Judgment Ashok Kumar Verma, J. 1. The appellants have filed this appeal against the judgment and order of conviction and sentence passed in Sessions Trial No. 62 of 1993/591 of 1986 by the 6th Additional Sessions Judge, Gaya, whereby the learned Sessions Judge has convicted the accused- appellants under Section 396 of the Indian Penal Code and sentenced them to undergo rigorous imprisonment for life. 2. In short the case of the prosecution is that in the night of 30th March, 1982 at about 11 p.m. the informant Shri Rabidas was sleeping inside his house with his children and he awoke on hearing sound of beating of door of the house. His wife was preparing prashad for chatiti chhath. In the meantime 3 to 4 persons jumped in the courtyard of the house and 4 to 5 dacoits entered in the room by flashing torch light and they also opened the outer door and another 4 to 5 persons came inside the house. One of them was armed with pistol, whom others were addressing as sipahi. The dacoits took away watch, radio, hansuli etc. at the point of pistol. They also asked the informant about the money which he had brought from the colliery, where he was employed. Thereafter the dacoits went to the house of Balchand Rabidas, brother of the informant and they committed dacoity there also. After about ten minutes the informant heard two sounds of firing of the gun and after about half an hour the villagers raised alarm and the informant came out of his house. He learnt from the villagers that dacoits had committed dacoity in the house of Karu Manjhi also and murdered him. Panwa Devi, daughter of Karu Manjhi, had said that 15 to 16 dacoits had entered into her house and at that time they (Panwa and others) were awake and her father was sleeping in a room. As soon as her father opened the room the dacoits fired twice on him, as a result of which he was injured and he fell down and died at the spot. The dacoits had surrounded Panwa Devi, her sister and mother and they were asking for money. 3 to 4 dacoits had caught Panwa and one was telling others to take her away and they also assaulted her on her right thigh. The dacoits had surrounded Panwa Devi, her sister and mother and they were asking for money. 3 to 4 dacoits had caught Panwa and one was telling others to take her away and they also assaulted her on her right thigh. Panwa, daughter of Karu Manjhi, had told the informant that she had identified Nanhaku Jolaha and Nanhu Mian who had assaulted her. The informant had identified accused Prabhu Sao and Dwarka. After committing dacoity the dacoits fled away. The fardbeyan (Ext. 5) of the informant Shri Rabidas was recorded by the Assistant Sub-Inspector of Police M. Hassan of Bodh Gaya Police Station on 31.3.1982 at 2 p.m. in village Rahimpur at the house of Shri Rabidas. On the basis of the fardbeyan formal FIR (Ext. 4) was drawn in this case. After investigation police submitted chargesheet against the accused-appellants and one Dwarika Yadav who absconded during trial of the case and his trial was separated and the case proceeded against the accused-appellants. 3. The defence of the accused-appellants, according to trend of cross-examination of prosecution witnesses, is that they have been falsely implicated in this case. 4. According to prosecution the occurrence had taken place at about 11 Oclock in the night on 30th March, 1982 and chaukidar had lodged sanaha at the police station on 31.3.1982 at 10.30 a.m. A reference of the said sanaha has been made in paragraph-1 of the case diary which has been exhibited at Ext. 7. On the basis of sanaha, the Assistant Sub-Inspector M. Hassan had proceeded to the place of occurrence and recorded the fardbeyan of the informant. On 31.3.1982 Sri M. Hassan Assistant Sub-Inspector had handed over the investigation of the case to the Investigating Officer Anil Kumar Sinha at 6.15 p.m. who has been examined in this case as PW 9. PW 9, Anil Kumar Sinha has stated that he had gone out for investigation of another case and he had returned at 6 p.m. and learnt about this case and immediately proceeded for the place of occurrence and at 6.15 p.m. he took charge of the investigation from Murtaza Hussain. Therefore, there was no delay in lodging the information about the occurrence as the police station and taking up the investigation of the case. 5. According to FIR Nanhaku Jolaha and Nanhu Mian had given three stick blows on the right thigh of Panwa Devi. Therefore, there was no delay in lodging the information about the occurrence as the police station and taking up the investigation of the case. 5. According to FIR Nanhaku Jolaha and Nanhu Mian had given three stick blows on the right thigh of Panwa Devi. It was argued by the learned lawyer for the appellants that PW 4 Panwa Devi who is said to have been assaulted by the accused has said in her evidence that she had not sustained any injury. But she has said in her evidence that the dacoits had assaulted her with hurra etc. and she had not sustained any injury. The date of occurrence of this case is 30th March, 1982 and she was examined as a witness during trial on 26th June 1989 i.e. after seven years of the occurrence. Admittedly she is a village lady. There may be some discrepancy in making statement after seven years specially when the witness is a village lady. PW 5 is Daywanti Devi, who is sister of PW 4 Panwa Devi. She has stated that accused were assaulting and telling to take her away. While recording the evidence of PW 5 Daywanti Devi the learned Additional Sessions Judge has noted in her deposition that the witness is an illiterate village lady who was unable to understand even slightly twisted words and long sentences but after understanding the question she was giving natural reply. PW 8 Dr. S.K. Sahu had examined Panwa Devi on 2nd April, 1982 and found one bruise on right scapular region, one bruise on the right side of the chest and one bruise on the right thigh, which were simple in nature caused by hard and blunt substance. It was contended by the learned lawyer for the appellants that occurrence had taken place in the night of 30th March and Panwa Devi was examined by the doctor on 2nd April i.e. after three days. In the FIR which was recorded on the very next day of the occurrence, it has been stated that Nanhaku Jolaha and Nanhu Mian a had given stick blow on her right thigh. The doctor had found bruise on her right thigh. In the facts and circumstances, the statement of Panwa Devi that the dacoits had assaulted her cannot be disbelieved on the ground that the doctor had examined her on 2nd April, 1982. 6. The doctor had found bruise on her right thigh. In the facts and circumstances, the statement of Panwa Devi that the dacoits had assaulted her cannot be disbelieved on the ground that the doctor had examined her on 2nd April, 1982. 6. In this case nine witnesses have been examined on behalf of the prosecution, out of whom PW 1, Balchand Rabidas is a hearsay witness and he was not in the village in the night of occurrence. PW 2 Dukhni Devi is the wife of deceased Karu Manjhi, who was killed by the dacoits during commission of the dacoity. She has supported the prosecution case but has not named any accused. She has been declared hostile by the prosecution. She has stated that her husband had died from bullet of the dacoits and dacoity was committed in her house. According to her. her two daughters Panwa and Daymanti alias Dawanti were with her in one room and Karu was in another room. The dacoits had entered into the house by scaling the thatched roof and they had demanded money from her and assaulted her daughter Panwa and killed her husband inside the room. She has stated that the dacoits had looted articles of her house. Though she has not named any of the accused but she has supported the prosecution case, the commission of dacoity, murder of her husband by dacoits and assault on her daughter Panwa. PW 3 Indradeo Ravidas has been declared hostile. PW 7, is Dr. Kapildeo Prasad, who had conducted post-mortem examination on the dead body of Karu Manjhi. He had found the following injury in postmortem examination : (i) Multiple pea size perforating wounds over left side of chest. On dissection II, III & IVth ribs of the left side were found fractured. Left lung was found lacerated. Several pellets were found embedded in the Tissues of left lungs which were recovered and sealed in a container. The sealed container was handed over to the constable accompanying the corpse. There was wound of exit over left sub-scapular region of size 2" x 1". According to him the injury was ante mortem which was grievous and dangerous to life and was caused by fire arm. In his opinion the cause of death was shock and haemorrhage due to the injury. Ext. 2 is post mortem report. PW 8 is Dr. There was wound of exit over left sub-scapular region of size 2" x 1". According to him the injury was ante mortem which was grievous and dangerous to life and was caused by fire arm. In his opinion the cause of death was shock and haemorrhage due to the injury. Ext. 2 is post mortem report. PW 8 is Dr. S.K. Sahu who has examined the informant Shri Rabidas, Dukhani Devi and Panwa Devi and found bruises on their person, which were simple in nature. There is nothing in cross-examination of PWs 2, 7 and 8 to disbelieve their evidence. The prosecution case that Karu Manjhi had died due to fire arm injury caused by the dacoit during dacoity is corroborated by the evidence of PW 7 Dr. Kapildeo Prasad who had conducted post-mortem examination. 7 PW 6 is Shri Rabidas, the informant of this case. He has stated that dacoity had been committed in his house at about 11 Oclock in the night and he had come to his house to observe chaiti chhat festival. According to him the dacoits had entered into his house through the thatched roof and had committed dacoity. Thereafter the dacoits had gone to the house of his brother and he had heard sound of two firings and lateron he learnt from the villagers that dacoits had killed Karu Manjhi. He has stated that when he went to the house of Karu he found him dead and his wife and two daughters were weeping. According to him he had not identified the dacoits. 8. It was argued by the learned lawyer for the appellants that the accused persons have landed property and it cannot be accepted that they have committed such dacoity. Even if accused persons have landed property, the prosecution case cannot be disbelieved on this ground. 9. PW 4 Pano Devi alias Panwa Devi and PW 5 Daywanti Devi are daughters of the deceased Karu Manjhi and they are eye-witnesses to the occurrence. They were in the house at the time. of occurrence and they are natural witnesses. It was argued by the learned lawyer for the appellants that these witnesses PW 4 Panwa Devi and PW 5 Daywanti Devi have made contradictory statements and their evidence are not reliable. Both these witnesses have supported the prosecution case and manner of occurrence. They were in the house at the time. of occurrence and they are natural witnesses. It was argued by the learned lawyer for the appellants that these witnesses PW 4 Panwa Devi and PW 5 Daywanti Devi have made contradictory statements and their evidence are not reliable. Both these witnesses have supported the prosecution case and manner of occurrence. They have stated that dacoity was committed in the house and their father was murdered. PW 4 Pano Devi alias Panwa Devi has stated that dacoity was committed in the house in which her father was murdered. She and her mother and her sister Daywanti were in one room and they were awake and the dacoits entered in the house through thatched roof (chapper). The dacoits started taking her away and thereafter they left her at the door. She had also stated that the dacoits looted and took away the articles and murdered her father. During her evidence in trial Court she had identified accused Nanhak Jolaha, Nakhua alias Mustafa Khan, Nanhua Khan, Asgar Ali Khan and Asgar Khan. The learned Additional Sessions Judge had mentioned in her deposition that she had identified Gaffar Khan, whom she had not named to have identified and she had told his name after the accused had stated his name. PW 5 Daywanti Devi, had also identified some of the accused but she had not identified Gaffar Khan Therefore, identification of Gaffar Khan by Panwa Devi (PW 4) is doubtful and it can not be inferred that he has committed the offence as alleged. PW 5 Daywanti Devi has stated that dacoity was committed at 11 Oclock in the night and her sister Panwa was also there and she along with her sister and mother was in one room and her father was in another room. The dacoits had entered in the house through thatched roof of the house and Asgar Khan, another Asgar Khan, Bakhna, Nakhu and Nanhu had dragged her sister from room to courtyard and Bakhna had removed her saree. According to her, dacoit had fired on her father, as a result of which he had died. She has stated that when she went near her father, he had told the names of Asgar, another Asgar, Bakhana, Nanhu Nakhu, Prabhu, Dwarika, Nanhaki among the dacoits. According to her, dacoit had fired on her father, as a result of which he had died. She has stated that when she went near her father, he had told the names of Asgar, another Asgar, Bakhana, Nanhu Nakhu, Prabhu, Dwarika, Nanhaki among the dacoits. During her evidence in the trial Court she had identified accused Akbar Khan alias Bakhna, Nanhu Khan, Nanhaku Jolaha, Dwarika, Asgar, Asgar Ali and Prabhu. Accused Asgar Khan, Asgar Ali Khan, Nanhu Khan and Nanhaku Jolaha had been identified in the trial Court by both the witnesses PWs 4 and 5. Accused Dwarika had absconded during trial of the case and his trial was separated. Accused Akbar Khan alias Bakhna and Prabhu, who had been identified by PW 5, had not been identified in the trial Court by PW 4 Panwa Devi. Accused Nakhua alias Mustafa Khan, who had been identified by PW 4 panwa Devi in the trial Court, had not been identified by PW 5 Daywanti Devi. Therefore identification of Akbar Khan alios Bakhna, Prabhu Sao and Nakhua alias Mustafa Khan is doubtful and so it cannot be inferred that they have committed the offence as alleged. Nothing has been elicited in the cross-examination of PWs 4 and 5 to disbelieve their evidence. PW 9 Anil Kumar Sinha, the Investigating Officer of this case, has stated that chaukidar Bodh Yadav had given information of the occurrence at the police station, which had been entered into the police station diary. 10. The evidence adduced on behalf of the prosecution proves beyond all reasonable doubts that accused Asgar Khan, Asgar Ali Khan, Nanhu Khan and Nanhaku Jolaha have committed the offence as alleged. Therefore, the judgment and order of conviction and sentence passed by the learned Additional Sessions Judge against accused Asgar Khan, Asgar Ali Khan, Nanhu Khan and Nanhaku Jolaha is confirmed. The prosecution has failed to prove beyond all reasonable doubts that accused Gaffar Khan, Prabhu Sao, Akbar Khan alias Bakhna and Naku Khan alias Mustafa have committed the offence as alleged. Therefore, the conviction and sentence of four accused Gaffar Khan, Prabhu Sao, Akbar Khan alias Bakhna and Naku Khan alias Mustafa is set aside and they are acquitted of the charge. Accused Prabhu Sao, who is in custody, is ordered to be released forthwith in this case, if not required in any other case. Therefore, the conviction and sentence of four accused Gaffar Khan, Prabhu Sao, Akbar Khan alias Bakhna and Naku Khan alias Mustafa is set aside and they are acquitted of the charge. Accused Prabhu Sao, who is in custody, is ordered to be released forthwith in this case, if not required in any other case. The bail of accused Asgar Ali Khan and Asgar Khan is cancelled and they are ordered to surrender forthwith in the Court below to serve their sentences. The learned Additional Sessions Judge is directed to take necessary steps in this regard. 11. With above modification in the judgment and order of conviction and sentence the criminal Appeal is dismissed.