Judgment C.M.PRASAD, J. 1. This appeal is against the judgment dated 5.3.2003 of the 1st Additional Sessions Judge, Purnea passed in Sessions Trial No. 597/02/Trial No. 162/02 whereby the appellant has been convicted under Sec. 395 of the Indian Penal Code and sentenced to undergo R.I. for seven years and a fine of Rs. 1000/- and in default of payment of fine to undergo R.I. for six months. 2. The prosecution commenced with the fardbeyan of the informant Ashok Acharya, the owner of the wholesale medicine shop named as Ashok Acharya Distributors situated in Mohalla Line Bazar, Purnea. The fardbeyan of the informant was recorded by S.I., Sindhu Sekhar Singh on 3.7.2001 at 9 P.M. at the shop of the (informant). The informant alleged that on that day (3.7.2001) at about 7 P.M. he had gone to a nearby medical shop for some work and at 8.20 P.M. when he returned to his shop he saw 5-6 criminals were present in the middle room of his shop. Seeing him (informant) one of the criminals caught him and snatched his gold chain from his neck and a gold bracelet from his wrist and when he (informant) enquired as to why they were snatching one of the criminals pointed pistol on him but he (informant) caught hold of the barrel of the pistol whereupon the criminal asked his associate to fire pistol whereupon his associate criminals, fired from a pistol which shot hit the informant causing injury on his right elbow. Hearing sound of firing the people of nearby locality started assembling and the criminals began fleeing away from the shop but they were chased by mob of public and one of them was apprehended. And after apprehension, he disclosed his name as Anil Biswas (appellant). The appellant also disclosed name of his associates who managed to escape away. The informant alleged that he learnt that the criminals had entered into his shop at 7 P.M. and that they had snatched his bag containing Rs. 30000/- from his employee, Sanjay Kumar Ghosh (P.W.3) and they had also taken away Rs. 3000/- from drawer of the table in the shop and the informant also stated that one black colour pistol had been snatched from the apprehended culprit (appellant) and he (informant) produced the same before the police officer recording the fardbeyan of the informant. 3. 30000/- from his employee, Sanjay Kumar Ghosh (P.W.3) and they had also taken away Rs. 3000/- from drawer of the table in the shop and the informant also stated that one black colour pistol had been snatched from the apprehended culprit (appellant) and he (informant) produced the same before the police officer recording the fardbeyan of the informant. 3. As many as eight witnesses were examined by prosecution, P.W.1 Ratan Kumar, P.W.2 Amit Kumar Sahani, P.W.3 Sanjay Kumar Ghosh and P.W.4 Gauri Shankar Banerjee are the employees of the informants shop. The P.W.5 Ashok Acharya is the informant himself. P.W.6 Pitambar and P.W.7 Rajendra Kumar are the people of the locality but these two witnesses have turned hostile to prosecution. P.W.8 Sindhu Sekhar Singh is the I.O. of the case. 4. The informant (P.W. 5) deposed that when he returned to his shop at about 7 P.M. he saw 5-6 persons present in his shop and that they snatched his gold chain, gold bracelet and also pointed out pistol on him and that when he caught hold of barrel of the pistol a shot was fired on him as a result of which, he received injury on his right hand. He further deposed that out of fear, he sat down in his shop. He further deposed that the criminals started fleeing away but people assembled and caught hold of one of them and that when police came, the apprehended person was handed over to the police. He identified his signature (Ext. 2) on the fardbeyan. At para-3, he deposed that he was not in a position to identify the persons who had been apprehended at the spot. Thus this witness does not identify the appellant saying that he was the person who had been apprehended after chase or that he (appellant) was the person who was amongst the criminals committing the offence of dacoity in his shop. In his cross-examination at para-4 he says that due to receiving injury he had remained in his shop and he has no knowledge as to who had been apprehended and who were the persons who apprehended the culprit. Thus the informant does not identify the appellant as the culprit who had committed the offence. 5. In his cross-examination at para-4 he says that due to receiving injury he had remained in his shop and he has no knowledge as to who had been apprehended and who were the persons who apprehended the culprit. Thus the informant does not identify the appellant as the culprit who had committed the offence. 5. P.W.1 Ratan Kumar who is an employee of the shop says about commission of the robbery in the shop and he further deposed that the people of the locality had chased the criminals and they had apprehended one of them with a pistol. This witness says that he had snatched the pistol who was produced before the police. This witness identified his signature (Ext. 1) on the production cum seizure list, but he deposed at para-6 of his evidence that Darogaji had obtained his signature of blank paper. At para-4 of his evidence he further deposed that he did remember the face of the apprehended culprit and that he was not in a position to identify him. thus, this witness says about the occurrence of dacoity but he does not identify the appellant saying that he was amongst the culprits who had committed the dacoity or he was the man who had been apprehended on chase by the public. 6. P.W.2 Amit Kumar is also an employee of the informants shop who deposed about the commission of dacoity but at para-4 of his evidence, he deposed that after dacoity he had remained in his shop and he had not seen anybody apprehended by the public. This witness does not say about the appellant having committed dacoity. 7. P.W.3 Sanjay Kumar Ghosh an employee of the P.O. shop again says about the commission of dacoity but at para-2 in his cross-examination he says that he received some injuries and he had remained sitting in his shop. This witness does not say having seen anybody apprehended by the public though he said at one place in examination-in-chief that he heard that one person was apprehended by the public. This witness says about occurrence of dacoity but he does not adduce any evidence to link the appellant with the commission of the offence. 8. This witness does not say having seen anybody apprehended by the public though he said at one place in examination-in-chief that he heard that one person was apprehended by the public. This witness says about occurrence of dacoity but he does not adduce any evidence to link the appellant with the commission of the offence. 8. P.W.4 Gauri Shankar Banerjee is also an employee of the shop who deposed that the people of the locality had chased the criminals and one of them was apprehended and the police came and arrested the apprehended person. But at para-2 of his evidence this witness says that he was not in a position to identify the person who had been apprehended at the spot. Thus this witness does not identify the appellant saying that he was the culprit who had been apprehended at the spot or that he was amongst the criminals who had committed dacoity in the shop. 9. P.Ws. 6 and 7 who have turned hostile simply deposed that they had heard that dacoity which had been committed in the informants shop and that the P.W.6 deposed that hearing about the occurrence he had gone to the informants shop and had seen a rush there but he had not seen any criminal apprehended by public. P.W.7 also similarly deposed that he had gone to the informants shop but he had not seen anybody apprehended there. These two witness have denied to have stated before the police that one of the criminals had been apprehended by the public and that he had disclosed his name as Anil Biswas, Thus, P.Ws. 6 and 7 do not say anything to connect the appellant with the alleged offence. 10. P.W.8, I.O. of the case, deposed that he received information that some criminals were committing loot in the informants shop and then he lodged a Sanha No. 09 and proceeded to the spot. He further deposed that he reached the informants shop and recorded his fardbeyan (Ext.2). He also deposed that when he reached there he found that public had captured one person who had injuries. He further deposed that he arrested the person and informed the Court about the occurrence. He also deposed that two pistols snatched from the criminals were produced before him by the informant Ashok Acharaya. 11. He also deposed that when he reached there he found that public had captured one person who had injuries. He further deposed that he arrested the person and informed the Court about the occurrence. He also deposed that two pistols snatched from the criminals were produced before him by the informant Ashok Acharaya. 11. Learned counsel for the appellant argued that the I.O. says that the informant had produced two pistols before him but informant does not say in his evidence that he has produced any pistol before the I.O. At para-6 of his evidence, the I.O. deposed that the appellant had confessed his guilt before him, but he does not mention in detail what were words in which the confession was made. The learned counsel for the appellant argued that the I.O. who is a police officer simply says that the appellant had confessed before him but he does not mention in what words the confession was made so that the inculpatory statement can be appreciated. Besides this it was also argued that the confession was not before a Magistrate or any public but it was a confession before police which is not admissible under Sections 25-26 of the Evidence Act. Learned counsel also said that none of the witnesses has said that the appellant had made any confession before them. Thus, hearing the statement of the learned counsel, I find that the confession of the appellant as deposed by the I.O. is not admissible under law and it cannot be made a basis of conviction. 12. The learned counsel for the appellant argued that the appellant is said to have been apprehended by the public at the spot but none of the public has been examined to say that he had apprehended the appellant when he was fleeing away after commission of the offence. Learned counsel also submitted that the I.O. says that two pistols were produced before him which were seized but any pistol has not been produced before the Court. Learned counsel also submitted that it was during the melee that the police apprehended the appellant on suspicion and remanded him in the case but there is no evidence to show that the appellant was the man who had taken part in the commission of the offence or that he was apprehended while fleeing away after commission of the offence. Learned counsel also submitted that it was during the melee that the police apprehended the appellant on suspicion and remanded him in the case but there is no evidence to show that the appellant was the man who had taken part in the commission of the offence or that he was apprehended while fleeing away after commission of the offence. Learned counsel also submitted that witnesses examined by prosecution say about the commission of dacoity but none of them has identified the appellant in Court, saying that he was one amongst the criminals and that he had been apprehended while fleeing away. 13. Learned counsel also submitted that there is no witness to say that he had apprehended the appellant at the spot. Thus hearing, I find that there is no reliable evidence to show that the appellant was amongst the criminals who had committed the offence. 14. Thus, considering the facts and circumstances of the case and on consideration of the evidence as discussed above 1 find, that the prosecution has not been able to bring sufficient evidence to establish that the appellant was amongst the criminals committing the offence. Therefore, the appellant is entitled to benefit of doubt and giving benefit of doubt, the appellant is acquitted of the charge. 15. In the result, this appeal is allowed.