S. C. DATTA, J. ( 1 ) THE present petitioners along with G. Nageswar Rao, stood charged under Ss. 457 and 395, IPC read with S. 397, IPC, before the Chief Judicial Magistrate-cum-Assistant Sessions Judge, Jeypore. The trial Court found all of them guilty of the offence under Ss. 457 and 395, IPC convicted them thereunder and sentenced to suffer R. I. for five years each and to pay a fine of Rs. 1,000/- each and in default thereof to undergo R. I. for a further period of two months each. ( 2 ) THE accused persons appealed before the Sessions Judge. The learned Sessions Judge, Koraput-Jeypore, gave the appellant G. Nageswar Rao, the benefit of doubt and acquitted him of the charges. She, however, found the other accused persons guilty of the charge under Ss. 457/395, IPC and upheld the order of Conviction and sentence recorded by the trial Court. These revision petitions are directed against the order of the appellate Court. ( 3 ) THE prosecution case, in short, is that on 6-10-1992 at about 11 p. m. dacoity was committed in the residence of the informant Biraya Sethi (P. W. 1) while he was sleeping in his house along with his family members. According to the prosecution, the dacoits numbering about 8 to 10 persons being armed with knives, chains and lathis came to his house knocked at the door and asked him to open the door on several pretexts. The informant did not oblige them and as such they broke open the door, entered inside the house, tied the hands of the informant and assaulted him. Out of fear the informant handed over the key of the boxes on their demand. The dacoits took away cash amount of Rs. 17,260/-, 105 tolas of silver, 8 tolas of gold, two wrist watches, two torch lights etc. Before leaving the house they assaulted the wife of the informant and his daughter. While retreating the dacoits burst bombs to keep the villagers away. On the next day the informant (P. W. 1) lodged a written report with the Officer-in-charge, Padwa, Police-station. On the basis of the written report a case was registered and investigation started. The investigation resulted in filing of the charge-sheet, and eventually the accused persons faced trial before the learned Chief Judicial Magistrate-cum-Assistant Sessions Judge, Jeypore. They had become unsuccessful in appeal. On the basis of the written report a case was registered and investigation started. The investigation resulted in filing of the charge-sheet, and eventually the accused persons faced trial before the learned Chief Judicial Magistrate-cum-Assistant Sessions Judge, Jeypore. They had become unsuccessful in appeal. ( 4 ) ACCORDING to the learned counsel appearing for the petitioners, the petitioners have been convicted on the basis of their identification only and as a matter of fact, there is no legal identification of the petitioners by the witnesses for which the conviction and sentence passed against them are liable to be set aside. It appears that of the 11 witnesses examined by the prosecution to establish its case, the informant Diraya Sethi (P. W. 1) and his daughter Damayanti Sethi (P. W. 2) and wife Malana Sethi (P. W. 6) were the inmates of the house and who had seen the alleged commission of dacoity at their residence on 6-10-92. The informant Biraya Sethi (P. W. 1) had lodged the complaint with the police-station. It appears from the FIR (Ext. 5) that it was lodged with the Police-station on 7-10-92 at 4 p. m. while the incident allegedly occurred in the mid-night of 6-10-92. In the FIR it has been alleged that dacoits had brought with them Uta Sethi one of the petitioners to his house in a tied up condition and that the said Uta Sethi pointed out his house to the other miscreants. Besides this, not a single word has been uttered as to what part this Uta Sethi played during the alleged commission of dacoity. During trial, the so-called eye-witnesses said that the petitioner Uta Sethi asked the informant first to give him a Bidi and when the latter told him that he had no Bidi. Uta Sethi asked for a cigarette. It is in the evidence that when the informant told him that he had no cigarette also the petitioner Uta Sethi told him that police had come to the village and asked him to open the door but the informant did not open the door. Thereafter, the miscreants burst bombs to frighten the villagers. Uta Sethi asked for a cigarette. It is in the evidence that when the informant told him that he had no cigarette also the petitioner Uta Sethi told him that police had come to the village and asked him to open the door but the informant did not open the door. Thereafter, the miscreants burst bombs to frighten the villagers. After the villagers left, the dacoits broke open the door of the room of the informant and entered inside the room, caught hold of him and tied him with a rope and assaulted him by dealing with fist blows, as a result of which, one of his teeth was broken. Thereafter, the miscreants snatched away gold earrings and nose ring from the person of the wife of the informant after assaulting her. Subsequently, they assaulted his daughter Damayanti also. The dacoits demanded key from them and out of fear, they showed the place where the key was. The dacoits opened the Almirah and took away the cash, gold ring and some pieces of gold ornaments. The culprits ransacked the room and thereafter fled away. According to the learned counsel appearing for the petitioners, the prosecution as developed this case during trial inasmuch as no such case has been made out in the FIR. In the FIR it has simply been stated that the dacoits had brought the petitioner Uta Sethi in a tied up condition but during trial the witnesses, tried to develop the case of the prosecution with regard to the involvement of the petitioner Uta Sethi in the matter of commission of this crime. This Uta Sethi was known to the informant and his family members from before. He was not put up for identification during T. I. parade. We gather from the evidence of Damayanti (P. W. 2) that after the occurrence, she had asked Uta Sethi as to who had come to their house to commit dacoity. She says that the accused Uta Sethi disclosed the names of other accused persons at the police-station. Learned counsel appearing for Uta Sethi submits that nothing was recovered either from Uta Sethi or from any other accused persons. According to him this shows that they were not involved in the crime. She says that the accused Uta Sethi disclosed the names of other accused persons at the police-station. Learned counsel appearing for Uta Sethi submits that nothing was recovered either from Uta Sethi or from any other accused persons. According to him this shows that they were not involved in the crime. ( 5 ) IT has been stated that a lamp was burning in the room of the informant the dacoity was committed and this made it possible for the inmates of the house to identify the dacoits. The informant P. W. 1 concedes that he had not stated to the police that a bathi (lamp) was burning in their room during the commission of dacoity. No lamp was seized by the police officer during investigation. On the other hand the wife of the informant (P. W. 6) admits that after departure of the miscreants, they lighted the lamp. It has been elicited from her during cross-examination that her husband, viz. , P. W. 1 as also her daughter could not identify the culprits during the alleged commission of dacoity at their residence on 6-10-92. The informant (P. W. 1) says during cross-examination that six months prior to the date of occurrence, the accused Nageswar Rao had come to their residence. If Nageswar Rao was present during the commission of dacoity and had it been a fact that the informant had recognised him on that night, he would have given the name of Nageswar Rao in the FIR. The categorical statement of the wife of the informant is that neither her husband nor she herself nor her daughter could identify any of the culprits who had allegedly committed dacoity at their residence on that night. The daughter of informant (P. W. 2) knew the accused Bhima from before. Even then she could not recognise him during the alleged commission of dacoity. It is unlikely that Bhima a man known to the family of the informant party would not try to conceal his identity before actually entering the house. From an analysis of the evidence of the prosecution witnesses, it is evident that the prosecution had tried to develop the case during trial. There has been an attempt to suppress the fact. The identification of the accused persons was defective. From an analysis of the evidence of the prosecution witnesses, it is evident that the prosecution had tried to develop the case during trial. There has been an attempt to suppress the fact. The identification of the accused persons was defective. It transpires from the evidence of P. W. 1 that the accused persons were shown to the identifying witnesses before holding of T. I. parade. The room was dark and no lamp was burning at the time of alleged occurrence and as such, it was impossible to recognise any of the miscreants. The accused persons were known to the informant party from before and nothing was recovered from their possession so as to connect them with the alleged commission of dacoity. These circumstances make the prosecution has not come out with real story, the reason of which is quite unknown. This being the position, it is difficult to believe the version of the case as advanced by the prosecution witnesses. In that view of the matter, I am in disagreement with the finding of the appellate court that the trial Court had rightly convicted the accused persons. In my view, the order of conviction and sentence passed by the trial Court and upheld by the appellate Court cannot be sustained, I am inclined to give the petitioners the benefit of doubt. The petitioners are, therefore, entitled to be acquitted. ( 6 ) FOR the aforesaid reasons, the petitions succeed and the order of conviction and sentence passed against the accused persons is set aside. The petitioners, viz. K. Srinath and Bhimasen Khera be discharged from their respective bail bonds and Uta Sethi be released from Jail, if not required in connection with any other case. Petition allowed.