JUDGMENT CAV Hemant Kumar Srivastava, J. 1. Both the above said Criminal Appeals have - arisen out of judgment of conviction dated 05-06-1995 and order of sentence dated 13-06-1995 passed by Sri Bishambhar Upadhyay, and Assistant Sessions Judge Bhabua in Sessions Trial No.182 of 1987/19 of 1989 by which and whereunder, all the above-said appellants were convicted under Section-395 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for nine years and accordingly common judgment is being passed in both the above-said criminal appeals. 2. All the abovesaid appellants alongwith one, Ambika Singh stood charged for the offence punishable under Section-395 of the Indian Penal Code and all the appellants except appellant No. 1 in Cr. Appeal No. 86 of 1995 and appellant No. 10 in Cr. Appeal No. 90 of 1995 were charged for the offence punishable under Section-412 of the Indian Penal Code and after trial the appellants except appellant No. 1 in Cr. Appeal No. 86 of 1995 and appellant No.10 in Cr. Appeal No. 90 of 1995 were acquitted of the charge framed against them under Section-412 of the Indian Penal Code whereas all the appellants were acquitted for the offence under Section-395 Indian Penal Code as stated above. 3. The prosecution case in brief is that PW 5, namely, Kamta Prasad Mishra gave, his fardbeyan to S.I. of Kudra Police Station on 23-09-1986 at about 3.00 a.m. at his home to this effect that on 22-09-1986 at about 8.00 p.m. after encounter with the police, FIR named accused namely Ramnath Koeri, Lal Muni Sharma, Ram Sagar Sharma, Sarjoo Sah, Nathuni Sah, Vishwanath Singh, Surajnath Singh, Murali Sah, Ambika Singh, Darshan Singh, Bawan Mishra, Chhangur Dusadh, Bansh Narain Sah, Lalan Sah and Bhola Singh having armed with weapons, entered his house. The aforesaid persons destroyed and looted the utensils as well as one black coloured bag. They also looted the crops such as wheat rice, TISI, TORI, pulse, gram etc. from his house. The PW 6 informant claimed to have identified Ram Nibas Sah, Lal Muni Sharma and Vishwanath Singh while they were carrying the grains from his house. Besides the aforesaid persons, 20-23 unknown persons also participated in the alleged crime to whom, PW 6 claimed to have identified. Be further stated that in course of dacoity, the appellant Nathuni Sah made firing from his licencee gun. Besides the aforesaid persons, 20-23 unknown persons also participated in the alleged crime to whom, PW 6 claimed to have identified. Be further stated that in course of dacoity, the appellant Nathuni Sah made firing from his licencee gun. The aforesaid persons and other dacoits committed dacoity in his house for near about one hour. The reason for the alleged occurrence is said to be land dispute with Nathuni Sah and PW 6. He further stated that on account of aforesaid land dispute. Nathuni Sah invited, the gang of Chhangur Dusadh and all the above-said persons as well as some unknown dacoits committed dacoity in his house. 4. On the basis of aforesaid fardbeyan of the PW 6. Kudra police drew up a formal First Information Report and registered a case bearing Kudra P.S. Case No. 96 of 1986 for an offence under Section 395 of the Indian Penal Code against the appellants and others. The aforesaid formal FIR and fardbeyan of the PW 6 was put up before the Court on 16-10-1986 by the police and after completion of the investigation charge-sheet for the offence under Sections 395 and 412. Indian Penal Code was submitted against the appellants and others. Cognizance of the offence was taken and the case was committed to the Court of Sessions in usual course. 5. In course of trial, one charged accused Ambika Singh died and accordingly proceeding against him was dropped. 6. To substantiate the charges levelled against the appellants prosecution got examined. altogether seven witnesses and also got exhibited some documentary evidence. 7. The statements of appellants were recorded under Section-313 of the Cr PC in which. They completely denied the prosecution story. 8. The defence also adduced documentary evidences, such as: Certified copy of judgment passed by learned Additional Sessions Judge-III. Sasaram in Sessions Trial No. 181 of 1987/02 of 1988 (Ext. A). Certified copy of Kochas P.S. Case No. 63 of 1987 (Ext. B), Certified copy of evidence of Kamta Prasad Mishra taken in Sessions Trial No. 181 of 1987/02 of 1988 (Ext. C). 9. The learned trial Court having heard both the parties and having relied upon the depositions of PWs 1, 5, 6 & 7 passed the impugned judgment of conviction and order of sentence in the manner as stated above. 10. C). 9. The learned trial Court having heard both the parties and having relied upon the depositions of PWs 1, 5, 6 & 7 passed the impugned judgment of conviction and order of sentence in the manner as stated above. 10. Learned counsel Fauzia Shakil appearing for the appellants assailed the judgment of conviction and order of sentence submitting that learned trial Court has committed error in convicting and sentencing the appellants particularly in the circumstance when there was a land, dispute between the parties prior to the alleged occurrence and no trustworthy witness was examined on behalf of the prosecution. Continuing her submission she stated that according to prosecution case itself the alleged occurrence took place at about 8.00 p.m. on 22-09-1986 and the fardbeyan of PW 6 was recorded on 23-09-1986 at about 2.00 p.m. but the formal FIR and fardbeyan of the PW 6 was sent to the Court on 16-10-1986 i.e. much after the institution of the aforesaid case. So, the aforesaid circumstance creates doubt about the genuineness of the prosecution story rather the aforesaid fact suggests that the fardbeyan of PW 6 is ante dated. She further submitted that on the alleged date of occurrence three cases were registered against the appellants and as a matter of fact, the informant is not an eyewitness of the alleged occurrence rather at the time of alleged occurrence, he was not present at his home. She further stated that similarly, PW 5 has stated that he hid himself in the house of Ramnandan Koeri when the occurrence took place. So, the aforesaid witness is also not an eye-witness and in his cross-examination, he has admitted that he came to know the name of dacoits from PW 6. Therefore, the aforesaid witness does not claim to have identified the appellants' committing the alleged crime. She further stated that so far as PW 1 Kamla Prasad Mishra is concerned, although he claimed to have identified the appellants at the time of dacoity in the light of LALTEN and DEEPAK but the I.O. did not seize any LALTEN and DEEPAK in course of investigation. She further stated that so far as PW 1 Kamla Prasad Mishra is concerned, although he claimed to have identified the appellants at the time of dacoity in the light of LALTEN and DEEPAK but the I.O. did not seize any LALTEN and DEEPAK in course of investigation. She further stated that PWs 1, 5 & 6 are full brothers and admittedly, there was land dispute between the appellants as well as aforesaid prosecution witnesses and therefore, all the aforesaid witnesses are interested witnesses and no reliance can safely be placed on the deposition of the aforesaid witnesses. She further stated that there are so many contradictions in the depositions of prosecution witnesses but learned trial Judge overlooked the aforesaid discrepancies and passed the impugned judgment of conviction and order of sentence. She further stated that the statements of the appellants under Section 313 of the Cr PC have not properly been recorded by the trial Court and the aforesaid fact has caused serious prejudice to the appellants. She further stated that appellants have already been acquitted under Section 412. Indian Penal Code and the learned Trial Judge himself disbelieved the factum of recovery of looted articles and, therefore, he committed error in taking note of aforesaid looted recovery in convicting the appellants under Section 395, Indian Penal Code. 11. On the other hand learned Additional Public Prosecutor supported the impugned judgment of conviction and order or sentence submitting that all the witnesses have supported the prosecution story and the prosecution has proved his case beyond shadow of all reasonable doubts and. Therefore, there is no scope to interfere with the findings of trial Court. 12. As I have already stated that altogether 7 prosecution witnesses have been examined by the prosecution to prove its case. Out of them, PW 1 Kamla Prasad Mishra, PW 5 Shivjee Mishra & PW 6 Kamta Mishra are material witnesses on the point of dacoity. 13. PW 2 Kamleshwar Upadhyay is a witness on seizure and this witness has proved seizure list as Ext. 1 and signature on the seizure list as Ext. 1/1. PW 3 Kedar Singh is a formal witness. He proved fardbeyan endorsement on the fardbeyan and formal FIR as Exts. 2, 2/1 & 3 respectively. He has stated nothing in respect of the alleged occurrence. 1 and signature on the seizure list as Ext. 1/1. PW 3 Kedar Singh is a formal witness. He proved fardbeyan endorsement on the fardbeyan and formal FIR as Exts. 2, 2/1 & 3 respectively. He has stated nothing in respect of the alleged occurrence. Similarly, PW 4 is also a formal witness and he proved the writing and signature of Sri A.Z. Kamal on seizure list as Exts. 1/2 to 1/7. PW 7 is the I.O. of this case and he stated that on 22-09-1986. He got an information regarding the encounter between the police and one Chhangur Dusadh and having got the aforesaid information. He reached at Sasna village where he got information that in support of Chhangur Dusadh the villagers of Bastawa Kala village were making firing on the police. He further stated that at about 10.00 p.m. he alongwith other police personnel went Bastawa Kala village and on 23-09-1986 at about 1.30 a.m. he reached at the house of PW 6 and recorded his fardbeyan. He also inspected the place of occurrence and in course of investigation. He recovered grains from the houses of appellants. Sarju Sah, Nathuni Sah, Vishwanath Singh, Gulab Sah, Lalan Sah and Murali Prasad Keshari. He also recovered some ornaments from the house of appellant Gulab Sah and some clothes from the house of Sarju Sah and accordingly, he prepared seizure list and after completion of investigation. he submitted charge-sheet. 14. PW 1 Kamla Prasad Mishra has stated in his examination-in-chief that at the time of alleged occurrence. he was present in his house alongwith his mother, bhabhi and brother and at that time. 5-6 LALTENS and DEEPAKS were burning. He claimed to have identified the dacoits in the light of LALTENS and DEEPAKS. He further stated that dacoits took away grains, clothes and one black coloured bag. At paragraph-3 of his examination-in-chief. He stated that on the same day at about 6.00 a.m., one Khedaru Sah was taken away by dacoits including the appellants and while taking away the aforesaid. Khedaru Sah the dacoits as well as the appellants committed loot of clothes and ornaments and having got information regarding the aforesaid occurrence police visited his house and also searched the houses of appellants, Nathuni Sah, Suryanath Singh, Vishwanath Singh. Ramsagar Lohar and recovered the articles from the houses of aforesaid persons. Khedaru Sah the dacoits as well as the appellants committed loot of clothes and ornaments and having got information regarding the aforesaid occurrence police visited his house and also searched the houses of appellants, Nathuni Sah, Suryanath Singh, Vishwanath Singh. Ramsagar Lohar and recovered the articles from the houses of aforesaid persons. He further stated that he had identified the aforesaid articles in Test Identification Parade. He further stated in his cross-examination that the aforesaid Khedaru Sah was kidnapped on 22-09-1986 at about 6.00 a.m. for which Kudra P.S. Case No. 94 of 1986 was registered. At paragraph-6 of his cross-examination. He admitted that he did not witness the aforesaid occurrence. He further admitted that on the same day at about 2.00 p.m. an encounter took place between the dacoit party and Kudra police for which, Kudra P.S. Case No. 95 of 1986 was registered. He further admitted that on the aforesaid date. He had gone to Kochas from where; he returned his home at about 11.00 a.m. 15. PW 5 Sheojee Mishra stated in his examination-in-chief that when dacoits came in his house. he alongwith his wife fled away from his house and hid themselves in the house of Ramnandan Koeri where he remained for near about one & half hours and after dacoity. when he returned to his home his brother Kamta Prasad Mishra (PW 6) disclosed the name of dacoits. This witness also stated that in the morning on the same day gang of Chhangur Dusadh had committed dacoity in his house and dacoits took away one. Khedaru Sah and later on looted articles were recovered which were identified by the witnesses. This witness has admitted in his cross-examination that on the alleged date of occurrence an encounter had taken place between the police party and dacoity. He admitted that the aforesaid Khedaru Sah was cousin brother of appellant. Nathuni Sah. At paragraph-9 of his cross-examination. he admitted that the encounter between police and dacoits ended in the evening of the alleged occurrence and after the aforesaid encounter. police went to Sasna village which is one mile away from his village. 16. PW 6 Kamta Prasad Mishra is the informant of this case. He supported the occurrence of dacoity and also admitted this fact that on 22-09-1986 at about 6.00 a.m., the appellants'a1ongwith gangs of Chhangur Dusadh 'Committed dacoity in his house and took away one. police went to Sasna village which is one mile away from his village. 16. PW 6 Kamta Prasad Mishra is the informant of this case. He supported the occurrence of dacoity and also admitted this fact that on 22-09-1986 at about 6.00 a.m., the appellants'a1ongwith gangs of Chhangur Dusadh 'Committed dacoity in his house and took away one. Khedaru Sah and after the aforesaid occurrence. he gave information to Kudra Police Station and having got the information. police reached in his village. He further stated that police recorded his fardbeyan at his home. He proved his signature on the fardbeyan as Ext. 4. He also supported the factum of recovery of looted articles. On being cross-examined by the defence. He stated that he had given information at about 10.00 a.m. regarding the first occurrence and when police party came in his village in connection with investigation of the aforesaid case an encounter took place between the dacoits and police party. At paragraph-9 of his cross-examination. He admitted that when second time dacoits entered in his house. he was not present at his home and at that time he was at village Sasna which is one mile away from his village. At paragraph-10 of his cross-examination. he has admitted that when dacoity was committed second time in his house, the firing between dacoits and police party was going on at village-Sasna. At paragraph-12 of his cross-examination. He admitted that he remained at village-Sasna till 8.00 p.m. and after that he left Sasna village at 9.00 p.m. and reached at his home where he found that the dacoits had again committed dacoity in his house. 17. On perusal of the depositions of the aforesaid prosecution witnesses. it is apparent that PWs 5 & 6 had not seen the appellants committing dacoity in their house. According to deposition of PW 5, he came to know about the name of appellants from PW 6 but PW 6 himself admitted that at the time of alleged docoity. he was at village Sasna and he left Village-Sasna at 9.00 p.m. whereas dacoit took place in his house at 8.00 p.m. and the aforesaid dacoity continued for near about one hour. 18. At paragraph-5 of his cross-examination. PW 1 Kamla Prasad Mishra admitted that in the year, 1984. he came to know that the appellant. he was at village Sasna and he left Village-Sasna at 9.00 p.m. whereas dacoit took place in his house at 8.00 p.m. and the aforesaid dacoity continued for near about one hour. 18. At paragraph-5 of his cross-examination. PW 1 Kamla Prasad Mishra admitted that in the year, 1984. he came to know that the appellant. Nathuni Sah was appointed guardian of the property of Khedaru Sah by the order of District Judge and Khedaru Sah had transferred 8 acres 13 decimals of lands in favour of Sheojee Mishra for which a case was going on between Nathuni Sah and prosecution party. At paragraph-24 of his cross-examination. He admitted that he got executed gift deed of the lands of Khedaru Sah in the year, 1981 or 1982 and Title Suit No. 66 of 1991 is pending in Court between him as well as Nathuni Sah. Although at paragraph-23 of his cross-examination. He denied this fact that the appellant Nathuni Sah was appointed guardian of the property of Khedaru Sah but as I have already stated that PW 5 has admitted the aforesaid fact in his cross-examination. 19. On perusal of the above-said depositions of the prosecution witnesses. it is apparent that there was land dispute between the PWs 1, 5, 6 and the appellant Nathuni Sah. At paragraph-16 of his cross-examination. PW 6 has admitted that the appellant Sarju Sah is full brother of appellant. Nathuni Sah whereas the appellant Banshnarayan Sah is son of appellant Sarju Sah and similarly appellant. Ram Niwas Sah and Lallan Sah are sons of appellant Nathuni Sah and he further stated that Ramnath Singh and Suryanath Singh are full brothers and the appellant Ramnath Singh is cousin brother of appellant Vishwanath Singh and appellant Bhola Singh is son of appellant Vishwanath Singh and all the aforesaid appellants are his co-villagers. He further admitted at paragraph-17 of his cross examination that appellants, Gulab Sah and Lalan Sah are agnates and all the aforesaid appellants are of his village. Therefore, it is apparent from the aforesaid deposition of PW 6 that some of the appellants are co-villagers of PW 6 and there was serious litigation and enmity between the PW 6 arid the aforesaid appellants. 20. Furthermore, I find from the depositions of the prosecution witnesses that on 22-09-1986. Therefore, it is apparent from the aforesaid deposition of PW 6 that some of the appellants are co-villagers of PW 6 and there was serious litigation and enmity between the PW 6 arid the aforesaid appellants. 20. Furthermore, I find from the depositions of the prosecution witnesses that on 22-09-1986. Khedaru Sah was kidnapped for which a police case was registered and for investigation of the aforesaid case police came in the village of PW 6 and searched the houses of several appellants and also recovered some articles which were later on put on Test Identification Parade. So, it appears from the aforesaid materials that the aforesaid recovery was not made in connection with the present occurrence rather the said recovery appears to be made in connection with the occurrence which had taken place on 22-09-1986 at about 6.00 a.m. Moreover, the learned trial Court has disbelieved the factum of recovery and did not take pain to convict the appellants under Section-412 of the Indian, Penal Code on the ground that the prosecution could not succeed to prove the charge framed under Section-412 of the Indian Penal Code. 21. As I have discussed above except PW 1. There is no eye-witness of the alleged occurrence and admittedly, not a single independent witness has come forward to support the prosecution case and, therefore, it is unsafe to convict the appellants only on the solitary evidence of PW 1, particularly, in the circumstance. When there was serious litigation between the parties and. when the formal FIR and fardbeyan of the informant were sent to the Court after 20 days of the alleged occurrence. 22. Furthermore, it is evident from perusal of depositions of the prosecution witnesses that police party had reached in the village of PW 6 at about 10.00 p.m. on 22-09-1986 and an encounter took place between the police and dacoits which ended in the evening. so. it is hard to believe that in the aforesaid 'atmosphere any dacoits particularly the co-villagers would dare to commit dacoity in the house of PW 6 and therefore, the prosecution story as propounded appears to be improbable and doubtful. 23. On the basis of aforesaid discussions. I feel no hesitation in setting aside the judgment of conviction and order of sentence and accordingly, these Cr. 23. On the basis of aforesaid discussions. I feel no hesitation in setting aside the judgment of conviction and order of sentence and accordingly, these Cr. Appeals are allowed and impugned judgment of conviction dated 05-06-1995 and order of sentence dated 13-06-1995 are hereby quashed. 24. All the appellants are on bail. They are discharged from the liabilities of their respective bail bonds and, accordingly all the above-stated appellants are acquitted of the charge framed against them. Appeals allowed.