M. C. JAIN, J. ( 1 ) THIS appeal has been preferred by the accused-appellants Bhoorey Tewari alias Kamlesh and Prem Babu alias Prem Narain Kori against the Judgment and Order dated 3-5-1999 passed by Sri B. K. Srivastava, Special Judge (Dacoity Affected Area), District Orai at Jalaun whereby each of them has been convicted under Sec. 396, I. P. C. and sentenced to the punishment of death and to pay a fine of Rs. 20,000. 00. In default of payment of fine each has to undergo rigorous imprisonment for two years. The learned trial Judge has also made a reference under Sec. 366, Cr. P. C. for the confirmation of death sentence passed by him against each of the accused-appellants named above. ( 2 ) AN armed dacoity had been committed by 5-7 dacoits in between night of 6th and 7th November, 1994 at about 2 O clock in the house of Mahesh Gupta situate in village Chhiriya Salempur, Police Station Jalaun, District Jalaun. A first information report was made at 5. 30 A. M. on 7/11/1994 by Ram Swarup Gupta (father of Mahesh Chandra Gupta ). The distance of the Police Station from the place of occurrence was 7 Kms. The present two accused- appellants along with one Nazaruddin residents of the same village were named in the first information report as being the participants in the commission of this crime along with unknown other persons. The culprits were allegedly armed with knives and iron rods as mentioned in the F. I. R. Smt. Meena, wife of Mahesh Chandra Gupta PW-1 and his daughter Chandni were murdered in this incident whereas Mahesh Chandra Gupta PW-1, his daughter Km. Nisha aged about 7 years, Km. Pinki aged about 5 years, Km. Shilpi PW-2 aged about 9 years, his son Anshu aged about 3 years and one Km. Suman daughter of his relative Govind Das were injured. The dacoits looted away cash, gold/silver jewellery and other articles. The accused-appellants had allegedly been recognised by the witnesses in the light of electricity and torches. The incident was witnessed by the informant Ram Swarup, his another son Raju, Ram Das Tiwari, Ayodhya Kachhi, Kishori Lal Kori, Jai Narain and Mahesh Chandra Guptas tenants Gopal Singh and Onkar Singh. The list of looted away jewellery and other valuable articles had subsequently been supplied by the informant Ram Swarup Gupta to the Investigating Officer. The incident was witnessed by the informant Ram Swarup, his another son Raju, Ram Das Tiwari, Ayodhya Kachhi, Kishori Lal Kori, Jai Narain and Mahesh Chandra Guptas tenants Gopal Singh and Onkar Singh. The list of looted away jewellery and other valuable articles had subsequently been supplied by the informant Ram Swarup Gupta to the Investigating Officer. ( 3 ) AS per the post-mortem report of Smt. Meena, wife of Mahesh Chandra Gupta PW-1, she was aged about 28 years. Post-mortem over her dead body was conducted on 8-11-1994 at 2. 30 P. M. She had sustained three lacerated wounds, one contusion and one incised wound. The death had occurred as a result of ante-mortem injuries. Km. Chandni daughter of Mahesh Chandra Gupta was aged about 5 years and post-mortem over her dead body was conducted on 8-11-1994 at 3. 15 P. M. She had sustained two lacerated wounds with fracture of left parietal bone and five other injuries in the form of abrasions and contusions. ( 4 ) THE injured Mahesh Chandra Gupta had sustained six lacerated wounds. There was bleeding from his abdomen and whole of his face was swollen. The movement of his lower jaw was irregular and there was crackling sound during its movement. The remaining injured Km. Nisha, Km. Pinki, Km. Shilpi, Anshu and Suman had also sustained injuries of blunt object. ( 5 ) CONSEQUENT upon the lodging of the first information report, the investigation followed which result in the submission of the charge-sheet against the present two accused-appellants. The third named accused Nazaruddin could not be apprehended. The defence of the accused-appellants was of denial and of false implication due to enmity. ( 6 ) AT the trial the prosecution examined 7 witnesses besides relying on documentary evidence. The accused-appellants also examined three witnesses in their defence, namely Gopal Singh DW-1, Ayodhya Prasad DW-2 and Kishori Lal DW-3. It would be appropriate to state here that these three witness were mentioned as eye-witnesses by the prosecution in the F. I. R. but they were not produced by it. Instead the accused-appellants produced them in defence and they tendered negative evidence that the present accused-appellants did not participate in this dacoity. However, their such testimony is meaningless because all of these witnesses admitted that actually they were not present at the site of dacoity. Instead the accused-appellants produced them in defence and they tendered negative evidence that the present accused-appellants did not participate in this dacoity. However, their such testimony is meaningless because all of these witnesses admitted that actually they were not present at the site of dacoity. ( 7 ) AMONGST the witnesses examined by the prosecution, the eye-witnesses were Mahesh Chandra Gupta PW-1 at whose house dacoity was committed and Km. Shilpi PW-2 a child witness aged about 8 years at the time of the incident. Both were the injured of this incident. The rest of the witnesses were formal being Doctors and police personnel including the Investigating Officers. The learned trial Judge believed the prosecution case and evidence. He accordingly passed the impugned judgment convicting and sentencing the accused-appellant as stated hereinabove. The matter is now before this Court. ( 8 ) FROM the side of accused-appellants we have heard Sri A. D. Giri, Senior Advocate, assisted by Sri D. P. Singh. In opposition the learned A. G. A. has been heard from the side of the State. We have also carefully gone through the evidence adduced at the trial. ( 9 ) THE main argument of the learned counsel for the accused-appellants is that their participation in the alleged incident was not at all proved by the testimony of Mahesh Chandra Gupta PW-1 and Km. Shilpi PW-2 as the same suffered from inherent improbabilities. On analytical Judicial appreciation of the evidence of Mahesh Chandra Gupta PW-1 and Km. Shilpi PW-2 we are of the firm opinion that they could not be believed to hold that the accused-appellants had actually participated in the commission of this crime. It appears to us that the learned trial Judge convicted and sentenced the accused-appellants without an in-depth scrutiny of the testimony of these witnesses and on a superficial approach. ( 10 ) IT may be stated at the start that the informant Ram Swarup father of Mahesh Chandra Gupta PW-1 died before he could be examined as a witness before the lower Court at the trial. The scribe of the first information report was one Santosh Kumar who was mentioned as a witness in the charge-sheet at serial No. 20. However, the prosecution did not examine him either. The scribe of the first information report was one Santosh Kumar who was mentioned as a witness in the charge-sheet at serial No. 20. However, the prosecution did not examine him either. In a sense, therefore, it has gone unexplained as to how the accused-appellants, namely, Bhoorey Tewari alias Kamlesh Kumar, Prem Babu alias Prem Narain Kori and Nazaruddin were named in the first information report by the informant. Anyway, the first information report is not a substantive piece of evidence and it can only be used to corroborate or contradict the maker of it. In any view of the matter, the fact is that the two accused-appellants have been named as being the participants of this dacoity by Mahesh Chandra Gupta PW-1 and Km. Shilpi PW-2 both of whom were inmates of the house and were injured in the incident. Therefore, the question for determination is as to whether the testimony of these two eye- witnesses is capable of acceptance against the accused-appellants. It is an admitted fact that both of them were residents of the same village where the incident occurred. Mahesh Chandra Gupta PW-1 stated that accused-appellant Bhoorey was armed with a wooden Mungri and Prem Babu had a knife. We note that in the first information report such weapons of the accused-appellants were not specified. It is gathered from the testimony of Mahesh Chandra Gupta PW-1 that he was present when the first information report had been got written by his father. If it is taken that he had disclosed the names of present accused-appellants to his father as being the participants of this crime, he would have ordinarily informed him about their weapons also. ( 11 ) MOREOVER, the source of light at the spot sounds to be doubtful. The incident took place in the month of November. The statement of Mahesh Chandra Gupta PW-1 is that bulbs of high watts were glowing at the time of incident. It does not stand to reason that at the dead of night high watt bulbs would have been glowing at the place where the inmates of the house were sleeping. The incident took place in the month of November. The statement of Mahesh Chandra Gupta PW-1 is that bulbs of high watts were glowing at the time of incident. It does not stand to reason that at the dead of night high watt bulbs would have been glowing at the place where the inmates of the house were sleeping. ( 12 ) EVEN if it is accepted for the sake of argument that for some reason or the other the bulbs were glowing at the place where the inmates of the house were sleeping and there was sufficient light, then also the participation of the accused-appellants in the said crime does not stand to logic. Mahesh Chandra Gupta PW-1 stated that the accused-appellants had muffled up their faces but the same used to be uncovered during the course of incident. The child witness Km. Shilpi PW-2 also testified that there were eight miscreants in all who had masked their faces, but their faces got uncovered. No grappling took place between the inmates of the house and the miscreants including the accused-appellants. This being so, it sounds to be improbable that they had muffled up their faces in such a crude and clumsy manner that the same used to be uncovered without any grappling. It is not shown that any of the two accused-appellants was of hazardous character. Only a hard core known criminal could dare to commit a dacoity with open face in his own village. The own case of the prosecution as put forth by the eye- witnesses is that the accused-appellants had taken precaution to conceal their identity, meaning thereby that they were mindful to ensure that their identity could not be known as being the participants of this crime. Under such circumstances, they have taken good care to muffle up their faces in such a way that the same could not be uncovered, particularly in the absence of any grappling. ( 13 ) MAHESH Chandra Gupta P. W. 1 stated that his father lived in another house and five or six houses intervened between his house (where dacoity was committed) and the house of his father. He further stated that on the shouts being raised during the commission of dacoity, his father and a few other persons had collected. Amongst those who had collected on the shouts, he named the present accused-appellant Prem Babu also. He further stated that on the shouts being raised during the commission of dacoity, his father and a few other persons had collected. Amongst those who had collected on the shouts, he named the present accused-appellant Prem Babu also. He further clearly stated that he along with others had stood by the side of the school. The existence of school is shown in the western side of the house of the complaint across the lane. Thus, as per the own testimony of Mahesh Chandra Gupta PW-1 the accused-appellant Prem Babu was simply a witness who had assembled along with few others near the school during the commission of dacoity. It cannot be appreciated as to how could he be a participant in the commission of the dacoity when he had been attracted on the shouts had simply come to stand near the school along with others. A suggestion was also made to this witness in his cross-examination that his father purchased 21 Bights of land from the father of the accused-appellant Prem Babu that land had been mortgaged by Prem Babus father with him and that a quarrel had taken place between his father and Prem Babus father over this land. He simply pleaded ignorance about these facts, but admitted that his father owned 21 Bights of land. The possibility cannot be ruled out that there was some dispute between the father of accused-appellant Prem Babu and the family of the complainant and for this reason he came to be named as a participant of this dacoity. As regards the other accused-appellant Bhoorey, he admitted that he had been named under the pressure of the police. However, he changed his statement in the very next breath that he had not been named under police pressure. ( 14 ) KM. Shilpi PW-2 was a child witness. We form the opinion that she had made a tutored statement. At the time of the incident she must have been aged about 8 years. She stated that she had been assaulted with knife. However, her injury report shows that she did not sustain any injury of sharp edged weapon. All her injuries were of blunt object. The statement of Mahesh Gupta PW-1 is that the population of his village was about 2000 or 3000. Km. Shilpi PW-2 admitted that she never had any talk with any of the accused-appellants before the incident. However, her injury report shows that she did not sustain any injury of sharp edged weapon. All her injuries were of blunt object. The statement of Mahesh Gupta PW-1 is that the population of his village was about 2000 or 3000. Km. Shilpi PW-2 admitted that she never had any talk with any of the accused-appellants before the incident. She was a student going to school by bus at 6. 30 A. M. and returning in the evening. It is doubtful that in a village of the population of 2000 or 3000 persons this child witness could have known the accused-appellants with whom she did not even have any talk earlier as per her own statement. According to her she had awaken and was seeing the incident when she had been attacked with a knife. She admitted that she had covered her face when she was asleep but removed her garment during the course of the incident, witnessing it. Her statement is also to the effect that she had become unconscious on receiving knife injuries. It does not get down the throat that a child of 8 years of age, as she was, would have been bold enough to watch the incident removing her covering garment when all the inmates of the house were mercilessly being assaulted by the desperadoes. It appears to us that she must have been terror-stricken and would not have been in a position to recognise the accused-appellants. It is itself doubtful that she had known them from before. The statement of uncovering of the faces of the accused-appellants during the course of the incident made by her in a parrot like manner and which is in tune of statement of her father Mahesh Chandra Gupta PW-1 gives an impression that she stated before the Court what she was taught to state. ( 15 ) THE result is that on a careful scrutiny of the testimony of Mahesh Chandra Gupta PW-1 and Km. Shilpi PW-2 we do not find them to be capable of being believed that the accused-appellants who were the residents of the same village participated in the commission of this dacoity. To commit someone to death or for any lesser punishment in case of dacoity with murder, evidence must be of sterling character with no holes whatsoever. Shilpi PW-2 we do not find them to be capable of being believed that the accused-appellants who were the residents of the same village participated in the commission of this dacoity. To commit someone to death or for any lesser punishment in case of dacoity with murder, evidence must be of sterling character with no holes whatsoever. In the instant case, the participation of the accused-appellants in the present dacoity is against the inherent probabilities of the situation. The weaknesses in the testimony of the two eye-witnesses come to surface as discussed above. ( 16 ) THERE is yet another disturbing feature. At some point of time S. S. I. Vindhyachal Singh was also the Investigating Officer of this case. However, he was not cited as a witness in the charge-sheet. Nor was he examined by the prosecution in the lower Court. On an application having been made from the side of accused-appellants during the pendency of the appeal, we summoned the said S. S. I. Vindhyachal Singh and examined him as C. W. 1 before us. A suggestion was made from the side of defence to Mahesh Chandra Gupta PW-1 that because of injury in his mouth, he was feeling difficulty in speaking and had given his statement in writing to the Investigating Officer during the course of the investigation. He denied it. However, S. S. I. Vindhyachal Singh C. W. 1 has proved the copy of the written statement given to him by Mahesh Chandra Gupta PW-1 during the course of investigation. As per the testimony of S. S. I. Vindhyachal Singh C. W. 1, this witness had sustained injury in his mouth and he was medically advised not to speak. As he was not able to speak, he volunteered to give his statement in writing which was accepted by him. He recorded the same in the case diary. It has been marked as H. C. Ex. 1. In it he had spoken about the involvement of one Lalman son of Ram Charan Dohare, M. P. During the investigation by this Investigating Officer involvement of four other persons, namely, Jeevan Kachhi, Amar Singh Khanger, Kandel Musalman and Sobaran Singh was also revealed. Steps were taken by him to apprehend them. Kandel Musalman was arrested and Amar Singh Khanger and Sobaran Singh surrendered in Court on 14-2-1995. He had taken steps and obtained orders under Sec. 82/83, Cr. Steps were taken by him to apprehend them. Kandel Musalman was arrested and Amar Singh Khanger and Sobaran Singh surrendered in Court on 14-2-1995. He had taken steps and obtained orders under Sec. 82/83, Cr. P. C. for apprehending others whose involvement was revealed. The investigation was subsequently taken over from this Investigating Officer. The Investigating Officer starting the investigation was Inspector R. N. Yadav, PW-5 and it was also he who ultimately concluded the same and submitted charge-sheet against the accused-appellants. It appears that no charge-sheet was submitted against others whose involvement came to be revealed during the course of investigation of this case by S. S. I. Vindhyachal Singh. So far as the accused-appellants Bhoorey Tewari and Prem Babu are concerned, we have judged the case on the strength of the evidence brought by the prosecution against them and we do not find it to be convincing and trustworthy to endorse the view taken by the learned trial Judge. However, we also form the impression that the investigation of this serious case in which dacoity with two murders had taken place was not conducted in desired serious manner. Rather the investigation was muffed up and the police only did the patchwork of booking the named accused-appellants who faced the trial. Such a callous attitude of the investigating agency has to be deprecated. The sufferer of such a careless and negligent investigation is the victim of the incident. It is the duty of the head of the District Police to entrust the investigation of serious offences like the present one to responsible Investigating Officers so as to reach the bottom of the truth and to book the real culprit so that the confidence of the public may not be shaken and justice delivery apparatus is strengthened. ( 17 ) TO come to a close, we find this appeal to be well merited in view of the discussion made hereinabove. We accordingly allow this appeal and set aside impugned judgment and order of conviction and sentence passed by the learned trial Judge. As a result, the accused-appellants Bhoorey Tewari alias Kamlesh Kumar and Prem Babu alias Prem Narain Kori are acquitted. They are in jail. They shall be released forthwith unless wanted in any other connection. Reference made by the learned trial Judge under Sec. 366, Cr. P. C. is rejected. As a result, the accused-appellants Bhoorey Tewari alias Kamlesh Kumar and Prem Babu alias Prem Narain Kori are acquitted. They are in jail. They shall be released forthwith unless wanted in any other connection. Reference made by the learned trial Judge under Sec. 366, Cr. P. C. is rejected. ( 18 ) REGISTRY of this Court is directed to send the copy of this judgment to the Director General of Police, U. P. Lucknow with a D. O. letter by registered post within ten days for his notice of the observations made in penultimate paragraph of the judgment and for ensuring proper remedial measures regarding the investigation of serious offences on proper lines. ( 19 ) LET a copy of this judgment along with the record of the case be immediately sent to the Court below for needful compliance and for incorporating necessary entries in the concerned registers under intimation to this Court within two months positively. Appeal allowed. .