JUDGMENT S.M.M. Alam, J.— This criminal ap­peal has been preferred against the judgment and order dated 25.4.1992 passed by Shri Awadesh Kumar Ojha, IInd Additional Sessions Judge, Katihar, in Ses­sions Trial ‘No. 104/88 whereby he has been pleased to-convict the appellant Aziz Mian under Section 395 of the Indian Penal Code and sentence him to undergo rigorous imprisonment for seven years. 2. The prosecution case as per the fardbeyan of informant Abdul Bashir (PW 6), in brief, is that in the night of 21.11.1987 he was sleeping in the verandah of his house alongwith his family members. At about 10.30 p.m., he woke upon hearing some sound- and saw 6-7 dacoits inside his house. One of the dacoits was seen-armed with pistol. The dacoits flashed torch light and ordered the informant to remain calm and thereafter the dacoits started looting the household article. In the torch light flashed by the dacoits, the informant iden­tified one of the dacoits as Aziz Mian (Appellant). Further case is that the dacoits confined the informant and snatched the wrist watch from the possession of the in­formant. Some of the dacoits entered into the room of the house and started looting clothes, grains etc. and thereafter the dacoits fled away. After running away of the dacoits, the informant raised alarm, whereupon, the villagers came there and then the informant narrated the entire in­cident to the villagers and also disclosed the name of appellant Aziz Mian as one of the dacoits. It is further said that other family members of the villagers had also seen the dacoits fleeing away. It is further said that while the informant was going to the police station to lodge the case, one Md. Muslim advised him not to lodge FIR, other­wise, he would fall in trouble. However, the informant went to Barari Police Station and gave his statement before the police, on the basis of which Barari P.S. Case No. 148/87 under Section 395 of the Indian Penal Code was instituted. Later on, recovery of looted article was made during investigation and then Section 412 of the Indian Penal Code was also added. 3. After completing the investigation, the I.O. submitted charge-sheet against four accused, namely, 1. Later on, recovery of looted article was made during investigation and then Section 412 of the Indian Penal Code was also added. 3. After completing the investigation, the I.O. submitted charge-sheet against four accused, namely, 1. Kha-gendra Mandal, Naresh Mandal, Kapildeo Mandal and Azix Mian, the appellant and all the four persons were tried under Sections 395/412 of the Indian Penal Code but the remaining three accused were acquitted and the ap­pellant was convicted and sentenced to undergo rigorous imprisonment for seven years by judgment dated 25th April, 1992, passed by the Ilnd Additional Sessions Judge, Katihar, as stated above. 4. Being aggrieved and dissatisfied with the judgment and order, the appellant Aziz Mian has preferred this appeal. 5. From the perusal of the lower Court’s record it appears that during trial altogether seven witnesses were examined on behalf of the prosecution, namely, PW 1 Ram Das Yadav, PW 2 Md. Riyazuddin, PW 3 Enayat Mian, PW 4 Zakruddin Mian, PW 5 Md. Wazihuddin, PW 6 Abdul Bashir (in­formant) and PW 7 Nasim Alam. It further appears that out of all the above said seven witnesses, PW5 MD Wazihuddin is a for­mal witness and he has simply proved the formal FIR which has been marked as Ex­hibit-1. 6. So far Paws 1, 2 and 7 are con­cerned, although they appear to be eye witnesses of the occurrence but in the trial they have not supported the prosecution case and they are either hostile witnesses or tendered witnesses. 7. Thus, the conviction of the appel­lant is based upon the testimony of PW 3 Enayat Mian PW 4 Zakruddin Mian and PW 6 Abdul Bashir (informant). From the deposition of Pws 3, 4 and 6, it appears that all the above mentioned three wit­nesses have deposed that during the commission of dacoity the appellant was identified as one of the dacoits, PW 6 (the informant) as Para 2,has deposed that sud­denly the, dacoits entered into his house and when he tried to run away one of the dacoits ordered him to remain silent. He has further deposed that the said dacoit was identified as appellant Aziz Mian. This evidence of the informant (PW 6) finds corroboration from the evidence of PW 4 (para 1). Both these witnesses appear to be the eye-witness of the occurrence. PW 4 is the father of informant Abdul Bashir. He has further deposed that the said dacoit was identified as appellant Aziz Mian. This evidence of the informant (PW 6) finds corroboration from the evidence of PW 4 (para 1). Both these witnesses appear to be the eye-witness of the occurrence. PW 4 is the father of informant Abdul Bashir. From the evidence of PW 3 it appears that this wit­ness has also supported the prosecution case although he is not an eye-witness of the occurrence of dacoits and he had reached the P.O. after the dacoits had fled away but he has deposed that just after the occurrence of dacoity he had gone to the place of occurrence and the informant had disclosed the name of the appellant as one of the dacoits. Thus, from the lower Court’s record it appears that the above named three witnesses have supported the prosecution case that on the alleged date of occurrence a dacoity committed in the house of the informant and during the com­mission of dacoity the appellant was identified as one of the dacoits. 8. The submission of the learned Ad­vocate appearing as amicus curiae on behalf of the appellant is that he does not deny that factum of dacoity but so far as this fact that the appellant was one of the dacoits, who had committed dacoity in the house of the informant is concerned, it is denied and in this regard the evidence of PWs 3, 4 and 6 are not reliable. He submitted that admittedly all these three witnesses are close relatives being the father and father-in-law of the informant. He submitted that as per the prosecution case immediately after the occurrence several villagers came there to whom the informant disclosed the name of the appellant being one of the member of dacoits. He submitted that amongst the villagers PW 1 Ram Das Yadav. PW 3 Md. Riyazuddin, and PW 7 Nasim Alam were examined. But all the three wit­nesses, who can be termed as independent witnesses, have categorically stated before the Court that they do not know anything about the occurrence of dacoity which had taken place in the house of the informant and since the independent witnesses have not supported the prosecution case, the conviction of the appellant on the basis of interested witnesses is bad in law. He has further argued that in this case the I.O. was not examined and, as such, it should be held that in absence of examination of the t I.O. the prosecution has failed to prove the place of occurrence of the case. He further argued that non-examination of the I.O. has caused prejudice to the appellant as he has failed to bring certain on the record which were failure for the case of the prosecution. 9. From the perusal of the lower Court’s record, argument of the learned Ad­vocate (amicus curiae) appearing on behalf of the appellant finds corroboration as it is established -from the record that although PWs 1, 2 and 7 are independent witnesses and being co-villagers they had arrived at the P.O. just after the occurrence of dacoity but they have not deposed before the Court that the informant or any other person of his house had disclosed the name of the appellant as one of the dacoits. Therefore, I am of the view that in absence of cor­roboration from independent witnesses on the point of identification of the appellant, the evidence of PWs 4 and 5 that during the course of dacoity they had identified the appellant amongst the dacoit is shaky an doubtful evidence and on the basis of such shaky evidence the appellant should not have been convicted. 10. As regards the argument that due to non-examination of the I.O. the appellant has been prejudiced fully agree with the learned amicus curiae on this point as it appears that the defence has put suggestion to the informant (PW 5) that the appellant was on inimical terms with one Panich Lal and Mohan Sao, co-villagers of the appellant but due to non-examination of the I.O. the defence could not be able to ask anything from the I.O. in this regard. 11. So far the argument of the learned amicus curiae that due to non-ex­amination of the I.O. the prosecution has failed to prove the P.O. of this case and the same is fatal. I fully agree with the argu­ment of the learned amicus curiac and hold that due to non-examination of the I.O. the prosecution has failed to prove the P.O. of this case and, as such, the conviction of the appellant is bad in law. 12. I fully agree with the argu­ment of the learned amicus curiac and hold that due to non-examination of the I.O. the prosecution has failed to prove the P.O. of this case and, as such, the conviction of the appellant is bad in law. 12. One more aspect of the case which has not been argued by the learned amicus curiae which makes the prosecution case with regard to the participation of the appellant in the dacoity doubtful is that although the appellant is the resident of adjacent village from the informant’s village and he was identified at the time of commission of dacoity but curiously enough no looted article was recovered from his house as the lower Court’s record shows that he was simply charged for the offence of dacoity and not for the offence of recovery of looted articles. This aspect of the case-goes against the prosecution regarding the identification of the appellant as one of the dacoits and makes the case doubtful. 13. In the result, I find merit in this appeal. Hence, the same is allowed and the conviction and sentence of the appellant is hereby set aside and he is acquitted of the charge of Section 395, IPC. The appellant who is on bail, is also discharged from the liabilities of his bail bonds. Appeal allowed.