Judgment : ( 1 ) BOTH the appellants stands convicted under Section 395 of the indian Penal Code and sentenced to serve rigorous imprisonment for five years vide judgment and order dated 10-4-2002 passed in Sessions Trial No. 44 of 1992 by Additional sessions Judge, IXth, Dhanbad. ( 2 ) BRIEF facts leading to their conviction are that in the night of 25-11-1990 when the informant Sudhir Mandal was sleeping in Mari shop situated at Pindrahat Mari. along with P. W. 1 Kalo Bauri and P. W. 11 sapan Mandal, some dacoits entered inside the shop and started demanding money. He could identify one Sufal Manjhi and the appellant yogeshwar Hembram, resident of village- Kanadih amongst the dacoits. According to them, these two persons used to come to his shop for Mari. He further asserted that he was physically assaulted while Sufal manjhi was threatening him with pistol and carry away one old Hercules cycle, hundred rupees in cash and some old clothes including his red cornered Dhoti. It was further alleged that the dacoits took away two pitchers of Mari and one white Murga also. As per the informant, in spite of his raising alarms, none came to his rescue. He went to report the matter to the shop owner in village Shyamapur in the morning, who told him to remain at the shop. However, at about 10. 00 a. m. he came to know that in village kanadih, a dacoit was arrested while dacoity was being committed. The informant reached the village Kanadih to find that one shiv Lal Tudu has caught hold of a dacoit, who was identified as Shivlal Murmu. This shivlal Murmu confessed in presence of the villagers that he along with the appellants had committed dacoity in the shop of the informant also and thereafter trying dacoity in the house of Shiv Lal Tudu, when he was arrested. The informant has also recognized the said Shivlal Murmu as one of the dacoits. The police was informed and arrested Shivlal murmu handed over, after recording the statement of the informant. Said Shiv Lal tudu also signed over the Fardbeyan as witness. It is also stated that on disclosure made by Shivlal Murmu houses of Sufal manjhi and Yogeshwar Hembram were searched from where looted bicycles, old clothes etc. were recovered. ( 3 ) THE police registered Nirsa P. S. Case no. Said Shiv Lal tudu also signed over the Fardbeyan as witness. It is also stated that on disclosure made by Shivlal Murmu houses of Sufal manjhi and Yogeshwar Hembram were searched from where looted bicycles, old clothes etc. were recovered. ( 3 ) THE police registered Nirsa P. S. Case no. 384 of 1990 and submitted charge-sheet against five persons under Sections 335/412 of the Indian Penal Code. The appellants were committed for trial by the Court of session where all the five persons were charged under Section 395 of the Indian Penal Code and appellant Yogeshwar Hembram and sufal Manjhi was further charged under section 412 of the Indian Penal Code. The trial Court examining the witnesses and after appraisal of the evidence, finally came to hold both the appellants and Sufal Manjhi guilty under Section 395 of the Indian Penal Code. However, no separate sentence was "passed under Section 412 of the Indian Penal Code. ( 4 ) THIS appeal has been preferred on (he grounds that the learned Court below has committed mistake of fact and law, as the informant has not identified Shivlal Murmu in the first information. It is also submitted that so-called extra-judicial confession of shivlal Murmu has been extracted by force, which cannot be relied upon. It is also asserted that the alleged recovered articles; were of a common use and easily available. It is stressed that recovery of some Ranu from the house of appellant Yogehwar hembram shows that he was implicated falsely. According to this memo of appeal, seizure list witnesses have not supported the prosecution version. Therefore, the entire prosecution version stands contradicted and as such, the presumption under Section 114a of the Indian Evidence Act drawn against the appellants is bad in law. The point of non-examination of the I. O. has also been raised. ( 5 ) LEARNED A. P. P. for the State supports the prosecution version and prays for confirmation of the judgment of conviction. ( 6 ) I have carefully considered the prosecution case along with the evidence available in the case records. It is said that at, the time of occurrence in the Mari shop of the informant, P. W. 1 and P. W. 11 were sleeping with him. These two witnesses have not supported the prosecution case. P. W. 1 Kalo bauri was declared hostile. It is said that at, the time of occurrence in the Mari shop of the informant, P. W. 1 and P. W. 11 were sleeping with him. These two witnesses have not supported the prosecution case. P. W. 1 Kalo bauri was declared hostile. P. W. 8, the informant, admitted vide para-2 that he could not identify any dacoit. He further admitted vide para-3 that he knew Sufal Manjhi and yogeshwar Hembram since before and vide para-5 that he had not seen Shivlal Murmu during the dacoity. This witness has asserted that the seized articles belonged to him. He has specifically admitted vide para-14 that he could not identify any of the dacoits as they had covered their faces. Then p. W. 9 Shiv Lal Tudu, who has caught hold of appellant Shivlal Murmu has admitted in cross-examination that appellant Yogeshwar hembram and convict Sufal Manjhi belonged to his village and he knew them since be fore. He admitted that he caught hold of appellant Shivlal Murmu at about 2. 00 p. m. P. W. 10. Kara Tudu, the father of Shiv Lal tudu has admitted that appellant Shivlal murmu was not carrying any arms in his hand and he was frequent visitor of their house. P. W. 11, Sapan Mandal, did not identify any of the dacoits and was declared hostile. ( 7 ) THE only evidence of informant P. W. 8 in support of the prosecution further stands contradicted by his admission vide para-14 that he could not identify any dacoit as they were keeping their mouths covered. The other witnesses i. e. P. W. 2 Fucha Soren and p. W. 3 Ledha Manjhi of seizure list have stated that they put their thumb impression and signature on plain papers. P. W. 12 the investigating Officer of this case has admitted in cross-examination that he reached at the place of occurrence at about 3. 00 p. m. He prepared the seizure list after that P. W. 13 has also denied that nothing is recovered in his presence. ( 8 ) IN the above-stated facts, the prosecution version depends upon the extra-judicial confession of appellant Shivlal Murmu that he along with others committed dacoity in the house of the informant. 00 p. m. He prepared the seizure list after that P. W. 13 has also denied that nothing is recovered in his presence. ( 8 ) IN the above-stated facts, the prosecution version depends upon the extra-judicial confession of appellant Shivlal Murmu that he along with others committed dacoity in the house of the informant. The learned trial Court has relied upon the recovery of alleged stolen bicycle from the house of Sufal manjhi and one red corner Dhoti from the house of appellant Yogeshwar Hembram. Appellant Shivlal Murmu admittedly has not been found in possession of the looted articles. The seizure list witnesses have already been found nottrustworthy being declared hostile. The confessional statement of appellant Shivlal Murmu before the mob also becomes doubtful, as the police has not re-corded it. The non-production of the seized articles before the trial Court makes the whole case doubtful. As regards, the identification of the appellants is concerned, appellant Shivlal Murmu was co-villager of Shiv lal Tudu and appellant Yogeshwar hembram was regular visitor to the Mari shop of the informant. In such circumstances, their alleged attempt to commit dacoity in their houses by the appellants without covering their faces becomes doubtful. The informant P. W. 8 in para-14 and other two witnesses i. e. Kalo Bauri and sapan Mandal as P. W. 1 and P. W. 11 has not supported the identification of the appellants. Furthermore, the appellants have remained in custody for sufficient period for the alleged occurrence of November 1990. ( 9 ) HAVING considered the above-mentioned facts and circumstances of the case, i find that the prosecution has miserably failed to bring home the charge against the appellants levelled against them beyond all reasonable doubts. Accordingly, I find that the present appeal has got merit and deserves to be allowed. ( 10 ) IN the result, the present appeal has got merit and is allowed. The judgment of conviction by the trial Court is hereby set aside. The appellants are acquitted from the charges levelled against them and further discharged from the liabilities of their bail bonds. Appeal allowed. --- *** --- .