JUDGMENT Hon’ble Anant Kumar, J.—This criminal appeal under Section 374 Cr.P.C. has been preferred against the judgment and order dated 9.3.1983 passed by the Special Judge, Mainpuri in Special Trial No. 94 of 1982-State v. Juggi alias Jugendra and others, arising out of Case Crime No. 49 of 1982, under Sections 460, 396 I.P.C., Police Station Jasrana, District Mainpuri. 2. It is pertinent to mention here that initially this appeal was filed by the accused persons Juggi alias Jugendra son of Rajvir, Ratan Singh son of Jomdar, Ranvir son of Ghanshyam, Phool Singh son of Durbin Singh, Ratan Singh son of Gopiram, Gyani son of Ram Prasad and Satyadeo alias Satta son of Chandan Singh but during pendency of this appeal, the appellants Juggi alias Jugendra, Ratan Singh son of Gopiram and Satyadeo alias Satta died and vide order of this Court dated 18.4.2012 the appeal has been abated against them. 3. The prosecution case as unfolded is that one Nihal Singh son of Kedar Singh lodged a written complaint at Police Station Jasrana, District Mainpuri on 25.3.1982 at 8.30 A.M. regarding an occurrence which had taken place on the same day at 1.00 A.M. It was disclosed therein that about 15-20 days before the occurrence, Smt. Ram Sumiriti wife of Om Prakash Kumhar, who is cousin brother of the complainant, was teased by Satya Deo alias Satta and Ratan Singh, whereupon Smt. Ram Sumiriti had abused them, thereupon they had beaten Smt. Ram Sumiriti. The brother of the complainant Avval was not present at home at that time and when in the evening he returned and gathered said information then he complained to them as to why they were teasing and beating their ladies. Taking this incident lightly, no complaint was made to the police station. It is further stated that on 25.3.1982 in the night when the complainant along with his wife and children were sleeping in his house and Avval along with his family and niece Gomati, who had come on the occasion of Holi, were sleeping in adjoining house. Taking this incident lightly, no complaint was made to the police station. It is further stated that on 25.3.1982 in the night when the complainant along with his wife and children were sleeping in his house and Avval along with his family and niece Gomati, who had come on the occasion of Holi, were sleeping in adjoining house. At about 1.00 A.M. they heard some commotion in the house of Nannu, thus, the complainant and his brother Avval came out of the house then the miscreants entered the house of Avval and when the complainant and his family members raised alarm, neighbours Ram Swaroop, Balwant Singh, Sukadu and Jangali came there and recognized the miscreants in the torch light as Juggi, Satyadeo alias Satta, Ratan Singh son of Jomdar who are resident of the same village and Gyani resident of Nagla Kachhi, Phool Singh, Ratan Lal Gadariya resident of Nagla Hans and Ramvir Thakur resident of Nagla Ram. Juggi was having shot gun, Gyani a country made pistol and Santa hockey and rest were having lathies. Avval Singh tried to catch hold of them and disclosed that he had recognized them. Thereupon, Juggi, who was standing in the Courtyard, opened fire from his shot gun upon Avval, due to which he fell down in the Courtyard and died. The complainant and co-villagers tried to encircle them but since they were armed with different weapons due to fear they could not be caught and ran away. The miscreants had taken away with them a ladies Titan watch of Gomati, some gold plated ornaments, Rs. 40/- cash, some utensils and Rs. 800/- from the house of Natthu. It was stated that dead body of the deceased Avval was lying in the Courtyard. In the night due to fear of miscreants, the complainant could not come to the police station to lodge the report. A request was made that a report be lodged and legal action be taken against them. 4. On the basis of complaint, the F.I.R. was lodged and the case was registered. The Investigating Officer visited the place of occurrence, collected the bloodstained and plain earth, one empty cartridge of 12 bore, one torch. Inquest of the dead body of the deceased was prepared and dead body of the deceased was sent for post mortem examination. Following injuries were found on the body of the deceased : 1. The Investigating Officer visited the place of occurrence, collected the bloodstained and plain earth, one empty cartridge of 12 bore, one torch. Inquest of the dead body of the deceased was prepared and dead body of the deceased was sent for post mortem examination. Following injuries were found on the body of the deceased : 1. G.S.W. of entrance 3 cm x 3 cm x cavity deep on left side of chest 4 cm away from left nipple at 8 O’ clock position. Margins lacerated & inverted. Blackening present around the wound. Wound is directing front back slightly downwards and lateral. 2. Abrasion 2 cm x 1 ½ cm on back of right forearm 14 cms below right elbow. Fracture of 4th rib anteriorly and fracture of 10th rib posteriorly. Internal Examination : Pleura lacerated on left side, left lung lacerated. Heart and its pericardium lacerated. 11 Oz. of blood present in abdominal cavity. One card-board and 45 small metallic pellets recovered from the Thorax cavity. 7 Oz. Semi digested food present in stomach. Loaded and faecal matter and gases present in the large intestine. 5. After investigation, charge-sheet was submitted against the appellants. During trial, on behalf of prosecution, 7 witnesses were produced. PW-1 Nihal Singh, PW-2 Ram Swaroop, PW-3 Balwant, PW-4 Jangali are the eye-witnesses whereas PW-5 Dr. M.C. Guleechha, who conducted the postmortem on the body of the deceased, PW-6 Constable Sri Niwas is scriber of the F.I.R. and PW-7 Jagdish Prasad is the Investigating Officer. After completion of the prosecution evidence and recording statements of the accused persons under Section 313 Cr.P.C., the defence was given a chance to lead evidence whereupon two eye-witnesses DW-1 Kripal Singh Yadav, Advocate and DW-2 Rajveer Singh were produced and certain documentary evidences were filed to show previous enmity between the parties. After hearing the prosecution as well as defence, the learned trial Court came to the conclusion that the prosecution has succeeded to prove the guilt of the accused persons beyond all reasonable doubt. Accordingly, the accused persons were convicted and sentenced to undergo imprisonment for life under Section 396 I.P.C. Hence this appeal. 6. We have heard Sri Satya Prakash Srivastava, learned counsel for the appellants and Sri Rajeev Gupta, learned A.G.A. for the State and perused the record. Accordingly, the accused persons were convicted and sentenced to undergo imprisonment for life under Section 396 I.P.C. Hence this appeal. 6. We have heard Sri Satya Prakash Srivastava, learned counsel for the appellants and Sri Rajeev Gupta, learned A.G.A. for the State and perused the record. On behalf of the accused appellants, it is mainly argued that the case of dacoity with murder has been lodged by the prosecution and it is stated that the incident started from the house of Natthu where dacoits firstly entered and thereafter they entered the house of Avval and from both the places they looted their belongings. It is further stated that as per prosecution version, some gold plated ornaments of Gomati were looted but neither Natthu nor Gomati has been examined by the prosecution, which creates a doubt upon the prosecution story. It is further stated that as per the F.I.R. version, some of the accused persons were belonging to the same village and some were from nearby villages and were known to the complainant and other prosecution witnesses but they did not try to conceal their identity, neither they had put cloth on their faces nor they had adopted any method to conceal their faces during the incident, which is very much unnatural and improbable. 7. It is further argued that though in the F.I.R. it is stated that all the accused persons were armed with hockey, country made pistol, lathi and shot gun but except accused Juggi none of them used their weapons and it is a case of a single shot in the dead of night. In spite of the fact that a lot of villagers had gathered on the spot at the time of occurrence but neither they tried to catch the accused persons nor any other person received any injury during occurrence. It is further stated that it has come in evidence that it was a dark night and it was raining also, so it was not possible for the witnesses to identify the accused persons, the alleged torch through which the accused persons were identified, has not been produced in the Court. It is further stated that it has come in evidence that it was a dark night and it was raining also, so it was not possible for the witnesses to identify the accused persons, the alleged torch through which the accused persons were identified, has not been produced in the Court. No looted article has been recovered from the possession of the accused persons in spite of the fact that three accused persons Ranvir, Phool Singh and Ratan Singh son of Gopiram were arrested on the same day and other accused persons were also arrested soon after the occurrence. It is further argued that there was enmity between the family of the complainant and accused persons and some cases pertaining to grant of lease were going on between the parties and this is the main cause that the accused persons have falsely been implicated in this case. On these counts, it is argued that the prosecution has failed to prove its case beyond reasonable doubt and the learned trial Court has not taken into account all these facts and has wrongly convicted the accused persons. 8. On behalf of the State, it is argued by learned A.G.A. that in this case the F.I.R. has been lodged promptly. The accused persons are named in the F.I.R. so there is no chance of false implication of the accused persons. It is further argued that the F.I.R. itself contains the details of the looted articles, so it cannot be said that the prosecution has failed to establish the dacoity in the incident. It is further argued that in any event, if the case under Section 396 I.P.C. is not proved against the accused persons, it is clear case wherein evidence to this effect has come that the accused Juggi had opened fire upon the deceased Avval, so he can very well be convicted under Section 302 I.P.C. without making any alteration in the charge. In this regard, learned A.G.A. has placed reliance on a decision of the Apex Court in the case of Rafiq Ahmad alias Rafi v. State of Uttar Pradesh, (2011) 8 SCC 300 . After hearing the learned counsel for the parties, we are of the view that following points emerges for determination in this case : (1) Whether non production of witnesses Natthu and Gomati is fatal for the prosecution case ? After hearing the learned counsel for the parties, we are of the view that following points emerges for determination in this case : (1) Whether non production of witnesses Natthu and Gomati is fatal for the prosecution case ? (2) Whether there is a possibility of false implication of the accused persons ? (3) Whether there is a possibility that the witnesses could not recognize the accused persons on the spot ? First Point : 9. So far as the first point for determination is concerned, it is stated in the F.I.R. that at first the miscreants had entered the house of Natthu and hearing the commotion from his house, the complainant and his brother Avval had come out thereafter the miscreants had entered the house of Avval. It is further stated that a sum of Rs. 800/-, some household articles and utensils were looted from the house of Natthu but the Natthu has not been produced in evidence nor Gomati whose Titan watch and some gold plated ornaments were looted. However, in our view, merely on the basis of non production of these witnesses, the entire prosecution story cannot be thrown out because it is settled principle of law that veracity of the prosecution case is to be weighed on the basis of evidence produced by them and merely on the ground that the prosecution has withheld some witnesses, the entire prosecution case cannot be disbelieved. So to our view, non production of the witnesses by the prosecution is not fatal for the prosecution. Second Point : 10. So far as the chance of false implication of the accused persons is concerned, it is mainly argued by learned counsel for the appellants that all the accused persons were known to the complainant and other witnesses but in spite of that the accused persons had not tried to conceal their identity, which is very unnatural and if at all, they had a plan to commit dacoity, at least, they would have muffled their faces so that nobody could recognize them. In this regard, learned counsel for the appellants has placed reliance on a decision of the Apex Court in the case of Ram Shankar Singh and others v. State of Uttar Pradesh, AIR 1956 SC 441 . In this regard, learned counsel for the appellants has placed reliance on a decision of the Apex Court in the case of Ram Shankar Singh and others v. State of Uttar Pradesh, AIR 1956 SC 441 . In the said case only six persons named in the F.I.R. were placed on their trial, though 14-16 persons are said to have participated in the dacoity. None of the unknown dacoits was placed on trial, apparently because none could be identified by any of the eye-witnesses during the investigation. The trial Court had convicted all the six accused persons and in an appeal, the High Court had made following observations : “It is significant that although Bhirgu Singh belongs to the same village he is not alleged to have taken any precaution to conceal his identity by means of a Dhata or any other device. This is something unnatural and improbable. Generally people do not go out to commit dacoities in their own village for fear of identification. Even if they have a hand in getting a dacoity committed in their own village they generally hire persons for the purpose from outside so that they may not be easily identified. They keep themselves in the background. If, for any reason, they find it necessary to be present at the scene of dacoity they take ample precautions to cover their faces by some device. I find it difficult to believe that Bhirgu Singh, who is well-known in the village and who was on bad terms with Kalapnath Singh could have gone to commit dacoity in his own village without taking the least precaution to conceal his identity.” Similar view has been expressed by a Division Bench of this Court in the case of Hausila v. State, 1980 All LJ 987. 11. So, to our view, there appears force in the contention of the learned counsel for the appellants that if persons belonging to the same village or adjoining village to whom the witnesses are knowing since before the occurrence commits dacoity, they will try to conceal their identity but in the present case all the witnesses of fact have deposed that all the miscreants were having open faces and did not try to conceal their identity. So this creates a doubt upon the prosecution story and presence of the witnesses on the spot. So this creates a doubt upon the prosecution story and presence of the witnesses on the spot. It is also evident from the evidence on record that all the accused persons were armed with different weapons like country made pistol, shot gun, hockey and lathi but in the evidence it has come that except accused Juggi, none of the other accused persons even tried to use their weapon nor the persons present on the spot tried to catch hold of the accused persons that is why none of the prosecution witnesses including the complainant sustained injury. This also creates a doubt regarding presence of the witnesses and complainant on the spot. 12. It is further argued by learned counsel for the appellants that it was a dark night and source of light i.e. torch which has been shown in the F.I.R., has not been produced in the Court. In this regard, PW-1 has stated in his evidence that it was a moon lit night and some clouds were in the sky. He has specifically denied a suggestion that on the night of occurrence, it was a dark night whereas, PW-2 Ram Swaroop has stated that it was a dark night and at the time of occurrence, it was raining also. So, there is contradiction in the statement of the witnesses as to whether in the night of occurrence there was moon light or it was a dark night. Though a recovery memo of the torch has been prepared by the Investigating Officer i.e. Ext. Ka-11 but the said torch has not been produced in the Court. In this regard, on behalf of the appellants reliance has been placed on a decision of the Apex Court in the case of Manzoor v. State of Uttar Pradesh, AIR 1983 SC 295 . In the said case, the accused persons were identified by the witnesses in torch light but the torch was not produced in Court, the Hon’ble Apex Court held that torch has not been produced in evidence and Investigating Officer PW-12 said in his evidence that he saw those torches and returned them to Home guards. In the said case, the accused persons were identified by the witnesses in torch light but the torch was not produced in Court, the Hon’ble Apex Court held that torch has not been produced in evidence and Investigating Officer PW-12 said in his evidence that he saw those torches and returned them to Home guards. It is not known why the Investigating Officer PW-12 thought it fit to return the torch with the help of which the Home Guards are said to have seen the persons running away from the scene of occurrence though it was a relevant piece of evidence. So in these set of circumstances, when the prosecution has failed to prove whether it was a moon night or dark night, the consequence of non production of torch is very relevant and to our view, the torch which was taken into possession by the Investigating Officer, should have been produced in the Court, specially when no other source of light is conclusively proved. 13. In this case there is one more factor which creates a doubt upon the truthfulness of the prosecution story. It is natural behaviour of criminals that after committing crime, they would avoid arrest but in this case, the accused persons Ranvir, Phool Singh and Ratan Singh son of Gopiram were arrested on the same day i.e. 25.3.1982 from their respective houses but in spite of that, no looted articles were recovered from their possession. This also creates a doubt regarding involvement of these accused persons in the crime. Thus, from the surrounding circumstances, a possibility cannot be ruled out that the accused persons would have falsely been implicated in this case due to incident which took place with Smt. Ram Sumiriti as stated in the F.I.R. Third Point : 14. So far as the presence of the witnesses on the spot is concerned, it is stated by learned counsel for the defence that all the witnesses of fact belong to same community and their presence on the spot is highly doubtful. In this regard, PW-2 Ram Swaroop has stated that when he came out from his Gher, the dacoits had already gone about 50-60 paces away from the scene of occurrence then he reached the place where the dead body of the deceased Avval was lying. In this regard, PW-2 Ram Swaroop has stated that when he came out from his Gher, the dacoits had already gone about 50-60 paces away from the scene of occurrence then he reached the place where the dead body of the deceased Avval was lying. Likewise, PW-3 Balwant has stated that after the dacoits had gone from the place of occurrence, the villagers and other persons reached on the spot and till the miscreants were committing dacoity, none of the villagers had come on the spot. PW-4 Jangali has stated that at the time of occurrence, only three persons had reached and rest had reached after the occurrence. So the presence of the witnesses at the time of occurrence on the spot also appears to be doubtful and it also creates a doubt that the witnesses could have identified the accused persons in the dark night specially when it was clouded and raining. Therefore, looking into the entire facts and circumstances of the case, we are of the view that the prosecution has failed to prove its case beyond all reasonable doubt and presence of the complainant and other witnesses on the spot at the time of occurrence appears to be doubtful. Thus, the present appeal is liable to be allowed and the judgment and order of the learned trial Court convicting and sentencing the appellants is liable to be set aside. Accordingly, the appeal is allowed. The judgment and order dated 9.3.1983 passed by the Special Judge, Mainpuri convicting and sentencing the appellants is set aside. The appellants are acquitted. The appellants are on bail. They need not surrender. Their bail bonds are cancelled and sureties are discharged. —————