JUDGMENT Heard learned counsel for the appellants as well as learned Additional Public Prosecutor. 2. Appellants Yogendra Rai and Sataru Rai @ Satann Rai have been found guilty for an offence punishable under Section 395 of the I.P.C. and each one has been directed to undergo rigorous imprisonment for five years vide judgment of the conviction and sentence dated 07.06.2002 passed by the Presiding Officer, Additional Court No.1, Fast Track Court, Katihar in Sessions Trial No.44 of 1990/ 203 of 2002, being the subject matter of instant appeal. 3. PW-6, Mojibur Rahman gave his fard-bayan on 21.01.1988 at about 2.45 p.m. disclosing therein that in the preceding night at about 12.30 hours, Sataru Rai @ Satann Rai, son of not known, Yogendra Rai, son of late Kailash Rai of village Bhokchari Tola, P. S. Barsoi, District-Katihar along with 4-5 unknown persons began to put lathi blow over his door and on account thereof, he awaken. He, also having armed with lathi, began to retaliate as well as also raised alarm. However, none of the villagers arrived, on account of being afraid of dacoits or the firing made therefrom. Then thereafter, the dacoits removed one of the thatched wall of his house and then, Yogendra Rai fired from his pistol causing injury to him. He had identified Yogendra Rai armed with pistol as well as Sataru Rai armed with bow and arrow while others having armed with lathi and fatta in torch light, which was flashed by his daughter. She also identified Yogendra Rai, whom Yogendra also shot at. Then thereafter, all the dacoits entered inside his house, assaulted his wife and took away nose-pin, torch, and one steel box containing the items (enlisted therein). Villagers came, whom he disclosed the event. 4. On the basis of the aforesaid fard-bayan, Barsoi P. S. Case no.34 of 1988 was registered followed with investigation. During course of investigation though the occurrence has been supported by the witnesses. So far, complicity of these two appellants are concerned, the witnesses failed and on account thereof, both the appellants were not sent up for trial. However, differing therefrom, the learned Chief Judicial Magistrate took cognizance and summoned, consequent thereupon, the appellants faced trial and met with ultimate result, the subject matter of instant appeal. 5. So far, complicity of these two appellants are concerned, the witnesses failed and on account thereof, both the appellants were not sent up for trial. However, differing therefrom, the learned Chief Judicial Magistrate took cognizance and summoned, consequent thereupon, the appellants faced trial and met with ultimate result, the subject matter of instant appeal. 5. The defence case as is evident from mode of cross-examination as well as statement recorded under Section 313 of the Cr.P.C. is of false implication in the background of land dispute having amongst the parties and to support the same, DWs have also been examined. 6. In order to substantiate its case, prosecution had examined altogether six PWs, out of whom, PW-1 is Noor Saba Khatoon, wife of informant, PW-2 is Shabnam, daughter of informant, PW-3 is Md. Fashiuddin, PW-4 is Yakub, PW-5 is Jyotish Yadav and PW-6 is Mojibur Rahman, the informant. Fard-bayan has been exhibited as Exhibit-1. Defence has also examined two DWs, out of whom, DW-1 is Raghunath Yadav and DW-2 is Subodh Rai. 7. Learned Amicus Curiae while assailing the judgment of conviction and sentence passed by the learned lower Court has submitted that right from inception of instant case, though the occurrence is found to have been committed by unknown dacoits however, the names of both the appellants have purposely been introduced. It has further been submitted that from the fard-bayan itself, such event is visualizing because of the fact that informant had, without having any occasion or source to identify, put an allegation to the extent that these two appellants along with 4-5 dacoits began to give lathi blow over his door, which was duly retaliated by him with lathi. The aforesaid feature indicate how the informant was very much keen to have presence of both these two appellants. 8. It has also been submitted that complicity of appellants even if accepted for an argument’s sake not admitted, was improbable in a manner as flashed by the prosecution, because of the fact that being a co-villager and further having it a month of January that too, in remote area, would not have taken a risk coming to the house of informant having open face just to volunteer to identify. 9. Furthermore, the dubious conduct of the prosecution is also to be perceived. 9. Furthermore, the dubious conduct of the prosecution is also to be perceived. PWs have concealed the event and in likewise manner, happens to be the evidence of Fashiuddin, cousin brother of informant who, though admitted, that he after purchasing land from Rajni Rai, uncle of appellant Yogendra Rai, sold it to informant Mojibur Rahman whereupon, his house stands, but failed to divulge whether Yogendra Rai had his share in the aforesaid land as well as also failed to disclose presence of Yogendra in the boundary. Moreover, PW-6 during cross-examination admitted his presence in his boundary and further, some sort of dispute in the aforesaid background. 10. Furthermore, the callous approach of the prosecution is further evident from the fact that only appellant Yogendra Rai as well as Sataru Rai have been shown to have possessed firearm as well as bow and arrow respectively at the time of the occurrence and out of whom, again appellant Yogendra Rai has only been identified to be assailant by causing firearms injury, but was very much conscious with regard to source of identification and got it explained that dacoits have taken away the torch. 11. It has also been submitted that from the evidence of PW-6, it is apparent that all the family members were confined in a room. When all the dacoits have entered inside the room, Shabnam as well as PW-6 Mojibur claimed to have identified the appellants then in that event, non-identification by PW-1 Noor Saba Khatoon is another circumstance. Not only this, it has also been submitted that at the time of alleged occurrence, Shabnam might have been less than 10 years and on account thereof, the identification at her score is also found doubtful as well as having prospect of being tutored. 12. Furthermore, it has also been submitted that after conclusion of the investigation, the I.O. on the basis of the materials collected during course of investigation did not opt to send up the appellants for trial though been differed by the learned Chief Judicial Magistrate. Accordingly, it has been submitted that judgment of conviction and sentence inflicted by the learned trial Court did not justify its sustenance. 13. Accordingly, it has been submitted that judgment of conviction and sentence inflicted by the learned trial Court did not justify its sustenance. 13. On the other hand, learned Additional Public Prosecutor while refuting the submission raised on behalf of learned Amicus Curiae has submitted that there happens to be consistent evidence of the witnesses with regard to commission of dacoity in the house of informant Mojibur Rahman, even the DWs had admitted. Therefore, the commission of dacoity as well as having been injured at the end of dacoits on account of firearms is also consistent though the doctor has not been examined and further having no charge under Section 397 of the I.P.C. will not frustrate the prosecution case. In likewise manner, on account of absence of material contradictions in the evidence of the witnesses had not caused prejudice to the accused on account of non-examination of the I.O. 14. Now, coming to source of identification, it is apparent that since inception of the present case, prosecution had elaborately detailed the items having been looted away by the dacoits which also includes the torch. 15. Now, coming to identification, it has been submitted that appellants were so dare devil that they have not thought themselves to have proper concealment rather they posed themselves as a hero, leading the bandit group and on account thereof, have rightly been identified as one of the member of dacoits and in the light thereof, a conviction and sentence recorded by the learned lower Court is found just, legal and proper. 16. After going through the record which consists apart from others, the evidences adduced on behalf of prosecution as well as on behalf of appellants, it is apparent that incidence of dacoity has not been denied even by the appellants themselves by way of examining two DWs. From the evidence of PW-3 in Para-3, it is evident that he had purchased land from Rajni Rai, uncle of appellant Yogendra Rai which, later on been transferred in favour of informant Mojibur Rahman as is evident from Para-5 of his cross-examination. It is also apparent from his evidence that he had shown ignorance with regard to presence of appellant Yogendra Rai as residuary relating to the aforesaid land. In the present context, the evidence of PW-1 in Para-5, she had accepted that the aforesaid land, over which her house stands, belongs to her cousin father in-law. It is also apparent from his evidence that he had shown ignorance with regard to presence of appellant Yogendra Rai as residuary relating to the aforesaid land. In the present context, the evidence of PW-1 in Para-5, she had accepted that the aforesaid land, over which her house stands, belongs to her cousin father in-law. Then, she denied that land belongs to appellant Yogendra. Then, she disclosed that there was land of Yogendra Rai in her vicinity which he had sold away in favour of others. PW-2 in Para-9 had denied the suggestion that both have got land dispute. PW-6, informant at Para-11 had admitted over the land of Yogendra Rai lies on Northern boundary of his house. However, he denied the suggestion that he wanted to have aforesaid land and having been denied by Yogendra Rai, animosity cropped up in between. 17. Now, coming to identification of the appellants, it is apparent from the fard-bayan itself that informant Mojibur Rahman (PW-6) confronted with these two appellants along with 4-5 persons with lathi. During course of examining himself as PW-6 to some extent, he supported the earlier version. However, introduced that during course thereof, his daughter flashed torch wherein he identified these two appellants amongst the dacoits. Then, he had further identified appellant Yogendra Rai to be author of firearms injury on account of firing made by him as well as having actively involved during course of dacoity. That means to say, giving primacy to appellant Yogendra Rai followed by Sataru Rai both the co-villagers, instead of other dacoits whom, the prosecution parties have not identified is a matter of concern that too in the background when PW-6 at Para-5 has stated that dacoits have not source of light. First of all, all the dacoits were brandishing lathi. After removal of the door, both sides came in front of each other and at that very moment, only two dacoits indulged in fighting who were none else, but these two appellants. PW-1 had not claimed identification on her own. However, reiterated identification through informant (PW-6) as well as Shabnam (PW-2). In Para-3 of her cross-examination, she had stated that all the dacoits were in Ganji and Lungi. None had wrapped their mouth with Galmochhi. All have got open face. None had covered their face. She had further disclosed that after fleeing of dacoits, names were disclosed. 18. However, reiterated identification through informant (PW-6) as well as Shabnam (PW-2). In Para-3 of her cross-examination, she had stated that all the dacoits were in Ganji and Lungi. None had wrapped their mouth with Galmochhi. All have got open face. None had covered their face. She had further disclosed that after fleeing of dacoits, names were disclosed. 18. PW-2, Shabnam, who shown her age approximately 20 years on the day of her examination, has stated that after flashing torch, she had seen face of dacoits and had identified Yogendra Rai and Sataru Rai. Dacoits have also fired causing injury over herself as well as over her father. Then, she had disclosed that Yogendra Rai actively participated in course of dacoity and during course thereof, took a nose-pin. In Para-4, she had stated that villagers arrived, chased the dacoits, but could not succeed in apprehending them. In Para-5, she had stated that she had torch by which she identified the dacoits. The aforesaid torch was taken away by the dacoits. She has further disclosed that the house of Yogendra is situated 5-6 Rassi away from her house. 19. PW-3, Md. Fashiuddin, as stated above, corroborated as a hearsay witness and further disclosed that informant had disclosed names of Yogendra and Sataru amongst the dacoits. PW-4, Yakub has been tendered and PW-5 Jyotish Yadav had not named. 20. Defence has also examined two DWs, who had supported the factum of dacoity, but negate the prosecution version relating to identification. 21. As such, after going through the evidence, it is apparent that having appearance of both the appellants along with others while brandishing lathi, which the PW-6, informant claimed even having absence of source of identification is a matter of grave concern that too in the background of the conduct of the prosecution party who had tried to suppress presence of appellant Yogendra Rai being in their boundary. Furthermore, though presence of appellants shown in the fard-bayan that of different village. However, during course of evidence, they were compelled to accept them as a co-villager. In the aforesaid background, that means to say, being a co-villager will take a risk without concealing their appearance to commit dacoity that too in the background of the fact that prosecution had not placed any sort of criminal antecedent and on that score, identification of appellants as a member of dacoits became doubtful. In the aforesaid background, that means to say, being a co-villager will take a risk without concealing their appearance to commit dacoity that too in the background of the fact that prosecution had not placed any sort of criminal antecedent and on that score, identification of appellants as a member of dacoits became doubtful. Consequent thereupon, the judgment of conviction and sentence recorded by the trial Court is set aside. Appeal is allowed. Appellants are on bail, hence, are discharged from its liabilities. The first and last page of the judgment should be handed over to the learned Amicus Curiae for the needful.