Judgment 1. Both the appellants have been convicted under Sec. 395 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for seven years each. 2. The prosecution case in short is that in the night between 12/13th of May, 1981 the informant went to sleep in his room. His wife and son Jagdip Chaudhary were sleeping in the courtyard at about 2 p.m. 13-20 persons came at his Darwaja, out of them 4-3 persons entered his room. They were armed with torch and dagger and the rest of dacoits who were standing at the Darwaja were pushing the entrance gate of his house. Some of the dacoits came near the informant and enquired about the property kept by him. He replied that he was a poor man and he had not kept any property. One of the dacoits who was armed with iron rod and torch began to assault him at his Panjara with the iron rod. The dacoits who were standing at the main gate of the house were threatening to shoot whoever would come near them. According to the informant he identified the dacoit who had assaulted him namely Mahendra Singh. It has been stated that the informant had seen this accused in the toddy shop which was situated near his house. Some of the dacoits entered into his house after breaking open the door and committed dacoity and looted silver ornaments, utensils clothes, watch bicycle and also Rs. 300.00 cash etc. At the time of commission of dacoity the son of the informant Jagdish identified Umesh Singh and Bhuneshwar Singh. They had surrounded Jagdish Chaudhary armed with Chhura and revolver. After committing dacoity for about 43 minutes they went towards south. While fleeing away they also took away one attache and four broken boxes which were kept in the courtyard. On the next day the informant went to Jalalpur P.S. where first information report was lodged on the basis of which investigation started and after completion of investigation charge sheet was submitted against the accused persons. Thereafter cognizance was taken and the case was committed to the Court of Sessions where the trial concluded with the result as indicated above. The appellants pleaded not guilty. 3. The prosecution in support of its case examined altogether eleven witnesses. P.W. 1 is Girja Devi, P.W. 2 is Bindeshwari Chaudhary. Thereafter cognizance was taken and the case was committed to the Court of Sessions where the trial concluded with the result as indicated above. The appellants pleaded not guilty. 3. The prosecution in support of its case examined altogether eleven witnesses. P.W. 1 is Girja Devi, P.W. 2 is Bindeshwari Chaudhary. P.W. 3 is Nirmala Devi, P.W. 4 is Jadip Chaudhary, he has been declared hostile. P.W. 5 is Ram Sobhit Paswan, he has not supported the case of the prosecution. P.W. 6 is Rajeshwar Pd. Singh, he is a formal witness. P.W. 7 is Dhanraj Rai, informant. He has also been declared hostile. P.W. 8 is Janki Devi. She has also been declared hostile, P.W. 9 is Phulendra Jha, he is a formal witness. P.W. 10 is Deo Raj Thakur. He is a formal witness and P.W. 11 is Sudhir Pd. Singh, a formal witness. 4. Learned counsel for the appellants submitted that in this case investigating officer has not been examined which has prejudiced the case of the defence. It has been further submitted that all the witnesses are interested witnesses and there are contradictions in their depositions. In this case on the factum of dacoity P.W. 7, the informant, P.Ws. 2, 4, 3, 5 and 8 all have been examined and they all have supported that dacoity was committed in their house as alleged in the first information report. The factum of dacoity has been established by the prosecution. However, on the point of identification P.W. 4, whose name was mentioned in the first information report that he identified appellants Umesh Singh and Bhuneshwar Singh but in his deposition he did not claim to have identified these appellants and was declared hostile. Unfortunately in this case investigating officer was not examined. He would have controverted the claim of P.W. 4 that during investigation he named these appellants whom he identified during commission of dacoity. The other witness P.W. 3 has stated that she did not identify any of the dacoits and when her attention was drawn that she had named the appellants before the police as dacoits whom she identified but she specifically stated that she did not claim to have identified the dacoits before the police in her deposition. P.W. 1 has stated that when he heard Hulla he came out from his room and he was caught hold by appellants. P.W. 1 has stated that when he heard Hulla he came out from his room and he was caught hold by appellants. However, he has stated in cross-examination that he learnt the name of the dacoits from male members who had not disclosed the name of dacoits before him. P.W. 2 has also not identified any of the appellants in the Court. Practically in this case there is no identification against all the appellants. Although it has been established that the dacoity was committed but participation of these appellants in the dacoity was not proved beyond all reasonable doubts and the appellants deserve benefit of doubt. Accordingly, the appellants are acquitted. The conviction and sentence passed by the Court below are set aside and the appellants are discharged from the liability of their bail bonds. This appeal is allowed. Petition allowed.