S. N. Tiwari, J. Accused Ram Swarup, Chunna, Sultan and Chandra Pal, who have preferred this appeal, were convicted under Sections 399 and 402, I. P. C. to five years and four years R. I. respectively. Accused Ram Swarup and Chunna were further convicted and sentenced under Section 25 of the Indian Arms Act to two years R. I. each. 2. According to the prosecution story, S. I. Prempal Singh, P. W. 2, S. O. Baria alongwith S. I. Chhatra Pal Singh Chauhan and other police constables, had gone from the police station at about 7 p. m. on 15-4- 1978 in connection with the investigation of a case under Section 379, I. P. C. When the police personnel aforementioned were returning to the police station from the road at about 10 p. m. , they suspected the presence of some bad characters in the Dharamshala of Ram Lal Bohre, because they heard some noise and saw flashing of bidis. S. O. Prem Pal Singh made two police parties from the force available with him, one was led by him and the other was led by P. W. 1 S. I. Chhatra Pal Singh Chauhan. Police Constables were included in both the parties. After completing the formality of taking and giving recovery, the party of S. O. Prem Pal Singh took position in the east of the Dharamshala while the party led by S. I. Chatra Pal Singh Chauhan (P. W. 1) took position in the north-west of the Dharamshala. According to the F. I. R. , they saw from a hole to the eastern wall of the Dharamshala that 5-6- persons were sitting in the Dharamshala and were talking amongst themselves. They were also smoking bidis. They were discussing that the last bus was shortly to arrive and dacoity is to be committed in it. They also declared that there are sufficient persons with sufficient arms. They further declared that the passengers of the bus will surrender even to the threats. This talk between the accused led the personnel of the parties led by S. O. Prem Pal Singh and S. I. Chhatra Pal Singh Chauhan to believe that the culprits had assembled with a view to commit dacoity. P. W. 2 S. O. Prem Pal Singh challenge the culprits and asked them to surrender. This talk between the accused led the personnel of the parties led by S. O. Prem Pal Singh and S. I. Chhatra Pal Singh Chauhan to believe that the culprits had assembled with a view to commit dacoity. P. W. 2 S. O. Prem Pal Singh challenge the culprits and asked them to surrender. Thereafter, the persons assembled in the Dharamshala fired towards both the parties which had taken position. The police party also replied the fire. However, no one was injured. The four accused- appellants were arrested on the Chabutra in the north of the Dharamshala. From the possession of Ram Swarup, one country-made pistol and 4 cartridges were recovered. From the possession of Chunna, accused, one country made pistol and 4 cartridges were recovered, accused Sultan and Chandra Pal were armed with lathis. Recovery memos of the recovered, articles were prepared. They are Exts. Ka-1 to Ka-4. Two blank cartridges were found on the spot. They have been taken into custody, vide recovery memo Ext. Ka-5. The chick report was prepared on the dictation of S. O. Prem Pal Singh. 3. S. I. Harsh Vardhan, who investigated the case, prepared a site-plan Ext. Ka-9. Exts. Ka-7 and Ka-8 are the copies of the G. D. through which the present case was registered and through which the departure of the police personnel in the evening of 15. 4. 1978 from the police station was made. After completing the investigation, charge-sheets Exts. Ka-10, Ka-11 and Ka-12 were submitted. Exts Ka-13 and Ka-14 are sanction accorded by the District Magistrate for prosecution of accused Ram Swarup and Chunna. Chargesheet under Section 399/402, I. P. C. was submitted against all the accused while chargesheets under Section 25 of the Indian Arms Act were submitted against Ram Swarup and Chunna. 4. It may be mentioned that though the case was registered under Section 307, I. P. C. but no chargesheet was submitted against any of the accused. 5. Charges under Sections 399 and 402, I. P. C. were framed against all the accused while charge under Section 25, Arms Act was framed against accused Ram Swarup and Chunna. 6. The prosecution examined P. W. 1 S. I. Chhatra Pal Singh Chauhan and P. W. 2 S. I. Prem Pal Singh, who have tried to corroborate prosecution theory. These witnesses have proved various police papers referred to above. 7. 6. The prosecution examined P. W. 1 S. I. Chhatra Pal Singh Chauhan and P. W. 2 S. I. Prem Pal Singh, who have tried to corroborate prosecution theory. These witnesses have proved various police papers referred to above. 7. In the statement, under Section 313, Cr. P. C. all the accused denied the prosecution theory and stated that they were arrested from their houses. 8. In defence, D. W. 1 Vijai Singh and D. W. 2 Mohd. Hanif were examined. According to D. W. 1 Vijai Singh, accused Ram Swarup and Sultan were arrested from village Arni in the morning when the police party came to arrest Sultan, Ram Swarup was with the police in the morning in village Arni. 9. The learned trial court believed the prosecution theory and passed the impugned sentence. Feeling aggrieved this appeal has been preferred. 10. Learned counsel for the accused-appellants argued that the prosecution theory is false and is inherently improbable, it was further argued that no independent witnesses were examined and the investigating officer was also not examined. The non-examination of the investigating officer is fatal to the prosecution theory because the siteplan is defective and vague. The place where the accused persons were sitting and talking, has not been shown. The rooms of the Dharamshala were also not shown. 11. According to P. W. 1 Chatra Pal Singh Chauhan, in the north of the Dharamshala, there was a verandah which was 10 cubits long and 8 cubits wide. Thereafter there was room. According to P. W. 2 Prem Pal Singh, the accused were sitting in the room in the eastern portion of the Dharamshala. All this shows that in the Dharamshala, besides a verandah, there were several rooms. In the site-plan Ext. Ka-9, Dharamshala has been shown with a verandah towards north. The width of the verandah is not shown. A door is shown towards east. According to P. W. 2 Prem Pal Singh, there is an opening in the eastern wall of the Dharamshala due to removal of two bricks. He saw the accused initially from this hole and heard them talking. The hole in question is a material evidence. It is not shown in the site-plan, Ext. Ka-9. The distance from the place where the parties had taken position to the place where the accused were apprehended is not shown. He saw the accused initially from this hole and heard them talking. The hole in question is a material evidence. It is not shown in the site-plan, Ext. Ka-9. The distance from the place where the parties had taken position to the place where the accused were apprehended is not shown. The place where P. W. 2 constituted two parties is also not shown. The site plan is, therefore, vague and the merit of the case could not be judged. In these circumstances, the non- examination of the Investigating Officer affects the merit of the prosecution case adversely and is fatal for the prosecution theory. It may be noted that the I. O. Sri Harsh Vardhan was working as subordinate of P. W. 2 S. I. Prem Pal Singh at the relevant time. If he was examined, the material facts could have been brought on record. 12. The prosecution theory is inherently improbable. According to P. Ws. 1 and 2, they saw some persons smoking inside the Dharamshala while they were returning to police station Barla and heard some noise. It is improbable that if the accused were sitting inside the Dharamshala with a view to conceal their presence before committing the crime, they would be talking so loudly that their presence could be noted by any person passing through the road in the east of the Dharamshala. According to P. W. 2 Prem Pal Singh, the accused were sitting in a room, therefore, the flash of biri could hardly be visible from the road. 13. The deposition of S. I. Chhatra Pal Singh Chauhan (P. W. 1) does not appear to be reliable. He alongwith other police personnel left the police station. In connection with the investigation of Crime No. 42. He was unable to depose as to whether he left the police station in the morning or in the evening. He does not know in which village and at whose house the raid was given. He does not remember at what time the raid was made. He also does not remember whether any accused was arrested and any material was recovered. He could not give the distance of that village from the police station. He says that he had not talked about the raid with any Pradhan or other persons. He does not remember whether public witnesses were taken for the raid. He also does not remember whether any accused was arrested and any material was recovered. He could not give the distance of that village from the police station. He says that he had not talked about the raid with any Pradhan or other persons. He does not remember whether public witnesses were taken for the raid. He does not remember the distance of Thana from the place of the raid. All this indicates that he is deliberately concealing some factor. 14. According to P. W. 1 Chhatra Pal Singh Chauhan, there is a window in the eastern wall of the Dharamshala. According to P. W. 2 Prem Pal Singh, he saw the accused talking from hole made due to removal of two bricks. This contradiction goes against the prosecution. 15. P. W. 1 Chhatra Pal Singh Chauhan further states that he heard the accused talking from the north western corner of the Dharamshala. According to P. W. 2 Prem Pal Singh, the personnel of the second party led by Chhatra Pal Singh Chauhan saw the accused through the hole in the eastern wall. This contradiction also shows that the prosecution theory is based on imagination. 16. According to F. I. R. Ext. Ka-6, the complainant P. W. 2 and others heard and saw that 5-6 persons were sitting inside the Dharamshala and were smoking bidis. They declared that the time for arrival of the last bus had come and the bus is to be robbed. They also declared that they had sufficient arms and they are also sufficient in number and the passengers surrender easily to threats. This discussion of the accused given in the F. I. R. Ext. Ka-6 is not consistent with the statements of the witnesses. P. W. 1 stated in the cross-examination that the accused had stated that they should load their fire arms. He learnt about the plan after hearing the talk about the loading of the fire-arm to rob the bus and the accused were challenged. According to P. W. 2 Prem Pal Singh, the persons assembled in the Dharamshala were saying that they have to commit robbery and, therefore, fire-arms should be loaded. This is also not consistent with the prosecution theory about the discussions narrated in the F. I. R. 17. According to P. W. 2 Prem Pal Singh, the persons assembled in the Dharamshala were saying that they have to commit robbery and, therefore, fire-arms should be loaded. This is also not consistent with the prosecution theory about the discussions narrated in the F. I. R. 17. P. W. 1 Chhatra Pal Singh Chauhan admits that the bullets of the fire made by the police was not recovered and no sign of fire was present on the spot. According to the prosecution theory, 5-6 fires were made by the police towards the Dharamshala. The absence of any proof of firing, falsifies the prosecution theory. 18. P. W. 1 Chhatra Pal Singh Chauhan says that the accused, who ran away from the spot, were not given a chase. According to F. I. R. , 7 personnel were in the police party. Consequently, the facts that the accused were not chased makes the prosecution theory improbable. 19. In the F. I. R. commission of the offence under Section 307, I. P. C. is clearly alleged and mentioned. The chargesheet was not submitted under Section 307, I. P. C. If a vital structure of the prosecution is found by the Investigating Officer Himself to be untenable, the whole edifice of the prosecution case must collapse. 20. There was door in the wall of the Dharamshala and the northern verandah of the Dharamshala had three openings as would be clear from the site-plan Ext. Ka-3. The accused must have come near the opening before firing. The prosecution is silent about the place from where the fire was made and it is also not clarified as to what object was aimed at and from which place the fire was made. 21. No memo about the torch used at the time by the prosecution witnesses was prepared. It falsifies the prosecution theory about the use of the torch. The alleged occurrence is of mid April. It is common knowledge that at that time in villages, harvested crops are stored and thrashing operation is done. However P. W. 2 Prem Pal Singh says that at the time of occurrence, there was no khalihan in the field or in the grove. This again affects the prosecution theory. According to P. W. 2 Chhatra Pal Singh Chauhan, about an hour was taken in preparation of the memos on the spot. However P. W. 2 Prem Pal Singh says that at the time of occurrence, there was no khalihan in the field or in the grove. This again affects the prosecution theory. According to P. W. 2 Chhatra Pal Singh Chauhan, about an hour was taken in preparation of the memos on the spot. P. W. 2 says that he does not remember whether any bus passed through the road from the place of occurrence during that time. That would again makes the prosecution theory false. In these circumstances, the deposition of D. W. 1 Vijai Singh and D. W. 2 Mohd. Hanif becomes important and acceptable. The above aspect of the case was not considered by the trial court and its judgment deserves to be set aside. 22. The appeal is allowed. The conviction and sentence passed by the trial court against appellants Ram Swarup, Chunna, Sultan and Chandra Pal are set aside and they are found not guilty of offences punishable under Sections 399 and 402, I. P. C. and are acquitted. Appellants Ram Swarup and Chunna are also acquitted of the charges under Section 25 of the Indian Arms Act. 23. All the appellants are on bail. They need not surrender. Their bail bonds are cancelled and sureties discharged. Appeal allowed. .