MUKTESHWAR PRASAD, J. Hem Raj Ram, the then II Additional Sessions Judge, Ballia convicted five accused Jagdish, Bansraj, Hardev, Khedan and Sheo Deni under Section 395 I. P. C. and sentenced each of them to undergo rigorous imprisonment for a period of eight years vide his judgment and order dated 30-6-81. All the five accused have challenged the judgment and order passed on 30-6-81 through this appeal. 2. In brief, the facts of the prosecution case were as under : A dacoity was committed at the house of PW 2 Raj Kishore Tiwari, a resident of village Sonbarsa, P. S. Ubhaon of District Ballia. He was sleeping in his Baithaka on his cot in the night intervening 19/20th December, 1977. The informants brother Uma Shanker, his son Ravindra and daughter Km. Mansa Devi were also sleeping in the same baithaka. The informants son Rajendra Tiwari and his wife were sleeping inside the house. At about mid night 10-15 dacoits armed with Lathis, spear and gun arrived them flashing their torches. When the informant intercepted the dacoits trespassed into his Baithaka and assaulted him with lathis saying that he was a Dalal of police. Some of them assaulted Uma Shanker and his children. A lantern was burning there in the Baithaka and it was a moon-lit night. The informant and his brother Uma Shanker identified co-villagers Gautam alias Lallan in the light of lantern. They further identified Khedan, Hardev, Jagdish and Bansraj residents of village Mathiya. Ram Chandra and Sheo Deni were also identified correctly amongst dacoits. The remaining dacoits were wearing dhoti-kurta and two were wearing trousers. On the alarm raised by Raj Kishore and other family members. Rajendra Tiwari went out of the house. He was followed by some dacoits but he succeeded in running away. The dacoits ransacked the house flashing their torches. The co- villagers Shiva Nand Upadhyaya, Chhotey Lal, Kedar Nath Tiwari, Rama Shanker and others arrived there set fire to Pooval which created sufficient light and all dacoits were seen and Khedan, Hardev, Jagdish, Bansraj, Ram Chandra, Gautam Datt and Shoe Deni were identified correctly. The dacoits looted the house for half an hour. When they felt that they had been surrounded by villegers they ran away towards east of the village with looted articles. They fired 2- 3 shots but none was injured. Since they were having fire-arms, no villager chased the dacoits. The dacoits looted the house for half an hour. When they felt that they had been surrounded by villegers they ran away towards east of the village with looted articles. They fired 2- 3 shots but none was injured. Since they were having fire-arms, no villager chased the dacoits. The informants leg was fractured. 3. The dacoits took away golden-silver ornaments, clothes, two bicycles, a murphy radio, a wrist watch, saris etc. 4. Raj Kishore got a report of dacoity prepared by his son Rajendra Tiwari and lodged F. I. R. at police station Ubhaon on 20- 12-77 at 2. 40 a. m. The local police registered a case at crime No. 193 under Sections 395/397 I. P. C. 5. The investigation of the case was taken up by PW 4 SI Umesh Chandra Mishra. He interrogated Raj Kishore, Uma Shanker, Rajendra Nath and Km. Mansa Devi on 20-12-77. All the injured were sent to P. H. C. , Belthra Road for medical examination of their injuries. On the same day, the I. O. reached the informants house, interrogated other witnesses and at the pointing out of the witnesses prepared site- plan. He saw lantern and prepared at Fard. He collected ash also. On 25-12-77, accused Jagdish was arrested on 27-1-78 accused Bansraj, Hardev and Khedan were interrogated. He submitted charge-sheet against Jagdish Bansraj, Hardev, Khedan, Ram Chandra and Sheo Deni. 6. After transfer of SI U. C. Mishra, the case was investigated by SI Rama Shanker Singh who submitted charge-sheet against Haridwar and Kanhiya after their identification in jail. 7. After committal of the case to the Court of Session, accused Jagdish Bansraj, Hardev, Khedan, Ram Chandra, Sheo Devi and Haridwar were charged under Section 395 I. P. C. to which they pleaded not guilty and claimed to be tried. Accused Kanhiya was discharged on 28-3-81. 8. The prosecution in order to establish its case examined PW 1 Rajendra Tiwari, PW 2 Raj Kishore Tiwari, PW 3 Uma Shanker Tiwari, PW 4 SI Umesh Chandra Mishra I. O. of the case and PW 5 Dev Nath Singh Yadav, who was posted as Sub-Divisional Magistrate, Rasara and conducted identification parade on 23-8- 78. PW 1 R. P. Tiwari and PW 3 Uma Shanker Tiwari had identified accused Haridwar correctly at the parade. PW 6 Dr. PW 1 R. P. Tiwari and PW 3 Uma Shanker Tiwari had identified accused Haridwar correctly at the parade. PW 6 Dr. Rama Shanker Prasad posted as Medical Officer, P. H. C. , Bilthra proved injury reports of Km. Mansa Devi, Raj Kishore Tiwari, Uma Shanker Tiwari and Rajendra Tiwari. 9. All the accused facing trial totally denied their complicity in the alleged dacoity at the house of the informant and attributed their false implication on account of old enmity. No oral evidence was led in defence. 10. After close scrutiny of the entire oral and documentary evidence on record led by the prosecution, learned trial Judge found the five accused named above guilty for committing dacoity and he convicted and sentenced them as mentioned above. Accused Ram Chandra and Haridwar were not found guilty and were acquitted. Hence this appeal. During pendenacy of this appeal, Jagdish appellant No. 1 expired. 11. I have heard appellants learned Counsel at length learned A. G. A. and perused the record carefully. 12. Learned Counsel appearing for the appellants has assailed the judgment mainly on the ground that only three witnesses Rajendra Tiwari, his father Raj Kishore Tiwari and his uncle Uma Shanker Tiwari were examined by the prosecution and they are all members of the family. According to F. I. R. , Shivanand, Chottey Lal, Kedar Nath, Rama Shanker and several others had assembled there in the course of dacoity but no independent witness of the locality was produced in the witness box to prove the participation of the appellants. It was also urged that testimony of PW 1 Rajendra Tiwari was disbelieved by the trial Court and statement of PW 3 Uma Shanker Tiwari is also not believable. Admittedly, there was long standing enmity between the informant and his family on the one hand and the appellants on the other. The appellants were well known of the informant and members of his family from before the incident of the dacoity. They, however, took no precaution to conceal their identity during dacoity and this fact cannot be accepted. The appellants were falsely roped in this case on account of enmity between the parties and in fact, they took no part in the dacoity. They, however, took no precaution to conceal their identity during dacoity and this fact cannot be accepted. The appellants were falsely roped in this case on account of enmity between the parties and in fact, they took no part in the dacoity. It was also contended that Ram Chandra Ahir was also named in the F. I. R. as one of the dacoits but his complicity in the dacoity was not proved by the prosecution witnesses and no member of the family named him as one of the dacoits in the Court when their statements were recorded. Reliance was placed on the following decision: (1) Hausila v. State, 1980 A Cr. R 116. (2) Soran v. State, 1980 A Cr. R 293. (3) Gopi v. State, 1988 A Cr. R 611. 13. On the other hand, learned Counsel for the State supported the judgment and urged that the appellants were rightly convicted by the Court below. 14. After having considered the arguments advanced on behalf of the parties and perusing the decisions referred to above. I find that the trial Judge was not justified in convicting the appellants and they are all entitled to be acquitted. The factum of dacoity has been proved by reliable evidence and this was not disputed seriously by the appellants learned Counsel. There is reliable evidence of the three witnesses, who are all members of the family that a dacoity was committed at their house and the dacoits looted several articles and took away. It has also come in the evidence that in the course of dacoity the dacoits assaulted Raj Kishore, Km. Mansa Devi, Uma Shanker Tiwari and others and they all sustained injuries. The injury reports are on record. Thus, I find and hold that a dacoity was committed at the house of Raj Kishore on the fateful night. 15. Now the second relevant question is as to whether the appellants alongwith others committed dacoity at the house of Raj Kishore. According to the written report lodged by Raj Kishore a number of witnesses assembled there and saw the appellants and others committing dacoity in the light of lantern, torches and light of Pooval. It was moon-lit night also. However, no independent witness of the neighbour-hood appeared in the witness box to prove the participation of any of the appellants for the reasons best known to the prosecution. 16. It was moon-lit night also. However, no independent witness of the neighbour-hood appeared in the witness box to prove the participation of any of the appellants for the reasons best known to the prosecution. 16. Admittedly, there was long standing enmity between the parties and several litigation took place between them. It is clear that the appellants were well known to the prosecution witnesses from before the incident of dacoity. There is no evidence on record that the dacoits had taken any precaution to conceal their identity. In other words, none of the appellants had tried to cover his face in the course of dacoity PW 1 Rajendra Tiwari, who is son of the informant, testified that he was sleeping inside his Janana house and came out of the house by opening the main door. He was chased by dacoits. However, he received no injury nor was shot dead. It is noteworthy that two dacoits were carrying guns. According to Rajendra Tiwari, the house of appellant Sheo Deni is situated at a distance of 500 yards only from the house of the informant. He too did not make any effort to conceal his face. The parties were at daggers drawn. However, the dacoits spared Rajendra and caused no harm to his body. It is noteworthy that Ram Chandra was named in the F. I. R. as one of the dacoits. However, none of the three witnesses named him in his testimony. This incident of dacoity took place in the month of December 1977. Therefore, it does not inspire confidence that the appellants dared to commit dacoity at the house of a known person without covering their faces. There is nothing on record to show that the appellants were desperate and hardened criminals and as such they took no precaution to conceal their faces. 17. PW 2 Raj Kishore Tiwari testified in very clear words that he did not disclose the name of dacoits to the co-villagers who had assembled thereafter dacoity. This conduct of the informant does not appear to be natural and is not reliable. 18. So far as testimony of PW 3 Uma Shanker is concerned, I am of the opinion, that the leaned Judge erred in placing reliance on his testimony. He was sleeping in the eastern Kothri of his Baithaka and there was only one door towards west. 18. So far as testimony of PW 3 Uma Shanker is concerned, I am of the opinion, that the leaned Judge erred in placing reliance on his testimony. He was sleeping in the eastern Kothri of his Baithaka and there was only one door towards west. According to him, lantern was burning near the cot of Raj Kishore and was hanging in the southern wall. It means there was no source of light near the place where Uma Shanker was sleeping. Uma Shanker could not come out of the Kothri during dacoity because he had been surrounded by the dacoits. Therefore, there was no question of recognizing the dacoits by him. 19. PW 4 U. C. Mishra, I. O. disclosed that he searched the accused but they were not apprehended. He took search of the houses of the accused also but no stolen property was recovered from their houses. 20. In view of the above discussion and scrutiny of the evidence on record. I find that the leaned trial Judge did not arrive at correct conclusion and erred in appraisal of evidence on record led by the prosecution. Needless to mention the prosecution is required to prove its case against the accused beyond all reasonable doubts. The factum of dacoity was established in this case by the prosecution but complicity of any of the appellants could not be established by reliable and convincing evidence and possibility of false implication due to enmity cannot be ruled out. Consequently, I hold that finding of conviction recorded against the appellants is not sustainable and they are entitled to be acquitted. 21. The appeal is allowed. The conviction and sentence recorded by the trial Judge against the appellants are set aside. The appellant Nos. 2 to 5 are hereby acquitted. They are on bail. They need not surrender. Their bail bonds are cancelled and sureties are discharged. Appeal allowed. .