Judgment B.N.P.Singh, J. 1. Jaitipur Bara was a tiny village in the year 1980 comprising of 5 or 6 families. Allegedly, successive dacoities were committed in a number of houses including that of Mani Devi (P.W.5), Shyam Narayan Sharma (P.W.2) and Rajendra Lal, in the intervening nights of 7th-8th October, 1980, when unidentified miscreants having gained their access in the inner apartment of the house, brought Shyam Narayan Sharma, downstairs in the Courtyard from the roof, coerced female inmates of the house and when Saryug Sharma, a deaf and dumb house inmate dared counter, was shot dead by them. It was alleged that unidentified miscreants had concealed their identity with piece of cloth, and having collected ornaments, wearing apparels and other belongings from the house, made good their escape. It seems that even when dacoities were committed in a number of houses, and male members were available prosecution was launched by a female namely, Mani Devi (P.W.5), whose fardbeyan was recorded by a Police Officer, in village Jaitipur Bara, at 20 hours on 7th October, 1980, pursuant to which investigation commenced and during investigation, Police examined a number of witnesses including house inmates in whose houses, dacoities were shown to have been committed that night, visited place of occurrence, got autopsy held over the dead body of Sarjug Sharma and eventually effected recovery of some parts of booty from the house of one Ramdeo Singh, which is shown to have been identified by house inmates, and on conclusion of investigation, laid charge sheet before the Court. 2. Altogether ten persons were initially put on trial. However, pursuant to apprehension of Ram Pravesh Giri, during trial, charge under section 396 of the Indian Penal Code (IPC) was framed also against him in split up file which was amalgamated with the parent sessions record. However, in the midst of trial, Ramdeo Singh and Raja Yadav died and proceeding was dropped against them, leaving trial only against nine persons, which came for consideration by the trial Judge. As discussed earlier, charges were framed against all of them under section 396 IPC, and at trial State examined altogether 11 witnesses including house inmates, doctor. Police Officer and also Executive Officer under whose supervision, test identification parade of the articles seized from the house of Ramdso Singh was conducted. 3. As discussed earlier, charges were framed against all of them under section 396 IPC, and at trial State examined altogether 11 witnesses including house inmates, doctor. Police Officer and also Executive Officer under whose supervision, test identification parade of the articles seized from the house of Ramdso Singh was conducted. 3. Defence of the appellants before the trial court and this Court has been plain denial of the entire allegations without disputing the factum of dacoity and also killing of Sarjug Sharma. Their explicit defence before the trial court had been that the field of Banshi Yadav and Ramashray Yadav was adjacent to the field of Mani Devi and as the cattle of the former astrayed in the field of Mani Devi damaging the crops, there has been frequent quarrels between the families and it was on account of sworn animosity that the appellants were falsely dragged in the case seizing opportunity of dacoity committed in the house, and killing of Sarjug Sharma in the episode. 4. Other contention of the appellants was that though Banshi Mahto and Ramashray Yadav were next door neighbours, it was most unlikely that if they had participated in the dacoity, their names would not transpire in the first information report registered by Mani Devi (P.W.5).The trial court it appears while rejecting piea of innocence of the appellants acquitted Bhoma Yadav, Ghuran Giri and Ram Pravesh Giri of the charges against them, rendered verdict of guilt under section 396 IPC against rest appellants sentencing them to suffer rigorous imprisonment for life. 5. Since manifold contentions were raised at Bar on behalf of the appellants to assail the findings recorded by the Court below, before we give our anxious consideration to them, we consider it proper to analyse the evidence placed on the record which persuaded the trial court to render finding of guilt against them and we begin our exercise by the evidence of Mani Devi (P.W.5), who happens to be the maker of the fardbeyan which she rendered before the Police at 20 hours on 7th October, 1980. She states at trial that while all the family members were fast asleep in the night, when she was in her house, she got awakened at the screaming of her cousin brother who had slept on the roof. She states at trial that while all the family members were fast asleep in the night, when she was in her house, she got awakened at the screaming of her cousin brother who had slept on the roof. She noticed that the miscreants had brought him downstairs in the courtyard from the roof and one of them assaulted said Gonga Bhai alias Sarjug Sharma who dared resist their action. She would state that it was on exhortation of Banshi Yadav, that both Ramashray Yadav and Ram Janam Yadav fired shots on him. The said Sarjug Sharma was carried to hospital from where he was eventually taken to Patna Medical College Hospital where he succumbed to the injuries. The miscreants carried out house articles from her house and also from the house of her uncle. Even cattle was not spared, which was taken by them. She claimed to have identified Banshi Yadav, Ramashray Yadav, Ram Janam Yadav, Baisakhi Yadav and Brij Nandan Yadav in the light of lantern that was burning in the courtyard. The witness, however, claimed identification of only Banshi Yadav among the miscreants by name who was in the dock during trial. The witness explicitly did not identify Ghuran Giri, Ramdeo Singh, Umesh Yadav, Ramashray Yadav and Baisakhi Yadav. She even did not claim identification of Brij Nandan Yadav and Raja Yadav. 6. Now we may switch over to the evidence of Shyam Narayan Sharma (P.W.2). Though his house is adjacent to the house of Mani Devi, which was divided by a partition wall in the court yard, and it was of mans height, in terms of evidence of other witness, it was of waist height. The witness states that as usual, he had slept on roof of the house of his aunt Laxmi Devi and got awakened when the dacoits dealt blows on him with wooden substance. The other dacoits dragged him downstairs in the courtyard and got the main door planks opened to facilitate entry of their associates. Sarjug Sharma alias Gonga had slept in a room adjacent to the courtyard. Mani Devi and Laxmi Devi were inside another room and when they came out of their rooms, they too suffered at the hands of the dacoits. Sarjug Sharma alias Gonga had slept in a room adjacent to the courtyard. Mani Devi and Laxmi Devi were inside another room and when they came out of their rooms, they too suffered at the hands of the dacoits. Gonga, who was inside the room, came out and dared scuffle with them, pursuant to which on exhortation made by Banshi Yadav, Ram Janam Yadav and Ramashray Yadav fired shots on him who eventually succumbed to the injuries in course of treatment. The witness states that despite alarm raised by them, no one dared to come. 7. Now adverting to the evidence of Rampati Devi (P.W.3), we find this witness stating at trial that she had slept in the western verandah of the house and she got awakened on the alarm raised by her son, Shyam Narain Sharma. When she came to the courtyard, she noticed about 25 members of the miscreants, when on exhortation made by Banshi Yadav, it was Ramashray who first fired shots on Sarjug Sharma who dared scuffle with them, and after Ramjanam fired another shots, he dropped unconscious. He too suffered assault at the hands of Baisakhi Yadav and Umesh Yadav and he too got unconscious and hence she could not see as to what happened thereafter. The miscreants had removed boxes containing belongings of the house and also cattle. As for Sarjug Sharma, the witness states that he eventually succumbed to the injuries in the hospital. 8. Dr. Ratnakar Prasad Srivastava (P.W.8), who held autopsy over the dead body, has found four ante mortem injuries. The doctors say that on dissection, he found nasal bones underneath injury no, (ii) fractured and on posterior wall of stomach, there was one lacerated wound with bruise margin 1/2"x1/4". The doctor, however, says that due to previous surgical interference, he could not form opinion about weapon with which the deceased suffered fatal injuries. 9. Though rest witnesses examined by the State are either formal or had turned volte face to the State, still we consider it proper to consider their evidence too. Ram Pravesh Singh (P.W.1) was quite formal witness who brought on the record first information report, and since this witness was quite formal, there was nothing material in his evidence to merit consideration. The other witness examined by the State was Girja Prasad (P.W.4). Ram Pravesh Singh (P.W.1) was quite formal witness who brought on the record first information report, and since this witness was quite formal, there was nothing material in his evidence to merit consideration. The other witness examined by the State was Girja Prasad (P.W.4). Dacoity was committed in his house too, but this witness did not claim identification of any one of the miscreants. Baliram Singh (P.W.6) is another witness who says about commission of dacoity that night, but he too did not claim identification of any of the miscreants. Though evidence of Shiv Lagan Ravidas (P.W.7) and Krishna Sharma (P.W.11) did not remain, of significance, in view of death of Ramdeo Singh, we find that Shiv Lagan Ravidas (P.W.7) stated about seizure of a number of household articles from the house of Ramdeo Singh suspected to be part of booty, and it would appear also from evidence of Krishna Murari Sharma (P.W.11) that when these articles were put on test identification parade, house inmates identified some of them. But since Ramdeo Singh from whose house, said seizure is shown to have been effected was no longer in trial, he having died during pendency of the proceeding, evidence of these two witnesses did not warrant further elaboration. 10. The foremost criticism directed against the findings recorded by the court below was with regard to testimony of Shyam Narayan Sharma (P.W.2) who was considered to be worth reliance by the trial court, but before findings recorded by the trial court as to the evidence of Shyam Narayan Sharma is taken into consideration, we consider it proper to give our anxious consideration to the evidence of two other eye witnesses who were found credible by the lower court. Adverting to the evidence of Ram Pati Devi (P.W.3), we find that she too claimed to be ocular witness to the episode of dacoity committed by the miscreants, also claiming identification of some of them, narrations made by the witness at trial totally rob vitality of her claim about identification of the miscreants. Though dacoities were committed in her house and also in neighbouring houses simultaneously witness was not emphatic and explicit as to which of the miscreants had committed dacoity in her house. Though dacoities were committed in her house and also in neighbouring houses simultaneously witness was not emphatic and explicit as to which of the miscreants had committed dacoity in her house. Some contradictions were also taken from other witnesses by the defence but since the Investigating Officer was reported to be dead, admittedly those contradictions could not be brought on the record. Though first information report was lodged by Mani Devi (P.W.5) against unknown, if Rampati Devi (P.W.3) was considered to be credible, shortly after dacorts had retreated from the houses, she had met Mani Devi and Shyam Narayan Sharma who also accompanied her to the hospital. Had Mani Devi (P.W.5) occasion to meet these witnesses shortly after retreat of dacoits from the house, and other witnesses too had identified some of them, it was most unlikely that their names would not transpire in fardbeyan of Mani Devi. 11. Now adverting to the evidence of Mani Devi (P.W.5) though she was author of the first information report in which complicity of none had transpired, and as for their identification, the witness very comfortably says that her fardbeyan was never read over to her and she put her thumb impression over it even without knowing the contents thereof. That apart, in view of some unusual feature that has surfaced in the testimony of Rampati Devi (P.W.3), which we have discussed earlier, evidence of this witness too was not free from blemishes, as this witness too most candidly admits that shortly after the incident was over, she had a talk with Shyam Narayan Sharma and her mother Rampati Devi, and they too were available with her, even before the Police Officer, when he visited her house at 8 p.m. Yet other infirmity which has crept in her evidence, was that on her own showing, the witness says that she had slept in the western room, which was spared by the miscreants. She did not dare come out from the house, and got herself confined inside the room and it was only after retreat of the miscreants that when she came out of the house she noticed Gonga dropped on the ground bearing injuries on his person. She did not dare come out from the house, and got herself confined inside the room and it was only after retreat of the miscreants that when she came out of the house she noticed Gonga dropped on the ground bearing injuries on his person. Though this witness has sought to challenge criticism of the defence by saying that dacoits had entered her house too, but in view of vital infirmity that has crept in her evidence, rightly reliance was not placed by the trial court on her testimony. For these reasons which we have noticed, both Rampati Devi (P.W.3) and Mani Devi (P.W.5) were not considered to be reliable by the trial court. 12. The trial court has solely placed reliance on the testimony of Shyam Narain Sharma (P.W.2) and it is for consideration as to whether this witness too was worth reliance. The witness states that while dacoits were assaulting him in the courtyard, his aunt and cousin sister had been making entreaty before the dacoits for his release. Both female members remained there tiff the dacoits had made good their escape with the booty. If similar analogy which can be applied to the evidence of Mani Devi (P.W.5) and Rampati Devi (P.W.3), is applied in the case of this witness, there was no good and earthly reason as to why complicity of none of these appellants had transpired in the fardbeyan of Mani Devi (RW.5) when she had all occasion to be in the company of Shyam Narain Sharma too, before the dacoits had made their retreat from the house. There are yet other reasons which make the prosecution case about identification of the appellant Ghuran Giri Mystry unworthy of acceptance. We can take judicial notice of the fact that all these witnesses including Shyam Narain Sharma and Rampati Devi, were examined by the Police on 16.10.1980 after more than a week of the incident. If Mani Devi (P.W.5) is considered to be credible, these witnesses were quite available in the house at about 8 p.m. when the Police Officer visited place of occurrence. If Mani Devi (P.W.5) is considered to be credible, these witnesses were quite available in the house at about 8 p.m. when the Police Officer visited place of occurrence. If these witnesses were available in the house, there does not appear to be good reason why their statements were not recorded earlier and the belated examination of these witnesses by the Police after more than a week in the backdrop of infirmity that has crept in the evidence of more than six witnesses, reinforces the defence case that when none of the house inmates identified the miscreants, a cooked up story was planted against them after a week, when the statements were recorded by the Police. 13. Added to these infirmities, yet there are other disturbing features of the prosecution story which cannot remain unnoticed. Mani Devi (P.W.5) would state that some miscreants had also concealed their identity with piece of clothes. It is no longer in dispute that Banshi Yadav and Ramashray Yadav were next door neighbours as stated by the witness. Even Brij Nandan Yadav was usually visiting the house of Banshi Yadav and they were all known to the house inmates who claimed their identification. That was quite unlikely and also a somewhat unusual feature of the prosecution case that even those who were known to the house inmates, had not concealed their identity. The other infirmity, though not of vital significance, to which our attention has been drawn by the learned counsel for the appellants, was that the witnesses were claiming identification of the miscreants in the lantern which was burning in the courtyard. The factum of lantern had not been mentioned in the fardbeyan of Mani Devi. On these premises, learned counsel would urge that existence of lantern had been purposely introduced at the instance of the witnesses to facilitate identification of the appellants and to persuade the court to believe, identification of the miscreants by the house inmates. When it is urged on behalf of the appellants, we too find that lantern which is shown to have been the means of identification, was neither seized by the Police Officer nor was it produced at trial. When it is urged on behalf of the appellants, we too find that lantern which is shown to have been the means of identification, was neither seized by the Police Officer nor was it produced at trial. Though Mani Devi in her earliest version, which she rendered before the Police claimed that all the house inmates had identified the miscreants, admittedly test identification parade was never held, and that apart, Rampati Devi (P.W.3) was not stated even as eye witness in the first information report. Though a number of witnesses, who are shown to have flocked to the place of occurrence, and some of whom namely, Girja Prasad and Baliram Singh, were also examined at trial, but as we have noticed, they had turned voJte face to the State, claiming no identification of any of the appellants and as such their evidence is not of much significance. As has been discussed, village Jaitipur Bara is a tiny village of only 5-6 families when dacoity was committed. If the miscreants had not concealed their identity, it was most unlikely that these witnesses would not identify them, and that apart, even Harihar and Balram who too had flocked at the place of occurrence were not examined at trial. Though the Police Officer had carried out raid in the house of some of the appellants, admittedly there was no seizure of incriminating articles from any one of them who were put on trial. Though factum of dacoity and also killing of Sarjug Sharma has not been seriously disputed by the appellants, matter for consideration was only their participation. We consider it proper to discuss also the positive findings recorded by the doctor, who held autopsy over the dead body of Sarjug Sharma, and while commenting on the finding of the doctor, learned counsel for the appellants would urge that though the injured was previously treated by the doctor who had bandaged wound, but neither the doctor was examined nor injury report was placed on the record, and the doctor in view of there being stitched wound had failed to render any opinion about weapon with which the deceased had sustained injury on his person. 14. Now some ancilliary facts, which deserve our consideration are, that, as has been evidence of Shyam Narain Sharma (P.W.2), Ramashray Yadav, who was his next door neighbour, was nephew of Banshi Yadav. 14. Now some ancilliary facts, which deserve our consideration are, that, as has been evidence of Shyam Narain Sharma (P.W.2), Ramashray Yadav, who was his next door neighbour, was nephew of Banshi Yadav. Brij Nandan Yadav was usually seen in the village as he was cultivating land of Banshi Yadav. Apart from that we find that Baishakhi Yadav, Bhoma Yadav, and Umesh Yadav hail from village Jalalpur which was adjacent to village Bara. Since all these appellants hail from village Bara and also Jalalpur which was at insignificant distance, in that backdrop too, we consider it quite unusual that names of the appellants who had participated in the incident, would not transpire in the fardbeyan of Mani Devi. 15. Defence of the appellants was that since cattle of the appellants damaged crop of Mani Devi, which was in the adjacent field, they were falsely roped in the case. True it is that no credible or positive evidence was placed on the record to suggest any animosity on this count between the parties, but failure of defence would not militate against bona fide of their innocence in case the prosecution case suffers from a number of infirmities which we have just noticed. As for evidence of witnesses, about identification of the appellants, that too, was not free from blemishes. Now coming to the evidence of Shyam Narain Sharma (P.W.2), he claims identification of Banshi Yadav, Ram Janam, Ramashray, Brijnandan Yadav, Umesh Yadav, Baisakhi Yadav and Naresh Yadav, but while they were in dock of the court during trial, the witness claimed identification of Banshi Yadav, Ram Janam Yadav, Baishakhi Yadav, Brijnandan Yadav, and as for Ghuran, Bhoma and Ramdeo Singh, he did not claim their identification, even though they were available in the dock. Though Naresh Yadav is reported to be dead, the witness did not claim explicitly about their identification had they been present in court. As for Rampati Devi (P.W.3), she claims identification of Banshi Yadav, Ramashray Yadav, Ram Janam Yadav, Bra] Nandan Yadav, Baisakhi Yadav and Umesh Yadav, in course of examination, she claimed identification of only Banshi Yadav claiming no identification of Umesh Yadav, Baisakhi Yadav, and Ghuran Yadav as she was not sure as to whether they were present in dock of the court. 16. 16. Now coming to the evidence of Mani Devi (P.W.5), she claimed identification of Banshi Yadav, Ramshray Yadav, Ram Janam Yadav, Baisakhi Yadav, Umesh Yadav, Raja Yadav and Brij Nandan Yadav but in course of examination at trial, she claimed identfication of Banshi Yadav alone claiming no identification of Ghuran Giri, Ramdeo Singh, Umesh Yadav, Ramashray Yadav and Baisakhi Yadav. Thus, on the premises of identification too, we find that the evidence of house inmates claiming identification of the appellants was neither coherent nor free from blemishes. 17. Having given our anxious and due consideration to the findings recorded by the trial court and also the evidence placed on the record coupled with attending circumstances of the case, we find it difficult to sustain the findings recorded by the court below. Accordingly, this appeal is allowed, findings and order of sentence recorded by the court below are set aside and the appellants are acquitted of the charges. Appellant no. 2 Ram Janam Yadav, who is shown to be in custody, is directed to be set at liberty forthwith, if not wanted in any other case. Other appellants, who are on bail, are discharged from liability of the bail bonds. P.K.Sinha, J. 18 I agree.