance of about 20 or 30 paces from the places where they had assembled. They ran either towards east or south. Anyway, the police party could not have arrested them because they had positioned themselves towards the north of the bamba. In order to arrest the dacoits, they would have had covered a distance of about 80 yards towards the south. It was difficult from them. The dacoits, who had already been challenged could run to save their arrest. So they would not be easily available to the police party. But the prosecution case is that they were arrested at about 20 paces wherefrom they had positioned themselves. This makes the prosecution case unnatural. 11. It is not the case of the prosecution that an information had been received at the police station in advance about the assembly of the dacoits. So it was a sudden cadhe. 12. Charan Singh, PW 2 was further cross-examined. In paragraph 4 at page 3, he says that the dacoits were arrested in the fields but he did not recollect as what crops were sown in those fields. In paragraph 5 he says that he could not recollect as to how the dacoits were tied up. Then he invented a theory that suddenly a piece of rope was found on the road and the dacoits were tied with the same. In paragraph 5 he says that he could not recollect as to how the dacoits were tied up. Then he invented a theory that suddenly a piece of rope was found on the road and the dacoits were tied with the same. There is further contradiction on the point as to whether the copies of the fards were given to the dacoits or not. The most glaring feature-of the case is that the investigation in this case has not been fair. Sri Verma was the highest police officer at the police station. He was the S. H. O, of that P. S. Sri Geetam Singh. I. O was his subordinate. It was under the direction of Sri Verma that investiga tion was entrusted to Sri Geetam Singh. It is difficult to believe that a subordinate officer like Sri Geetana Singh would do justice to this case. Being subordinate to Sri Verma, he was not in a position to coming to an independent finding. Therefore, such an investigation can be termed as tainted and no reliance can be placed upon it. Investigation regarding the acts of senior officer should not be done by junior officer. 13. PW 4 Sri Verma was cornered in the cross-examination. At page 3, he says that he does not recollect as to whether water was flowing in the bamba or not. It seems that he had not been on the spot. Therefore, such a glaring thing is not coming to his memory. The prosecution case has been through out that the copies of the fards were given to the accused. But Sri Verma states at page 4 that the copies of the fards were not given at all to the accused. Regarding the rope, with which the accused had been tied up, he says that he had brought the same from the police station. Again he admits clearly that I. O. Sri Geetam Singh was his subordinate. 14. This is the feature of the prosecution case which has been further worsened by Sri Netrapal Singh PW 5 and Vanni Singh, PW 3 Sri Netrapal Singh states at page 2 in the cross-examination that all the accused were arrested on the road. None of them tried to run towards the fields. THIS way, he contradicts other witnesses on the record. Sri Vanni Singh, PW 3 was also the member of the party headed by Sri Netrapal Singh. None of them tried to run towards the fields. THIS way, he contradicts other witnesses on the record. Sri Vanni Singh, PW 3 was also the member of the party headed by Sri Netrapal Singh. He states that he did not recollect to whether Sri Verma had carried the rope from the police station itself or wherefrom the rope was obtained. Further as to whether the accused had beed handcuffed, he did not recollect. He says that the copies of the fards were given to the accused. This way, he contradicts Sri Verma, who is the author of these farads. The strangest part of the case according to Sri Vanne Singh is that the dacoits had loaded their weapons but they did not fire oven once in order to make good their escape. He also does not recollect whether water was flowing from the bamboo or not. At page 3, he says that the difference between him and the dacoits were only 75 paces. This way, he contradicts PW 2 Charan Singh. Again he states that the police party waited for the dacoits for more than 30 minutes. This is a mischievous statement. Once the police party had been convinced that this was the gang of dacoits, there was no use for waiting further, for other to come. But the statement has come simply because the witnesses are stating on the basis of imagination and in fact no such incident took place. 15. This way, after thread bare analysis of the entire evidence and circumstances on the record, it is clear that the prosecution story is not based on truth. Unfortunately the learned trial court has not properly scanned the evidence on record, nor he has evaluated the circumstances which were available on the record. Therefore, his conclusions have gone wrong. 16. The appeal is allowed. The judgment and order passed by the learned lower court is set aside. The appellants are on bail. Their bail bonds and surety bonds are discharged. Appeal allowed.