Judgment Abhijit Sinha, J. 1. The three appellants herein having faced their trial before Sri Shiva Shankar Sharma, the then 8th Additional Sessions Judge, Purnea, in Sessions Trial No. 108 of 1992, arising out of K. Nagar P.S. Case No. 224 of 1991, have been convicted under sec. 395 I.P.C. by order dated 13th January, 1993 for allegedly committing dacoity of Rs. 5000/- from the possession of informant Md. Gayasuddin and by order of even date each of them have been sentenced to undergo rigorous imprisonment for 3 years. 2. The prosecution case as spelt out in the fardbeyan of Gayasuddin inter alia is that at about 7 A.M. on 21.9.1991 he started from his home with Rs. 5000/- to purchase goats and travelling by jeep he got down near the Kamat of Mishri Lai Mahto from where he went to the Mushar Tola where no goat suitable to his terms was available whereupon he returned to the road infront of the Kamat aforesaid at about 8 A.M. He was immediately surrounded by 8-9 persons who started demanding money from him which he refused to hand over. It is said that they forcibly started snatching the money from him in course whereof whereas one of the culprits dealt a lathi blow another assaulted him with the butt of his .303 and a third culprit attempted to stab him with a Chaku which he warded of with his left hand. However, he was thrown on to the ground and the cash of Rs. 5000/- in notes of various denominations was taken away from him whereafter all the culprits ran away after threatening him not to go to the police station. According to the informant he was a routine visitor to the area in connection with his business of buying goat for the past 20 years and all the people of the area were known to him and vice versa. He claimed to have identified five of the culprits including the three appellants herein. So far as the remaining culprits are concerned he furnished the details of their physical features and claimed to identify them on seeing them. 3. On the basis of the said fardbeyan K. Nagar P.S. Case No. 224 of 1991 was registered under sec. 395 I.P.C. against the five named and four unknown others. So far as the remaining culprits are concerned he furnished the details of their physical features and claimed to identify them on seeing them. 3. On the basis of the said fardbeyan K. Nagar P.S. Case No. 224 of 1991 was registered under sec. 395 I.P.C. against the five named and four unknown others. After due investigation the police submitted a charge sheet against the three appellants herein and showing the remaining two as absconders. 4. At the Sessions Trial a charge only under sec. 395 I.P.C. simplicitor was framed against the three appellants herein who pleaded not guilty and claimed to be tried. That apart, it appears from the trend of cross examination of the P.Ws. that the specific defence of the accused was that they have been falsely implicated as they had demanded the dues of the previously sold goats. 5. In support of its case the prosecution sought to examine as many as five witnesses in all of whom the informant has been examined as P.W.2 and Amrendra Kumar Mahto (P.W. 3) and Baidya Nath Yadav (P.W. 5) have been tendered for cross examination only. Mishri Prasad Yadav (P.W. 4) has been declared to be hostile whereas Mohan Muni (P.W.1) claims to be an eye witness of the occurrence. However, curiously, other eye witnesses whose presence is indicated in the testimony of P.Ws. 1 and 2 have not been examined. Similar is the situation in respect of the doctor and the Investigating Officer who though cited as witnesses of the prosecution in the Charge sheet have not been examined and there is no explanation for the same. The prosecution has also been remiss in not adducing any documentary evidence and important documents like the injury report, the fardbeyan and the formal F.I.R. have not been brought on the record. Even for this there is no plausable explanation. 6. With P.W.4 turning hostile and P.Ws. 3 and 5 being tendered for cross examination, the only support that the prosecution can hopefully bank upon are the testimony of P.Ws. 1 and 2. It would therefore be worthwhile to test the veracity and utility value of the deposition of these two witnesses and the degree of support lent by them to the prosecution case. 7. 3 and 5 being tendered for cross examination, the only support that the prosecution can hopefully bank upon are the testimony of P.Ws. 1 and 2. It would therefore be worthwhile to test the veracity and utility value of the deposition of these two witnesses and the degree of support lent by them to the prosecution case. 7. P.W.1, Mohan Muni, stated in court that at about 10 A.M. while he was at the residence of Kapli Rishideo he heard hulla attracted whereby he went to situs thereof where he saw three persons resorting to snatching and assaulting the informant of whom he could identify Upendra only but was unable to recognize the other two. He has also stated that when he reached the P.O. Mishri Lai and Amarendra were already present there from before. In court this witness could not recognize or identify any of the persons standing in the dock. In course of his cross examination by the defence P.W.1 stated that Amarendra and Mishri lal had arrived at the P.O. after the culprits had departed from the scene. 8. The deposition of P.W.1 from its very perusal appears to be of little help to the prosecution as his testimony is fraught with glaring contradictions with the prosecution story as also the deposition of P.W.2. At the very outset the alleged time of occurrence as stated by him (10 A.M.) is not in consonance with the one (8 A.M.) as stated in the fardbeyan and as given out by the informant in his testimony. Then again he speaks of only three persons assaulting the informant and participating in the snatching operation whereas the fardbeyan speaks of 8-9 persons attacking the informant and in the deposition of P.W.2 the reference is to five persons attacking him. Further, whereas on the one hand P.W.1 claims to have seen the culprits assaulting the informant and snatching from him, he does not say as to what was the material which had been snatched. Further, whereas on the one hand P.W.1 claims to have seen the culprits assaulting the informant and snatching from him, he does not say as to what was the material which had been snatched. Another aspect which seems to negatively affect the deposition of P.W.1 is that although he claims the arrival of Amrendra and Mishri Lal at the P.O. before him, in his cross examination he has stated that the culprits had departed prior to the arrival of Amarendra and Mishri Lal at the P.O. If that be the situation then P.W. 1 obviously could not have seen the informant being subjected to the alleged overt acts. There is yet another aspect of the matter. P.W.1 though claiming to have identified Upendra amongst the culprits has not cared to identify any of the accused persons standing in the dock. This would inevitably lead to a presumptive conclusion that the appellants herein were not the participants at the alleged occurrence. To my mind, P.W.1 is not a trustworthy witness and no reliance can be placed upon his testimony. 9. The informant, Md. Gayasuddin, figuring as P.W.2 has sought to support the prosecution case with major variations and bereft of any constancy, P.W.2 in his fardbeyan stated of 8-9 persons having surrounded and assaulted him, but in court he speaks of his assailants being five in number. Then again he does not attribute any specific overt act to any of the accused persons he has identified, but in court he pointing and identifying Bindeshwari Rabidas standing in the dock stated that it was he who had stabbed him in the back with a Chaku, that Laxmi had caught hold of him and Dilip Yadav had taken away the money from his batua. It is worth remembering here that in the fardbeyan there was no allegation of the informant having been stabbed in the back with a Chaku. Apparently, P.W.2, by way of afterthought has sought to add a tinge of gravity to the crime by improving upon the contents of the fardbeyan. 10. There is considerable variance in the testimony of P.W.2. In view of the inconsistencies which have been pointed out in the testimony of P.Ws. 1 and 2 it would not be safe to rely, upon the same. One has to entertain considerable doubt about the truthfulness of their testimony. 11. 10. There is considerable variance in the testimony of P.W.2. In view of the inconsistencies which have been pointed out in the testimony of P.Ws. 1 and 2 it would not be safe to rely, upon the same. One has to entertain considerable doubt about the truthfulness of their testimony. 11. No other witness has been examined on behalf of the prosecution. The appellants were examined under sec. 313 Cr.P.C. and they had denied the allegations. 12. As stated above neither the Investigating Officer nor the doctor has been examined on behalf of the prosecution. 13. The learned amicus curiae appearing for the appellants submitted that not a single villager supported the prosecution case and the evidence of P.Ws. 1 and 2 are also contradictory and as such their evidence cannot be relied upon and the lower court has been remiss in not considering the infirmities and discrepancies found in their evidence. It has further been submitted that the doctor has also not been examined in this case and, therefore the testimony of P.W.2 regarding he being stabbed in the back with a Chaku has not been corroborated or supported by medical evidence. The further submission of the learned amicus curiae is that the non-examination of the Investigating Officer the case of the appellants has seriously been prejudiced. 14. I have already discussed in the foregoing paragraphs that neither the Investigating Officer nor the doctor has been examined in the case and none of the villagers supported the prosecution case in any manner except P.Ws. 1 and 2. But the story as propounded by P.Ws. 1 and 2 to me appears to be neither trustworthy nor convincing more so in absence of any other independent witness to support the said story. Examination of the Investigating Officer becomes essential when there is contradiction in the deposition of the eye witness. Thus, in my view, the learned court below committed grave error in convicting the appellant. 15. For the reasons stated above coupled with evidence on record it is clear that the prosecution has utterly failed to establish the charges against all the appellants beyond all reasonable doubts. 16. In the result the Judgment of conviction and order of sentence passed by the learned 8th Additional Sessions Judge, Purnea, in Sessions Trial No. 108/92 is fit to be set aside. 16. In the result the Judgment of conviction and order of sentence passed by the learned 8th Additional Sessions Judge, Purnea, in Sessions Trial No. 108/92 is fit to be set aside. Accordingly the appeal is allowed and the appellants are discharged from the liabilities of their respective bail bonds.