N. S. GUPTA, J. The four accused ap pellants named above were convicted by Sri J. P. Sharma, the then Ilnd Addl. Sessions Judge, Banda, vide his judgment and order dated 16-12-1980, under Section 396, I. P. C Lalta Prasad, Ram Jiyawan and Sukhlal were sentenced to undergo R. I. for a period of five years, Sohan Lal being a young lad of tender age was let off on the basis of the period already undergone. Aggrieved by the said judgment the accused appellants came up in appeal before the Court. 2. During the pendency of the appeal Lalta Prasad and Sukh Lal had died and the report of their death was confirmed by the C. J. M. Banda as per his report dated 14-6-97. Their appeal, therefore, has abated and this appeal proceeded as against Ram Jiyawan and Sohan Lai. 3. According to the case of the prosecution, a dacoity was committed at the house of Sri Krishana Duit Agnihotri, P. W. 1 on the intervening night of 26/27-1-79 at about 1. 00 a. m. about which a written report was promptly lodged at police station Mau, district Banda at about 4. 00 ?. m. The police station being 16 Kms. from the village of occurrence. The prosecution claimed that the dacoits were 13-14 in numbers and they were armed with guns, country made pistols, Kulhari and iron rods. They looted cash, clothes and ornaments from the house of the complainant Sri Krishna Dutta Agnihotri. After committing dacoity they made good their escape. The prosecution maintained that a lantern was burning at the house of the complainant at the time of occurrence. The faces of the culprits were seen by the complainant in the light of the torch. The villagers who collected on spot after hearing noise also set fire. Sohan Lal, Lalta Prasad, Sukh Lal, Ram Jiyawan s/o Bandhari and two sons of Bandhari whose names were not known were named as the culprits in the F. I. R. , besides 5-6 other un known persons. At the trial the accused ap pellants pleaded not guilty and maintained that they have been falsely implicated into this case due to enmity. After needful trial into the matter the learned trial Judge con victed and sentenced the accused appellants as aforesaid. Hence the appeal. 4. At the trial the accused ap pellants pleaded not guilty and maintained that they have been falsely implicated into this case due to enmity. After needful trial into the matter the learned trial Judge con victed and sentenced the accused appellants as aforesaid. Hence the appeal. 4. I have heard Sri A. R. B. Kher, learned counsel for the accused appellant Ram Jiyawan and Sri I. M. Khan, brief holder of Sri M. B. Yadav, learned counsel for the accused appellant Sohan Lal and Sri Jitendra Singh A. G. A. for State, considered the facts and circumstances of the case. 5. The conviction of the accused appel lants rests upon the direct testimony of P. W. 1, Sri Krishna Dutt Agmhotri and P. W. 2 Smt. Vidya Devi, w/o Sri Krishna Dutt Agnihotri, who both named the accused appel lants Ram Jiyawan and Sohan Lal as the culprit and supported prosecution version on the point that besides others they too have actively participated in the occurrence in question. Besides these two witnesses of fact who claimed to have been the injured in the incident in question, the prosecution examined Sri Ram Das, P. W. 3, Sri Chhabi Lal, P. W. 8, Sri Raj Kumar, P. W. 5, Sri Benchu Lal, P. W. 6 as witnesses of the fact who all stated the factum of dacoity but showed their ignorance on the point that the accused appellant Rani Jiyawan and Sohan Lal were there amongst the culprits. They all were declared hostile. P. W. 7 was Head Constable Bishambhar Nath, who proved chick report and G. D. report. P. W. 3 was the Investigating Officer of the case who immediately rushed to the scene of occur rence and prepared site plan Ex. 4 and saw the lantern which was burning on spot at the time of occurrence. P. W. 9 was another Sub-Inspector of police who subsequently inves tigated into the matter and had arrested Sukh Lal and Munshi Lal. P. W. 10 was Con stable Chandra Dutt Bajpai who has given evidence about Munshi Lal for keeping him Baparda. P. W. 11 Sri R. C. Dixitwas Deputy Collector Banda on 2-11-79 who conducted identification proceedings in respect of Munshi Lal and Babu Lal who were real brothers of accused appellant Ram Jiyawan. P. W. 10 was Con stable Chandra Dutt Bajpai who has given evidence about Munshi Lal for keeping him Baparda. P. W. 11 Sri R. C. Dixitwas Deputy Collector Banda on 2-11-79 who conducted identification proceedings in respect of Munshi Lal and Babu Lal who were real brothers of accused appellant Ram Jiyawan. They were however, acquitted by the trial Court itself on the ground that the iden tification evidence as against them was not reliable. 6. Nothing incriminating was recovered from the possession of the ac cused appellants although they were named as culprit in the F. I. R. although the Investigation Officer had rushed up to the spot immediately after lodging F. I. R. It is impor tant to note here that neither the com plainant Sri Krishna Dutt Agnihotri ncr his wife Smt. Vidya Devi who according to the medical examination report had sustained a number of injuries which are detailed below have stated any specific overt act on the part of the accused appellants:- Injuries of Krishna Dutt Agnihotri, P. W. 1. (1) A contused swelling 6 cm x 6 cm on the outer part of dorsum of left hand. Red in colour. This contused swelling was in continuation with as other contused swelling 3 cm x 3 cm on proximal phialanx of right index finger. There was feeling of creptus indicating fracture of underlying bone (2nd metacarpal bone ). Ad. X-ray. (2) A vertical contused swelling 10 cm x 6 cm on the back of lower half of left fore-arm. Red in colour. (3) A horizontal abrasion 5 cm x 0. 1 cm on the outer surface of left forearm 8 cm below the elbow joint. (4) A horizontal bruise 5 cm x 2 cm on the back of upper part of right upper arm 11 cm below the top of shoulder. (5) An abrasion 0. 25 cm x 0. 25 cm on the front of distal phalanx of right little finger. (6) An obligque bruise 7 cm x 2 cm on the front of right, forearm 10 cm above the wrist joint. Red in colour. Injuries of Smt. Vidya Devi, PW 2. (1) A horizontal bruise 6 cm x 2. 5 cm on outer surface of back of right upper arm 8 cm above the right elbow joint. Red in colour. (2) A vertical and slightly oblique bruise 9 cm x 2. Red in colour. Injuries of Smt. Vidya Devi, PW 2. (1) A horizontal bruise 6 cm x 2. 5 cm on outer surface of back of right upper arm 8 cm above the right elbow joint. Red in colour. (2) A vertical and slightly oblique bruise 9 cm x 2. 5 cm on the back of right shoulder from the back of top of shoulder upto 4 cm above the posterior superior angle of right scapula. Red in colour. (3) A horizontal bruise 10 cm. x 3 cm. on the back of right side chest from 4 cm posterior to upper and posterior and of axillae upto 3 cm. inferior to mid line at 3rd dorsal spine. Red in colour. (4) A horizontal bruise 10 cm x 2. 5 cm on back of left side chest front mid line at 7th dorsal spine upto inferior angle of left scapula. Red in colour. (5) A horizontal bruise 10 cm x 3 cm on the back of left side chest from the middle of posterior border of left scapula bone upto the upper and posterior end of left axillae. Red in colour. (6) A horizontal bruise 6 cm x 3 cm on the back of left side chest along the upper border of left scapula. Red in colour. (7) A contused swelling 10 cm x 12 cm on the left buttock. Reddish blue in colour. (8) A contused swelling 13 cm x 11 cm on the right buttock. Reddish blue in colour. 7. When as many as 4 persons were implicated by name in the F. I. R. by the com plainant and when a number of injuries were caused by the bandits on the person of the complainant and his wife, normally the complainant and his wife should have stated before the court below the name of that bandit who caused that injuries. The cir cumstances that they did not state any overt act on the part of the accused appellants Ram Jiyawan and Sohan Lal, fully go to show that the accused appellants were false ly named as culprits in the EI. R. because of some hostility towards the complainant. The complainant Sri Krishna Dutt Agnihotri in his cross examination before the court below clearly stated that some hot words were be exchanged in between the mother of Sohan, accused appellant and his wife. R. because of some hostility towards the complainant. The complainant Sri Krishna Dutt Agnihotri in his cross examination before the court below clearly stated that some hot words were be exchanged in between the mother of Sohan, accused appellant and his wife. The complainants wife Smt. Vidya Devi, P. W. 2 stated that he never quarrelled with the mother of Sohan. She rather stated that something wrong had happened and some bad words were exchanged in between her husband and the mother of the accused appellant Sohan. Whether some hot words were exchanged in between the complainant Sri Krishna Dutt Agnihotri, P. W. 1 or Smt. Vidya Devi, P. W 2, the fact remains that the complainant and his wife both bore hostility towards the mother of Sohan. When a dacoity was committed at the house of the complainant the possibility that the com plainant falsely roped in Sonar on that score cannot be ruled out. 8. As regards Ram Jiyawan also noth ing incriminating was recovered from his possession nor any overt act was assigned to him. Although he was armed with Kulhari. It is significant to note here that the com plainant had named two other brothers of Kam Jiyawan stating the fathers name of Ram Jiyawan as Bandhari and two sons of Bandhari, but in his statement on oath before the Court below the complainant stated that he did not name Baba Lal and Munshi, the brothers of Ram Jiyawan ac cused appellant for the reason that he did not know the name of their father. When the complainant had stated the fathers name of Ram Jiyawan and further stated two sons of Bandhari, it is not believable that the names of the accused appellants which were men-c tioned in the F. I. R. were correctly men tioned. If it was a fact that Ram Jiyawan and his brothers had also participated in the occurrence in question, and the com plainant knew the names of the brothers of Ram Jiyawan as Babu and Munshi, it cannot be believed, he would not have incorporated names of Babu and Munshi in the F. I. R. 9. If it was a fact that Ram Jiyawan and his brothers had also participated in the occurrence in question, and the com plainant knew the names of the brothers of Ram Jiyawan as Babu and Munshi, it cannot be believed, he would not have incorporated names of Babu and Munshi in the F. I. R. 9. Although, from the record of the case it is clear that a dacoity was in fact committed at the house of the complainant on the night of occurrence by certain ban dits, but since the accused appellants belonged to that very village, it is not pos sible for me to believe that they should have participated in the dacoity in question without taking any precaution to conceal their identity. I accordingly hold that the learned Court below misdisected himself in placing reliance upon the statement of com plainant Sri Krishna Dutt Agnihotri, P W 1 and his wife Smt. Vidya Devi, P. W 2 and wrongly held the accused appellant guilty for committing an offence punishable under Section 395, I. P. C. 10. I accordingly find that the state ment of Sri Krishna Dutt Agnihotri, P. W 1 and his wife Smt. Vidya Devi, P. W 2, with egard to the participation of the accused appellants in the occurrence in question was attained with falsehood one. The learned Court below erred in believing the same. The appeals, therefore, allowed and the conviction and sentence of the accused ap pellants Ram Jiyawaa and Sohan Lal is hereby set aside. The appeal in so far as it relates to Lalta Prasad and Sukh Lal abates. It is directed that the accused appellant Ram Jiyawan and Sohan Lal if in jail shall be set at liberty forthwith, if on bail tiieir bail bonds shall stand cancelled, but they need not to surrender. 11. Let the record of the case alongwith with a copy of this judgment be sent to the court below for needful com pliance. Appeal allowed. .