JUDGMENT : Akhilesh Chandra. J.- Heard learned counsel for the appellants and learned counsel for the informant and learned Additional Public Prosecutor for the State. 2. Since all these appeals arising out of same judgment are heard together and being disposed of by this common judgment. 3. Out of the above-named 12 appellants Jagesar Prasad @ Jagesar Das and Ballam Prasad respectively appellants in Criminal Appeal (SJ) Nos. 1120 and 1121 of 2010 stand convicted for the offences under Sections 395 and 397 of the Indian Penal Code awarded rigorous imprisonment for 10 years and appellant Jagesar Prasad @ Jagesar Das further convicted for offences under Section 27 of the Arms Act and awarded rigorous imprisonment for 3 years whereas remaining ten appellants stand convicted for the offences under Section 395 of the Indian Penal Code and awarded rigorous imprisonment for 7 years as directed by learned IVth Additional Sessions Judge. Nalanda at Biharsharif on 1st September, 2010, in connection with Session Trial No. 284/1984 arising out of Nalanda P.S. Case No. 188/1983. 4. The prosecution case in brief as reveal from fardbeyan (Exhibit-I) of Shiv Jamadar (PW 9) recorded on 17.6.1983 at 10.45 hours in Purani Hospital Hilsa by Sri S.D. Singh (PW 10), S.I. of Hilsa Police Station is that in the previous night while he was sleeping out of his house after closing the doors at about 11.00 p.m. smelling arrival of some persons alighted and found that altogether 15 persons including the appellants armed with lathi, bhala and Gun, anyhow by raising alarm he ran away, but on alarm Siya Saran Prasad (PW 4) by flashing torch proceeded further then at the instance of appellants Ballam Prasad, Jageshwar Das shot at him inflicting injury on left shoulder, he immediately fell down and on seeing the villagers arrival the miscreants fled away towards West North and when the informant returned to his house found one she-buffalo with kid and one box containing four thousand rupees cash and other articles missing and also learnt from, his brother Rajendra Chauhan (PW 1) that the miscreants by entering into his house in his search but since he could not be available to them some articles from his house also were taken by them. The whole occurrence was seen by co-villagers including Janki Das (PW 8) and Jay Mangal Das (PW 7), the reason behind the occurrence as stated is prolonged enmity and continued litigations as per details mentioned in the fardbeyan. The police instituted the case and after completing the investigation submitted charge-sheet. 5. Initially before the trial Court charge was framed on 20th July, 2009 against Jugeshwar Das under Section 307 of the Indian Penal Code and 27 of the Arms Act and against Ballam Prasad additional charge under Section 307/109 was framed. 6. In order to substantiate the charge prosecution has examined altogether 12 witnesses besides producing following documents which is as such: Exhibit – 1 - Fard-e-beyan. Exhibit - 2 - Formal First Information Report. Exhibit - 3 - Carbon Copy of injury report. 7. However, charge under Sections 395 and 397 of the Indian Penal Code was framed against Ballam Prasad and Jugeshwar Das and witnesses were directed to be produced for cross-examination against which adjournment was sought for filing Revision before this Court. On 6.11.2009, four prosecution witnesses were produced but they were not cross-examined, but adjournment was sought on the ground of revision ultimately on 16.11.2009 and on 25.11.2009 PW 5 Bindeshwar Prasad was cross-examined, and on 16.1.2010 Janki bas (PW 4) and Ramanand Prasad were cross-examined, on 27.9.2010 due to death of Shiv Jamadar informant he could not be produced for further cross-examination and steps were taken for other witnesses including Investigating Officer and doctor, but since they could not be produced prosecution case was closed thereafter statement of the witnesses of the accused persons under Section 313, Cr PC was recorded. 8. In defence altogether five witnesses have been examined, but no documentary evidence was produced and the trial Court on consideration of the materials available convicted and sentenced the appellants in the manner aforestated giving rise the present appeals. 9. It is contended by learned counsel for the appellant that they have falsely been implicated in this case due to admitted prolong enmity and litigation, majority of the appellants are next door neighbours only a few are outsiders, but residents of neighbouring villagers admittedly all were known to each other. The prosecution witnesses are also inconsistent about concealment of faces by the miscreants. The prosecution witnesses are also inconsistent about concealment of faces by the miscreants. Thus, learned counsel placed reliance on decision of Apex Court in a cases of Lakshman Prasad v. State of Bihar, reported in AIR 1981 SC 1388 ; and also submitted that no details of alleged looted articles except she-buffalo with kid were found. There is nothing even neither any attempt was made to search the house of the appellants nor anything was recovered, in fact, no dacoity was ever committed. 10. On the other hand, relying upon the decisions in cases of Shobha Yadav v. State of Bihar, reported in 2002 (2) PLJR 375 ; Bachchu Mahto v. State of Bihar, reported in 2003 (4) PLJR 798 ; Rama Das v. State of Bihar, reported in 2005 (2) PLJR 308 and Mahesh Rai v. State of Bihar, reported in 2006 (4) PLJR 181 , learned counsel representing the informant and learned Additional Public Prosecutor both supported the findings of the Court below on the grounds mentioned in the judgment, but at the same time, could not explain how and why all the appellants were not put for trial for the offences under Section 395 read with 397 of the Indian Penal Code. 11. Out of 12 prosecution witnesses PW 2 Parwati Devi & PW 7 Jaimangal Gope were tendered for cross-examination and PW 11 Dr. Hari Ram Singh appears inadvertently produced, to prove injury report of solitary injured Siyasaran Prasad (PW 4) whose injury report (Exhibit-3) appears proved during examination of PW 12 Dr. Baikunth Prasad Yadav who found the following injuries on his person- 1. One Circular lacerated would of 1/2" diameter on flank left side simple caused by fire arms about twelve hours. The patient is being transferred to P.M.C.H. for X-ray and needful. 12. Baikunth Prasad Yadav who found the following injuries on his person- 1. One Circular lacerated would of 1/2" diameter on flank left side simple caused by fire arms about twelve hours. The patient is being transferred to P.M.C.H. for X-ray and needful. 12. PW 1 is Rajendra Jamadar, on alarm came out of his house at the relevant time and found the miscreants outside the house of informant and three of them Jagesar Prasad @ Jagesar Das (appellant in Criminal Appeal (SJ) No. 1120 of 2010), Babulal Prasad (appellant in Criminal Appeal (SJ) No. 1094 of 2010), Bhuneshwar Prasad (appellant in Criminal Appeal (SJ) No. 1094 of 2010) having gun in their hands and Devan Prasad (appellant in Criminal Appeal (SJ) No. 1148 of 2010), Ballam Prasad (appellant in Criminal Appeal (SJ) No. 1121 of 2010) and Devendra (non-appellant) who have armed with garansha. He further states appellant Jagesar Prasad shot fire towards house of Siyasaran Gope (injured). This witness due, to fear concealed himself in the house. However, the miscreants also entered therein but in spite of search could not locate. Only thereafter took away Box containing Rs. 3000/- cash and silver ornaments. He could identify the miscreants in the light of dhibri lighting inside the house and when the miscreants left with booty he came to the house of informant who also intimated about taking away some articles including animals and Siyasaran Gopa (PW 4) was shot at by the miscreants. During cross-examination, he admits having no torch with him but night was darken and the miscreants stayed in the house for about half an hour. He further admits series of litigation with them and they are substantial cultivator. 13. PW 3 is Ramanand Prasad also likewise PW 1 came out on alarm found 15 miscreants well armed entering in the house of the informant and thereafter in the house of PW 1 appellant Jagesar, Babulal and Bhuneswar were armed with Gun, Suresh, Gopal and Devan with garansha and appellant Jagesar took away Box from the house of the informant and Ballam and Moti (non-appellant) took away the animals. This witness is none else than brother of PW 4 Siyasaran Gope, admits continued enmity and litigations and in para-6 admits it was very-very dark night nothing was visible. This witness is none else than brother of PW 4 Siyasaran Gope, admits continued enmity and litigations and in para-6 admits it was very-very dark night nothing was visible. He is also silent about any means of identification, but, also asserts in para-8 of the cross-examination, all the miscreants had concealed had their faces by galmochha. At this juncture, he is completely silent as to how he could be able to identify them. 14. PW 4 is Siyasaran Prasad solitary injured in the occurrence coming out of his house with torch on alarm when arrived towards South of informant's house and flashed torch found the miscreants, out of whom Bhuneshwar, Babulal and Jagesar having gun and Nagina, Suresh and Devan armed with garansha and further found remaining standing outside the house of the informant and appellant Ballam was running here and there on raising alarm by the witness at the dictates of appellant Ballam, Jagesar Das shot at him inflicting fire-arm injury on left shoulder after the miscreants leaving the place who was brought to Hilsa, Hospital where statement was recorded and treatment was provided. Likewise this witness he also admits continued litigation between the parties. In para 10 anyhow he could reach at the house and lost senses to regain only at the hospital. He further also admits miscreants being substantial cultivator and all had concealed their faces by galmochha but likewise PW 3 is also silent about the means of identification with only difference of this witness having torch which was flashed. 15. PW 5 is Bindesar Prasad, on hearing the sound of firing come out, however, in the flash of torch he identified and found the miscreants in the lane out of whom Jagesar, bhuneshwar and Babulal were armed with gun and Devan, Gopal, Suresh armed with garansha and remaining had lathi and Jagesar was holding one Suitcase whereas Ballam was controlling the she-buffalos and all proceeded towards West. He also admits continued enmity and denied the suggestion of false implication. PW 6 is Munri Devi wife of PW 1 amost stated what her husband has said with only addition contrary to PWs 3 and 4 that none of the miscreants had concealed their faces by any means. 16. He also admits continued enmity and denied the suggestion of false implication. PW 6 is Munri Devi wife of PW 1 amost stated what her husband has said with only addition contrary to PWs 3 and 4 that none of the miscreants had concealed their faces by any means. 16. PW 8 is Janki Das, on alarm arrived at the house of the informant with torch and found the miscreants out of whom Bhuneshwar and Babulal had gun and Devan and Birendra had lathi. Jageshar carried Box whereas Ballam controlled she-buffalo. He is also a person carrying PW 4 to hospital in injured state and states about litigation and appellants having substantial cultivators. Likewise PW 6 he also said that none of the miscreants had ever concealed their faces. PW 9 is the informant Shiv Shankar, Jamadar has stated the prosecution version and in cross-examination given details of the relationship amongst witnesses examined and further in para-7 says about miscreants entered in his house he could leave the place and from a distance of 10 to 15 steps witnessing the occurrence with torch light, he also says where inmates of the house raised any alarm or not and due to death could not come up for further cross-examination after amendment of charge. 17. PW 10 is Shankar Dayal Singh is Investigating Officer and scribe of fardbeyan (Exhibit - 1) whereon formal First Information Report (Exhibit-2) was prepared during investigation inspected the place of occurrence found blood-stains and also injured PW 4 was referred to P.M.C.H. Patna, for treatment and after concluding the investigation submitted charge-sheet. But, At no point of time, this Investigating Officer made any. attempt to search the miscreants, majority of whom were next door neighbours and a few belonged to neighbouring villages, nor anything recovered from their respective houses, in fact, no such efforts made caused the investigation perfunctory. 18. This much is undisputed that both the sides are at litigating terms since long. Commission of dacoity as well false implication both are possible for such prolong litigation (civil and criminal) between them. In this view of the matter, prosecution case and testimony of the witnesses further required to be examined a bit more cautiously. Admittedly due to darken night it was difficult to observe entire episode unless there appears any specific mode and means for identification. In this view of the matter, prosecution case and testimony of the witnesses further required to be examined a bit more cautiously. Admittedly due to darken night it was difficult to observe entire episode unless there appears any specific mode and means for identification. On this point though a few witnesses have said about flash of torch or light coming from the dhibri, but at the same time, PWs 3 & 4 have specifically stated that all the miscreants had concealed their faces by galmochha but have stated nothing about any extra activity leading to their identification. On the other hand, PWs 6 and 8 specifically states miscreants had not concealed their faces and in third group there are PWs 1 and 9 who are silent about such screening or not screening the faces by the miscreants. Thus it can be said that out of six witness on the fact there appears equal number of deviation on the point of identification. 19. The Apex Court in the case of Lakshman Prasad (supra) has considered almost similar circumstances and opined. It is difficult to believe that one renowned figure of locality commits dacoity in the house of his own neighbour. Since such person it had participated in the dacoity and took precaution of concealing his identity, then he would have secured that his face was fully covered so that identification by the witness would become impossible, but, if he was a dare devil he would not have concealed his identity at all. Whereas in the instant case as stated above, the alleged eye-witnesses of the occurrence have stated on the point in altogether different ways two of them are silent on the point other two have completely denied any such concealment but as far remaining two there was concealment of faces by all the miscreants by galmochha. In spite of the fact that they are the person of sufficient means and majority of them are closed door neighbours having litigating terms. Thus, it appears difficult to accept participation of the appellants in the entire episode. 20. In cases of Lakshman Prasad (supra), Shobha Yadav (supra), Bachchu Mahto (supra), Rama Das (supra) and Mahesh Rai (supra) as referred and relied upon by the prosecution side. The fact of the cases are quite different and also in none of the cases Apex Court decision in Lakshman Prasad (supra) was placed for consideration. 21. 20. In cases of Lakshman Prasad (supra), Shobha Yadav (supra), Bachchu Mahto (supra), Rama Das (supra) and Mahesh Rai (supra) as referred and relied upon by the prosecution side. The fact of the cases are quite different and also in none of the cases Apex Court decision in Lakshman Prasad (supra) was placed for consideration. 21. True it is there can be no hard and fast rule as a well known person having substantial means shall not participate in such type of crime, but at the same time, relevant era and place of any crime, prevalent interpretation of legal position nearer to the facts in issue are to be taken into note. Thus, it is presumed that unless the offender is a dare devil he will take all precaution to conceal his identity. Whereas in the instant case, all the prosecution witnesses are clear and specific on the point that the appellants having sufficient means next door neighbours but at continued litigating terms for several years dared to commit such wrong but not only on the point of having weapons in their respective hands. PWs 1, 2, 4 and 5 have said about the guns in the hands of appellants Jagesar, Babulal and Bhuneshwar, whereas PW 8 could see gun only in the hands of Bhuneshwar and Babulal and according to him Jagesar was carrying Box. Similarly according to PW 1 appellant Devan and Ballam and non-appellant Devendra were armed with garansha, but according to PW 3 they were Suresh, Gopal and Devan and as per PWs 4 and 5 Nagina, Suresh and Devan had garansha, but as per PW 8, Devan and Birendra had been carrying lathi, and on the point of any precaution taken by the miscreants to conceal their identity, witnesses are also not consistent. 22. To crown all neither any attempt was made to search or recover any looted articles including she-buffalos there is also no witness to claim them to go further with the she-buffalos which would not have been kept concealed from others while covering the distances whatever it may be of their destination except inmates of the house who may be a natural witness in normal circumstances none else are come out to support the prosecution version. 23. In such event, it is difficult and unsafe to uphold the conviction and sentence of the appellants who deserve the benefit of doubt. 23. In such event, it is difficult and unsafe to uphold the conviction and sentence of the appellants who deserve the benefit of doubt. Hence, their conviction and sentence are set aside. Accordingly, all these appeals are allowed and the appellant namely, Ballam Prasad is ordered to be released at once if not behind the bar in any other case and remain are set free from the liabilities of their respective bail bonds. Appeals allowed.