Judgment I.P.Singh, J. 1. The sole appellant has been convicted under section 396 of the Indian Penal Code and has been sentenced to undergo rigorous imprisonment for five years. 2. The prosecution case, in brief, is that in the night of 1/2.9.1983 the informant Jawahar Sahani was sleeping in his house after bolting the door of his room. Suddenly at about midnight 15 to 20 dacoits entered inside the Angan of the informant. They started assaulting his brothers. The informant woke up on the sound and saw the dacoits. It is alleged that 3-4 dacoits knocked at the door of the informants room and pushed it open. The informant aimed Bhala blows at the dacoits and one of the dacoits received injury on the chest and abdomen. Thereafter the dacoits ordered for murderous assault on the informant and also exploded bombs and gun shots. The informants uncle Mushai died as a result of bomb injury. The informant and his other brothers received injuries. It has been stated that subsequently the informant and his brothers chased the dacoits and raised alarm which attracted some of the villagers. It has also been stated that the dacoits also looted other neighbours of the vicinity. The Fardbeyan of the informant was recorded early in the morning and F.I.R. was drawn up. After completion of investigation charge sheet was submitted against the appellant. Thereafter the cognizance was taken and the trial concluded with the result as stated above. 3. The appellant pleaded not guilty and has stated that he has been falsely implicated in this case at the instance of his enemy. 4. The prosecution in order to prove its case has examined altogether five witnesses. P.W.1 is Keshwar Sahni. P.W.2 is Parichan Sahni. P.W.3, Sukhdeo Sahni, has been declared hostile. P.W.4, Jawahir Sahni, is the informant of this case. P.W.5, Birendra Upadhya, is a formal witness. 5. Out of these witnesses P.Ws 1, 2, 3 and 4 are inmates of the house of the informant. They were sleeping in the Angan when the alleged dacoity took place in which 15-20 persons entered in the house after breaking open the door of the court-yard. According to the informant (P.W.4) at about midnight they entered in the house and started assaulting the inmates of the house. He has stated that 4-5 dacoits knocked his door which was broken open. According to the informant (P.W.4) at about midnight they entered in the house and started assaulting the inmates of the house. He has stated that 4-5 dacoits knocked his door which was broken open. He from inside gave Bhala blow which hit one of the dacoits on his chest and stomach. Thereafter the dacoits ordered to kill them. He claims to identify the four dacoits including the appellant in the torch light flashed by the dacoits. Thereafter they threw 3-4 bombs on him and they started fleeing away. During fleeing away they fired which hit Mosai Sahni. The factum of dacoity as narrated by the informant is also supported by P.W.1 and he has also named the appellant, Kali Choudhary, as one of the dacoits. The other two witnesses i.e. P.Ws.2 and 3 the inrmates of the house had supported that the dacoity was committed and Mosai Sahani was killed by the dacoits. They have not supported about the identification of four dacoits. P.W.3 was declared hostile. He was cross-examined by the prosecution but nothing could be gained on his cross examination. However, attention of P.W.3 was drawn to his earlier statement before the police during investigation, when he had named this appellant but he has denied to have made such statement before the police. As Investigating Officer could not be examined his denial and also non-identification by P.W.3 could not be controverted. 6. Learned counsel appearing on behalf of the appellant has submitted that in this case F.I.R. has not been exhibited and not proved. It is true that F.I.R. has not been exhibited and it is lacuna on the part of the prosecution agency. Although the court below in paragraph 8 of his judgment has given explanation for non- examination of the original fardbeyan and also case diary. However, he has observed that the evidentiary value of the fardbeyan is corroborative and it is used just for corroborating or contradicting the informant and witnesses. According to the court below non-production of these documents did not affect the prosecution case in view that the case diary that has been brought on the record. It is true that fardbeyan and F.I.R. are not substantive piece of evidence. The submission of the learned counsel that manner of occurrence as for as explosion of bomb could not be proved since Investigating Officer was not examined. It is true that fardbeyan and F.I.R. are not substantive piece of evidence. The submission of the learned counsel that manner of occurrence as for as explosion of bomb could not be proved since Investigating Officer was not examined. From perusal of the record it appears that by non-examination of the I.O. the vital material could not be proved including breaking open the door and also signs of explosive substance. Though the material findings could not be brought before the court but at the same time the factum of the occurrence has not been disputed. Even D.W.2 examined by the defence has supported the commission of dacoity in the house of the informant. 7. So far submission of the learned counsel that there was no source of identification as there was no light in the house and they identified the dacoits only in the light of torch flashed by the dacoits itself. It has also been submitted that the occurrence took place in the mid night and fardbeyan was recorded early in the morning when many persons visited the house of the informant but the informant did not disclose the name of the appellant to them. Informant has specifically stated that he has identified them in the torch light flashed by the dacoits. He has further stated that he did not disclose the names of the dacoits to any one as such identification of the appellant by the informant is not beyond reasonable doubt. On the point of identification P.W.1 has stated that he identified him in the torch light flashed by the dacoits but he did not mention about his activity during the commission of dacoity. That apart though court below has discussed about D.W.1 and the deposition of D.W.1 goes to show that presence of appellant was there. 8. From the discussions made above there was possibility of false implication by the witnesses and there was every possibility that he was an on-looker as already stated by D.W.1. However, the court below has discarded his evidence on the ground that this witness has not stated the reason as to why the appellant was falsely implicated on account of fish trading. However, the identification by the P.W.1 is not free from doubt. However, the court below has discarded his evidence on the ground that this witness has not stated the reason as to why the appellant was falsely implicated on account of fish trading. However, the identification by the P.W.1 is not free from doubt. This apart this case is having so many lacuna as F.I.R. is not made exhibited and i.O. and Doctor could not be examined, to corroborate the prosecution case. 9. In the above circumstances, the prosecution could not prove its case beyond all reasonable doubt and the appellant deserves benefit of doubt. Accordingly, this appellant is acquitted from the charges levelled against him. The conviction and sentence passed by the court below is set aside and the appellant is set at liberty. 10. In the result, this appeal is allowed.