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Allahabad High Court · body

2014 DIGILAW 1775 (ALL)

Middu v. State of U. P.

2014-05-29

ANIL KUMAR SHARMA

body2014
JUDGMENT Anil Kumar Sharma, J Challenge in this appeal is to the judgment and order dated 10.02.2010 passed by Sri Sham Kumar, the then Addl. Sessions Judge, Fast Track Court No.4, Fatehpur in S.T. No. 474 of 2007 (State Vs. Middu and others) arising out of Case Crime No. 81 of 1998 under sections 395, 397 IPC, P.S. Thariyaon, District Fatehpur whereby each of the appellant had been found guilty and sentenced to seven years' rigorous imprisonment under section 395 IPC and ten years' rigorous imprisonment with fine of Rs. 4000/- under section 397 IPC with default stipulation. 2. Shorn of details, the prosecution story is that on 19.04.1998 at 7: 40 AM Ram Prasad son of Mahi Pal r/o village Sultanpur Khalsa, P.S. Thariyaon, District Fatehpur, submitted a written report to the police alleging that in the preceding night he and his family members after taking meals were sleeping. In the midnight two miscreants entered into the house of the complainant with the help of ladder and opened the door of the house from the inside and then thirteen miscreants armed with guns, hockey, danda and torch barged into the house and started asking for valuables from Shiv Mangal (brother of the complainant), nephew Ghanshyam and his grand daughter Uttara Kumari by beating them and they looted gold and silver jewelery, cash etc. from the house. On the noise of inmates of the house nobody from the village came to their rescue and after committing dacoity for about an hour, they left the village towards the eastern side making two fires. The report further stated that in the light of torch carried by the miscreants, they had seen and identified the miscreants, two of them were Kallu Loadh and Middu. The other miscreants could be identified by them who were wearing pant, Tahmad, shirt etc. and were speaking local language. On the basis of this report a case at Crime No. 81 of 1998 under sections 395, 397 IPC was registered, investigation whereof was entrusted to SI Ram Sugam. He reached at the spot, recorded statement of witnesses and prepared site plan. Injured Shiv Mangal and Ghan Shyam were examined on 19.04.1998 at 4: 20 AM onwards. The doctor found following injuries on their persons: - 1. Injured Shiv Mangal, aged about 20 years, 4: 20 AM. 1. Lacerated wound, 3 cm x 5 cm. He reached at the spot, recorded statement of witnesses and prepared site plan. Injured Shiv Mangal and Ghan Shyam were examined on 19.04.1998 at 4: 20 AM onwards. The doctor found following injuries on their persons: - 1. Injured Shiv Mangal, aged about 20 years, 4: 20 AM. 1. Lacerated wound, 3 cm x 5 cm. into muscle deep left side of face lying transversally - just above the left ear. 2. Complain of pain in right knee. 2. Injured Ghan Shyam, aged about 30 years, 4: 40 AM. 1. Lacerated wound, 4 cm x 0.5 cm. into muscle deep on right half of post-half scalp, about 9 cm above and behind the top of right ear. 2. Lacerated wound 3cm x 0.5 cm into bone deep on the left half of the forehead lying vertically upwards about 4cm above the left eye-brow. In the opinion of doctor, the injuries of the both the injured were caused by hard and blunt object, were simple in nature and fresh in duration. Injured Smt. Sushila was medically examined on 20.04.1998 by Dr. HC Srivastava in District Hospital, Fatehpur at 4: 00 P.M and he found the following injuries on her person: - 1. Blue contused swelling 1.5 cm x 1.0 cm on dorsum of great toe of left foot, nail is cracked, advised X-ray. 2. Dark brown scabbed linear abrasion 1.0 cm lying on left side of nose, complain of pain back, no external injuries seen. In the opinion of doctor all the injures were caused by blunt object. Duration was about one and half to two days. Injury No. 2 was simple and injury No. 1 was kept under observation. 3. The names of the accused Hakim, Bhulai @ Rafiq, Ram Bhawan, Kapoor Singh were told by the witnesses including Shiv Mangal Singh on 11.5.1998 to the investigating officer in their statements u/s 161 Cr.P.C. The investigation of the police culminated into charge sheet against the accused persons. 4. After committal of the case to the Court of Session, charges for the offences punishable under sections 395 and 397 IPC were framed against the accused persons who abjured their guilt and claimed trial. 5. In order to prove its case the prosecution has examined Ghan Shyam PW-1, scribe of written report Ram Kishore PW-2, Smt. Sushila PW-3, Subhadra PW-4, Dr. 5. In order to prove its case the prosecution has examined Ghan Shyam PW-1, scribe of written report Ram Kishore PW-2, Smt. Sushila PW-3, Subhadra PW-4, Dr. H.C. Srivastava PW-5, SSI Aditya Kumar Dwivedi PW-6, SHO Bhagwan Sahai PW-7 and Constable Siya Ram Pal PW-8. 6. In their separate statements under section 313 Cr.P.C the accused-appellants have again denied the entire prosecution story and claimed false implication. Accused Ram Bhawan has further stated that at the time of the incident he was at his house and after hearing alarm, he reached at the spot and took the injured to the hospital. However, accused persons have not adduced any evidence in their defence. 7. The learned trial Court after hearing the parties' counsel through the impugned judgment has acquitted accused Kapoor @ Kapoore Singh. However, all the four accused appellants have been convicted and sentenced as noted in para-1 of this judgment. Aggrieved, the appellants have filed the instant appeal. 8. I have heard learned counsel for the parties and perused the impugned judgment and record of the trial Court. 9. Learned counsel for accused Middu has argued that he is resident of the neighboring village and has been named on account of enmity; that no looted property has been recovered from his possession; that there was no light inside the house of the complainant at the time of the alleged incident so question of identifying any miscreant during the incident by the inmates of the house of complainant is out of question ; that the appellant did not conceal his identity which is highly improbable and that no independent witness has been examined by the prosecution in the case. 10. Learned counsel for the other appellants has argued that the names of the appellants had surfaced about three weeks after the incident and that too through the family members of the complainant and if that was so, then why the accused were not named in the first information report? The learned trial Court has erroneously slapped fine on the accused appellants under section 397 IPC because there is no provision in this substantive section for imposition of fine; that Smt. Shushila PW-3 has admitted the enmity with the appellant No. 4 Ram Bhawan and no test identification parade was held by the prosecution. 11. The learned trial Court has erroneously slapped fine on the accused appellants under section 397 IPC because there is no provision in this substantive section for imposition of fine; that Smt. Shushila PW-3 has admitted the enmity with the appellant No. 4 Ram Bhawan and no test identification parade was held by the prosecution. 11. Per contra, the learned AGA supported the findings of the learned trial Court and impugned judgment and order. 12. In order to appreciate the rival contention of the parties' counsel, it would be appropriate to narrate in brief the statements given by the prosecution witnesses in their examination in chief. 13. Ghan Shyam PW-1 has stated that he knows the accused present in the Court. In the night of 18.04.1998 he along with his wife and niece Uttara Kumari were sleeping on the roof and his mother, father and sister were sleeping on the ground floor. At about midnight 7-8 miscreants scaled up on the roof with the help of a ladder and jumped down inside the house. Few miscreants climbed up the roof of the house where father of the complainant was sleeping. On the roof cousin Rameshwar, his wife Sunita and sister Subhadra were sleeping. The miscreants caught the ladies of the house and started assaulting him and the ladies. Few miscreants opened the door of the house from the inside and they robbed the valuable jewelry worth Rs. one lakh, and cash of Rs. 10,000/-. Accused Ram Bhawan and Middu were armed with guns, Kallu had hockey, Bhulai and Hakim were carrying danda and torch. The miscreants have not covered their faces. He has further stated that the miscreants were recognized in the light of the torch carried by them, he suffered injuries. According to the complainant, accused Ram Bhawan was having enmity prior to the incident on account of lease deed of land and his father carried the litigation up to Allahabad. Accused Ram Bhawan has asked them to compromise the case but his father declined and from Allahabad they won the case and that's why he got the dacoity committed in his house. He has further stated that the injuries were examined in hospital. Due to fear of the miscreants while going to hospital he did not disclose the names of the miscreants to his father. According to him, the miscreants used to visit his village so he knew them. He has further stated that the injuries were examined in hospital. Due to fear of the miscreants while going to hospital he did not disclose the names of the miscreants to his father. According to him, the miscreants used to visit his village so he knew them. The report of the incident was lodged by his maternal uncle Ram Prasad after getting it scribed from Ram Kishore wherein he named only Kallu Lodh and Middu because he had only recognized them. Since this witness has stated that he did not see and recognize accused Kapoore so he was declared hostile by the prosecution. 14. Ram Kishore PW-2 has deposed that he knows the complainant Ram Prasad who is of his village and accused Kapoor Singh, Ram Bhawan, Middu. Kapoor Singh and Ram Bhawan also belong to his village. In the midnight of 18.04.1998 dacoity took place in the house of Ram Prasad and in the morning of 19.04.1998 he has scribed the written report in the police station on the dictation of Ram Prasad. He has proved his writing on the written report which is Exhibit Ka-1. He has further stated that the complainant Ram Prasad has died and the miscreants have looted jewelry and cash of the house and had beaten the ladies. 15. Smt. Sushila PW-3 has stated that she knows accused Ram Bhawan, Middu and Kapoor by name and does not know others. About ten years ago in the midnight she was sleeping on the roof of the house. First of all two miscreants came on the roof by scaling the ladder. Thereafter, the miscreants had beaten her, her husband Ghan Shyam, niece Uttara and parents-in-law. They were beating his mother-in-law and asking for jewelry. Two miscreants were armed with guns, one was having hockey and others were carrying danda and torches. In all there were 12-13 miscreants. She has further stated that in the light of the torch carried by the miscreants she had recognised Ram Bhawan and Middu. However, in the Court she has recognized both these accused and further stated that accused Kapoor was not among the miscreants. About Bhulai and Hakim she has stated that they had participated in dacoity, but she does not know their names. According to her, the miscreants have looted her jewelry also in the incident. On account of not naming accused Kapoor she had also been declared hostile. About Bhulai and Hakim she has stated that they had participated in dacoity, but she does not know their names. According to her, the miscreants have looted her jewelry also in the incident. On account of not naming accused Kapoor she had also been declared hostile. 16. Smt. Subhadra PW-4 has stated that about 9-10 years ago she was in her parents' house in his village Sultanpur, P.S. Thariyaon. In the night of the incident she was sleeping at the door of the house and her daughter Pushpa and young child Bishambhar were also sleeping nearby. About 12-13 miscreants came there and she woke up but was caught by the miscreants and they robbed her wearing jewelry and also slapped her. She has stated that 2-3 miscreants were on the roof and remaining were on the ground floor. Her father was sleeping outside the house and he was also badly beaten by the miscreants. They had also beaten her mother, brother, Bhabhi and daughter Uttara and robbed her cash of Rs. 8,000/- apart from jewelry of her Bhabhi and mother. She had further stated that in the light of the torch carried by the miscreants she had identified Kallu, Middu and Ram Bhawan and does not recognize the others by name. In the Court she had recognized the accused persons except accused Kapoor. She has further stated that three miscreants were carrying guns, one was armed with hockey and the others had danda and torches in their hands. She has also described the enmity of her father with the brother of accused Ram Bhawan. 17. Dr. HC Srivastava PW-5 has stated that on 20.04.1998 he was posted as senior Pathologist in District Hospital, Fatehpur and was also looking after as Emergency Medical Officer. On that day at about 4: 00 P.M. he had medically examined Smt. Sushila aged about 20-years wife of Ghan Shyam resident of Sultanpur, PS Thariyaon, District Fatehpur. Dr. Srivastava has proved the injury report prepared by him as Exhibit Ka-2 details whereof have been noted in para -2 of the judgment above. He has concluded that the injuries of the injured appears to have been suffered by her in the night of 18/19.04.1998 by hockey/danda. 18. SSI Aditya Kumar Dwivedi PW-6 has stated on oath that on 10.05.2000 he was posted as Station Officer of police station Thariyaon. He has concluded that the injuries of the injured appears to have been suffered by her in the night of 18/19.04.1998 by hockey/danda. 18. SSI Aditya Kumar Dwivedi PW-6 has stated on oath that on 10.05.2000 he was posted as Station Officer of police station Thariyaon. On that date, he had taken over the investigation of the case from its former investigating officer SI Ram Sumag Singh. On 11.05.1998 he went at the house of the complainant and recorded the statement of witness Shiv Mangal Singh. On 12.05.1998 he interrogated witnesses Ghan Shyam and Smt. Subhadra, and on 21.05.1998 statements of Smt. Sushila Devi, Km. Uttara, Shri Chandra and Smt. Anita were recorded. He laid raids to track the accused persons and on 05.06.1998 accused Kallu was arrested and a country made Addi 12 bore and two live cartridges were recovered and on the basis of recovery memo a case under section 25 Arms Act was registered. On 09.07.1998 he received information regarding surrender of accused Middu, Ram Bhawan and Kapoor Singh and thereafter, he was transferred. 19. Inspector Bhagwan Sahai PW-7 has stated that on 15.07.1998 he was posted as Station Officer, police station Thariyaon. On that day, he took over the incomplete investigation of the case and after completing the other investigatory formalities has submitted charge sheet against accused Ram Bhawan, Kapoor @ Kaporey Singh, Middu, Hakim, Bhulai and Kallu. 20. Constable Siya Ram Pal PW-8 has deposed that on 19.04.1998 he was posted as constable in police station Thariyaon. On that date, he has prepared the check report No. 50/98 on the basis of written report of the complainant Ram Prasad and has registered the case in general diary at Crime No. 81 of 1998 under sections 395, 397 IPC. He has proved the check report as Ex.Ka-4. He has further stated that the original general diary has been weeded out so he has proved the carbon copy of the general diary report No. 10 as Ex.Ka-5. The certificate regarding the weeding out of the original general diary issued by the office of the Superintendent of Police has also been proved as Ex. Ka-6. He has further stated that the first investigating officer of the case SI Ram Sugam Singh had been posted with him who has now retired and he is acquainted with his handwriting and signatures. Ka-6. He has further stated that the first investigating officer of the case SI Ram Sugam Singh had been posted with him who has now retired and he is acquainted with his handwriting and signatures. He has proved the site plan prepared by SI Sri Singh as Ext. Ka-7. 21. First of all, I would like to examine the correctness of the findings recorded by the learned trial Court regarding conviction of the appellants for the offence punishable u/s 397 IPC and sentence awarded on this count. On bare reading of the provisions of section 397 IPC, we find that it does not create a new substantive offence. It simply provides for minimum period of sentence for the offender who is found guilty of robbery or dacoity, with attempt to cause death of grievous hurt etc. Section 397 IPC reads as under: "397. Robbery or dacoity, with attempt to cause death or grievous hurt - If, at the time of committing robbery or dacoity, the offender uses any deadly weapon, or causes grievous hurt to any person, or attempts to cause death or grievous to any person, the imprisonment with which such offender shall be punished shall not be less than seven years." 22. In the case of Ashfaq Vs. State AIR 2004 SC 1253 , it had been observed by the Apex Court that section 397 IPC do not create any new substantive offence as such, but merely serve as complementary to sections 392 and 395 by regulating the punishment already provided for dacoity by fixing a minimum term of imprisonment when the dacoity committed as found attendant upon certain aggravating circumstances viz., use of a deadly weapon, or causing of grievous hurt or attempting to cause death or grievous hurt. For that reason, no doubt the provision postulates only the individual act of the accused to be relevant to attract section 397 IPC and thereby inevitably negates the use of the principle of constructive or vicarious liability engrafted in section 34 IPC. The simple meaning of the provisions for the purpose of the instant case would be that if on facts, the applicability of section 397 IPC is found, then the sentence awarded to the accused would not be in any manner less than seven years' imprisonment u/s 392, 393, 394 or 395 IPC. The simple meaning of the provisions for the purpose of the instant case would be that if on facts, the applicability of section 397 IPC is found, then the sentence awarded to the accused would not be in any manner less than seven years' imprisonment u/s 392, 393, 394 or 395 IPC. The accused cannot be separately found guilty for the offence punishable u/s 397 IPC and separate sentence is awarded against him. 23. In the FIR it has been stated that three miscreants were carrying guns and they had fired two shots only when they were leaving the place of occurrence after committing dacoity in the house of the complainant and his brother. In the evidence of witnesses of fact namely PW-1, PW-3 and PW-4 it has not come that any of the accused-appellant has used the gun while committing dacoity or it was used as a weapon in assaulting any of them. The injury reports of Ghan Shyam PW-1, Shiv Mangal and Sushila PW-3 do not state that any of them had suffered any grievous injury. Even it is not the case of the prosecution that any of the accused-appellant had attempted to cause any grievous injury to any of the inmates of the house of the complainant or the gun was used in the manner it is expected i.e. causing fire-arm injury in the commission of the dacoity. Even if the for the sake of arguments it is assumed that the prosecution had been successful in proving the ingredients of section 397 I.P.C., then also none of the accused-appellant could have been separately convicted under section 397 I.P.C. and separate sentence awarded to any of them. In these circumstances, the conviction of the appellants for the offence punishable u/s 397 IPC cannot be sustained. 24. As regards the offence punishable u/s 395 IPC is concerned, out of the four accused - appellants, appellant no. 1 Middu is named in the FIR and the names of rest of the appellants surfaced during investigation from 11.5.1998 onwards, when the 2nd investigating officer Aditya Kumar Dwivedi PW-6 had interrogated the prosecution witnesses. On 11.05.1998 he went at the house of the complainant and recorded the statement of witness Shiv Mangal Singh. On 12.05.1998 he interrogated witnesses Ghan Shyam and Smt. Subhadra, and on 21.05.1998 statements of Smt. Sushila Devi, Km. Uttara, Shri Chandra and Smt. Anita were recorded. On 11.05.1998 he went at the house of the complainant and recorded the statement of witness Shiv Mangal Singh. On 12.05.1998 he interrogated witnesses Ghan Shyam and Smt. Subhadra, and on 21.05.1998 statements of Smt. Sushila Devi, Km. Uttara, Shri Chandra and Smt. Anita were recorded. Thus, the statements of these witnesses have been recorded about 3-weeks after the incident. It is not the case of the prosecution that the names of accused-appellants no. 2 to 4 were disclosed by appellant no. 1 or other named accused namely Kallu. Why these witnesses remained silent for such a long period? Why the names of these accused did not find place in the written report of Ram Prasad ? - who could not be examined in the Court on account of his death. The explanation given by Ghan Shyam PW-1 that on account of fear and as he went to hospital for medical examination and treatment is highly improbable and not reliable. The medical examination of Ghan Shyam and his father Shiv Mangal was conducted at about 4.10 a.m. on 19.4.1998. The incident took place at about mid-night and the FIR was lodged at 7.40 a.m. so there was ample time with Ghan Shyam PW-1 to disclose the names of the accused persons to his uncle Ram Prasad - the complainant. If the eye witnesses knew the names of the accused from before then non-mention of their names in the written report is fatal to the prosecution. Similarly the disclosure of names of the accused by the eye witnesses in their interrogation to investigating officer about 3-weeks after the incident of dacoity raises serious doubt about the complicity of such accused in the crime and the truthfulness of the prosecution witness about their having seen and recognized the miscreants during the incident of dacoity. The incident was an important case not only for the complainant and the victims but also for the police. Out of the 12-13 miscreants only two were named in the FIR and the robbery was of valuable jwellery/cash and several persons sustained injuries. In such circumstances, the complainant/victim's family must be highly interested to see that the real offenders are brought to books. The natural inference would be that the eye witnesses did not know or recognize any of the miscreants. 25. There are yet other reasons for the above inference. In such circumstances, the complainant/victim's family must be highly interested to see that the real offenders are brought to books. The natural inference would be that the eye witnesses did not know or recognize any of the miscreants. 25. There are yet other reasons for the above inference. It has come in the testimony of PW-1, PW-3 and PW-4 that it was dark night; that none of the miscreant covered his face in order to conceal his identity; that there was no source of light in the houses of the complainant at the time of incident but quite funnily the prosecution has come up with the case that the witnesses had seen and recognized the miscreants in the light of the torches carried by them. Were the miscreants flashing their torches on each other so that the witnesses/victims may get ample time to see and recognize them and later on they be named in the FIR? This explanation cannot be accepted for any moment because the known person would certainly try to conceal his identity otherwise the very purpose of committing the crime during night would be frustrated. The criminal activities are performed in the night for variety of reasons, few of them are that the criminals may not be recognized by the known persons; that they would get least resistance as compared to day time incident; that no other person would come to the rescue of the victim. The hardened criminal may not like to cover his face simply because he is not scared of any one and further if he is seen by others during an incident, it would enhance his image in the world of crime and it would be his free of cost marketing. It would not be out of place to mention that the written report had been filed by Ram Prasad, who is uncle of PW-1 Ghan Shyam. In his very 1st sentence of his cross-examination he has stated that the dacoity had taken place in his house and not in the house of Ram Prasad, but in the next breath he has maintained that it took place in the houses of both. This fact assumes importance because in the written report, the complainant has stated that the miscreants have looted his jewellery and cash and that of his niece. The name of the niece has not been mentioned. This fact assumes importance because in the written report, the complainant has stated that the miscreants have looted his jewellery and cash and that of his niece. The name of the niece has not been mentioned. On the contrary Ghan Shyam PW-1 has stated that the miscreants have robbed the jewellery and cash of his mother and wife and they can give its details. Even Subhadra PW-4 has stated in her cross-examination that 10-15 days after the incident they came to know as to what articles have been looted by the miscreants. However, complainant Ram Prasad had given minute details of his jewelery and cash and that of his niece. If he can mention such little details in his written report, then there was no occasion why he would not have mentioned the names of other appellants no. 2 to 4 in his written report. This fact also weakens the credibility of the first information report submitted by complainant Ram Prasad. 26. The statements of prosecution witnesses have been recorded in the trial Court about a decade after the incident. Identification of accused for the first time in Court about 10-years after the incident has no value particularly when there was no light at the scene of occurrence and the accused were not known to every inmate of the complainant's house or the victims, particularly when admittedly no test identification of any of the accused was conducted during investigation by the prosecution. 27. Statement of PW-1 is quite important in the case, because the complainant, who was also an eye witness could not be examined in the case, on account of his death. PW-1 has stated he could know about the arrival of the miscreants when they started beating him. This statement is contrary to the deposition of PW-4, who has stated that first of all the miscreants have looted her wearing jewellery and then she raised alarm. However, in the other breath, PW-1 has stated that he woke up on hearing the cries of his wife. According to him he could identify only those miscreants who came near him and they were Ram Bhawan, Kallu, Middu, Hakim and Bholai. They have beaten him, his wife and bhanji Uttara and all of them sustained injuries, but Uttara had not been medically examined. According to him he could identify only those miscreants who came near him and they were Ram Bhawan, Kallu, Middu, Hakim and Bholai. They have beaten him, his wife and bhanji Uttara and all of them sustained injuries, but Uttara had not been medically examined. About robbery of jewelery of his family PW-1 has stated that it was kept by his mother and he cannot state about the jewelery of his wife which was looted by the miscreants. Significantly in the written report no details of the looted jewelery of PW-1 or his family had been given. Even it has not been stated that the miscreants have looted movable property of PW-1 and his family. This witness has admitted that village of Middu, Hakim and Bholai is quite near to his village i.e. about 3 kms and the miscreants have not covered their faces during dacoity. This star witness of the prosecution could not tell in his cross-examination as to what articles were looted by the miscreants and from whom? He has further stated that after the incident he has not gone to police station but had been to Husba out-post with Ram Kishore (the scribe of the written report of Ram Prasad complainant), Kapoor Singh and Ram Bhawan. How is it possible, that when Kapoor Singh and Ram Bhawan were named by PW-1 and his family members as the miscreants to the investigating officer then how could they go along with PW-1 to the police out-post? This witness has further stated in cross-examination that along with him Shiv Mangal (his father), Uttara and Subhadra (PW-4) have also gone to the police out-post. However, in the next breath he has pleaded ignorance about going of Ram Bhawan, Kapoor singh, Ram Prasad, Ram Kishore and Subhadra to the police station Thariyaon on the pretext that he had gone to hospital. He has further stated that he knew that the report had been lodged only against Kallu and Middu. Thus, naming of other accused namely appellants no. 2 to 4 about three weeks after the incident is highly doubtful. The statement of PW-1 about the complicity of Middu also is not convincing due to the inconsistencies and improbabilities noted about in his statement. 28. Thus, naming of other accused namely appellants no. 2 to 4 about three weeks after the incident is highly doubtful. The statement of PW-1 about the complicity of Middu also is not convincing due to the inconsistencies and improbabilities noted about in his statement. 28. Sushila PW-3 has stated in the 1st sentence of her examination-in-chief before the trial Court that she knows only Ram Bhawan, Middu and Kapoor and does not know others by name. Like PW-1 she has not supported the prosecution story about the role of acquitted accused Kapoor @ Kapoore and had been declared hostile on this score. She has further stated that the house of Kapoore is very near to her house. In cross-examination she has stated that in the house she, her husband and niece (bhanji) were sleeping on the roof, while the mother-in-law was on the ground floor. According to her, the father-in-law was sleeping in other house, which is across the rasta. She has further stated that she was beaten by two miscreants, one by Ram Bhawan and the other is not present in the Court. She has given details of the incident in the following words: " ---- esjs ifr ds lkFk ?kaVs&nks ?kaVs ekjihV fd;s FksA eSa Nr ls ?kj esa uhps vk;h Fkh vkSj dgha Hkkx ugha ldh D;ksafd cnek'k idM+ fy;s FksA eq>s cnek'kks us dkQh nsj rd ekjk FkkA esjs iSj o da/ks esa pksV vk;h FkhA iSj ds vaxwBs esa pksV vk;h FkhA cnek'k djhc vkB gtkj : i;s dh ywV dj ys x;s FksA ;g : i;s esjs FksA tc ge yksx ?kj esa uhps x;s rks 'kksj ughsa epk;s vkSj u cqyk;kA gekjs ?kj esa ?kj dh dksbZ jks'kuh ugha ty jgh FkhA esjs o esjs ifr gkFk esa VkpZ ugha FkhA jkf= va/ksjh FkhA cnek'kks dh VkpksZ ds vykok vU; dksbZ jks'kuh ugha FkhA eSa lh/kk vLirky x;s FksA ?kj okys igys pkSdh x;s Fks fQj Fkkus x;s FksA eq>s ugha ekywe fd esjs ifr ds lkFk jke Hkou o diwjs pkSdh x;s Fks fd ugh A jke Hkou o esjs ifr ds ckhp eqdnesckth py jgh Fkh o py jgh gSA---- " The above statement of Sushila PW-3 clearly show that no jewlery of her family either owned by her or of her mother-in-law was robbed by the miscreants. Similarly she has not stated true facts about her going to hospital soon after the incident because she was not medically examined along with her husband Ghan Shyam and father-in-law Shiv Mangal in the morning of 19.4.1998 at about 4.00 a.m., but her medical examination was conducted by Dr. H. C. Srivastava PW-5 on 20.4.1998. Further she was the best person to tell about the details of the jewelery, if any, looted by the miscreants in the incident. Her mother-in-law has not been examined and Subhadra PW-4 aged about 42 years at the time when her deposition was recorded by the trial Court on 23.7.2008, must be married for about 10-years at the time of incident (about 9-10 years before), so she was also not in a position to give the names of Middu or Kallu, who were not residents of her parents' village rather they reside in the nearby village. Significantly PW 4 has not named Bhulai and Hakim to the IO. According to her, she has named only Middu, Ram Bhawan and Kallu. She has admitted that she had gone to out-post for giving information about the incident and Ram Bhawan and Kapoore had also accompanied them. She has further admitted that report was written in her presence and that of Ram Bhawan and Kapoore. It is important to note here that as per the statement of PW-1 and PW-4, Subhadra had not stayed in the house during the incident as she had gone in the village to tell the people about the incident, so there was no occasion for her to see and identify any miscreant. This statement of PW-4 appears to be more probable, because she has not sustained any injury in the incident, nor she has stated that any one of her family was beaten by the miscreants. Thus, the statements of the two ladies (PW-3 and PW-4) of the house of PW-1 examined in the case are not consistent with the prosecution story and the infirmities found therein creates doubt about the complicity of the appellants in the incident. 29. Previous enmity between Ghan Shyam and even Ram Kishore PW-2 (scribe of the written report) with accused-appellant Ram Bhawan is not disputed. All the four prosecution witnesses examined in the case namely PW-1 to PW-4 have admitted enmity of Ram Bhawan with PW-1 and Ram Kishore PW-2's families. 29. Previous enmity between Ghan Shyam and even Ram Kishore PW-2 (scribe of the written report) with accused-appellant Ram Bhawan is not disputed. All the four prosecution witnesses examined in the case namely PW-1 to PW-4 have admitted enmity of Ram Bhawan with PW-1 and Ram Kishore PW-2's families. He is resident of the same village. Then it is quite surprising that his name did not find place in the written report, if at all he was among the miscreants who have committed dacoity in the house of the complainant and PW-1. His post-incident conduct also belies his complicity in the crime, as he has accompanied PW-4 and others to the police out-post after the incident. Further, being of the same village he would have certainly tried to conceal his identity by covering his face, but none of the witnesses of fact have stated about it, rather they have categorically stated that the miscreants have not covered their faces. 30. Significantly inspite of naming of two accused namely Kallu and Middu in the FIR and the names of other miscreants were known to the family members of the complainant no looted property could be recovered by the police during long investigation. It also lends support to some extent about the innocence of the accused-appellants in the commission of the instant dacoity. 31. In view of what has been said and done above, it is found that the prosecution story is full of inconsistencies, improbabilities and infirmities, so no reliance could be placed on the testimony of PW-1, PW-3 and PW-4; that not holding of test identification parade for the accused who were not named in the FIR or not known to the witnesses from before is fatal to the prosecution and naming of appellants no. 2 to 4 about three weeks after the incident is wholly doubtful and further if Ram Bhawan, resident of the village of complainant and PW-1 was among the dacoits, then why he was not named in the FIR? All these facts clearly rule out the complicity of the accused-appellants in the instant dacoity and the learned trial Court has erred in not appreciating the prosecution evidence in correct perspective and recording conviction of the appellants for the offence punishable u/s 395 IPC as well. Thus, the appeal succeeds and is accordingly allowed. All these facts clearly rule out the complicity of the accused-appellants in the instant dacoity and the learned trial Court has erred in not appreciating the prosecution evidence in correct perspective and recording conviction of the appellants for the offence punishable u/s 395 IPC as well. Thus, the appeal succeeds and is accordingly allowed. The impugned judgment and order dated 10.2.2010 passed by the learned trial Court are set aside and all the appellants are acquitted for the offence punishable u/s 395/397 IPC. Appellant no. 1- Middu is in jail. He should be released from custody at once, if not wanted in any other case. Appellants no. 2 to 4 are on bail. They need not surrender. Their bonds are cancelled and sureties are discharged. 32. Let copy of the judgment be immediately sent to the Court concerned for ensuring necessary compliance, which should be reported to the Court within 4-weeks.