JUDGMENT : - B.K. Sharma, J. This is an appeal against the judgment and order dated 15. 12. 1979 passed by Sri G. S. N. Tripathi, the then IIIrd Additional Sessions Judge, Basti in S. T. No. 110 of 1975 along with connected S. T. Nos. 125 of 1975, 126 of 1975,127 of 1975,128 of 1975 and 129 of 1975, by which he convicted the accused- appellants Babu Lal, Gorakh, Mahangi, Moti Lal and Toofani of the offences under Sections 399/402, I. P. C. and sentenced each one of them to undergo R. I. for a period of 5 years for the offence under Section 399, I. P. C. and for the period of 5 years R. I. for the offence under Section 402, I. P. C. and further convicted Gorakh, Mahangi, Moti Lal and Toofani accused-appellants for the offence under Section 27 of the Arms Act and sentenced each one of them to undergo R. I. for a period of 6 months. Babu Lal accused-appellant, however, was acquitted by the learned Sessions Judge for the offence under Section 27 of the Arms Act. 2. OUT of the accused-appellants, Babu Lal accused-appellant died during the pendency of the appeal and so the appeal has abated to his extent. The prosecution story was that Lallan Prasad Srivastava, S. O. P. W. 3 of Police Station Menhdawal, District Basti received information from the informer on 29-3-1973 that a dacoit would be committed in the house of Ram Lakhan of Baniya Bazar, Bakhira at 11. 00 p. m. that on this, he alongwith the police force make departure from the Police Station and reached outpost Bakhira and took from there Ram Ashray Mishra, head constable P. W. 1, Ram Surat Singh constable and certain other constables and staying there sent Ram Sumer constables and one more constable and called public witnesses Surya Bans Singh P. W. 4, Juggi Lal, Ganesh, Govind, Ram Nath, Onkar Pathak, Bhullan, Roodal Pathak and Uma Shanker Shukla, residents of villages Maidrapar and licence holders Sohrat Singh and Mohd. Raza from the village Bakhira P. S. Menhdawal there and after apprising them of the purpose of calling them made 4 parties, that a party was made in the leadership of Kapildev Mishra, A. S. I. and public witnesses Mohd. Raza from the village Bakhira P. S. Menhdawal there and after apprising them of the purpose of calling them made 4 parties, that a party was made in the leadership of Kapildev Mishra, A. S. I. and public witnesses Mohd. Raza, Juggi Lal, Govind and constable Vish-wanath were included in it and it was sent to the house of Ram Lakhan of Baniya Bazar to collect the villagers and to caution Ram Lakhan and to do Gherabandi for the protection of his house that then three parties were formed out of the remaining force and the public witnesses that, the first party was headed by Ram Ashray Mishra, head constable P. W. 1 and was consisting of constable Ram Briksha Singh, constable Shohrat Singh, Onkar Pathak public witness and constable Ram Surat Singh P. W. 2 and the second party was made in the leadership of Chhote Lal Mishra S. I. and it was including the public witnesses Surya Bansh Singh and Bhullan and two constables, that the third party was made in the leadership of S. O. Lallan Prasad Srivastava P. W. 3 himself which included Roodan Pathak, Daya Shanker Shukla and three constables, that all the three parties reached in ihcgrove of Shital Nayak on the border of Bakhira Lake (Jheel), that the first party was posted at the bank of the lake to the north of the grove, the second party was posted towards south west behind the house in the shape of Gomti and the third party was posted on the south of the grove on the Sahjanwa road, that all the parties were posted at their respective locations by 9. 50 p. m. on the date, that at 10.15 p. m. 3-4 culprits came from south east of the lake from the northern corner of the grove and sat under a mango tree and started conversing with each other in a low tone that one of them said, "abhi Tak Laddoo Va Ustad Nahin Aye". Another retorted "samai Ho Gaya Hai. Another retorted "samai Ho Gaya Hai. Aatey Hi Hongey" and again said "pahalwan Biri Dharao, Pi Liya Jaye" and further said "ustad Apney Bajey Men Ka Aek Baja Hamko Bhi Dilwa Do", that in the mean time, 4 more culprits came from the Rasta of the lake and joined the previously assembled culprits, that then one culprit said "lo Ustad Va Laddoo Bhi Aa Gaya", that then all the culprits started conversing with each other, one of them said "ustad Ram Lakhan Key Pas Kafi Mai Hai Aur Ab Chalney Ka Samai Bhi Ho Gaya Hai, Kyonki 11 Bajey Ka Samai Diya Gaya Hai", that after saying this, retorting "chalo Chala Jaye", all of them got up, whereupon the police got convinced that it is a gang of dacoits assembled and preparing to commit dacoity, that consequently, head constable Ram Ashray Mishra S. I. , P. W. 1 asked the dacoits to stop and simultaneously Chhotey Lal Mishra, S. I. , starting firing shots from V. L. P. and also flashed torch and in the light of VL. P. shots and in the light of the flash of torch, 5 dacoits were arrested by the raiding parties at a distance of 10-15 paces towards East while going from the spot, that the arrested dacoits were interrogated whereupon they gave their names as Babu Lal, gorakh, Mahangi, Moti Lal and Toofani, that on search being taken, a country made pistol alongwith a live cartridge and 8 live cartridges in a Jhola hanging in his right hand shoulder were recovered from the possession of Babu Lal accused-appellant, a Bujali was recovered from the possession of Gorakh accused-appellant, a Ballam and torch were recovered from the possession of Mahangi accused-appellant and a Rampuri knife and a torch were recovered from Moti Lal accused- appellant and a Ballam and a torch were recovered from Toofani accused-appellant. 3. THE recovered properties were sealed separately and recovery memo was prepared at the spot and after that the accused-appellants were taken to the police station and lodged that at 3. 15 a. m. on 30-3- 1973 alongwith the recovered properties and a chik report was prepared and cases were registered against the accused-appellants for the offences under Sections 399/402, I. P. C. and for the offence under Section 25 of the Arms Act and investigation was started. 4. 15 a. m. on 30-3- 1973 alongwith the recovered properties and a chik report was prepared and cases were registered against the accused-appellants for the offences under Sections 399/402, I. P. C. and for the offence under Section 25 of the Arms Act and investigation was started. 4. THE investigation in this case was made by Lallan Prasad Srivastava P. W. 3 himself and a charge-sheet was submitted by him against all the accused persons aforesaid for the offences under Sections 399/402, I. P. C. separate charge-sheets were submitted against Babu Lal, Gorakh, Mahangi, Moti Lal and Toofani accused-appellants under Section 25, Arms Act. At a joint trial, the accused appellants were convicted and sentenced as aforesaid by the Sessions Judge. 5. AT the trial, ocular testimony was given by Lallan Prasad, P. W3 the then S.O., Ram Ashrey Mishra, AS. I. P. W. 1, Ram Surat Singh, constable, P. W 2 and Surya Bansh Singh, RW. 4. All the accused-appellants denied the prosecution story of assembly, preparation, spot arrest and recovery. 6. BABU Lal, Mahangi and Gorakh accused appellants claimed their arrest from Bakhira Bazar. Moti Lal accused appellant claimed that he was in Kahar and doing business in fishes, that the police demanded money from him and on his declining arrested him from road and falsely implicated him. Toofani accused-appellant claimed under Section 313, Cr. P. C. that he was doing business in fishes and due to friction with the police for some days he was arrested and deprived of his money and taken in custody and falsely implicated in the case. 7. THE learned Counsel for the accused-appellant has vociferously argued that the prosecution story was false and concocted and that the prosecution evidence at the trial was discrepant, improbable and wholly unworthy of credit. He also claimed that in order to avoid exposure of truth during investigation by an independent police officer, Lallan Prasad Srivastava, S.O., the architect of the raid, took the investigation of the case in his own hand and submitted the charge-sheets against all the accused- appellants which is against all norms of investigation in this country. 8. THE learned A. G. A. has sup ported the prosecution case and urged that the prosecution story ought to be believed and the conviction and sentences sustained. I have considered the arguments and gone through the evidence on record and the circumstances of the case. 8. THE learned A. G. A. has sup ported the prosecution case and urged that the prosecution story ought to be believed and the conviction and sentences sustained. I have considered the arguments and gone through the evidence on record and the circumstances of the case. THE case in the recovery memo is that on receiving the information from the informant, the S. O. Lallan Prasad Srivastava P. W. 3 made a departure from the police station alongwith the force for outpost Bakhira and on reaching the outpost Bakhira and taking from there head constable Ram Surat Singh, P. W 2 and other constables reached at the Than of Kaliji situated to the east of Bazar Bakhira and staying there sent Ram Surat Singh, P. W. 2 and called public witnesses Surya Bans Singh, P. W 4 and others to the Than of Kaliji. THE S. O. Lallan Prasad Srivastava P. W 3 on entering into witness box also narrated the same facts. In the witness box the S. O. Lallan Prasad Srivastava claimed about the receipt of the information from the in former and about the departure from the Police Station. However, he did not say at what time he received the information from the informer and at what time he made departure from the police station alongwith force. There is also no mention about it in the recovery memo. It is also to be noted that S. O. did not claim to have recorded the information received from the informer in the general diary of the Police Station. The prosecution also did not produce and prove the contents of any such entry in the general diary of the Police Station. He also did not claim at the trial that he got the departure of himself and force from the Police Station recorded in the general diary of the Police Station. The prosecution has not produced and proved any entry of the general diary of the Police Station. So it is shrouded in mystery as to when the informer gave the information and when the police force made departure from the Police Station. The prosecution has not produced and proved any entry of the general diary of the Police Station. So it is shrouded in mystery as to when the informer gave the information and when the police force made departure from the Police Station. Then while ac cording to the recovery memo and the testimony of, Lallan Prasad Srivastava, S. O. , P. W. 3 the S. O. and the police force reached at the outpost and took the police force from there the testimony of Ram Ashrey Mishra, Head constable P. W 1 and Ram Surat Singh, constable P. W 2 who were posted at the outpost Bakhira on the date of occurrence was otherwise. It was that constable Shri Dhar Tewari alone came to the out-post on the date and conveyed the message that he and the staff has been requisitioned by the S. O. telling that the S. O. had gone to the town Bakhira in connection with the arrest of some bad character and on getting this information the police force available at the out-post made departure from the out-post and reached at the Than of Kaliji situated to east of Bakhira town. In connection with the departure from the out-post the prosecution has got produced and proved the general dairy entry from Ram Surat Singh, H. C. , P. W. 1. In the general diary entry of 9.30 p. m. it is said that Sri Dhar Tewari constable came and conveyed that the S. O. had gone towards Bazar Bakhira and that requisition of force has been made. It does not say anything about the nature of the information received. The words used therein were: "thanadyaksh Aapko Karmcharigan Ke Saath Jo Bazar Bakhira Kee Taraf Gaye Hai Bakar Sarkartalab Kiyen Hai". Further more, as noted above, there is a basic conflict between the two versions which casts grave shadow of doubt over the entire prosecution story. Ram Ashrey Mishra, P. W. 1 posted as Head Constable on the outpost on the date of occurrence has testified that he was told by Sri Dhar Tewari, Constable who has come to the office at 9. 30 p. m. on that day and had told him that S. O. had gone alongwith staff in connection with the arrest of some bad character in Bakhira town and called him immediately. 30 p. m. on that day and had told him that S. O. had gone alongwith staff in connection with the arrest of some bad character in Bakhira town and called him immediately. He did not say that he was called to the Than of Kaliji which is situated to the east of Bakhira town. Yet he claimed that taking four constables from the out-post he reached at the Than of Kaliji where S. O. was present alongwith staff and met him. If the information given to him was that which he claimed then he would have gone to the abadi of Bakhira instead of going straight to the Than of Kaliji as claimed by him. Ram Surat Singh, P. W. 2, who also was posted as constable on the said outpost on the date of occurrence, has claimed that Sri Dhar constable (from the Police Station) came to call them and did not say that the S. O. alongwith the entire force from the Police Station came to the out post. He did not state that Sri Dhar told them the place where S. O. was or they were required to go. He only claimed that when he and other constables reached to the Than of Kaliji, there the S. O. met them. There is, of course, the testimony of both these police officers and the S. O. about the calling of the witnesses by sending Ram Surat and Sharda Prasad Shukla, constable. Then there is the usual story of apprising the force and the witnesses collected of the purpose of calling them, the making of the parties the costing of the parties at three different locations one towards the north of the grove, another towards west of the grove and the third towards south of the grove. However, about the positioning of party No. 1 towards north in the leadership of Ram Ashrey Mishra, head constable (S. I. on the date of giving witness in Court) there is a discrepancy. The testimony of Ram Ashrey Mishra, P. W. 1 was that his party No. 1 was directed to take position below the khandak of a high Medh. Ram Surat Singh, constable, P. W. 2 of the same party testified that his party was directed by the S. O. to suit to the north of the grove where there was Rasta and Khandak. Ram Surat Singh, constable, P. W. 2 of the same party testified that his party was directed by the S. O. to suit to the north of the grove where there was Rasta and Khandak. He did not say about any Medh. Lallan Prasad Srivastava, S.O., P. W. 3 claimed in his testimony that the party No. 1 was posted on the bank of lake to the north of the grove. He did not say that there was any Medh or there was any Rasta or there was any Khan dak. He himself was the Investigating Officer of this case. He has shown in the site plan the existence of a public Rasta going from east to west on the north of the grove where the dacoits are said to have been assembled and arrested on the night of occurrence and the position of the party No. 1 has been shown to the north of this Rasta. The site plan does not show any existence of any Khandak or Medh there. So there was hardly any place in that side where this party No. 1 could have effectively concealed itself so as to be not visible to the dacoits if they came to the grove nominated as the place of their assembly and preparation to commit dacoity. It may be mentioned here that in the recovery memo prepared by the Investigating Officer, it has been said that the first party was posted to the north of the grove on the bank of the lake and nothing further. About party No. 2, the recovery memo said it was posted to the south west of the grove behind house Gumtinuma i.e. Gomti shaped house. About the location of this party No. 2 Ram Ashrey Mishra, S. I., P. W. 1 did not say anything. 9. RAM Surat Singh, P. W. 2 testified that the party of Lallan Prasad Srivastava, S. O. was sitting to the north of the road and to the south of the grove and that the party of Chhote Lal Mishra, S. I. was posted to the south west of the grove. According to the recovery memo, the second party was headed by Chhote Lal Mishra, S. I. From his evidence it does not appear that there was any place of hiding for this Party No. 3 where they could avoid being sighted by the dacoits when they came. According to the recovery memo, the second party was headed by Chhote Lal Mishra, S. I. From his evidence it does not appear that there was any place of hiding for this Party No. 3 where they could avoid being sighted by the dacoits when they came. Lallan Prasad Srivastava, S. O. , P. W. 3 claimed that this party No. 2 was posted to the south west of the grove but nothing further was said by him on the point. In the site-plan prepared by him, there is shown a Kuti Khandhar to the west of the grove but there is no positive testimony by him about this fact at the trial. Surya Bans Singh, P. W. 4, who was in the second party, testified that he was posted towards south west of the grove but he also did not say that there was anything at that spot serve for hiding of the party. Then about party No. 3, the recovery memo said that it was posted at the south of the grove on Sahjanwa road. It did not say that there was any place for hiding there. In the testimony of RAM Ashrey Mishra, S. I. P. W. 1, there was nothing said about the location of this third party. The testimony of RAM Surat Singh, P. W. 2 was that the party of S. O. was positioned to the north of the road and to the south of the grove as noted earlier, but there was nothing in his testimony to show that there was any possibility of this police party being able to escape the notice of the dacoits when they came to the grove from which ever direction. There is nothing in the prosecution evidence that there was any information from the informer about the way from which the dacoits will come to the grove. Lallan Prasad Srivastava, S. O. P. W. 3 testified that his party had taken position at the Sahjanwa road and not towards the north of the road as claimed in the recovery memo. 10. SO in the ordinary course, if the raiding parties had taken their position as stated in the evidence by the prosecution witnesses it was quite unlikely that the dacoits would fail to notice then while they (the dacoits) approached the grove to assemble there. SO the prosecution story gets improbabilised. 10. SO in the ordinary course, if the raiding parties had taken their position as stated in the evidence by the prosecution witnesses it was quite unlikely that the dacoits would fail to notice then while they (the dacoits) approached the grove to assemble there. SO the prosecution story gets improbabilised. The evidence about hearing of the conversation among the dacoits as given by the prosecution witnesses is not at all convincing keeping in view the distance between the raiding parties and the dacoits. According to the site plan prepared by the S.O., the grove was 110 paces from east to west and 88 paces from north to south and party No. 1 was situated at 76 paces from the place where the dacoits assembled in the grove. He further showed in the site plan that his own party was at a distance of 45 paces from the place where the dacoits were assembled inside the grove and that the third party (i.e. second party according to the evidence) was 73 paces away from the said place of assembly of the dacoits in the grove. On oath also he gave the same distance about the parties. 11. ABOUT the raid and arrest also, the testimony at the trial by the prosecution witnesses does not inspire confidence. Ram Ashrey Mishra, S. I. , P. W. 1 testified in his claim that in connection with the arrest of the accused persons some injuries had come. It was a vague statement. He further stated that no assault had taken place from the side of accused over the raiding parties as the raiding parties were extra active. He claimed that in connection with the arrest of Babu Lal he gave lathe blow in his feet. He claimed that he did not take notice about beating of any other person. The defence suggestion was that at the police station the accused persons were inflicted injuries on the palms of their hands and soles of there feet. Ram Surat Singh, Con stable, P. W. 2 claimed that on the firing of 3 V. L. R shots the dacoits started running and the raiding parties attacked on them and caught hold of five dacoits (out of them) at the spot. Ram Surat Singh, Con stable, P. W. 2 claimed that on the firing of 3 V. L. R shots the dacoits started running and the raiding parties attacked on them and caught hold of five dacoits (out of them) at the spot. In his cross-examination, he stated that during the arrest there arose occasion for assaulting them with Lathi and that Ram Ashrey Mishra beat Babu Lal accused-appellant with Lathi. He also claimed that his party arrested Babu Lal, accused-appellant. Lallan Prasad Srivastava, S.O., P. W. 3 claimed that on the VL. P. shot the raiding parties surrounded, beaten and arrested the dacoits at the spot. In his cross-examination, he was asked the question whether the accused persons tried to assault on the raiding party. He gave reply in negative. He claimed that the accused persons had made effort to run away and so insignificant injuries had come on their person in the arrest. It is surprising that while prosecution claims that the accused appellants were carrying different weapons alongwith them including fire arms. They are not said to have inflicted a single injury to any member of the police force or any of the public witnesses who are said to be present and to have participated in the raid. The story of spot arrest and recovery appears to be rather concocted one. This impression gets support from the stark fact that Lallan Prasad Srivastava, S. O. who is the architect of the raid himself made the investigation instead of giving it to same independent police officer. In the authority Pir Bux v. State, reported in 1980 All Crl. Cases, 197, the police officer who though not the architect of the raid, had nevertheless participated in the raid and thus was an eye-witness of the occurrence had investigated that case. The learned Single Judge found that the Investigating Officer of the case had himself written out the recovery memo at the spot (of course on the dictation of the S. O.) and said that it is not understood that the police could not get a senior police officer to investigate the case. The learned Single Judge further ob served as follows: "the purpose of investigation is to find out the truth in the allegations of the prosecution version. Therefore, a person, who is an eye-wit ness himself, cannot be the investigating officer . . . . . . . . The learned Single Judge further ob served as follows: "the purpose of investigation is to find out the truth in the allegations of the prosecution version. Therefore, a person, who is an eye-wit ness himself, cannot be the investigating officer . . . . . . . . If a police officer is an eye-witness and becomes Investigating Officer then there is no assurance that what the eye-witnesses have stated was true. In such a case the accused persons are highly prejudiced. They can not make use of the provisions of Section 161, Cr. EC." In that case ocular testimony was given by the S. O. who had played the vital role in the case and two sub-inspectors M. S. Nihal and M. C. Jain alone and M. C. Jain, S. I. was made Investigating Officer. The learned Single Judge observed that these two sub-inspectors were subordinate to the S. O. and cannot go against the wishes of their immediate senior. In that case, the prosecution story was rejected observing further: "the evidence of the police officer gets no corroboration by any piece of evidence. It is not a case where an injury was caused, to any of the police officers. If an injury is caused and if it is found on medical examination, it can lend assurance to the truth of the statement of the police officer. That position is also not available in the present case." In the present case also no police officer or public witness is claimed by the prosecution to have received injuries in the occurrence. So in this case also it is difficult to place reliance on the prosecution evidence led at the trial. 12. ANOTHER authority which is worth mentioning in this case is Raghubir and others v. State of U. P, reported in 1995 (32) All Crl. Cases 216. In that case the Court observed that the prosecution story is not acceptable that the conversation is going on amongst dacoits could not be heard by the police parties. There the prosecution case was that the accused were at a distance of 50 to 60 yards from the raiding parties. Cases 216. In that case the Court observed that the prosecution story is not acceptable that the conversation is going on amongst dacoits could not be heard by the police parties. There the prosecution case was that the accused were at a distance of 50 to 60 yards from the raiding parties. In that case also as in the present case the SHO of the police station was architect of the raid and the investigation was made by Netrapal Singh, S. I. and learned Single Judge observed as follows: "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 Gautam Singh, I. O. was his subordinate. It was under the direction of Sri Verma that investigation was entrusted to Sri Geetam Singh. It is difficult to believe that a subordinate officer like Sri Geetam Singh would do justice to this case. Being subordinate to Sri Verma, he was not in a position to come 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 the senior officer should not be done by junior officer". In view of the above discussions, it is difficult to place implicit reliance on the prosecution story about the assembly, preparation, raid, arrest and the recovery set out by the prosecution in this case and the accused must be given benefit of doubt. For the reasons aforesaid, this appeal is allowed. The conviction of the accused-appellants Gorakh, Mahangi, Moti Lal and Toofani of the offences under Sections 399 and 402, I. P. C. and Section 27, Arms Act is set aside. All the four of them are acquitted of the offences under Sections 399 and 402, I. P. C. and Section 27 of the Arms Act. Out of them Mahangi and Moti Lal are on bail from this Court. They need not surrender. Their bail bonds are cancelled and sureties discharged. Toofani accused-appellant was earlier on bail from his Court but during the course of this appeal his bail was can celled and he was arrested and lodged in the district jail concerned where he is detained. He be released forthwith unless required in some other case. 13. They need not surrender. Their bail bonds are cancelled and sureties discharged. Toofani accused-appellant was earlier on bail from his Court but during the course of this appeal his bail was can celled and he was arrested and lodged in the district jail concerned where he is detained. He be released forthwith unless required in some other case. 13. LET a copy of this judgment be sent by registry at once to the Additional Sessions Judge concerned for compliance. The compliance report shall be submitted to this Court within 15 days from today. The appeal shall be listed before this Court again on 12-8-99 for others alongwith the compliance report of the Additional Sessions Judge concerned. Appeal allowed.