JUDGMENT Hon’ble Shiv Shanker, J.—This criminal appeal, under Section 374(2) Criminal Procedure Code, has been filed against the impugned judgment and order dated 16.2.1982 passed in Session Trial No. 376 of 1980, State v. Jhabboo and others, convicting the accused Jhabboo for the offence under Sections 395/397 of the Indian Penal Code and he was sentenced to undergo rigorous imprisonment for 10 years. Other accused-appellant Sunder, Hansh and Itwari were also found guilty for the offence punishable under Section 395 Indian Penal Code and they were also convicted and sentenced to undergo rigorous imprisonment for 10 years each. 2. Brief facts arising out in this criminal appeal is that Sri Punni son of Khushali lodged the First Information Report on 21.6.1979 at 12.40 p.m. regarding the occurrence dated 20/21.6.1979 at about 11.00 p.m. after covering the distance of 10 km. Against all the four appellants and some unknown miscreants wherein it has been stated that all the four accused-appellants named in the First Information Report along with some unknown persons had entered in the house of informant and committed dacoity and they have taken ten articles mentioned in the F.I.R. In the same time the wife of informant, brother of informant and wife of his brother were beaten by the miscreants with Dandas. Consequently, they sustained injuries in the alleged occurrence. All the miscreants were seen by the informant and the witnesses in the light of torches and lantern. They were also holding gun and country made pistols at the time of incident. Named accused-appellants have been identified in the same incident at the time of alleged dacoity. After lodging the F.I.R. investigation was entrusted to S.I. Babu Ram. On 21.6.1979 at about 3.40 p.m. Smt. Sonwati was medically examined by the Doctor and fire-arm injuries were found on her person. Smt. Pyari was also examined on 21.6.1979 at 4.05 p.m. and 12 injuries were found on her person. 3. Kanhai was also medically examined by the Doctor on 21.6.1979 at 4.35 p.m. and 5 injuries were found on his person. Madari has also been examined on 21.6.1979 at 5.00 p.m. and 10 injuries were found on his person. Therefore, all the four persons sustained injuries by blunt object. 4. 3. Kanhai was also medically examined by the Doctor on 21.6.1979 at 4.35 p.m. and 5 injuries were found on his person. Madari has also been examined on 21.6.1979 at 5.00 p.m. and 10 injuries were found on his person. Therefore, all the four persons sustained injuries by blunt object. 4. During the course of investigation the lantern was taken into possession from the place of incident and given in supurdagi of the informant and prepared its fard supurdaginama and the alleged torch was also taken from the place of occurrence and was given in the Supurdagi of witness Hari Prasad and prepared its fard supurdaginama. The torches of Hari Prasad and Shakatu were also taken by the Investigating Officer and same were given in the supurdagi of one Kallu witness and prepared it fard supurdaginama. 5. The Investigating Officer inspected the place of occurrence at the instance of informant and prepared site plan. After completion of the investigation the Investigating Officer has filed charge against all the four accused-appellants. After commitment of the case they were charged by the concerned Addl. Sessions Judge for the offences punishable under Sections 395 and 397, I.P.C. They pleaded no guilty and claimed to be tried. Statements of all the four accused persons were recorded by the trial Court under Section 313, Cr. P.C. They have denied all the evidence adduced against them and further they have stated that they have been falsely implicated in this case due to previous enmity. 6. The prosecution examined P.W. 1 Punni, P.W. 2 Madari, P.W. 3 Dr. Aditya Kumar, P.W. 4 Lal Mohammad, P.W. 5 Head Constable Lajja Ram, P.W. 6 Kallan and P.W. 7 S.I. Babu Ram. 7. No any oral or documentary evidence has been adduced on behalf of the accused persons in their defence. 8. After considering the submissions made by learned Counsel for both the parties the Sessions Judge has convicted all the four appellants and sentenced them as mentioned above. Feeling aggrieved by it they have preferred the present criminal appeal. 9. I have heard the arguments of learned Counsel for the appellants, learned A.G.A. and perused the whole evidence on record. 10. Learned Counsel for the appellants submitted that the F.I.R. has been lodged with delay of about 13 hours. No sufficient explanation has been given regarding it. Feeling aggrieved by it they have preferred the present criminal appeal. 9. I have heard the arguments of learned Counsel for the appellants, learned A.G.A. and perused the whole evidence on record. 10. Learned Counsel for the appellants submitted that the F.I.R. has been lodged with delay of about 13 hours. No sufficient explanation has been given regarding it. It is further contended that the appellants were identified in the house of P.W. 1 informant in the light of lantern and its fard and supurdaginama was also prepared by the Investigating Officer but the same has not been produced in evidence and same has not been shown in the site plan in the house of P.W. 1 to be hanged at any place. It is admitted that there was dark night. In such circumstances the dacoit could not be identified in the dark night in the house of P.W. 1. It is further contended that the prosecution witnesses stated that they were identified in the torch light out side of the house of P.W. 1. In the dark night no one can be identified in the torch light while the number of dacoit has been shown as 14 or 16. It is further contended that all the four appellants are resident of same village and near the house of P.W. 1. In such circumstances there is no evidence on record that they had gone to the house of P.W. 1 by covering their faces. It is further contended that they were not arrested on the spot. No any looted property was recovered from their possession or on their pointing out. Unknown miscreants have not been arrested by the police till now. Therefore, unknown miscreants have committed the offence and the appellants have been falsely implicated in this case due to enmity. 11. On the other hand learned A.G.A. submitted that all the appellants were named in the F.I.R. They were identified by all the witnesses in the light of lantern and torches at the time of incident. It is further submitted that four persons were beaten by the miscreants. Consequently, they sustained the injuries on their person. There was previous enmity. In such circumstances they have committed the offence of dacoity in the house of P.W. 1 and the trial Court had rightly convicted the appellants for charges levelled against them. 12. It is further submitted that four persons were beaten by the miscreants. Consequently, they sustained the injuries on their person. There was previous enmity. In such circumstances they have committed the offence of dacoity in the house of P.W. 1 and the trial Court had rightly convicted the appellants for charges levelled against them. 12. This occurrence of dacoity has committed on 20/21.6.1979 at 11.00 p.m. in the house of P.W. 1 and the F.I.R. was lodged on 21.6.1979 at 12.40 p.m. Therefore, the F.I.R. Ext. Ka-6 has been lodged with a delay of about 13 hours. No any sufficient explanation has been given in the F.I.R. The injured persons were medically examined after sending them from the concerned police station after lodging the F.I.R. This is not the case that firstly the injured were taken to the hospital, thereafter the F.I.R. was lodged. Therefore, the F.I.R. has been lodged with a delay of about 13 hours. In absence of any sufficient explanation regarding such delay no reliable can be placed upon such F.I.R. 13. In the F.I.R. four appellants and 10-12 unknown miscreants have been shown to be dacoits. The unknown miscreants have not yet been arrested by the police during the course of investigation. All the four appellants have been named in the F.I.R. This incident has taken place in the year 1979. The appellants Jhabboo and Sunder are the real brother, Hansh is son of Jhabboo and Itwari son of Komil. It has been admitted by P.W. 1 Punni in his cross-examination that three appellants Jhabboo, Sunder and Hansh are resident of the same village and infront of his house after passing the gali. Therefore, all the four appellants are the resident of same village of P.W. 1. This incident is of 1979 in those days no body could dare commit the offence of dacoity in his/their village without covering his/their face/faces. However, they have not covered their faces while entering to the house of P.W. 1. Therefore, they have not taken precaution at the time of committing the offence of dacoity. 14. P.W. 7 S.I. Babu Ram who is Investigating Officer of this case has admitted in his cross-examination that the place of burning of lantern in the house was not shown in the site plan Ext. Ka-8 as such place was not told to him by any witness. 14. P.W. 7 S.I. Babu Ram who is Investigating Officer of this case has admitted in his cross-examination that the place of burning of lantern in the house was not shown in the site plan Ext. Ka-8 as such place was not told to him by any witness. P.W. 1 has admitted in his cross-examination that there was dark night. He has also admitted that dacoits were seen by him in the Angan in lantern light which was hanging at the tree of Vine which was situated in his Angan. According to the evidence of this witness there was one tree of Vine which was standing in his Angan and lantern was burning in hanging at the same tree. This fact is not corroborated with the testimony of P.W. 7 or with the site plan. Therefore, it has become suspicion that any lantern was burning in the Angan of P.W. 1 at the time of incident at the Vine tree. In absence of lantern light the dacoits could not be identified in the Angan and in the torch light out side of his house in the dark night. It is also worthwhile to mention here that such lantern and torches have also not been produced at the time of evidence, on behalf of the prosecution. 15. P.W. 1 Punni, P.W. 2 Madari, P.W. 4 Lal Mohammad and P.W. 6 Kallan have been produced on behalf of the prosecution to prove the case. P.W. 2 is the injured witness. P.W. 6 Kallan is said to be the eye-witness but he has not supported the prosecution case in his deposition. 16. P.W. 1 Punni has already admitted that there was dispute in between the accused-appellants and P.W. 1 regarding the passage. Therefore, the complaint was filed against the appellants on behalf of P.W. 1. Before the alleged occurrence of dacoity. In this complaint Lal Mohammad P.W. 4 was also the witness and he is also the witness in the present occurrence. Therefore, he could not be independent witness but he may be treated as interested witness against the accused-appellants. Therefore, no any other independent witness of this incident has been examined on behalf of the prosecution. P.W. 2 Madari is the real brother of P.W. 1. Therefore, he could not be independent witness but he may be treated as interested witness against the accused-appellants. Therefore, no any other independent witness of this incident has been examined on behalf of the prosecution. P.W. 2 Madari is the real brother of P.W. 1. Therefore, no reliance can be placed upon the testimony of P.W. 1, P.W. 2 and P.W. 4 and this possibility cannot be ruled that the offence of dacoity was committed by unknown miscreants and lateron the appellants have been involved by P.W. 1 on the basis of previous enmity of the complaint case. 17. It is also worthwhile to mention here that the accused-appellants were not arrested on the spot at the time of committing dacoity nor any looted property was recovered or discovered from their possession or on their pointing out. It is very surprising that all the appellants are resident of same village. They were named in the F.I.R. After one day of the incident they were arrested by the police but nothing was recovered. This also shows the innocence of the appellants. Therefore, it appears that the appellants have been falsely implicated by P.W. 1 in lodging the F.I.R. due to the enmity. However, the trial Court has committed the error, illegality in convicting the appellants for the charges levelled against them. 18. In view of discussions made above I am of the considered view that this appeal has force and deserves to be allowed. Consequently, this appeal is allowed. The impugned judgment and order passed by the trial Court is hereby set aside. All the above four appellants are hereby acquitted for the charges levelled against them. They are on bail. Their bail bonds are cancelled and sureties discharged. There is no need to surrender them. 19. A copy of this judgment along with the record of Court below be sent immediately to the Court concerned for its compliance. ————