Judgment M.L.Visa, J. 1. Baiju Ram @ Baija Ram, the sole appellant in this appeal before us, is aggrieved by the judgment and order dated 14.09.1987 passed by IIIrd Additional Sessions Judge, Saharsa in Sessions Trial No. 51 of 1985 convicting and sentencing him to undergo rigorous imprisonment for life under Section 396, Indian Penal Code. 2. The case of prosecution, in short, is that informant Upendra Yadav (P.W.5) on 01.02.1984 at about 4 P.M. returned to his house from village-Barnatha after singing Bhajan (devotional songs). As he was tired so, without taking meal, he went to sleep. His father Khikhar Yadav (P.W.2), his cousins Narayan Yadav (P.W.1) and Raj Kishore Yadav (P.W.4) and his maternal uncle Vidyanand Yadav (P.W.3) were sleeping at his Darwaza. At about 8-9 P.M., wife of informant came to him and asked for meal which he refused. Sometimes thereafter, while he was awaken, five to six unknown persons entered his courtyard and they flashed their torch lights. When he enquired, who was flashing torch lights, those persons started wielding lathis and the informant warded off their lathis with his left hand and he also picked up a lathi which was kept beside him and started wielding the lathi. Wife of informant was rescuing him from the assault. In the meantime, some other miscreants came there and they enquired from informant about Fauji and the informant replied that he had gone to Saharsa. Informant asked the miscreants to take over the articles but spare him but inspite of it they continued wielding lathis and inflicted injuries by a sharp edged weapon and lathi to his wife who, after becoming unconscious, fell down. The miscreants caught hold of informant and asked him to show them the house of Fauji and, thereafter, he showed them the house of Fauji and at that time, the door of the house of Fauji was opened and some miscreants entered the house of Fauji. In the meantime, villagers reached there on hearing hulla and they also started raising bulla on which the miscreants, who were about fifteen to twenty in number, fled away. Among the miscreants, informant identified the appellant and two others, namely, Kutwa Mehta and Warisa Mehta. The miscreants took away one box containing a cash amount of Rs. 200/- and some cloths. Among the miscreants, informant identified the appellant and two others, namely, Kutwa Mehta and Warisa Mehta. The miscreants took away one box containing a cash amount of Rs. 200/- and some cloths. When the informant came running to his Darwaza, he found that hands of his family members, who were sleeping there, were tied up and on enquiry, they disclosed that miscreants had tied up their hands and they had enquired from them also about Fauji. Informant and others chased the miscreants for some distance and, thereafter, they returned back and on his return, informant found that his wife was lying in pool of blood and she was dead. While fleeing away, the miscreants had made two sounds but informant could not follow the nature of those sounds. The Fardbayan of informant was recorded by Sub-Inspector Dilip Kumar Sinha (P.W.7) on 02.02.1984 at 1.30 P.M.at his residence. 3. On the basis of Fardbayan of informant, a case under Section 396, Indian Penal Code against appellant, Kutwa Mehta and Warisa Mehta and fifteen to sixteen unknown persons was registered. The police, after investigation, submitted chargesheet against appellant only under Section 396, Indian Penal Code and the other two co-accused persons, namely, Kutwa Mehta and Warisa Mehta named in Fardbayan and formal first information report were not sent up for trial. After taking cognizance, the case was committed to the Court of Session where charge under Section 396, Indian Penal Code was framed against appellant who, after trial, was found guilty and convicted and sentenced as indicated above. The case of appellant, as it appears from the trend of cross-examination of witnesses, is of complete denial of the charge and his false implication on account of enmity. 4. Altogether seven witnesses have been examined on behalf of the prosecution. Upendra Yadav (P.W.5) is informant. Dilip Kumar Sinha (P.W.7) is the Investigating Officer. Narayan Yadav (P.W.1), Khikhar Yadav (P.W.2), Vidyanand Yadav (P.W.3) are said to be eye witnesses to the occurrence. Raj Kishore Yadav (P.W.4) and Raghubir Prasad Yadav (P.W.6) are tendered witnesses. 5. 4. Altogether seven witnesses have been examined on behalf of the prosecution. Upendra Yadav (P.W.5) is informant. Dilip Kumar Sinha (P.W.7) is the Investigating Officer. Narayan Yadav (P.W.1), Khikhar Yadav (P.W.2), Vidyanand Yadav (P.W.3) are said to be eye witnesses to the occurrence. Raj Kishore Yadav (P.W.4) and Raghubir Prasad Yadav (P.W.6) are tendered witnesses. 5. Upendra Yadav (P.W.5), informant, in his evidence, has said that on the date of occurrence, he returned to his house from village-Bharnatha after singing Bhajan and he went to sleep and at about 10 P.M., he saw that five to six persons entered his courtyard and flashed torch lights and when he enquired from them, who they were, they started wielding a lathi and he then tried to stop the assault by his left hand and, thereafter, he also started wielding lathi and the dacoits then asked from him where Fauji was and he replied that he had gone to Saharsa but the dacoits continued their assault on him and, thereafter, they caught hold of him and took him to the house of Fauji where they entered the house of Fauji and he, thereafter, came running to his Darwaza where he found five to six dacoits and also found some members of his family tied up and when he came in his courtyard, the dacoits started again assaulting him and after receiving assault by lathi on his head, he became unconscious. He has further said that when his wife came to rescue him, she was also injured and dacoits were 15-16 in number among whom he identified the appellant. Kutwa Mehta, Warisa Lal Mehta, Nathan Kahar, Pawan Mehta and Sahdeo Yadav in his courtyard and he had identified them in the light of torch flashed by dacoits. He has further said that when villagers assembled, the dacoits, after firing, fled away and they also took away one box containing a cash amount of Rs. 200/-, cloths etc. from his house and when on next day, he regained consciousness, his Fardbayan was recorded by police and his wife had already died on the night of occurrence on account of assault and he was sent to Madhepura Hospital. In cross-examination, he has admitted that on the next day at about 8-9 A.M., he regained consciousness and then he knew that his wife had died. He has admitted that house of appellant is adjacent to his house. In cross-examination, he has admitted that on the next day at about 8-9 A.M., he regained consciousness and then he knew that his wife had died. He has admitted that house of appellant is adjacent to his house. Narayan Yadav (P.W.1) had said that at the time of occurrence he, alongwith P.Ws. 2 to 4, was sleeping in his house when 20 to 25 persons came there and they flashed their torches and asked him and others to cover their faces with bed sheets and their hands and feet were tied up and five dacoits remained there and remaining went inside the house. He has said that among dacoits, he identified the appellant alongwith Kutwa Mehta, Warisa Lal Mehta, Pawan Mehta, Sahdeo Azad and Nathan Kahar and he had identified them in the light of lantern and these persons had entered his house. He has further said that dacoits were searching Fauji, who is the brother of informant, and was in army at that time. Although in those days, he had come to his village but at the time of occurrence, he had gone to Madhepura. He has said that the dacoits fired ten to twelve rounds and on hulla when the villagers assembled, they fled away and, thereafter, one Chando Yadav (not examined) untied them and when they went inside the house, they found that wife of informant was dead and she had received a bhala injury and informant had also received injuries and dacoits took away several articles. In cross-examination, he has admitted that appellant is his co-villager. Same is the evidence of Khikhar Yadav (P.W.2) and Vidyanand Yadav (P.W.3). Vidyanand Yadav (P.W.3) has admitted that appellant is his co-villager. In cross-examination, he has admitted that appellant is his co-villager. Same is the evidence of Khikhar Yadav (P.W.2) and Vidyanand Yadav (P.W.3). Vidyanand Yadav (P.W.3) has admitted that appellant is his co-villager. The defence has drawn the attention of P.Ws.1 to 3 that whether before the Investigating Officer, they had disclosed the name of appellant among the dacoits and they all have said that they did so but Dilip Kumar Sinha (P.W.7), the Investigating Officer of this case in the last para of his evidence, has admitted that except the informant, no body had stated before him the name of appellant although it is true that in para-19 of his evidence, he has denied the suggestion of defence that except informant, no body before him had stated the name of appellant but his evidence in last but one para that P.W.3 had not stated before him the name of appellant as well as his evidence in last para that except informant, no other witness had stated before him name of appellant, makes the evidence of P.Ws. 1 to 3, on the point of identification of appellant among the dacoits, quite doubtful. Besides this, the informant, in his evidence, has clearly stated that among the dacoits, he identified appellant alongwith Kutwa Mehta, Warisa Lal Mehta, Nathan Kahar, Pawan Mehta and Sahdeo Yadav and he has further said that he had identified them in the light of torch flashed by them. The learned counsel for the appellant has argued that in the Fardbayan, the informant named appellant and two others, namely, Kutwa Mehta and Warisa Mehta as the persons whom he identified among the dacoits whereas, in his evidence, besides the aforesaid three persons, he has named three more persons who were identified by him among the dacoits at the time of dacoity but it has not been explained by prosecution that why he did not name those three other persons in his Fardbayan. He has further argued that the formal first information report was drawn on the basis of this Fardbayan and that also contains the name of appellant Baiju Ram @ Baija Ram alongwith Kutwa Mehta and Warisa Mehta alongwith fifteen to sixteen unknown persons. He has further argued that the formal first information report was drawn on the basis of this Fardbayan and that also contains the name of appellant Baiju Ram @ Baija Ram alongwith Kutwa Mehta and Warisa Mehta alongwith fifteen to sixteen unknown persons. It has further been argued that about the wife of informant, it has been alleged that she was murdered by dacoits while committing dacoity in the house of informant and RW.7, who is the Investigating Officer of this case, in his evidence, has said that he prepared inquest report of the dead body and sent it for post mortem examination but neither any inquest report nor post mortem examination report has been brought on record and the doctor, who conducted post mortem examination on the dead body of wife of informant, has also not been examined to establish cause of her death and in this view of the matter, entire case of prosecution appears to be surrcunded by clouds of doubt. The Court below has observed that after going through case diary, it found that P.Ws. 1 to 4 had not taken the name of appellant before Investigating Officer but it has observed that when prosecution witnesses, besides informant, have whole heartedly supported the Fardbayan, it is expected that they had surely named the appellant and others whom they had identified at the time of dacoity. We fail to understand how the Court below used the case diary when attention of prosecution witnesses towards contradictions in their evidence and in their earlier statements was drawn which was corroborated by Investigating Officer. Besides this, we find that the Court below has taken into consideration affidavits said to be filed by P.Ws. 1 to 4 before Chief Judicial Magistrate on 13.03.1985 where they had stated the name of appellant and others among the persons who participated in dacoity. This is also against the law because these affidavits have not been brought on record by showing them to the witnesses and taking their evidence that in fact they had filed these affidavits. Besides this, when these witnesses, said to have sworn affidavits, were examined in Court, it is their evidence which is to be considered and not the affidavits said to have been filed by them earlier in this case. Besides this, when these witnesses, said to have sworn affidavits, were examined in Court, it is their evidence which is to be considered and not the affidavits said to have been filed by them earlier in this case. The Court below has observed that Additional Public Prosecutor, conducting the case, failed to conduct the case diligently as a result of which some of the essential papers could not be brought on record and for this, it has expressed its unhappiness. It has further condemned the conduct of the Investigating Officer. The Court below, considering the evidence of Investigating Officer at one place that P.Ws. 1 to 4 have fully supported the case of prosecution and at another place that, except the informant, P.Ws. 1 to 4 had not named the appellant before him, has observed that this confusion has been created by the Investigating Officer with ulterior motive to wrongly help the appellant. In our opinion, if there is any inconsistency in the evidence of Investigating Officer, the appellant is entitled to point out the same and if any benefit arises to him from such inconsistency, that cannot be denied to him. 6. About the manner of occurrence, we find that the informant, in his Fardbayan, has stated that he was assaulted by dacoits and when his wife came for his rescue, she was also assaulted by dacoits with a pointed weapon and lathi and she became unconscious and fell down and, thereafter, dacoits caught hold of him and took him with them for showing them the house of Fauji which he did and, thereafter, the dacoits entered the house of Fauji and when villagers, on hulla, reached there, the dacoits fled away. In his evidence, he has said that after entering his house, the dacoits started wielding lathis which he tried to ward off with his left hand and he also started wielding lathi and, thereafter, dacoits caught hold of him and took him to the house of Fauji where they left him and entered the house of Fauji and he then came running to his Darwaza where he found five to six dacoits and when he came in his courtyard, dacoits started assaulting him and he received injury on his head and he became unconscious. About his wife, he has said that when she came for his rescue, she was also assaulted and at that time among the dacoits, he indentified the appellant alongwith Kutwa Mehta, Warisa Lal Mehta, Pawan Mehta, Sahdeo Azad and Nathan Kahar. In his Fardbayan, he has nowhere said that he became unconscious after infliction of injury on him. In his evidence, he has nowhere stated that his wife was assaulted by any sharp pointed weapon as stated by him in his Fardbayan. In his Fardbayan, he has said that he and other witnesses chased the dacoits for some distance and, thereafter, they came back but, in his evidence, he has said that on the next day at about 8-9 A.M., he regained consciousness and police reached his house at about 12 Oclock in the noon. He has further said that he was sent to Madhepura Hospital for his treatment but neither there is any injury report nor any doctor has been examined to support the case of informant that he had received any injury and had gone to hospital for his treatment. The Fardbayan shows that it was recorded on 02.02.1984 at about 1.30 P.M. at the house of informant whereas the occurrence is said to have taken place in the night of 8-9 P.M. on 01.02.1984. There is no explanation that why the information of occurrence was not given to Police Station when the Police Station, as per formal first information report, is at a distance of fifteen kilometres from the house of informant. The informant, in his evidence, has said that after regaining consciousness on the next day at about 8-9 A.M., he remained in his house till the arrival of police at his house. The Investigating Officer, in his evidence, has said that after receipt of informant (sicInformation ?), he had gone to the house of informant but he has not made it clear that from whom he received the information about the occurrence. 7. In the Fardbayan as well as in his evidence, the informant has stated that dacoits were searching for Fauji and compelled him to show the house of Fauji and he took them to the house of Fauji where dacoits entered the house of Fauji. 7. In the Fardbayan as well as in his evidence, the informant has stated that dacoits were searching for Fauji and compelled him to show the house of Fauji and he took them to the house of Fauji where dacoits entered the house of Fauji. The Court below has observed that because the factum of dacoity in the house of informant as well as in the house of Fauji has not been challenged, therefore, it has held that the case of prosecution on the point of dacoity in the house of informant and Fauji is proved but we find that when Raghubir Prasad Yadav (P.W.6), who is also known as Fauji, as per his admission, was produced as witness, he was tendered and no where, in his evidence, he has said that any dacoity was committed in his house. 8. Here, we may observe that the Fardbayan of informant, which in para-13 of judgment of Court below, has been described as Exhibit-1, in fact, has not been marked as such and from the evidence of P.W.7 although it appears that he formally proved the Fardbayan but in his deposition, it is not mentioned that it was marked exhibit and in our opinion, it appears that inadvertently, it could not be mentioned as such while recording evidence. Besides this, there is only one Fardbayan on record, which has been relied upon by the prosecution and which from the judgment of Court below, appears to have been taken into consideration and so far appellant is concerned, he cannot be denied the right to use the Fardbayan in order to bring on record contradiction in the evidence of informant and his statement given in the Fardbayan only on the ground that prosecution has failed to get it formally proved as held in the case of Sheo Prasad and others V/s. Emperor (39 Cr. L.J. 1938 p. 917). 9. Considering the entire evidence on record, we find that on the point of dacoity, the evidence of witnesses, other than informant, does not appear trustworthy in view of the evidence of Investigating Officer that they had not stated the name of appellant in their earlier statements. L.J. 1938 p. 917). 9. Considering the entire evidence on record, we find that on the point of dacoity, the evidence of witnesses, other than informant, does not appear trustworthy in view of the evidence of Investigating Officer that they had not stated the name of appellant in their earlier statements. So far informant is concerned, we find that there is contradiction in his evidence and in his Fardbayan on the point and manner of entire occurrence including dacoity and infliction of injuries to him and his wife, chasing the dacoits etc. as well as on the point of number of dacoits identified by him at the time of dacoity and because of such contradictions, his evidence does not inspire confidence to hold him trustworthy. We, therefore, find that prosecution has not been able to prove its case beyond all reasonable doubts against the appellant and the conviction and sentence of appellant cannot be sustained. 10. In the result, this appeal is allowed and the appellant is acquitted of the charge. As he is on bail, he is discharged from the liabilities of his bail bonds. B.K.Jha, J. 11 I agree.