Judgment R.N.Sahay, J. 1. In sessions trial no. 154/1984, on the file of 3rd Additional Sessions Judge, Sitamarhi seven persons were tried for offences punishable under sections 395, 397 and 402 of the Indian Penal Code. Accused Ram Nandan Rai was aged about 70 years and accused Hiraman Mahto was aged about 75 years at the time of their conviction. The teamed Additional Sessions Judge acquitted two accused persons, namely, Akalu Paswan and Surendra Singh while five accused were convicted under sections 395, 397 and 402 of the Indian Penal Code and sentenced to 10 years imprisonment and to pay a fine of Rs.5,000/- and in default to undergo further rigorous imprisonment for one year. 2. Three separate appeals have been preferred against the judgment of conviction. In Cr.Appeal No.97/1990, there are three appellants, namely, Ram Nandan Rai, Ganga Rai and Satya Narayan Rai. In Cr.Appeal No. 127/1990, Gudri Mahto is the sole appellant. In Cr.Appeal No.64/1990, the soie appellant is Hiraman Mahto. 3. The case of the prosecution was that on 18.12.1982 at about 5.00 P.M.Yogendra Prasad (P.W.11) resident of village Kashopur, P.S.Purnahiya was going to his house from the boring of his uncle Jugal Sah and when he reached near Mahabir Asthan in his village, he saw 7-8 persons standing, with sugar cane sticks towards west of Mahabir Asthan. They were unknown to Yogendra. At about 3 Laggies south from Mahabir Asthan, boring of Ram Nandan Rai of village-Ashopur was running. At about two laggies west of that boring, appellants, Ram Nandan Rai and Satya Narain Rai were standing in that tent and Ram Nandan Rai was talking something with them. He pointed out Yogendra Prasad to them. This created suspicion in the mind of Yogendra Prasad and he tried to run away towards his house. The persons standing with sugar cane sticks surrounded him and 7-8 persons from tent also came running to him. Three of them were armed with single barrel guns, rest of then were armed with country made gun. One of them fixed his gun to the back of Yogendra Prasad and told that if he would raise alarm he would be shot dead. He further asked the informant as to where his gun was kept and further told to hand over his gun. The informant replied that he had given his gun for repair at Muzaffarpur. One of them fixed his gun to the back of Yogendra Prasad and told that if he would raise alarm he would be shot dead. He further asked the informant as to where his gun was kept and further told to hand over his gun. The informant replied that he had given his gun for repair at Muzaffarpur. Then another person with gun told that the informant was telling a lie. The informant could not identify others who had come out from the tent. The informant was taken to his house. In the meantime, dacoits also caught hold of his father, Sitaram Sah who was returning from his house after easing and inspecting his fields. On proceeding further when he reached near his orchard 25-30 dacoits came from south and mixed with the group of dacoits who were surrounding the informant. They also talked something amongst themselves. They were armed with Lathi, Danta, etc. Dacoits brought the informant to his Baithaka and demanded key of the room from him. Ram Chandra Sahu, Dasai Sahu, Chaitu Mahto, Saryug Sah, Chhathu Rai and others co-villagers of the informant were sitting near Ghur in the Sahan of that Baithaka. The dacoits took out double barrel gun of the informant. They also took out a pouch containing some bullets and pellets and other articles were also looted by the dacoits. The dacoits retreated towards north west after committing dacoity. The dacoits also looted away properties from the house of Yogal Sah uncle of the informant. The informant suspected that due to enmity accused Ram Nandan Rai had called the dacoits and got the dacoity committed. 4. Md.Badaruddin (P.W.16) the then Sub-Inspector of Police, Purnahiya P.S. heard rumour of the dacoity at Kashopur at 8.45 P.M. He made entry in the. station diary and proceeded to Kashopur to verify the remour. Informant gave fardbeyan relating to the dacoity at about 10.15 P.M. The case of dacoity was registered against the accused Ram Nandan Rai, Satya Narain Rai and Jagannath Rai besides 40 unknown dacoits. Learned Trial Judge accepting the evidences of the prosecution witnesses found the appellants guilty and sentenced them to imprisonment as indicated above. 5. Cr. Informant gave fardbeyan relating to the dacoity at about 10.15 P.M. The case of dacoity was registered against the accused Ram Nandan Rai, Satya Narain Rai and Jagannath Rai besides 40 unknown dacoits. Learned Trial Judge accepting the evidences of the prosecution witnesses found the appellants guilty and sentenced them to imprisonment as indicated above. 5. Cr. Appeal No.64/1990 and 127/1990 was argued by Sri Yogendra Prasad Sinha No.1 who contended that these two appellants are local persons and they are not named by the informant in his fardbeyan hence, their conviction was not proper. Appellant Hiraman Mahto was aged about 75 years. He is co-villager of the informant, still he had not been named in the fardbeyan. Appellant Gudri Mahto was resident of nearby village- Jamalo. Now Hiraman Mahto was implicated for the first time by the witnesses when they deposed in court. He was not charge sheeted in the case, thus appellant was summoned under section 319 Cr. P.C. It is rightly submitted that dacpity was committed at about 5.15 P.M. and the fardbeyan was recorded at about 10.15 A.M. So during this period, the informant had opportunity of talking with the witnesses who were present in the Baithaka and if they had disclosed the names of this appellant he should have figured in the fardbeyan of the informant. This appellant had filed informatory petition (exhibit-A) much before the occurrence. Gudri Mahto was an old man and it is said that he is a man of status. The learned Trial Judge has not cared to scrutinise the evidences in proper prospective of this appellant must be set aside. 6. So far appellant, Gudri Mahto is concerned, he is not named in the F.I.R. He was put on T.I.Parade on 22.8.1983 and was identified by the informant and other witnesses. This appellant was remanded to custody on 17.6.1983 and T.I.Parade was held on 22.8.1983 i.e. after two months from the remand. During this period appellant must have been produced in court. The conviction of Gudri Mahto can not be sustained. 7. Sri Prakash Narain Pandey, Sr. Counsel appearing in Cr.Appeal No. 97/90 has submitted that appellants Ram Nandan Rai and Ganga Rai are own brothers. They have extensive property in the village. Ram Nandan Rai was aged about 70 years while Ganga Rai was aged about 60 years at the time of conviction. 7. Sri Prakash Narain Pandey, Sr. Counsel appearing in Cr.Appeal No. 97/90 has submitted that appellants Ram Nandan Rai and Ganga Rai are own brothers. They have extensive property in the village. Ram Nandan Rai was aged about 70 years while Ganga Rai was aged about 60 years at the time of conviction. Appellant no.3 Satya Narain Rai was Zarati of appellant no.1. Now according to the F.I.R. none of those appellants committed dacoity in the house of the informant. The informant had already seen unknown persons in the tent just before the dacoity. The informant suspected that Ram Nandan Rai was responsible for the dacoity and he got dacoity committed by unknown persons due to previous enmity, oral and documentary evidence was produced to show enmity. Ram Nandan Rai had purchased a number of plots near the Baithaka of the informant and that was cause of enmity with the informant. In respect of previous enmity a certified copy of the judgment were exhibited on behalf of the defence which would establish the previous (sic) between the appellant and the informant including the witnesses who have deposed. 8. Mr.Pandey has submitted that witness Babu Lal Sah implicated the appellant in his evidence for the first time. Similarly witness Tedendra Prasad had not disclosed the name of the appellants to Investigating Officer who was declared hostile by the prosecution, only because he had released Ram Nandan Rai, Ganga Rai and Satya Narayan Rai on bail. No protest petition was filed by the informant against the conduct of the Investigating Officer. There was no adequate grounds to declare the I.O. hostile. This Investigating Officer had submitted final report against these appellants but they were summoned under section 319 Cr.P.C. in court. The informant deposed that these appellants surrounding him with the fire arm, which (sic) contrary to the case in the fardbeyan. 9. In my view, trial judge has not cared to properly appreciate the evidence. He convicted these appellants only because the witnesses had implicated them in their evidence although before the Investigating Officer, none of the witnesses had named them. The conviction of these three appellants is not sustainable evidence of the case. The conviction of the appellants in Cr. Appeal No.97/90 is also not legally sustainable. 10. He convicted these appellants only because the witnesses had implicated them in their evidence although before the Investigating Officer, none of the witnesses had named them. The conviction of these three appellants is not sustainable evidence of the case. The conviction of the appellants in Cr. Appeal No.97/90 is also not legally sustainable. 10. In the result, all the above three appeals are allowed and conviction of the appellants therein is setaside and they are acquitted and discharged from the liabilities of their bail bonds.