Judgment BRAJ NANDAN PRASAD SINGH, J. 1. In the intervening nights of 26/27th May, 1999, dacoities were committed in a number of houses in Village Harka, within Meenapur Police Station under the district of Muzaffarpur, when miscreants holding lethal weapons having ransacked houses, assaulted house inmates and decamped with the booty which include ornaments, wearing apparel, watches, cash and other articles. Among appellants, who were put on trial, in terms of recitals made in the fardbeyan of Mohan Sah, while Kuldeep Manjhi, Mahabir Manjhi, Nand Kishore Manjhi, Nagendra Manjhi and Dhorai Manjhi were identified by Mohan Sah, Nagendra Manjhi, Sukhdeo Manjhi, Satrughan Manjhi, Upendra Manjhi Baleshwar Manjhi and Kuldeep Manjhi were identified by Shanti Devi. In terms of recitals made in fardbeyan, Panwati Devi claimed identification of Baleshwar Manjhi alias Langra while Jugeshwar Manjhi and Upendra Manjhi were shown to have been identified by Darbi Sah. 2. A police case had been registered on behest of Mohan Sah, pursuant to which investigation followed. Investigating Officer visited place of occurrence, recorded statement of witnesses, seized offending articles from houses of Babban Manjhi and Upendra Manjhi, got test identification parade of the articles held during investigation by . Block Development Officer, Meenapur, secured injury reports from the doctor and on conclusion of investigation, laid charge-sheet before the Court. In the trial that followed, while State examined 13 witnesses, defence too examined one witness and those examined by the State also include victims, in houses of some of whom dacoities were committed in the night of incident, and also the Police Officer, who carried out investigation. 3. Defence of the appellants both before the Court below and this Court had been that of innocence and they ascribed their false implication due to dispute with regard to payment of wages in respect of work done by them. Appellants, on appreciation of evidences by the trial Judge, suffered conviction under Section 397 of the Indian Penal Code (IPC) for wnich they were sentenced to suffer rigorous imprisonment for a term of seven years each. Upendra Manjhi suffered conviction also under Section 412, IPC but in view of sentence of seven years awarded to him under Section 397, IPC, no separate sentence was awarded to him on this count. 4. Upendra Manjhi suffered conviction also under Section 412, IPC but in view of sentence of seven years awarded to him under Section 397, IPC, no separate sentence was awarded to him on this count. 4. Submission made on behalf of the appellants was that if recitals made in fardbeyan of Mohan Sah was to be given any credence, which was sheet anchor of the prosecution case, none else than Mohan Sah and Shanti Devi had claimed identification of the appellants, but during trial, all the witnesses examined by the State, who spoke on details about incident, had claimed identification of the appellants in chorus voice. Other submission is that even though doctor, who examined the injured, had not been examined by the State, Trial Court having overlooked this aspect of the matter, placing reliance simply on the injury reports which were brought on the record with the aid of formal witnesses. recorded conviction against the appellants under Section 397, IPC and as for conviction of Upendra Manjhi under Section 412, Cr PC too, submission is that even though prosecution had not placed on ,the record evidence of clinching nature to unequivocally suggest seizure of booty from house of the appellant, Trial Court had recorded conviction on that count. 5. Since all the witnesses, who are on material particulars of the incident, including Brahmdeo Sah (PW 1), Munshi Sah (PW 2), Rajendra Sah (PW 3), Darbi Sah (PW 4), Gagandeo Sah (PW 5), Ramdeo Sah (PW 6), Ram Kishore Sah (PW 10) and Mohan Sah (PW 1), in a chorus voice, claimed identification of all the appellants in Court, instead of multiplying judgment with narrations made by all these witnesses, narration made by the witnesses may be confined to Darbi Sah (PW 4), Shanti Devi (PW 8), and Mohan Sah (PW 11), as they alone had claimed identification, in fardbeyan of Mohan Sah, which he rendered before the Court at the earliest opportunity. Since dacoities were committed in a number of houses that night, it was reasonably expected that there must be interaction of Mohan Sah with other victims before the police case was registered on behest of said Mohan Sah, and in that backdrop, had all these witnesses claimed identification of the appellants, assurance made by them must would have surfaced in the earliest version of the prosecution. 6. 6. Learned counsel for the appellants would submit that none of these witnesses except Mohan Sah, Shanti Devi and Darbi had claimed identification of the appellants before the police during investigation for which attention of the witnesses had also been drawn by the defence. Assertions made by some of the witnesses about identification of the appellants in Cburt did not sound well also in view of their assertion that they had gone to see the appellants preceding the incident, and if at all they claimed identification, it was reasonably expected that they should have been put on test identification parade by the State and hence, assertion made by witnesses about identification of the appellants in Court for the first time had to be discarded, except that of three witnesses. 7. Now adverting to the evidences available on the record while Kuldip Manjhi, and Nagendra Manjhi were identified by Mohan Sah and Shanti Devi both in the fardbeyan and also in Court, Upendra Manjhi had been identified by Shanti Devi and Darbi Sah, in Court, and also in terms of fardbeyan of Mohan Sah, during commission of dacoity in the house, and since there has been identification of these three appellants by more than one witness, I consider these witnesses credible to Judge complicity of these appellants. However, What, disturbs me is that even though doctor has not been examined and the injury report had been placed on the record with the aid of formal witness, Trial Court had chosen to record conviction against appellants under Section 397, IPC, and in view of these infirmities that have surfaced in the prosecution case, I am of the view that conviction recorded against Kuldip Manjhi, Nagendra Manjhi and Upendra Manjhi under Section 397, IPC be altered to that under Section 395, .IPC. Needless to reiterate that finding of conviction recorded under section Dhodhai Manjhi, Nand Kishore Manjhi, Satrughan Manjhi, Mahabir Manjhi and Sukhdeo Manjhi is set aside and they are acquitted of the charges recorded against them. There being no good evidence of seizure of offending articles that being part of booty, from possession of Upendra Manjhi, finding recorded by the Trial Court recording conviction against him under Section 412, IPC is also set aside and he is acquitted on that count. 8. There being no good evidence of seizure of offending articles that being part of booty, from possession of Upendra Manjhi, finding recorded by the Trial Court recording conviction against him under Section 412, IPC is also set aside and he is acquitted on that count. 8. The last submission canvassed on behalf of the appellants was that since case was registered against the appellants in the year 1999 and also Kuldeep Manjhi, Nagendra Manjhi and Upendra Manjhi had suffered trauma of protracted prosecution for about four years, in case finding of guilt recorded by the Court below is upheld. regard being had to the fact that these three appellants happen to be In custody since 27th May, 1999, their sentences be considerably reduced, there being mitigating circumstance on record. 9. In the result, while appeal in respect of appellants Dhodhai Manjhi, Nand Kishore Manjhi, Mahabir Manjhi, Satrughari Manjhi and Sukhdeo Manjhi is allowed and judgment of conviction and order of sentence passed against them is set aside and they, being in custody, are directed to be set free forthwith, if not wanted in any other case, appeal preferred by appellants Kuldeep Manjhi, Upendra Manjhi and Nagendra Manjhi is dismissed with modification that they are sentenced to the period already suffered by them in carceration. 10. Mrs. Nirmala Kumari, who had appeared in this appeal as amicus curiae, shall receive her remuneration from Patna High Court Legal Aid Committee. Let a copy of the first and last page of the judgment be made over to. her.