Judgment B.N.P.Singh, J. 1. Though appellant along with five accused persons was tried by lst Additional Sessions Judge, Darbhanga in Sessions Trial No. 33 of 1999/24 of 1990, while others were acquitted of the charges, the appellant alone suffered conviction under Section 395 of the Indian Penal Code and was sentenced to suffer rigorous imprisonment for a term of ten years. 2. As the outset l wish to refer some of the salient features of the prosecution case centering round the incident in question. It was alleged that at about 7.30 p.m. on 15th May, 1989 some unidentified persons holding arms trespassed in the dwelling house of Anjum Ara (P.W. 4), forcibly secured key of the almirah from the house mistress, collected house belongings coercing house inmates, which include ornaments, cash wrist watches etc. and decamped with the booty. It was also alleged that on alarms raised by the house inmates, the neighbours and also the police came to her house, pursuant to which one of the dacoits while retreating from the place of occurrence, who is the appellant was nabbed by the police with the aid of public who also disclosed complicity of others. The criminal law was set in motion on behest of Anjum Ara (P.W. 5), pursuant to which usual investigation commenced, during which the police officer recorded statement of witnesses, visited place of occurrence and on conclusion of investigation laid chargesheet before the court. At trial that commenced against the appellant and others, the State examined altogether nine witnesses who are house inmates, neighbours and also the police officer. 3. The defence of the appellant at trial was his plain innocence and his false implication for no good reasons. The trial Judge, however, finding no merit in defence of the appellant, while exonerated others of the charges, recorded finding of guilt against the appellant and sentenced him in the manner stated above. 4. Though narrations made by the witnesses have been fairly spelt out in the judgment of the court below, a brief resume of their narrations shall be discussed for their proper appreciation. 4. Though narrations made by the witnesses have been fairly spelt out in the judgment of the court below, a brief resume of their narrations shall be discussed for their proper appreciation. Though Anjum Ara P.W. 5, who was the person to have set the criminal law in motion, would reiterate her early version which she rendered before the police about commission of dacoity in her house, and also apprehension of one of the dacoits by the police before they could make retreat, gave a set back to the prosecution, as she did not identify the appellant who was very much present in the dock of the court, notwithstanding the prosecution allegation that it was the appellant who was apprehended by the police during retreat after commission of dacoity in the house of Anjum Ara. Md. Saquib Ashraf, P.W. 1, stated to have rushed to the house of his sister where dacoity was committed on information rendered by his servant namely Rahmat Ali when police came there and took Allauddin in custody from the southern part of her house. His sister told him about dacoits having removed earring, wrist watches and other house belongings. This witness would admit that his house lies at a distance of quarter mile from the house of Anjum Ara. Md. Muslim P.W. 2, an another witness, stated to have rushed to the place of occurrence on alarms, when he noticed police taking Allauddin with him. Mumtaz Ahmad Tammanna P.W. 3 stated about witnessing two persons fleeing from the side of the house of Hussain Saheb. Munna Khan P.W. 4 stated to have seen the police taking Allauddin with him. Md. Hisnain Azad, husband of Anjum Ara stated to have noticed a mob of some persons near his house, when he was informed by his wife about commission of dacoity in her house. The witness further stated about apprehension of appellant by the police. This witness did not claim to have identified any dacoits in process of their escape. Md. Ashique P.W. 7 stated to have noticed Allauddin in custody of police when he rushed to the place of occurrence. Md. The witness further stated about apprehension of appellant by the police. This witness did not claim to have identified any dacoits in process of their escape. Md. Ashique P.W. 7 stated to have noticed Allauddin in custody of police when he rushed to the place of occurrence. Md. Inamul Haque, P.W. 8 was a witness of formal nature and Jogendra Nath Thakur P.W. 9, a Police Officer, stated to have rushed to the place of occurrence during patrolling duty and apprehened Allauddin, the appellant, while he jumped from the roof of the house of Anjum Ara. The witness states about recording of fardbeyan of Anjum Ara, pursuant to which investigation commenced. This is all the evidence that has been adduced on behalf of the State. 5. It would seem from narrations of the witnesses which they made before the trial court, that neither of them including the house mistress who was also the maker of fardbeyan, would state in explicit term about appellants complicity in commission of dacoity in the house of Anjum Ara as some of them simply stated to have witnessed the appellant in custody of the police, others did not claim identification of the appellant. Even the evidence of the police officer who claims to have apprehended the appellant was that he took appellant in his custody while he was making endeavour to jump from the roof of the house. The trial Judge, it seems, notwithstanding paucity of evidence on the record suggesting appellant to be one of the dacoits, was obsessed with some entries recorded in the police case diary and also the factum of injury on the person of the appellant. Though a good number of witnesses examined at trial had turned volte face to the State lending no assurance to the prosecution, suggesting the appellants complicity in commission of dacoity, the trial Judge also seemed to be inclined to use their statements made before the police which is not tenable. Though a good number of witnesses examined at trial had turned volte face to the State lending no assurance to the prosecution, suggesting the appellants complicity in commission of dacoity, the trial Judge also seemed to be inclined to use their statements made before the police which is not tenable. Simply custody of the appellant by the police and the police officer apprehending him while jumping down from the roof of the house would not make the appellant answerable for the charges with which he was saddled at trial, and that apart, as has been stated earlier, while five of these put on trial have been acquitted of the charges of commission of dacoity, the appellant alone survived for consideration of his complicity in commission of dacoity and it has rightly been urged at bar that on this score too, the finding recorded by the court below is not sustainable in law, as solitary person cannot be made answerable for commission of dacoity, as enjoined under section 395 of the Indian Penal Code, participation of five or more than five persons was an essential ingredient to constitute an offence. 6. Analysis of narrations made by the witnesses and also the attending circumstances of the case would unmistakably lead to failure of charge against the appellant. The finding recorded by the court below is accordingly set aside and the appellant is acquitted of the charges. He is also discharged from the liability of the bail bonds. The appeal accordingly succeeds. 7. Sri Arun Kumar Tripathy, Advocate of this court who has been appointed as Amicus Curiae to assist the court shall be entitled for his remuneration from the Patna High Court Legal Aid Committee.