JUDGMENT Pradeep Kumar, J. 1. The appeal is directed against the judgment of conviction and sentence dated 20.7.1996 passed by Shree Mahesh Prasad Tiwari, 5st Additional Sessions Judge, Dumka in Sessions Trial No. 209 of 1995 by which judgment the learned Additional Sessions Judge found the appellants guilty under Section 395 of the Indian Penal Code and convicted them thereunder and sentenced them to undergo R. I. for 5 years under Section 395 of the Indian Penal Code. 2. The prosecution case was started on the basis of the first information report given by Parmeshwar Mandal on 6.3.1995 at 8.30 hrs. at his Kirana Shop, Sarsahbad (Maharo). He stated that on 5.3.1995 i.e. Sunday at 9 P.M. in the night when after closing the shop he was sleeping inside the shop with his wife, Sumati Devi. Then at about 2 A.M. on the door of the shop somebody started knocking the door with stone and a log of Kathal tree about 2" diameter and 4" long He and his wife started shouting for help out of fear, but nobody came from the village. Lastly, the door was broken from the Kabja and accused, Rabi Dan son of Haripada Dan of Village Maharo, Guddi Mandal son of Badri Mandal of village Sarsabad and Chhotelal Mandal son of Badri Mandal of village Sarsabad and Chhotelal Mandal son of Late Kartick Mandal of Village Maharo, entered into the shop with Chura and torch light in their hand and pushed him and his wife from their cot, they fell down on the ground. Thereafter the accused, Guddi Mandal snatched the Golden Makari (earing) worth of Rs. 700-and silver chain from the person of his wife. Thereafter, then asked them to close their eyes. Her wife was bleeding from her ear. Since, they threatened to assault by Chura, hence, they closed their eyes out of fear. Thereafter, all the three accused persons looted articles such as (i) sugar 50 kg., worth of Rs. 600/- (ii) rice 50 kg. worth of Rs. 350/- (iii) coconut oil 5 kg. worth of Rs. 250/- (iv) biscuit 3 cartoon worth of Rs. 300/- (v) mustered oil (Gopal Tin) 5 kg. worth of Rs. 200/-(vi) mazurka 10 kg worth of Rs. 30 (ix) life boy soap 24 piece worth of Rs. 72 (x) Nirma bath soap 4 pieces worth of Rs. 20/-(xi) Nirma Beauty soap 3 pieces worth of Rs. worth of Rs. 250/- (iv) biscuit 3 cartoon worth of Rs. 300/- (v) mustered oil (Gopal Tin) 5 kg. worth of Rs. 200/-(vi) mazurka 10 kg worth of Rs. 30 (ix) life boy soap 24 piece worth of Rs. 72 (x) Nirma bath soap 4 pieces worth of Rs. 20/-(xi) Nirma Beauty soap 3 pieces worth of Rs. 40/- (xi) kurkuri biscuit 5 kg. worth of Rs. 50/- (xii) dalmot 5 packet 50 gm. Worth of Rs. 135/- (xiii) open dalmot 2 kg. worth of Rs. 36/- (xi) Chota tea 1 kg. Worth of Rs. 50/-(xv) murga soap 24 pieces worth of Rs. 42/-(svi) parag soap 12 pieces. Sona soap 12 pieces worth of Rs. 128/-(xvii) Jira + goaki 1 kg. worth of Rs. (xviii) bidi 5000 pieces worth of Rs. 200/-(ix) patromax fr worth of Rs. 200/-(xx) degatoo worth of Rs. 1350/-(xxi) wall watch I piece worth of Rs. 150/- (xxii) kanta(small) 2 kg. to 5 gm and Rs. 60 cash when they were breaking the door of the shop they saw 7 to 8 persons are standing outside. He stated that the dacoits standing outside were wearing phulpaint, shirt, half paint, black coloured ganji. All the accused persons were of samla colour, aged about 25-30 years having lathi and torch in their hand. Rabi Dan was wearing black coloured shirt and katha coloured phulpaint. Chhotelal Mandal was wearing matmaila coloured paint and black coloured shirt. Guddi Mandal was wearing half paint and black coloured shirt. Guddi Mandal was wearing half paint and black coloured bushirt. All of them had closed their head by black coloured cloth and they were wearing black colourd round cap. He alleged that the dacoits have looted goods worth of Rs. 4, 933/-. 3. On the basis of the aforesaid fardbeyan police registered a case under Section 395 of the Indian Penal Code and after investigation submitted charge-sheet against three accused persons named in the fardbeyan. Accordingly, the accused persons were taken cognizance under Section 395 of the Indian Penal Code and since the case was exclusively triable by court of Sessions and the same was committed to the court of Sessions, where the trial was held as aforesaid and all the three accused persons were charged as stated above. 4. It is submitted by the learned Counsel for the appellants that the entire prosecution case is false, fabricated and not behevable. 4. It is submitted by the learned Counsel for the appellants that the entire prosecution case is false, fabricated and not behevable. The prosecution has examined only interested witnesses, namely informant-wife and two sons. None of the villagers come to support the prosecution case and hence the entire prosecution case is doubtful. He has further submitted that they were sleeping inside the shop on cot. The Investigating Officer found No cot inside the shop. Moreover, the withnesses have stated that hey had not disclosed the name of the appellants, who are their neighbours and enmity from before. The village witnesses had gathered immediately after the occurrence and hence the prosecution case is doubtful. The case is relied upon the decision reported in 1989CriLJ2074 in the case of Shiv Jee Dayanu Patil v. State of Maharashtra and in view of the aforesaid discrepancies in the prosecution case the appeal is fit to be allowed. 5. On the other hand, the learned Counsel for the State has submitted that the prosecution has examined all natural witnesses, who were present at the time of occurrence and they cannot be discarded. They were related to the informant and as such the conviction and sentence is sustainable in law. No inference is required by this Court. 6. After hearing both the parties and I have through the record, I find that in course of the trial, the prosecution has examined 7 witnesses. P.W. 1, Lobin Mandal, is son of the informam P.W. 2 is Parmeshwar Mandal. P.W. 3, Santosh Chalak, is villager, P.W.4, Karoo Mandal, is another son of the informant, P.W. 5, Sumati Devi is wife of the informant. P.W. 6 Mahendra Prasad Gupta is Investigating officer of the case. P.W. 7, Akla Kumar is another Investigating Officer of the case. 7. The prosecution case has been disclosed by the evidence of P. Ws 1 and 2, who were present in the shop at the time of occurrence when the alleged dacoity had taken place. P.W. 2, Parmeshwar Mandal supported the F.I.R. and stated that in the night of 5.3.1995 when he was sleeping in his shop along with his wife then the three accused persons Chhotelal Mandal. Rabi Dan and Guddi Mandal broke open the door of the shop by log. P.W. 2, Parmeshwar Mandal supported the F.I.R. and stated that in the night of 5.3.1995 when he was sleeping in his shop along with his wife then the three accused persons Chhotelal Mandal. Rabi Dan and Guddi Mandal broke open the door of the shop by log. Of kathal tree and when the door was broken from the kabja they entered into the shop and they pushed them from their cot on the ground. Thereafter, snatched Golden Markri (earing) from the ear of his wife and also looted her silver chain which she was wearing in her neck. They had chura and torchlight in their hand. Thereafter they asked them to close their eyes. Out of fear they closed their eyes. Out of fear they closed their eyes then they took everything from his kirana shop such as rice and kerosene oil, mustered oil, mustered oil etc. They had came with 4 to 5 persons but they could not identify them they took away even the wall watch, radio, tap recorder etc. The looted articles worth of Rs. 5,000/-. He stated that on Hulla when the villagers came then he stated about the occurrence to them in para 5. He stated that he had gone to the police station at Jama but when he came to the shop then the police took his statement was read over to him then he signed the same finding it correct. He identified the signature on the fardbeyan. At para 7 he stated that all the three accused persons had closed their mouth from black cloth. He identified the three accused persons in Court. In his cross-examination, he stated that in front of his shop there is a shop of his maternal uncle, Kishan Mandal and the shop of Bibhuti Sen. The house of Sen is by the side of his house. He stated that his shop has got one room and east west long. He had put the cot by the side of the door all the articles for selling were kept at Khatal inside the shop. He had shown the broken kabja of the door to the Investigating officer. At para I he stated that he had given the full statement to the officer-in-Charger at the Thana. He heard the same and told him that he will come to the shop. He had shown the broken kabja of the door to the Investigating officer. At para I he stated that he had given the full statement to the officer-in-Charger at the Thana. He heard the same and told him that he will come to the shop. He also stated in para 17 that blood was oozing from the ear of his wife and falling on her cloth. The Investigating Officer sent his wife to the hospital. At para 18 of his cross-examination, he admitted that villager, Manju murmur had filed a case against his son in which Chottelal Mandal had given evidence. He also admitted in para 19 that he had filed a case of assault against Chhtelal Mandal and Budhu Mandal. There was 107 cases against them. He stated that he has got No enmity with anybody in the village and he told about the occurrence to the villagers. He stated that Chalak and Bangali had come after the occurrence and also Binod Chalak came immediately after the occurrence. At para 22 he admitted that the house of accused Guri Mandal is 20 to 25 hand away from his house o the east. Chhotelal Mandals house is at distance of 40 50 hand from his house and Ravi Das house is at a distance of 60 to 70 hand. In para 23 he denied that the wife of Guri Mandal was raped by his son karo Mandal for which a Panchyati was held in the village in which Chhotelal Mandal and Ravi Da were panches and they had put find of his son. P.W. 7 Logan Mandal son of informant, he stated that on the date of occurrence of 5.3. 1995 when his father and mother were sleeping in the shop they had gone to the shop for giving a torch to them in the night at 2 a.m. then he had seen three accused persons roaming about near the shop. He had informed the Chaukdar. After sometime he was informed that a dacoity had taken place in a shop. He went to the shop then his father told him that dacoity was committed by Guddi Mandal, was raped by his son karo Mandal for which a Panchyati was held in the village in which Chhotelal Mandal and Ravi Da were panches and they had put find of his son. He went to the shop then his father told him that dacoity was committed by Guddi Mandal, was raped by his son karo Mandal for which a Panchyati was held in the village in which Chhotelal Mandal and Ravi Da were panches and they had put find of his son. P.W. 7 Logan Mandal son of informant, he stated that on the date of occurrence of 5.3.1995 when his father and mother were sleeping in the shop they had gone to the shop for giving a torch to them in the night at 2 a.m. then he had seen three accused persons roaming about near the shop. He had informed the Chaukidar. After sometime he was informed that a dacoity had taken place in a shop. He went to the shop then his father told him that dacoity was committed byu Guddi Mandal, Chhotelal Mandal and Rabi Dan. His mother told him that Guddi Mandal also assaulted her on the hand and snatched her gold earing and also snatched silver chain from her neck. In his cross-examination, he stated that there are two brothers he and Karo Mandal. In para 7 in his cross examination he admitted that Manju Murmu in his village, had filed a case under Section 386 of the Indian Penal Code, in which Chhotelal Mandal was witness Chhotelal Mandal and Jivan Mndal are own brothers, Guddi Mandal is the cousin brother of Chhotelal Mandal. His father had filed a case against Chhotelal Mandal and Guddi Mandal which is pending before the learned Sessions Judge. He also stated in para 9 that he had seen his mothers ear bleeding. He had also seen door of the shop broken. At para 11 he stated that Dhiran Chalak informed him about the dacoity in his shop. Dhiran Chalak had come along with santosh Narain and others. In para 12 he admitted that panchyati had taken place in the village with regard to the Guddis wife and his brother Karo Mandal in which his was found accused. Houses of the accused, Rabi Dan are by the side of his house. P.W. 5 is Sumati Devi wife of the informant. She also supported the statement given in the fardbeyan that dacoity took place in the shop where they were sleeping on cot. Houses of the accused, Rabi Dan are by the side of his house. P.W. 5 is Sumati Devi wife of the informant. She also supported the statement given in the fardbeyan that dacoity took place in the shop where they were sleeping on cot. Theree accused persons entered into the shop by breaming the doore and when the door was broken from the kabja pushed her down from the cot and thereafter they snatched gold makari from her ear and silver chain from her neck. Thereafter they asked them to close her eyes and took all the goods kept in the shop in six bags including soap, sugar, biscuit etc. The accused, Guddi Mandal gave him lathi blow. At para 5, in her cross-examination he said that they had town cots in the shop they had taken their food in the night in the shop itself and slept thereafter, at about 9 pm. At para 8 she stated that the Daroga came on the next date at 8 a.m. In the same para also stated that the villager came after the dacoity, but she had not given the name of the accused persons to them. She stated that although she was bleeding from ears, but she had not given the blood stained clothes to the Investigating Officer. She admitted in para 10 that Manju Murmu had lodged a case against her son in which Chhotelal Mandal is witness. 10. that Manju Murmu had lodged a case against her son in which Chhotelal Mandal is witness. 8. Thus, after going throught the evidence of all the three witnesses, it is apparent that (i) They were old enmity between the informants family and three acused persons (ii) Their houses are in the same village at distance of few hands: (iii) It was admitted by P.W. 1 that Manju Murmu has filed a case against informant Karo Mandal son of the informant in which Chhotelal Mandal is witness: (iv) It is also admitted that son of informant Karo Mandal alleged to have committed rape on wife of Guddi Mandal for which a Panchyati was held and in that Panchyati Chhotelal Mandal and Rabi Dan were Panches and his son was found guilty. All these admitted facts prove that the informant and his family member had sufficient ground for falsely implicating the three accused persons who are their next door neighbours. All these admitted facts prove that the informant and his family member had sufficient ground for falsely implicating the three accused persons who are their next door neighbours. Wife of the informant, P.W. 5 very clearly stated in her evidence at para 8 her cross-examination, that immediately after the occurrence all the villagers came but she had not disclosed the name of the three accused persons, which also grave doubt in the prosecution case as has been held in the case of Shiv Jee Dayanu Patil v. State of Maharashtra reported in 1989 CriLJ 2074 . 9. The prosecution case became more doubtful in view of the fact that the informant him self admitted in para 5of his evidence that the immediately after the occurrence he had gone to the police station at 5 a.m. and stated about the occurrence to him, but his statement was not recorded by the Investigating Officer. At para 16 in detail he stated that he had given full statement to him at the police station, but he failed to record the she and told him that he will come to his shop at 8 p.m. then he recorded his statement which was taken down by him. This statement of the informant is more doubtful because as relied by the learned Counsel for the for the appellant in the case for State of Andhra Pradesh v. Punti Ramulu reported in the Honble Supreme Court has ruled that if the Investigating Officer deliberately does not record the F.I.R. after getting information of the cognizable offence and instead registered the F.I.R. after reaching the spot and after due deliberations, consultation and discussions the subsequent statement recorded will be hit under Section 162 Cr. P.C. In this case also admittedly as per the statement of the informant he gave full statement of the occurrence at the police station, but the same was not recorded by him in evening at 8 p.m. and hence the F.I.R. registered itself is hit by Section 162 Cr. P.C. The statement of the Investigating Officer, P.W. 7 makes the prosecution case more doubtful; the Investigating Officer has stated in his examination-in-chief at para 2 that shop in which it is said that the informant was sleeping with is wife and in which the goods were also kept was only 11 hand long and 5 broad. P.C. The statement of the Investigating Officer, P.W. 7 makes the prosecution case more doubtful; the Investigating Officer has stated in his examination-in-chief at para 2 that shop in which it is said that the informant was sleeping with is wife and in which the goods were also kept was only 11 hand long and 5 broad. In that case two cots cannot fit this small room of 11x5 hand. He also admitted that he found No cot in the shop at para 7 he stated that he had not found breaking of the door of the shop. 10. Thus, the evidence of the Investigating Officer, P.W. 7 makes the prosecution case more doubtful and improbable and proves that salsa case was lodged to falsely informant family from before and that is why not a single villager, who came immediately after the occurrence as per the evidence of P. Ws. 1, 2 and 5, were examined by the prosecution. 11. Thus, after considering the evidences as aforesaid and the settled principle of law as discussed above, I find that the entire prosecution case is false, fabricated and cannot be accepted. The prosecution has miserably failed to being the charge beyond reasonable doubt. 12. Accordingly, the appeal is allowed and the judgment of conviction and sentence by the trial court is set aside. 13. Since the appellants are already on bail. They are discharged from the liability of their bail bon. Appeal allowed.