Judgment Heard learned counsel for the appellant and learned counsel for the State. 2. The solitary appellant preferred this appeal against his conviction for offences under section 396 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for ten years and to pay a fine of Rs.1000/- failing which to further suffer simple imprisonment for three months as awarded by 3rd Additional District and Sessions Judge, Jamui on 9th June 2009 in Session Trial No. 937A/1997 arising out of Khaira P.S. Case No. 12/97 instituted against one named Jogan Ravidas (non appellant) and 15 to 20 unknown. 3. The prosecution case as revealed from the Fard-e-beyan of P.W.8, Ugan Ravidas (informant) recorded on 3rd April 1997 at 7.00 A.M. at his door in village Paparwatari that in the previous night (02.04.1997) while the informant had been sleeping with family members and his parents were on Verandah, roughly at about 11.00 P.M. due to some torch flash and sound the parents of the informant were woke up and father (deceased) proceeded towards Verandah, informant also woke up, came out of the room and the moment his father proceeded, there was a question raised by the miscreants “kaun hai re chaprasia” and fire was also shot which hitting father of the informant who fell down. The miscreants entered in the house in good numbers and from the house of the informant one Torch and one Motary containing different papers were taken away and thereafter from the house of neighbour some loot paat was done. The deceased had been orderly in corporation so known as Chaprasia, and sometime before the mother of the informant was threatened by the named accused due to enmity to get her widow. In the morning also, the informant got information that dacoity was also committed in the house of one Titu Ravidas (P.W.2). The informant etc. further claimed to identify the miscreants by their face and informant was confident of the dacoity being committed at the instance of named accused. Fard-e-beyan was recorded in presence of Bhimal Ram and Bhatu Das (not examined). After institution of the case and conclusion of the investigation, case committed to the court of session and six accused persons including the appellant were charged for the offences under section 396 of the Indian Penal Code. Fard-e-beyan was recorded in presence of Bhimal Ram and Bhatu Das (not examined). After institution of the case and conclusion of the investigation, case committed to the court of session and six accused persons including the appellant were charged for the offences under section 396 of the Indian Penal Code. During cross examination of the prosecution witnesses the appellant absconded, followed by others facing trial and trial proceeded and witnesses were also cross examined on behalf of the accused facing trial and for the remaining under section 299 Cr. P.C. Prosecution has examined altogether eight witnesses besides the following two documentary evidence (1) post Mortem examination report and (2) Signature on Fardbeyan. 4. No oral or documentary evidence produced on behalf of the defence. The trial court on consideration of the materials convicted and sentenced the appellant who had ultimately on being apprehended faced the trial and get his statement recorded under section 313 of Cr. P.C. 5. It is contended on behalf of the appellant that in fact there is no evidence against the appellant who was not even named in spite of being co-villager and well known to the witnesses examined since before. Even during investigation, none of the witnesses examined, named the appellant though they claimed such identification and making statement before investigating officer but their such unfounded claim can also not be verified since the investigating officer has not been examined. 6. Learned Additional Public Prosecutor tried to support the findings of the court below on the reasons mentioned therein besides he submits that three of the witnesses during trial has identified the appellant who at his level best tried to cause delay in trial due to abstention. 7. Out of eight, P.W.2 namely Titu Ravidas and P.W. 3 namely, Shankar Ravidas, though stated about the occurrence taking place at the relevant time, but denied identification of any of the miscreants. They were hostile by the prosecution and though appears practically nothing in their cross examination for consideration. P.W.6 namely, Kalo Devi, though not declared hostile but in spite of stating about the occurrence declined identifying any of the miscreants and she further identified three of the present accused facing trial but only as villagers not as the miscreants. 8. They were hostile by the prosecution and though appears practically nothing in their cross examination for consideration. P.W.6 namely, Kalo Devi, though not declared hostile but in spite of stating about the occurrence declined identifying any of the miscreants and she further identified three of the present accused facing trial but only as villagers not as the miscreants. 8. P.W.1, Jahli Devi, mother of the informant and widow of the solitary deceased in the case has to some extent stated the prosecution version in examination in chief with further addition of taking away Box and ornaments belong to her by the miscreants and Box etc. were thrown out of the house. Further, she claimed to identify in Test Identification Parade (T.I.P. chart etc. not produced) three of the miscreants (none appellant) and during trial she further identified the appellant and two other none appellants. In cross examination she clearly states to know the appellant since before and in para – 18 she states about the activities of the appellant during the occurrence and during end she states that before the investigating officer also she named the appellant and others, but denied the suggestion of not making such statement before the investigating agency. 9. P.W.4 namely, Bhimal Ravidas, states about the occurrence as one of the sufferers who claimed to identify apart from others the appellant also. During cross examination as regard to his several statements including identification it was asked that he never stated about the investigation, it was denied but against absence of Investigating Officer comes in the way for verification. 10. P.W.7 namely, Dr. Binod Kumar Singh who held autopsy of the deceased. There is nothing more required to be discussed. Since death of the deceased during such occurrence is not disputed. P.W. 8 namely, Ugan Ravidas (informant) stated the prosecution case and in examination in chief itself, deceased in para 3 due to darkness he was not in a position to identify the miscreants, of course, he states about a few days before, threatening given by the named accused (non appellant) to his mother. 11. P.W. 8 namely, Ugan Ravidas (informant) stated the prosecution case and in examination in chief itself, deceased in para 3 due to darkness he was not in a position to identify the miscreants, of course, he states about a few days before, threatening given by the named accused (non appellant) to his mother. 11. As is evident that the occurrence had taken place at about 11.00 P.M. and eight hours thereafter fard-e-beyan was recorded, but, except one named accused as suspect name of none was disclosed, even if it is considered that under pathetic condition of death in the family informant and other kith and kin of the deceased were not in a position to immediately disclose the names of the miscreants with details of the role played by them but when a day or two thereafter they could have been to disclose but as appears from trend of cross examination and suggestion etc. none has disclosed name of anyone. During investigation even the informant appears not disclosing the names even in his further statement or during trial. 12. Thus, there appears no material to show and establish implication of the appellant in the entire episode though it is not disputed, and in absence of any such material the appellant in spite of his abstination during trial deserves the benefit of doubt, since prosecution could not be able to remove the clouds casted. In the result, finding no material to sustain his conviction and sentence, hence, it is set aside. The appeal is hereby allowed. The appellant is ordered to be released at once, if not behind the bar in connection with any other case. Appeal allowed.