JUDGMENT Nagendra Rai, J. - The two appellants along with five others were put on trial before the 1st. Asstt. Sessions Judge, Motihari, in Session Trial No. 187/13/81/83 who has convicted these two appellants under Section 395 I.P.C. and sentenced each of them to undergo R.I. for 10 years. He has acquitted other three accused persons namely Ramjit Singh, Ramadhar Pasi and Sameshwar Pandey. 2. A dacoity took place in the night of 7th of Nov., 1987 in the house of Suraj Singh P.W.7. According to the prosecution case, Suraj Singh along with his eldest son Bigan Singh, not examined, was sleeping at the Darwaja. He heard the sound and guessed that 15-16 dacoits had entered into the house. After breaking open the main gate of the house by means of big hammer, the dacoits entered into room, looted articles, the details of which has been given in the F.I.R. They also entered into the room, where Kashi Singh son of the informant was sleeping in ailing condition, removed articles cartridges and demanded licenced gun from Kashi Singh. Then Kashi Singh said that the licenced gun was with his father, the dacoits came to the Darwaja, the informant woke up and seeing the dacoits tried to flee away but the dacoits assaulted him by latht. His son Bigan Singh was also assaulted by lathi. On hulla raised by Suraj Singh the villagers assembled and started brickbatting and thereafter they set the bundles of Pual on fire. The dacoits started running. It is also said that the informant and his family members including the co-villagers identified the dacoits by face. The villagers on chase apprehended one dacoit Dukhi Ahir who disclosed the names of these two appellants and others who have participated in the dacoity. 3. P.W. 8 Ram Nihora Thakur was the Officer-incharge of Gobindganj P.S. and at the relevant time he was posted as Junior S.I. He received information of dacoity and also the information that one dacoit has been killed by the villagers. He made a Sanha entry and proceeded to the P.O., thereafter recorded the fardbeyan of Suraj Singh on 8.11.78 at 10 a.m. where he narrated the prosecution case. Thereafter he inspected the P.O. and found the main gate of the house broken and its chhitkili was also broken. He also found the door of the Darwaja broken. He made a Sanha entry and proceeded to the P.O., thereafter recorded the fardbeyan of Suraj Singh on 8.11.78 at 10 a.m. where he narrated the prosecution case. Thereafter he inspected the P.O. and found the main gate of the house broken and its chhitkili was also broken. He also found the door of the Darwaja broken. Inside the Jamani Kita he found the broken lock and Sanduk. He found the dead body of Dukhi Ahir in front of Baithka. He seized the broken Chitkili, a live cartridge and battery of a torch at the P.O. and thereafter handed over charge of this case to Umesh Chandra Jha, who has submitted charge-sheet against the appellants and others. 4. The prosecution has examined 9 witnesses in support of its case, out of whom P.W. 2 Shrinarain Singh, P.W 3 Bindeshwari Singh, P.W. 4 Ashok Singh, P.W. 5 Kashi Singh, P.W. 6 Ramesh Singh, P.W. 7 Suraj Singh, informant, are the eye-witnesses of the occurrence and among them P.Ws. 2, 3, 4 & 6 have named the appellants as persons who have participated in the crime. P.W. 8 Ram Nihora Thakur is the Investigating Officer. P.W. 9 Md. Abid Ansari is the magistrate who held the T.I. parade of co-accused Jangali Raut. 5. The defence has also examined 4 witnesses. Their evidence has no relevance with the case of the appellants, as such it is not necessary to discuss their evidence. 6. The learned counsel for the appellants has not challenged the factum of dacoity and has contended that these appellants having enmity with the prosecution party were falsely implicated in this case. Elaborating his submission the learned counsel for the appellants contended that if the appellants had participated in the occurrence and witnesses had seen them committing crime, then the name of the appellants would have been mentioned by the informant in the F.I.R. as the persons identified by the witnesses as dacoits but the informant has not claimed that the name of the appellants was also disclosed by the aforesaid P.Ws. after the occurrence. On the other hand, the name of the appellants has been given in the F.I.R. on the confessional statement of Dukhi Ahir. 7. So far as dacoity is concerned, P.Ws. after the occurrence. On the other hand, the name of the appellants has been given in the F.I.R. on the confessional statement of Dukhi Ahir. 7. So far as dacoity is concerned, P.Ws. 2, 3, 4, 5, 6 & 7 have stated in court that the dacoits came and entered into the house of the informant and plundered the articles. They have also assaulted the informant and his family members. Their further evidence is that a large number of villager assembled and set on fire the bundles of Paddy straw and thereafter the dacoits retreated. One of the dacoits Dukhi Ahir was apprehended and he disclosed the name of the appellants and other and thereafter he was done to death by the villagers. The evidence on this point is consistent and convincing. Their evidence finds support from objective finding noticed by the P.W. 8 who inspected the P.O. He found the broken boxes, battery of the torch, cartridges etc. at the place of occurrence. Thus, the evidence on the record clearly proves beyond the reasonable doubt that dacoity had taken place in the house of the informant in the alleged night. 8. The next question is as to whether these appellants participated in the aforesaid crime or not. As stated above the occurrence took place in the night and the F.I.R. was lodged at 10.30 p.m. on the next day and the informant has not stated in the F.I.R. that other family members or the villagers have disclosed the name of the appellants as participants in the crime. He has only stated that the apprehended accused disclosed the name of the appellant. It further appears from the fardbeyan that the P.Ws. who are claiming to have seen the appellants namely P.W. 2 Shrinarain Singh, P.W. 3 Bindeshwari Singh, P.W.4 Ashok Singh and P.W.6 Ramesh Singh have signed as witnesses on the fardbeyan. 9. No doubt, F.I.R. is not a substantive substance and it can be used only to corroborate or contradict its maker, it is an earliest version of the prosecution case presented before the police. Any vital ommision in the F.I.R. is a matter of significance to the accused. If the P.Ws. 9. No doubt, F.I.R. is not a substantive substance and it can be used only to corroborate or contradict its maker, it is an earliest version of the prosecution case presented before the police. Any vital ommision in the F.I.R. is a matter of significance to the accused. If the P.Ws. 2, 3, 4 & 6 have seen the appellants participating in the crime then they would have disclosed the names of the appellants and this fact would have been mentioned in the F.I.R. It is not a case that these witnesses were not present at the P.O. before lodging the F.I.R. Their signature on the fardbeyan as witnesses show that their presence at the time of lodging the case. The specific statement of the informant before the court is that he has met the family members and others before lodging fardbeyan. This vital ommision in the F.I.R. is a serious lacuna in the prosecution case. 10. From the evidence of P.W. 7 Suraj Singh it appears that Jangi Singh and Jamadar Singh are his brothers. He has son Bigan Singh and P.W. 5 Kashi Singh. Jangi Singh has the son Bindeshwari Singh, P.W. 3. Jamadar Singh has 3 grandsons namely P.W. 2 Shrinarain Singh, P.W. 4 Ashok Singh and P.W. 6 Ramesh Singh. The evidence of P.W. 6 Ramesh Singh in paragraph 12 shows that the appellant were on inimical terms with their family prior to the occurrence. A case was going on between this witness and the appellants. He has also stated that all the dacoits had concealed their faces. Thus, from the evidence on record it is clear that all the witnesses belong to the same family and are on inimical terms with the appellants. PWs. 2, 3, 4 & 6 did not disclose the name to the informant at the earliest. The informant and his son Kashi Singh had not named these appellants as the participants in the crime. As stated above, the informant was sleeping at the Darwaja and Kashi Singh was sleeping inside the house even then they did not claim that the appellants had participated in the crime. This apart, a large number of co-villagers had assembled and none of them had come to support the fact that these appellants had participated in the crime. The confessional statement of the co-accused is not a substantive evidence. This apart, a large number of co-villagers had assembled and none of them had come to support the fact that these appellants had participated in the crime. The confessional statement of the co-accused is not a substantive evidence. Thus, non-disclosure of the fact in the F.I.R. that PWs. 2, 3, 4 and 6 identified the appellants makes the claim of the aforesaid witnesses that they saw the appellants participating in the crime doubtful. Their evidence of identification does not inspire confidence. Thus, I am inclined to give benefit of doubt to the appellants. The extra-judicial confession alleged to have been made by Dukhi Ahir naming the appellants, even if assumed to be correct, cannot form the basis of conviction for the reason that the confession of the co-accused cannot form a basis of conviction. It can only lend assurance to the other evidence on record. The other evidence on the record is not reliable and trustworthy. Then on the basis of extrajudicial confession the appellants cannot be convicted. 11. For the aforesaid reasons the prosecution has failed to prove its case beyond the reasonable doubt against the appellants. Accordingly, this appeal is allowed and the order of conviction and sentence passed against the appellants is set aside and the appellants are acquitted of the charges levelled against them. As the appellants are on bail, they are discharged from their bail bonds.