JUDGMENT S.A. Khan, J. – The seven appellants have been found guilty for an offence under Section 395 of the Indian Penal Code by the Additional Sessions Judge, Supaul in Sessions Trial No. 71/96 arising out of Jadiya P.S. Case No. 32/94 and are convicted to undergo R.I. for 10 years. Appellant No. 7, Bhajan Sharma has further been convicted under Section 412 of the Indian Penal Code to undergo R.I. for 10 years. It was ordered that the sentence passed against Bhajan Sharma, appellant no. 7, shall run concurrently. Appellant Nos. 1 to 4 have remained in custody for about 6 years in this case, appellant no. 5 has remained in custody for 4 months and 4 days, appellant no. 6 has remained in custody for about 3 years and 9 months, whereas, appellant no. 7 has remained in custody for about 2 years, 8 months. 2. The occurrence took place in the night between 8/9 of July, 1994. The First Information Report was recorded at 2.30 hours on 10.7.1994. Later Section 412 of the Indian Penal Code was added on 12.7.1994 and thereafter the trial began. The prosecution case made out in the First Information Report is that the son of Saini Sharma had returned from Punjab. He carried with him a draft of Rs. 5,000/- and other house hold articles. In the night when the informant and his family members were sleeping, they heard some sounds in their house and saw that seven appellants and few others had entered the house variously armed. It is alleged that Bhajan Sharma and Methar Sharma tied the informant with his ‘Lungi’, whereas, the other miscreants entered the house and took away all the valuable articles including the draft of Rs. 5,000/-. After committing dacoity in the house of the informant, the miscreants committed dacoity in the house of Ramji Sharma, P.W. 7 and Nunu Lal Sharma, P.W. 5 who happen to be brothers. It is asserted in the First Information Report that all the named accused persons are resident of the same village and infact some of them are the neighbours of the informant. 3. Nine witnesses were examined in this case. P.Ws. 8 and 9 are witnesses of the seizure list, whereas, the others claimed to have witnessed the occurrence. It is asserted in the First Information Report that all the named accused persons are resident of the same village and infact some of them are the neighbours of the informant. 3. Nine witnesses were examined in this case. P.Ws. 8 and 9 are witnesses of the seizure list, whereas, the others claimed to have witnessed the occurrence. A defence has been raised on behalf of the appellants alleging therein that the appellants are well known to the informant being neighbours and having their lands in the same village, side by side, which has given rise to certain disputes with respect to the boundary of the agricultural land leading to the implication of the appellants in this case. Their names have been implicated due to land dispute. The fact that the dacoits were not identified would be apparent in the manner in which the First Information Report has been instituted and the delay in sending the First Information Report to the Chief Judicial Magistrate which has remained unexplained. It is further submitted that the seizure of the alleged stolen articles is not supported by exhibiting the articles in Court or proving the seizure list as such, it has been argued that this is a case of false implication. 4. Saini Sharma, P.W. 3 is the informant of this case and his evidence would be most relevant for the purposes of establishing whether these appellants were involved in the aforesaid occurrence. Saini Sharma admits that all the appellants are his neighbours and that they have their agricultural land by the side of the land of the informant. He has stated that they had come to commit dacoity with their faces uncovered. According to this witness, the recovery of the stolen articles was made on 10.7.1994 itself. The most spectacular part of the evidence of this witness is the statement he has made regarding lodging of the First Information Report. As pointed out, the occurrence took place in the night of 8/9th July, 1994. At paragraph 11, P.W. 3 states that he went to the police station to inform them regarding the dacoity at about 7 A.M in the morning of ninth. According to the informant, the Investigating Officer did not take his ‘Fardbeyan’ at the police station but recorded his ‘Fardbeyan’ at about 8 or 9 A.M. at his house. At paragraph 11, P.W. 3 states that he went to the police station to inform them regarding the dacoity at about 7 A.M in the morning of ninth. According to the informant, the Investigating Officer did not take his ‘Fardbeyan’ at the police station but recorded his ‘Fardbeyan’ at about 8 or 9 A.M. at his house. This fact is contrary to the actual First Information Report which says that the ‘Fardbeyan’ was recorded at 2.30 hours. According to Saini Sharma, he has identified the stolen articles on 10.2.1994 at 12 O’clock in the afternoon which is very strange as it appears that the seizure was made even before the First Information Report was lodged. 5. Vidyanand Sharma, P.W. 4 is the son of the informant. He claims to have identified Nandi, Methar and Bhajan Sharma in the torch light. He admits that all the appellants are his neighbours and live in the same village. They also have their lands adjacent to the lands of the appellants. According to this witness, the dacoits had covered their faces with a cloth (Gamchhas). Vidyanand Sharma has stated that recovery was made from the house of Badri. It may be pointed out here that Badri has not been booked under Section 412 of the Indian Penal Code. 6. The next witness who has been examined in this case is Nunu Lal Sharma, P.W.5. It is admitted that dacoity took place in the house of Nunu Lal Sharma as well. This witness says that he could not identify the dacoits. Although he claims that he can identify the appellants in Court as they are from the same village and some of them are neighbours of Nunu Lal Sharma. 7. Devan Sharma, P.W. 6 claims that he was in his orchard at the time of occurrence. He had supposedly climbed on a tree and was watching the dacoits coming in and out of the house of Saini Sharma, the informant. P.W. 6 claims to have identified Methar Sharma, Nandi Sharma and Bhajan Sharma in the torch light. P.W. 6 is the nephew of the informant. It is interesting to know that P.W. 6 has stated that Nandi is an old man and is perhaps the oldest living person in their ‘Tola’. P.W. 6 claims to have identified Methar Sharma, Nandi Sharma and Bhajan Sharma in the torch light. P.W. 6 is the nephew of the informant. It is interesting to know that P.W. 6 has stated that Nandi is an old man and is perhaps the oldest living person in their ‘Tola’. This witness has stated that he has given evidence in Court for the first time as he was not examined by the Investigating Officer in this case. 8. P.W. 7, Ramji Sharma identifies only four persons i.e. Bijan Rishideo, Nandi Sharma, Methar Sharma and Bhajan Sharma. The miscreants had committed dacoity in the house of Ramji Sharma and it is alleged that they took away several articles and cash from the house of Ramji Sharma. P.W. 7 has stated that recovery was made from the house of appellant Bhajan Sharma. P.Ws. 5 and 7 are the brothers and live in the same house sharing common ‘Aangan’. According to P.W. 7, the miscreants had covered their faces. 9. P.Ws. 8 and 9 are seizure list witnesses. P.W. 8 does not support the seizure of stolen articles was made in his presence. According to P.W. 8 he was called to the police station and made to sign on the seizure list. P.W. 9 also does not support the factum of seizure from the house of Bhajan or Badri. 10. P.W. 1, Sone Lal Sharma admits that he was examined by the Investigating Officer after about 2½ years of the occurrence. Appellants Nandi Sharma and Methar Sharma are neighbours of P.W. 1 as per his statement. He claims that he does not have a dispute with Nandi Sharma and Methar Sharma who are father and son, but he had a dispute with Sushila and Devan. 11. P.W. 2 is a witness to the recovery from the house of Bhajan. This witness has stated that he has deposed against Bhajan in a case under Section 27 of the Arms Act. 12. On the basis of the aforesaid evidence the appellants have been convicted under Section 395 of the Indian Penal Code. As pointed out earlier, P.W. 3, the informant, P.Ws. 4, 6 and 7 have consistently stated that the appellants belonged to the same village and that some of them are neighbours of the informant as well as Ramji Sharma. It is also apparent that there are two versions regarding identification. As pointed out earlier, P.W. 3, the informant, P.Ws. 4, 6 and 7 have consistently stated that the appellants belonged to the same village and that some of them are neighbours of the informant as well as Ramji Sharma. It is also apparent that there are two versions regarding identification. P.W. 1 has stated that the dacoits had not covered their facts, whereas, P.W. 7 has stated that they had covered their faces while they were committing dacoity. In any event, it is apparent that these appellants are well known to the witnesses who have been examined in the case, they are admittedly the neighbours and have their agricultural lands side by side. Under the circumstances, it is very difficult to believe that they entered the house of the informant, Ramji Sharma and Nunu Lal Sharma to commit dacoity. Besides which none of them had any criminal antecedent. Although the witnesses denies this aspect but there is a suggestion that there was some sort of a dispute by virtue of having land adjacent to each other. Coupled with this fact, is the fact that the First Information Report was instituted at 2.30 hours on 10.7.1994, whereas, the appellants had the opportunity to give his statement before the ‘Daroga’ when he went to call him at 6 A.M. after the dacoity had taken place. If the informant’s version is to be belived then he also had the opportunity to give his statement at 6 A.M. and 12 A.M. when he supposedly went to identify the stolen articles. Instead of giving his ‘Beyan’ i.e. that time, he is said to have given his ‘Beyan’ at 2.30 hours. This Court may also take note of the fact that the First Information Report was forwarded to the Chief Judicial Magistrate after a delay of 48 hours which has remained unexplained by the prosecution. In these circumstances, it is difficult to believe that these appellants were involved in the act of committing dacoity in the house of the informant, Ramji Sharma and Nunu Lal Sharma. Besides the aforesaid fact it would appear that the seizure list, if any, has not been proved, the witnesses who have signed on the seizure list disowned the fact that they were present at the time when the seizure of the articles was made. Besides the aforesaid fact it would appear that the seizure list, if any, has not been proved, the witnesses who have signed on the seizure list disowned the fact that they were present at the time when the seizure of the articles was made. Apart from which the photo copy of the draft or the Life Insurance Corporation documents, which are supposedly stolen from the house of the informant and Ramji Sharma have not been exhibited in Court. All these facts together lead this Court to conclude that the prosecution has not been able to prove that it was the appellants who were responsible for committing dacoity. 13. In the circumstances the judgment of conviction dated 31.8.2000 and order of sentence dated 1.9.2000, passed by the Additional Sessions Judge, Supaul in Sessions Trial No. 71/96 arising out of Jadiya P.S. Case No. 32/94 is set aside. The appellants are acquitted of the charges levelled against them. They are also discharged from the liabilities of their bail bonds furnished earlier in this case. 14. This appeal is allowed.