JUDGMENT :- By this appeal the appellant challenges his conviction by the learned Additional Sessions Judge, Washim for the offence punishable under Section 395 of the Penal Code and the resultant sentence of Rigorous Imprisonment for five years and fine of Rs.500/- or, in default, further rigorous imprisonment of three months imposed upon him. The facts which led to prosecution of the appellant are as under: 2. The complainant Shivaji is resident of village Surkundi. He and his family members were sleeping in a shed in their field at village Surkundi in the night on 04-07-1992. They woke up on hearing barking of dogs. Suddenly five persons entered their hut. One of the persons was having an axe and another was having stick. They assaulted the complainant, his father and brother, and took away bed-sheet and half pant from the hut The complainant rushed towards the village and brought the villagers but culprits were not found. The villagers went towards the house of one Sonar but did not find the culprits there. The villagers leant that five persons had been to the hut of said Sonar also and decamped with money, wrist watch, lungi, shawl, ring, shirt, pant etc. The villagers and the complainant then went towards the house of one Rajguru, where they heard barking of dogs. Even Rambhau Rajguru had told the complainant that four persons entered his hut and had taken away Mangalsutra, full pant etc. They saw a person in the light of an electric bulb. The person tried to run away. The villagers gave chase, the person fell in a ditch and he was caught. The person who was apprehended is the appellant. The Police were informed, they came to the spot and took the appellant in custody. On a report, an offence was registered and investigation commenced. In course of investigation the police performed panchanama of the spot, got the injured persons examined, interrogated the accused and recovered bed sheet and lungi from him from one shrub. After completion of investigation, Police sent charge-sheet to the Court of Judicial Magistrate First Class, Washim. 3. On finding that the accused was alleged to be involved in an offence punishable under Section 395 of the Penal Code, triable exclusively by the Court of Sessions learned Magistrate committed the case to the Court of Sessions. After completion of investigation, Police sent charge-sheet to the Court of Judicial Magistrate First Class, Washim. 3. On finding that the accused was alleged to be involved in an offence punishable under Section 395 of the Penal Code, triable exclusively by the Court of Sessions learned Magistrate committed the case to the Court of Sessions. The learned Additional Sessions Judge, Washim charged the appellant of the offence punishable under Section 395 of the Penal Code at Exh.27. The accused pleaded not guilty and hence, was put on trial. In its attempt to bring home the guilt of the accused, the prosecution examined in all seven witnesses. Upon consideration of the evidence tendered before him, the learned Additional Sessions Judge held the appellant guilty of the offence punishable under Section 395 of the Penal Code and sentenced him to suffer rigorous imprisonment for five years and fine of Rs.500/ - and in default to suffer rigorous imprisonment for three months. Aggrieved thereby he has filed this appeal. 4. I have heard learned counsel for the appellant and learned Additional Public Prosecutor. With the assistance of both the learned counsel, I have gone through the evidence on record. It is the case of the prosecution that five dacoits had entered huts of a few villagers one after the other and decamped with petty articles. The identity of the other dacoits could not be discovered by the police in course of investigation. The appellant was said to be one member of dacoit's gang because he was apprehended near the spot and also because of seizure of lungi and bed sheet from a shrub at the instance of the accused. It has to be found out whether these circumstances are established and are enough to hold that the appellant committed dacoity in the house of the complainant and others. 5. P.W.1 Shivaji stated in his cross-examination that when the accused was caught he was in drunken condition and because of his drinking he was unable to walk or talk. Even P.W. 5 Tulshiram states that mouth of the accused was smelling of alcohol and there was injury to the accused due to falling in ditch. Since, he was found in a drunken condition, it is difficult to believe that he was a part of the gang of dacoits. Even P.W. 5 Tulshiram states that mouth of the accused was smelling of alcohol and there was injury to the accused due to falling in ditch. Since, he was found in a drunken condition, it is difficult to believe that he was a part of the gang of dacoits. A person who cannot even walk or talk properly because of consumption of liquor is unlikely to be expected to commit dacoity and extricate himself. It seems that because the accused was found near the spot and may have made an attempt to run he was mistaken for a dacoit. 6. P.W.1 Shivaji had identified the bed sheet which has been seized. This bed sheet was seized in presence of P.W. 4 Bhagwan. Bhagwan states that he had been called by the police for the purpose of spot panchanama vide Exh.40, seizure of Saree about 100 to 150 ft. from the spot vide Exh.42 and panchanamas at various place where the dacoity had taken place. He also proved that vide Exh.44 a Baniyan and an underwear were seized. He then stated that the accused, who had been kept in lock up, was interrogated and agreed to discover the bed sheet and lungi. The Police mad~ a Memorandum in Exh.45. He stated that the accused then led them to bushes near a temple of Godess, where the bed sheet and lungi were seized from a shrub. In cross-examination he admitted that bed sheet and lungi were seized at the cattle shed of one Rajguru. P.S.I. Marve who had recorded this Memorandum and seizure vide Exhs.45 and 45-A expired and hence, his evidence is not available. The evidence of discovery and seizure would show that the panch P.W. 4 Bhagwan is not sure where the article were seized. If the police had scanned the entire area and followed the trail by which the dacoits had alleged passed, and also when they had seized some article which dacoits had left here and there, it is not clear as to why they could not have noticed the bed sheet and lungi which were merely thrown on shrub. Therefore, since there is no concealment, the alleged statement of the accused cannot amount to discovery. This evidence appears contrived. Consequently, it cannot lend support to the version of the complainant that the accused was one of the dacoits. 7. Therefore, since there is no concealment, the alleged statement of the accused cannot amount to discovery. This evidence appears contrived. Consequently, it cannot lend support to the version of the complainant that the accused was one of the dacoits. 7. P.W. 2 Shyamrao, who too was a victim of dacoity on the incidental night, does not state having seen the accused on the incidental right. Claim of P.W. 3 Bhikaji that he had "identified" the accused at police station would not help in connecting the accused since such identification would only weaken identification of Court, which had not preceded any test identification parade: A witness is bound to believe that a person shown by the police may be a miscreant and identify him later at the trial. In these circumstances, the possibility of the complainant and other witnesses mistaking the accused to be one of the dacoits cannot be ruled out. In view of this; the learned trial Judge should have extended benefit of doubt to the appellant. The appeal is therefore allowed. The conviction of the appellant for the offence punishable under Section 395 of the Penal Code and resultant sentence of rigorous imprisonment for five years and fine of Rs.500/- imposed upon him are set aside. The appellant is acquitted of the offence charged. Fine if paid be refunded to the appellant. Bail bonds shall stand cancelled.