JUDGMENT Vinod Prasad, J.: - This appeal by the three appellants, father Hansi and his two sons Lakhan and Amroo, all residents of village Gautara, P.S. Hazratpur, district Budaun is directed against impugned judgment of their conviction u/s 395 I.P.C. and order of sentence to 10 years R.I. therefor, dated 30.1.1982, imposed by Special Judge, Budaun in S.T. No.505 of 1980, State Vs. Hansi and others, P.S. Hazratpur, District Budaun. Pending final outcome appeal of father appellant no.1 Hansi was abated as he has already left for his heavenly abode and consequently appeals of two surviving sons appellants no. 2 &3 Lakhan and Amroo have been considered by this judgment. 2. Charge against the appellants as are discernible from the written F.I.R. Exhibit Ka-1 and deposed during the Sessions Trial revealed that in the intervening night between 23/24.5.79 at about mid night, informant Angad s/o Peetam Gadaria was sleeping in his his pen, where his cattle shed also existed, along with Jagdish, Mangali and Kewalji. Rest of his family members including his wife Kalawati, his brother Ram Chandra and his wife Launga, sister Bhagwanna, niece Munni and Prema and their children were sleeping inside informant's house at a distance of fifty paces, when the appellants with their 10-12 associate miscreants, armed with lathi, clubs, gun and country made pistols, committed dacoity at the house of the informant. Shrikes by the family members had awakened the informant and other persons sleeping with him and neighbors Premi, Chandu, Lakhan, etc. who all rushed to the incident spot armed with lathis flashing their torches. Mangali had ignited informant's fodder collected near the place of the incident, which illuminated the place like day light. The informant and the witnesses had spotted 12/13 dacoits going in and coming out of his house, who were taking out the household articles and were collecting it at the door. Dacoits were conversing in local dialect. Some of them were dark coloured, some of them were tall and short and they were draped in dhoti, shirts and paints. From amongst the dacoits, appellants Hansi, Lakhan, Amroo, who were carrying clubs in their hands and were inimical to the informant since prior to the incident, were identified by names and rest of the dacoits were identified by their faces, who could be identified by the informant and the witnesses if shown to them. From amongst the dacoits, appellants Hansi, Lakhan, Amroo, who were carrying clubs in their hands and were inimical to the informant since prior to the incident, were identified by names and rest of the dacoits were identified by their faces, who could be identified by the informant and the witnesses if shown to them. Mounting pressure by the villagers forced the dacoits to flee from the spots firing cover shots in the air. They decamp with the bounty. Incident had occurred for about an hour and during course of it Kalawati and Ram Chandra were assaulted with lathi and dandas to get elicited from them the places were household articles were concealed. After the incident injured were rushed to the Miaoo Hospital for medical attendance. Informant thereafter got scribed incident FIR through scribe Keval Ram detailing the incident and mentioning the list of the looted articles and thereafter covered a distance of 6 miles to the police station Hazratpur where he lodged his FIR following day morning on 24.5.1979 at 9.30 a.m. 3. H.M. Ram Pal Sharma registered the FIR as Crime No.73 of 1979, under Section 395 , 397 I.P.C., prepared the Chik FIR, Ext. Ka-5 and the GD entry Ext. Ka-6. S.I. Laxman Singh started investigation into the incident, prepared site plan Ext. Ka-7 and recovery memos of the source of lights, lantern and torchs vide Ext. Ka-2 and Ka-3. He has also collected blood stained and plain earths, material Exhibits 1 and 2, and had prepared their recovery memo Ext. Ka-8. From the spot ashes of the burnt fodder, a plastic shoe and empty cartridges material exhibits 3, 4 and 5, were recovered vide recovery memos Exhibits Ka-9, Ka-10 and Ka-11. Blood stained baniyan of informant/witness Angad Lal was recovered vide Exhibit Ka-12. Further investigation was conducted by S.I. Kishan Lal, who culminated the investigation and charge-sheeted the accused vide Exhibit Ka-13. 4. Smt. Kalawati wife of the informant was examined medically on 25.5.1979 at 7.30 p.m. by medical officer at District Hospital, Badaun vide injury report Exhibit Ka-14 and Ram Chandra Singh was examined on 24.5.1979 at 10.30 a.m. by V.P. Kulshreshtha vide Exhibit Ka-15. On the body of Kalawati following injuries were found by the doctor: - 1. Multiple contusions in an area of 11 cm x 10 cm on outer aspect of right shoulder. 2. Contusion 6 cm x 2 cm on ... On the body of Kalawati following injuries were found by the doctor: - 1. Multiple contusions in an area of 11 cm x 10 cm on outer aspect of right shoulder. 2. Contusion 6 cm x 2 cm on ... of right writs. 3. Contusion 3 cm x 2 cm on right .. region of scalp. In the opinion of the doctor, injuries were inflicted by blunt object, were simple in nature and were two days old. Injured Ram Chandra had sustained following injuries: - 1. Lacerated wound 5 cm x 0.5 cm x scalp deep on left side parietal region 8 c.m. Above left ear. 2. Contusion 6 cm x 2 cm on left side back just below interior angle on scapula. 3. Contusion 8 cm x 2 cm on right side scapular region outer border. 4. Contusion 6 cm x 3 cm right side waist lateral aspect. 5. Abraded contusion 4 cm x 2 cm on back of left elbow. 6. Abraded contusion 0.5 cm x 0.5 cm on dorsum of right ring finger. 7. Contusion with swelling 9 cm x 4 cm on outer aspect of left knee joint. All injuries are simple. All are caused by blunt object. Duration about ½ (half) day. 5. On the strength of laid charge sheet accused were put up for trial before the Sessions Court, by observing Sessions Trial procedure, vide S.T. No.505 of 1980, State Vs. Hansi and others. IIIrd Additional Sessions Judge, Badaun, framed charge u/s 395 I.P.C. on 21.10.1981 and since the accused, after being read over and explained that charge, abjured it, pleaded not guilty and claimed to be tried that, to establish the same,trial of the accused commenced by leading prosecution evidences, during course of which informant Angad P.W.1, injured Ram Chander P.W.2, Mangali P.W.3 were examined as fact witnesses by the prosecution. Solitary formal witness examined by the prosecution was S.I. Laxman Singh the first I.O. P.W.4. 6. In their statements under Section 313 Cr.P.C. factum of the dacoity was admitted by the appellants but they all claimed their absence, non-involvement and non-participation in the incident and took the plea that they were neighbors of the informant and since they had previous enmity with him and his family members, therefore, to seek revenge, vindictively they were falsely implicated in the dacoity by naming them. 7. 7. Learned Special Judge, Budaun, who decided the trial, vide impugned judgment of conviction and order of sentence found the prosecution version to be reliably credible, anointing guilt of the accused appellants beyond all reasonable doubt to the hilt, convicted and sentenced them as aforesaid, challenge to which decision by the learned trial/Special Judge has been made in this instant appeal. 8. I have heard learned counsel for the appellants and Sri Chandrajeet Yadav, learned AGA for the State and have perused and vetted through the trial court record and evidences, both oral and documentary and impugned judgment. 9. Launching a scathing attack on the impugned judgment appellant's counsel incisively harangued that the learned trial Judge fell in grave error in accepting the prosecution case when apparently the vetting of the record indicated that due to enmity chances of appellants being falsely roped in the incident of dacoity could not have been ruled out. It has come on the record that the appellants were resident of the same locality in front of the house of the informant with only a road intervening in between their houses and therefore, it is codswallop to cogitate that the appellants will commit dacoity in front of their house having enmity with the informant without concealing their identities specially when none of them had any criminal proclivity or criminal background nor it could be brought on the record that they were dare devils. Learned counsel urged that the very fact that the appellants are named in the FIR dictated next day morning indicates that informant had no terror or fear in naming the appellants in the FIR, which is a pointer to the fact that the appellants were not ruffians and the locality people had no fear with them. Next, it was submitted that the incident occurred at mid night in the month of May when the day breaks at 4 a.m., therefore, looking to the distance of 6 miles from the place of the incident to the police station, it could be safely argued that the FIR is belated and is the outcome of consultation, deliberation and concoctions and therefore, on such a FIR no reliance can be placed. Naming the appellants in the FIR is due to reason that admittedly, both the factions were inimical to each other and had animus to falsely implicate. Naming the appellants in the FIR is due to reason that admittedly, both the factions were inimical to each other and had animus to falsely implicate. Kalawati never sustained any injury in the incident and that is why she was medically examined very belatedly after two days and respecting her a false assertion was made in the FIR that she was sent for medical examination prior to scribing of the FIR Exhibit Ka-1. Next, it was urged that although the dacoits are alleged to have been armed with firearms, during the dacoity they had not used it. The description of the dacoits could not be mentioned by the informant or any of the witnesses which fact indicate that in fact dacoity was committed in darkness with the dacoits covering their faces and therefore, the prosecution version respecting the appellants cannot be believed at all. No recovery was made from the appellants of any looted articles, which also goes a long way to create a doubt in the credibility of the prosecution story and makes it suspect concerning involvement of the appellants. It was next urged that it is too much to expect that father with his two sons without covering their faces will intrude into a house in front of their residential abode across the road without concealing their identity and will commit dacoity. Facts elicited by the fact witnesses are repugnant to the common sense and cannot be accepted to be a reliable version. Incident had occurred more than three decades ago and the surviving appellants are septuagenarian, and therefore, in case, they are not given clean acquittal their sentences should be reduced suitably was the concluding submission urged by learned counsel for the appellants. 10. Arguing to the contrary learned AGA contended that the witnesses had no reason to falsely implicate the appellants and it was their proclivity, which prompted them to commit dacoity without concealing their identity. Presence of injured witnesses is not doubtful. In their statements under Section 313 Cr.P.C. factum of dacoity being committed at the house of the informant is admitted and that is not in doubt. Learned AGA, therefore, urged that the only thing, which now requires to be scrutinized is as to whether the appellants were amongst the dacoits or not? Presence of injured witnesses is not doubtful. In their statements under Section 313 Cr.P.C. factum of dacoity being committed at the house of the informant is admitted and that is not in doubt. Learned AGA, therefore, urged that the only thing, which now requires to be scrutinized is as to whether the appellants were amongst the dacoits or not? All the fact witnesses have named them and therefore, their participation in the crime is to well anointed to be doubted submits learned AGA. It was next urged that FIR cannot be considered to be delayed as it was lodged with quick promptness with sufficient details and the informant must have taken time to know the looted articles and their numbers. Investigation of the crime is above board and therefore, impugned judgment of conviction and sentence is well recorded. Source of light has not been challenged specifically by the accused and therefore, identifying the appellants, who were residing in front of the house was not at all difficult. Appeal lacks merit and be dismissed with confirmation of conviction and sentence is the wrapping up submission of learned AGA. 11. I have pondered over rival contentions and have critically vetted through the entire evidences on the record, both oral and documentary. The residue of the analysis is that date, time and place of the incident remains unchallenged as it is admitted to both the sides and therefore, without any difficulty it can be safely concluded that dacoity did took place at the house of the informant as alleged by him in his FIR. On the said fact, the prosecution case remains credible and acceptable. The only determining question, which remains to be adjudicated is as to whether the appellants were amongst the dacoits or not? On the said aspect when the testimonies of the fact witnesses are analyzed, it becomes evident that the witnesses were inimical to the appellants, who were residents of a house across the road in front of the place of incident. It has come in the testimony of P.W.1 that Peetam, father of informant had lodged the report against the appellants two years prior to the present dacoity incident. Another FIR was lodged for cutting of the wood by Peetam against the appellants but in spite of that appellants were not prosecuted as final report was submitted in that theft FIR. It has come in the testimony of P.W.1 that Peetam, father of informant had lodged the report against the appellants two years prior to the present dacoity incident. Another FIR was lodged for cutting of the wood by Peetam against the appellants but in spite of that appellants were not prosecuted as final report was submitted in that theft FIR. It has further come in the testimony of the informant P.W.1 that in between the houses of the informant and the appellants there is a passage and on the other side of the passage is the enclosures of Tirmal and Girvar and the house of the appellant is adjacent to the house of Girvar towards east. It has further come in evidence that the accused had closed their already existing main door and had opened another door at another place. At the place where their earlier door existed they had constructed a latrine adjacent to the aforesaid passage having a drainage whose outlet was in Mehdi pond. The aforesaid drainage ran in front of the house of the informant and the filthy water flowed through this drainage. Informant was suggested that because of flow of the filthy water they wanted the accused to shift their drainage because of which they had hostile feeling and harboured enmity. Learned trial Judge was also of the view that both the factions were at daggers dawn and were inimical to each other as is clear from internal pages 5/6 of the impugned judgment. This probabilises chances of false implication of the father and his two sons who were residents of the same vicinity across the road. No specific role or overt act has been assigned to the appellants nor any recovery has been made from their possession or house. There is no evidence on record that after coming to the spot the I.O. had raided/searched house of the appellants immediately to recover looted articles perchance. Admittedly FIR concerning the incident was dictated at 6 a.m. in the morning and therefore informant had all the time in the world to cook-up and fabricate it against his arch enemies implicating them by name. No concealment of identity was done by the appellants, which conduct is very surreal and incomprehensible. It is also un-appealing that informant had no conversation with the village people till he dictated his FIR. No chase was done. No concealment of identity was done by the appellants, which conduct is very surreal and incomprehensible. It is also un-appealing that informant had no conversation with the village people till he dictated his FIR. No chase was done. On analytical examination such depositions by the informant do not inspire any confidence and in any view chances of false implication is not at all ruled out. Why a father and his two sons, without any criminal propensity and proclivity armed only with clubs with unveiled faces trespass into the house across their house and commit dacoity is some thing which does not go down well on plain common sense and cannot be easily digested. A mere bald statement naming the appellants without any overt act by inimical witnesses do not convincingly satisfy the test of proving the guilt to the hilt beyond all reasonable doubt. 12. Coming to other two witnesses, P.W. 2 Ram Chandra, is real brother of the informant/PW1 Angad and P.W. 3 Mangali is his uncle and enclosure of PW3 and the informant is the same. PW2 also admitted enmity with the appellants concerning a chak road and cutting of a tree. Albeit he sustained injury during the incident but those injuries were not caused to him by the appellants. Another injured Kalawati was not produced during the trial. PW2 also does not spell out any specific act to the appellants and thus his testimony suffers from the same vices as that of his brother informant PW1 and it is wholly unsafe to rely on it more so when he had gone to identify the dacoits 2/3 times after a month of the incident but could not identify any of them. He further deposed that he had informed the identity of the dacoits to the I.O. but he could not explain why the I.O. has not penned it down. 13. Mangali PW3 does not improve the prosecution case at all. He too is a related, partisan, inimical and interested witness. He had sneaked into Girvar's fields and has put the thatch to fire. He also failed to identify unknown dacoits although he claimed to have spotted them well. Except naming the appellants he also has not assigned to them any specific role. He is also an unreliable witness and with out any independent corroboration it is unwise to accept his evidence. He also failed to identify unknown dacoits although he claimed to have spotted them well. Except naming the appellants he also has not assigned to them any specific role. He is also an unreliable witness and with out any independent corroboration it is unwise to accept his evidence. His evidence has to be castigated for those very reasons which are mentioned for castigating evidences of PW1&2. Thus, only related inimical and partisan witnesses were examined by the prosecution during the trial. No independent witness of the locality came forward to support their version and thus evidences of all the three fact witnesses has to be discarded for the above reasons. 14. From above appreciation of evidences of the fact witnesses what emerges is that so far as the two surviving appellants are concerned, they have been falsely implicated. Their conduct during the incident has not been spell out and the depositions of the fact witnesses seems to be very unnatural and unconvincing. Trial Judge although has taken note of all these facts but has misdirected himself in critically appreciating the same. No recovery from the possession of the appellants is another favourable circumstance showing non participation of the appellants in the crime. Moreover prosecution has not been able to bring on record as to when the appellants were arrested. In the test identification parade, no other dacoit could be identified by the fact witnesses nor they were put to trial, which in all probability indicates that the source of light at the spot during the incident was very dim and feeble and witnesses were unable to identify the bandits. There was no special motive for the appellants to join the hands with the dacoits without concealing their identity so as to be convicted and lodged in penitentiary and ruin they lives. Even the injured witness has not assigned any specific overt act to the appellants, which also creates doubt regarding their participation in the crime. On an over all analysis, I am of the opinion that the prosecution has not been able to substantiate the charges against the appellants beyond all reasonable doubt. 15. Even the injured witness has not assigned any specific overt act to the appellants, which also creates doubt regarding their participation in the crime. On an over all analysis, I am of the opinion that the prosecution has not been able to substantiate the charges against the appellants beyond all reasonable doubt. 15. Coming to the impugned judgment, learned trial Judge without entering into the critical appreciation and without examining the inherent intrinsic improbabilities, conduct of the appellants and un-naturality of the conduct of the prosecution witnesses merely on ipse dixit has recorded the conviction of the appellants, which approach, in my opinion, is faulty and unwarranted. The purpose of cross examination is to check the veracity and authenticity of the depositions of the witnesses. Once, the enmity of the witnesses qua the appellants had surfaced, learned trial Judge was expected to scan the evidences with much more caution and deeper analysis than what he has done. I find myself unable to agree with the view taken by the learned trial Judge and, therefore, find the impugned judgment infallible and unsustainable. 16. In the net result, the appeal succeeds and is allowed. Conviction of the two surviving appellants Lakhan and Amroo through the impugned judgment of conviction and sentence dated 30.1.1982, imposed by Special Judge, Budaun in S.T. No.505 of 1980, State Vs. Hansi and others, P.S. Hazratpur, District Budaun are set aside and they are acquitted of the charged offence. These appellants are on bail, they need not surrender, their personal and bail bonds are hereby discharged. Let a copy of the judgment be certified to the trial court for its intimation.