JUDGMENT Hemant Kumar Srivastava, J.- Both the above-said Criminal Appeals have arisen out of judgment of conviction dated 06-10-2001 and sentence order dated 08-10-2001 passed by Sri Subhash Kumar Singh. Vth Additional Sessions Judge. Begusarai in Sessions Trial No. 69 of 1988. Since both the above-said criminal appeals have been heard together, a common judgment is being passed in the above said appeals. 2. All the appellants were convicted under Section 395 of the Indian Penal Code and, sentenced to undergo rigorous imprisonment for a period of ten years for the afore- said offence. However, period already undergone in jail by the appellants in course of trial, was ordered to be set off under Section 428 of the Code of Criminal Procedure. 1973. 3. The original first information report of Bhagwanpur P.S. Case No. 83 of 1984 is in torn condition and it is not readable and therefore, the prosecution case is reproduced hear as mentioned by learned Vth Additional Sessions Judge. Begusarai in impugned judgment of conviction which runs as follows : The brief facts of the case are that in the night of 19/20-Nov.-1994 i.e. Monday /Tuesday, the informant. Ram Chandra Yadav and his family members were sleeping at the proper place. The elder brother of Ram Chandra Yadav had gone in the paddy field to guard the same. In the meantime, at about 12.00 night, three men came and took their sit on the cot of informant. The sleep of informant was broken. The informant was feeling that some body is pressing his body and asked as to why his body is being pressed by them. They flashed their torch lights. In the flashes of the torch light by the marauders, the informant saw that they had covered their faces and they were wearing a lungi and garyi, dhoti and kameez. Before he could under stand anything. one of them asked to reveal the location of the valuable of the family. The informant maintained silence and one of them started beating him with a lathi., whereas; the other marauder was keeping the flash of his torch on the face and body of informant. When one of the marauder was beating the informant, the mask/face cover of one of the marauder fell on the ground and in the flashes of the torch. the informant identified that he is Suraj Nonia, son of Mangal Nonia of village-Mirjapore. Thana-Khodawanduro Zilla-Begusarai. When one of the marauder was beating the informant, the mask/face cover of one of the marauder fell on the ground and in the flashes of the torch. the informant identified that he is Suraj Nonia, son of Mangal Nonia of village-Mirjapore. Thana-Khodawanduro Zilla-Begusarai. The informant tried to run away from there, but the dacoits asked him to sit, failing which, the informant will be killed. One of them took possession of an old Atalas cycle. They also snatched the blanket and the "chadar" from the body of informant. The informant maintained silence, some of the dacoits entered the female apartment in search of the valuable and informant was hearing the sound of ransacking the household materials. The dacoits stayed in the house for about 45/50 minutes and were practically brooming the house of all the valuable properties. The dacoit out side the house commanded them to leave the place immediately and the dacoits came out from the house and moved with the cycle and the blanket and the chaddar. When the dacoits were retreating, it was found that they were 15/16 in number. When the dacoits moved further in the field situated East of the DOCHARARI, the informant mustered courage and caught one of the dacoits' who was moving with the bicycle. The dacoits returned and surrounded Ram Chandra and also threw a bomb causing blast of heavy sound, but villager Ram Lakhan Yadav sounded as to who are they? On hearing the sound of Ram Lakhan Yadav, the informant replied that the dacoits flashed their torches again, and in the flash of the torch lights, the informant identified Nathunee Yadav, son of Ram Lakhan Yadav of village-Bariayarpore. Tola Gowar Bigha, Sago Paswan, S/o Siya Ram Paswan of village- Bariayarpur and Ram Pukar Yadav and Lakhan Yadav of village Bhusra, Thana-Khodabandpore, Zilla-Begusarai. They were armed with lathi and torch and were also carrying the looted articles on their hands except Lakhan Yadav who was armed with chhura. Lakhan Yadav gave a chhura blow upon the head of informant. The informant fell upon the ground after receiving the chhura injuries. The informant again started raising hulla. On hulla of informant, Murti Devi, the mother of informant and Sita' Ram Yadav, the nephew of informant came and covered the informant. The mother of informant started weeping. In the meantime. the villagers came raising hulla. The informant fell upon the ground after receiving the chhura injuries. The informant again started raising hulla. On hulla of informant, Murti Devi, the mother of informant and Sita' Ram Yadav, the nephew of informant came and covered the informant. The mother of informant started weeping. In the meantime. the villagers came raising hulla. On hearing the sound of villagers, the dacoits fled away through potato field. Since there was an skirmish between the informant and dacoits and one of the dacoits had received some injuries on the body. Mter leaving the dacoits the wife of informant informed that valuables of the value of Rs. 2515/have been looted. 4. On the basis of aforesaid fardbeyan, Bhagwanpur P.S. Case No. 63 of 1984 was registered against the appellants and. accordingly, matter was investigated by the police and after completion of the investigation, charge-sheet was submitted for the offence under Section-395 of the Indian Penal Code. On being receipt of the chargesheet, cognizance of the offence was taken and the case was committed to the Court of Sessions, in usual way. 5. All the appellants were put on trial and they were charged for the offence punishable under Section 395 of the Indian Penal Code to which, they pleaded not guilty and claimed to be tried. 6. In course of trial, altogether 11 prosecution witnesses were examined. Besides it, prosecution got exhibited fardbeyan of informant (PW 11) as Ext. 1 and his signature as Ext. 1/1. The statements of appellants were recorded under Section 313 of the Cr. P.C. in which, they reiterated their innocence. The defence has examined one witness and got exhibited certified copy of khatiyan as Ext. A and sale-deed dated 13-03-1970 as Ext. B. 7. The learned trial Court, having relied upon the materials available on the record, passed the impugned judgment of conviction and sentence order in the manner as stated above. 8. Learned counsel appearing for the appellants challenged the impugned judgment of conviction and sentence order arguing that except PW 11, none of the prosecution witnesses, claimed to have identified the appellants committing the alleged crime and so tar as PW 11 is concerned, he claimed to have identified the appellants committing dacoity in the light of torch flashed by dacoits at the time of alleged occurrence. He further submitted that the appellant. He further submitted that the appellant. Nathuni Yadav is agnate of PW 11 and there was land dispute between the informant and appellant No. 1 and that was the reason. the PW 11 falsely implicated the appellants in the instant case. He further submitted that no injury report of PW 11 was brought on the record nor the doctor who examined PW 11 after the alleged occurrence, was examined on behalf of the prosecution. He further submitted that the fardbeyan has not legally been proved nor the La. has been examined in this case and, therefore, learned trial Court committed error in convicting and sentencing the appellants. He referred an unreported decision of another bench of this Court decided on 13-09-2011 in Cr. Appeal (S.J.) No. 358 of 1998. Shyam Narayan Singh v. The State of Bihar, and submitted that another bench of this Court gave benefit of doubt to accused of a dacoity case in which, only one witness had claimed to identify the accused in Test Identification Parade. 9. On the other hand, learned Additional Public Prosecutor supported the impugned judgment of conviction and sentence order arguing that prosecution witnesses have proved the factum of dacoity as well as participation of the appellants in the alleged dacoity and. therefore, there is no occasion for this Court to interfere into the impugned judgment of conviction and sentence order. 10. On perusal of the evidence available on the record, 1 find that prosecution witness No. 1 to prosecution witness No. 4 have been declared hostile. The prosecution witness No. 3 admitted only to this extent that on next day of the alleged occurrence, he came to know that dacoity had been committed in the house of PW 11 but he denied this fact that his statement was recorded by the police in connection with the aforesaid occurrence. Similarly, PW 4 admitted only to this extent that he had heard some noise on the alleged date of occurrence. 11. PW 5 stated that having heard noise as well as explosion of bomb, he went running to the door of PW 11 and found the PW 11 lying on the earth having sustained injury on his head and he came to know that PW 11 sustained dagger injury. 11. PW 5 stated that having heard noise as well as explosion of bomb, he went running to the door of PW 11 and found the PW 11 lying on the earth having sustained injury on his head and he came to know that PW 11 sustained dagger injury. This witness admitted in his examination-in chief that PW 11 disclosed the name of appellants and stated that the appellants had committed dacoity in his house. This witness admitted in his cross-examination that he reached on the place of occurrence after half an hour of the alleged occurrence and none came on the place of occurrence after his arrival. It is explicit from the deposition of this witness that he had not seen the appellants committing dacoity rather he came to know about the: name of appellants from PW 11. 12. PW 6 claimed that when he reached on the place of occurrence, he saw the dacoits fleeing from the place of occurrence and PW 11 disclosed that he had identified the appellants at the time of alleged occurrence. This witness further stated that female members of family of PW 11 disclosed that dacoits took away ornaments etc. from the house and this witness noticed that the belongings of the house of PW 11 were scattered. This witness stated that PW 11 and appellant. Nathuni Yadav are agnates and the house of Nathuni Yadav is adjacent to the house of PW 11. He further stated that he remained at the place of occurrence for half an hour. He, however, stated that when he reached on the place of occurrence, only PW 11 and his family members were present on the place of occurrence. He further admitted that there was dark night on the alleged date of occurrence. The attention of this witness was drawn towards his statement recorded by the police and he stated that he had made statements before the police that the female members of family of PW 11 had disclosed before him that the dacoits had taken away ornaments. On perusal of statement of this witness, it appears that he also came to know about the names of appellants from PW 11 and he has not claimed that he identified the appellants committing the alleged crime. 13. PW 7 is nephew of PW 11. On perusal of statement of this witness, it appears that he also came to know about the names of appellants from PW 11 and he has not claimed that he identified the appellants committing the alleged crime. 13. PW 7 is nephew of PW 11. He stated that when he woke up on hue and cry, he saw that 15-20 persons were assaulting his uncle and then, he went near his uncle and found that blood was oozing out from the forehead of his uncle. He further stated that he saw the dacoits fleeing and out of the dacoits, he identified the appellants but this witness could not identify appellant. Suraj Nonia in course of trial. This witness stated that there was no land dispute between appellant. Nathuni Yadav as well as PW 11. He admitted that when he reached near PW 11, he found him in unconscious state and near about after three hours, PW 11 regained his consciousness. He further stated that when his uncle. (PW 11) regained his consciousness, his uncle disclosed the name of the person who had inflicted injury to him and when his uncle PW 11 disclosed the entire facts, his family members came to know about the alleged occurrence. This witness admitted that the house of appellant No. 1 is adjacent to his house. On perusal of the statement of tills witness, It is apparent that this witness claimed to have identified the appellants while they were fleeing from the place of occurrence after committing the occurrence. 14. PW 8 stated that when he reached on the place of occurrence, he found PW 11 in unconscious state and it was PW 11 who disclosed names of appellants and stated that the appellants and other persons committed dacoity in his house. This witness admitted at paragraph2 of his cross-examination that prior to the alleged occurrence, a proceeding under Section 107, Cr.P.C. was drawn between him and the appellant, Nathuni Yadav. This witness stated that PW 11 regained his consciousness after one hour of his arrival. 15. Similarly, PW 9, who happens to be mother of PW 11, supported the factum of dacoity and stated that her son disclosed that appellants had participated in committing the dacoity. She admitted that she talked with PW 11 after one hour of departure of dacoits. 16. PW 10 is wife of the PW 11. 15. Similarly, PW 9, who happens to be mother of PW 11, supported the factum of dacoity and stated that her son disclosed that appellants had participated in committing the dacoity. She admitted that she talked with PW 11 after one hour of departure of dacoits. 16. PW 10 is wife of the PW 11. She stated that dacoits committed dacoity in her house and at the time of committing dacoity, all the dacoits had covered their faces. She further stated that her husband disclosed this fact that appellants had participated in committing the alleged dacoity. 17. PW 11 Ramchandra Yadav is informant of this case and this witness stated that while he was sleeping in front of his house, three persons came there and pressed his body. The aforesaid three persons flashed torch and in the light of, aforesaid torch, he saw that the aforesaid three persons had covered their faces by clothes. He further stated that while dacoits were flashing torch, the mask (GALMOCHHA) of one of the dacoits was fallen and he identified the aforesaid dacoit as Suraj Nonia. He further stated that the aforesaid three dacoits encircled him whereas; some dacoits entered in his house and assaulted the in-mates of house and also committed dacoity. He further stated that after committing the dacoity, the dacoits assembled in the field which is adjacent to his house and then, he identified rest appellants in the light of torch of the dacoits. He further stated that while dacoits were fleeing from the place of occurrence, the appellant. Lakhan Yadav gave chhura blow to him causing injury on his head. He further stated that he went to police station and lodged the case. He admitted in his cross-examination that the dacoits had covered their faces with GAMCHHA and he further admitted that the dacoits had flashed torch only for one minute. He further admitted that the three dacoits, who had pressed his body, had not entered in his house rather they remained present near his cots and when the rest dacoits came out of the house after committing dacoity, the aforesaid three dacoits also fled away alongwith the rest dacoits. He further admitted that while he was disclosing the name of dacoits before his mother, one of the dacoits gave CHHURA blow to him. He further admitted that while he was disclosing the name of dacoits before his mother, one of the dacoits gave CHHURA blow to him. He further stated that before giving the CHHURA blow to him, the dacoits, were flashing torch near the field. At paragraph-19 of his cross-examination, this witness admitted that some criminal cases were pending between him as well as family of appellant. Nathuni Yadav. 18. On perusal of the depositions of prosecution witnesses, it is explicit clear that except PW 7 and PW 11, not a single prosecution witness claimed to have identified the appellants committing the alleged crime. So far as PW 7 is concerned, he claimed to have identified the appellants while they were fleeing from the place of occurrence but this witness has not stated the source of identification. Moreover, this witness could not identify appellant. Suraj Nonia in course of trial and admittedly, this witness is nephew of PW 11 who has inimical terms with the appellant. Nathuni Yadav and, therefore, no reliance can safely be placed on the statement of this witness. 19. PW 11 claimed to have identified the appellants in the light of torch but simultaneously, this witness stated that all the dacoits had covered their faces at the time of committing the alleged occurrence. Admittedly, the appellant. Nathuni Yadav is gotiya of this witness and there was litigation between him and appellant. Nathuni Yadav and. Therefore, the possibility of false implication of appellant. Nathuni Yadav cannot be ruled out. Moreover.- when the dacoits had covered their faces at the time of alleged dacoity, it is hard to believe that PW II succeeded to identify the dacoits, particularly, in the light of torch light Hashed by the dacoits and. Therefore, only on the basis of single identification of PW 11, it would not be safe to pass judgment of conviction in the instant case against the appellants. 20. PW 11 admitted at paragraph-19 of his cross-examination that he came to know the appellants Ram Pukar Yadav and Lakhan Yadav on the alleged date of occurrence and. Therefore, he admitted that appellants. Ram Pukar Yadav and Lakhan Yadav were not known to him prior to the alleged occurrence but it is not clear as to how PW 11 came to know the name of appellants. Ram Pukar Yadav and Lakhan Yadav. Therefore, he admitted that appellants. Ram Pukar Yadav and Lakhan Yadav were not known to him prior to the alleged occurrence but it is not clear as to how PW 11 came to know the name of appellants. Ram Pukar Yadav and Lakhan Yadav. The defence suggested the PW 11 that when appellants, Ram Pukar Yadav and Lakhan Yadav tried to intervene into the dispute of PW 11 and appellant; Nathuni Yadav, the PW 11 implicated the aforesaid appellants and similarly. defence suggested that appellant. Suraj Nonia and accused Shambhu Paswean were labourers of appellant. Nathuni Yadav and that was the reason. they were implicated by PW 11. Although PW 11 denied the aforesaid suggestion but admittedly, there was litigation between PW 11 as well as appellant. Nathuni Yadav. 21. No doubt, single testimony of a prosecution witness is sufficient to pass judgment of conviction, if the testimony of the aforesaid prosecution witness appears to be trustworthy but in the present case, there are several omissions and contradictions in the depositions of prosecution witnesses and the aforesaid omissions and contradictions create doubt about the prosecution story, particularly, in the circumstance, when one of the appellants namely Nathuni Yadav is next door neighbour of the PW 11 and there was litigating term between PW 11 and aforesaid appellant Nathuni Yadav. 22. Although the factum of dacoity has successfully been proved by the prosecution but so far as participation of the appellants in the aforesaid dacoity is concerned, the prosecution could not succeed to prove the aforesaid fact beyond shadow of all reasonable doubts. 23. On the basis of aforesaid discussions and taking the totality of the facts and circumstances of the case, I am of the opinion that the impugned judgment of conviction and sentence order are, liable to be set aside. 24. Thus, both the' above said appeals are allowed and the impugned judgment of conviction dated 06-10-2001 and sentence order dated 08-10-2001, are hereby set aside. 25. All the appellants are on bail. They are discharged from the liabilities of their bail bonds. Appeal allowed.