JUDGMENT : Ratnaker Bhengra, J. This Criminal appeal is directed against the judgment of conviction and order of sentence dated 3.10.2002 passed by the learned 5th Addl. Sessions Judge Bermo at Tenughat in S.T No. 31 of 2002 whereby the above named appellant has been found guilty and convicted under section 395 of the of the Indian Penal Code and accordingly, sentenced him to undergo rigorous imprisonment for five years for the aforesaid section. 2. The prosecution case, as made out from the written report of Garjan Singh (P.W.5) son of Chintu Singh District Bokaro is that on 27.7.2001 at about 9 P.M, he was sitting in his house and 15-20 miscreants came to his varanda and Bhadru Mian assaulted the informant on his head with the butt of the pistol and told him to show the articles of his house, otherwise he will kill him. The informant out of fear, showed the articles of his house. Bhadru Mina and Alam Mian took out Rs.500/- from his box and two pieces of Dhoti and after that told him to show articles of other house, otherwise he would shoot him. Out of fear, the informant accompanied them. From the house of the son of the informant namely Manu Singh Mahabub Mian looted the entire articles and Hamid Mian took away he-buffalo, she-buffalo and the buffalo calf. From the house of Sudhir, Gaffur Mian, looted all the articles and Liyakat Mian took away the he-buffalo and cow and after that Bhadru Mian entered into the house of Govind Singh and looted the articles. From the house of Mateshwer Singh, Anwar Mian looted all the articles and then Rajan Mahto, looted all the articles from the house of Raju Singh. After that in the process of going away with the looted articles Bhadru Mian also abducted Raju Singh and on the way Raju Singh, somehow managed to escape and saved his life. 3. On the basis of the written report, Kasmar P.S. Case No. 34 of 2001 dated 30.7.2001 was registered against the accused persons including the current appellant and police took up investigation and after completion of investigation police submitted charge-sheet against three accused persons including the current appellant in the court of ACJM Bermo at Tenughat. Two other accused persons namely Bhadru Mina and Miktatr Alam was declared as absconders. Two other accused persons namely Bhadru Mina and Miktatr Alam was declared as absconders. The learned ACJM took cognizance of the offence and case was committed to the court of Sessions which was registered as S.T. No. 31 of 2002. The plea of the defence was that he is not guilty and has been falsely implicated in this case and claimed to be tried. 4. After conclusion of trial the learned 5th Additional Sessions Judge held the appellant guilty for the offence punishable under section 395 of the Indian Penal Code and sentenced him to R.I. for the period of five years. Hence this appeal 5. The prosecution in order to substantiate the charge examined altogether six witnesses, out of whom P.W.1 Raju Singh, P.W.2 Mateshwar Singh, P.W.3 Karuna Devi, P.W.4 Balmukund Upadhya, P.W 5 Garjan Singh and P.W 6 Ashok Kumar Singh, I.O of the case. 6. P.W 1 Raju Singh, has deposed that in the month of “Sravan” last year a dacoity was committed in his house situated at Tola Purnapani village Manjura, Dist Bokaro at about 9.p.m on a Friday. At that time he was present in the eastern side room of his house. About 20-25 dacoits came and looted four buffalos, one she-buffalo, one buffalo calf, one milking cow and two calves. He has also deposed that he could identify Bhadru Mian, Alam, the appellant Rajan Mahato. In paragraph-9 of his cross examination he has deposed that four of his brothers namely Manu Singh, Matlu Singh, Sudhir Singh and Govind Singh are in jail in connection with murder of Ahmad Ansari for about nine months. Ahmad Ansari was murdered one month prior to this occasion and he was paternal uncle of Bhadru Mian and Alam. He has also deposed that his basti had 10/12 houses. Only people of “Singh” Caste reside there. He has further deposed that six brothers are residing in the same compound. There was no electricity in his house. In para-12 of his deposition, he deposed that though it was a moon lit night because of bad weather it was dark. It was dark to such an extent that one can not see another. He deposed that he was not in talking terms with Rajan Mahato nor his brothers were in talking terms with him. In para-15 of his deposition he has stated that none of the villagers came to the spot. It was dark to such an extent that one can not see another. He deposed that he was not in talking terms with Rajan Mahato nor his brothers were in talking terms with him. In para-15 of his deposition he has stated that none of the villagers came to the spot. He further stated that he was examined by the police. 7. P.W 2 Mateshwar Singh has deposed that about 5-6 months back while he was sleeping in his house at Purnapani of Village Manjara P.S Kasmar Dist Bokaro he awoke up on hearing hulla and found that some dacoits had entered into his house and out of fear he shut down the door of his house. The miscreants were exchanging hot words with his father from whom he could identify the appellant Rajan Mahato, Bhadru Ansari and Alam Ansari from amongst the dacoits. He has further stated that dacoits looted seven buffalos and twelve bullocks and all utensils and money from their house. He was examined by the police about occurrence. He deposed that he could identify the accused Rajan Mahato appellant standing in the dock and also he could identify the absconding accused persons also. He has also stated that they are six brothers and out of them he himself, Sudhir Singh, Manu Singh and Gobind Singh are in judicial custody in connection with case relating to the murder of Ahmad Ansari. Alam Ansari and Bhadru Mina are the nephews of Ahmad Ansari. He has further stated that there is no electricity in their village and it was about 9 p.m when the dacoity took place. He has further deposed that they slept at about 7.00/8.00 p.m and the dibri (a traditional lamp) was burning. It was a “SRAVAN” month. He has further deposed that dacoity took place in the house of all the brothers. In para-19 of his deposition he has further deposed that he surrendered in the case in which he is in custody one and half months after death of Ahmed Ansari. He has further stated that from the house of Garjan Singh four he-buffalos, one baby he-buffalo and two she-buffalos were looted and 12 bullocks were also looted from his house. He has further stated that he could not say how many plates (thalies) were looted from the house of Garjan and also he could not say how much money was looted. He has further stated that he could not say how many plates (thalies) were looted from the house of Garjan and also he could not say how much money was looted. He further deposed that all the brothers were staying separately with separate mess but they have a common herd of animals. He has further deposed that one copper gagra (Utensil for holding water) was looted from the house of Manu Singh. Utensils of kansa were also looted from the house of Manu Singh but he could not say how many articles were looted. He has further deposed that from his house kansa Thalis, one GAGRA of bell metal, one gagra of copper were looted. He has further stated that he could not say how many utensils were looted from the house of Gobind Singh and Sudhir Singh. He has further stated that he was not in talking terms with Rajan, Alam and Bhadru prior to the occurrence. 8. P.W.3 is Karuna Devi and she is the wife of the informant (P.W 5). She stated that in the months of “SRAVAN” on a Friday at about 9. p.m while she was in her house in Tola Purnapani preparing food and her two sons namely Raju Singh and Nimai Singh were also there along with her husband Garjan Singh where one lantern (traditional lamp) and one dibri were burning. She has further deposed that 25-30 dacoits entered into her house. They looted three pair of he-buffalos, one she-buffalo, one buffalo calf, two milking cows with calf, two bullocks and two big calf’s from their house. They also looted utensils, cycle and jewelleries from their house. She further deposed that she could only identify Bhadru Mian, Alam Mian and the appellant Rajan Mahato. In para 6 of her cross-examination she deposed that on the day of dacoity four of her sons were in jail who are Manu Singh, Sudhir Singh, Mateshwar Singh and Gobind Singh . It was moon lit night. Sometimes sky was covered by cloud and dacoity was committed in her house only. For the last about one year she was not able to see the distant things and the burning lantern was in the courtyard and she saw the dacoits from inside of the house. She further deposed that when they raised hulla the dacoits threatened us to kill her. None of the villagers came to the spot. 9. For the last about one year she was not able to see the distant things and the burning lantern was in the courtyard and she saw the dacoits from inside of the house. She further deposed that when they raised hulla the dacoits threatened us to kill her. None of the villagers came to the spot. 9. P.W.4 is Balamukund Upadhyay. He deposed that he knew Sri. Ashok Kumar Singh S.I of Police who was posted at Kasmar P.S on 31.7.2001 and he was also acquainted with his signature and hand writing. He has proved the formal FIR which is Ext.1 and he also proved the signature of the S.I as also endorsement on it written by Sri. Ashok Kumar Singh which is marked as Exts 1/1 and Ext. 1/2. In his cross-examination he deposed that the Exts.1, 1/1 and 1/2 were not written in his presence. 10. P.W.5 is Garjan Singh (informant). He deposed that occurrence took place at about 9.00 p.m on 27th July, 2001. He was sitting in the Varanda of his house after taking super. About 15-20 dacoits came and he was directed to show the property of his house and Bhadru Mian hit him on the back of his head with the butt of the gun. Then he showed them the box of his house. Two piece of Dhotis and cash of Rs. 500/- were in that box. Bhadru Mian and Alam Mian took away the said box. Out of fear he led him to the house of his eldest son Manu Singh. Mehboob Mian and Hamid Mian untied the cattle from the cattle shed. They went to the house of Sudhir Singh. Gafar Mian looted all the article from the house of Sudhir Singh. Liyaquat Mian looted one cow and one calf from the cattle shed of Sudhir Singh and also looted two red calves from his house. He has further stated that Bhadru Mian looted the household articles from the house of Govind Singh. He also looted one Atlas Cycle. Gafar Mian looted all the article from the house of Sudhir Singh. Liyaquat Mian looted one cow and one calf from the cattle shed of Sudhir Singh and also looted two red calves from his house. He has further stated that Bhadru Mian looted the household articles from the house of Govind Singh. He also looted one Atlas Cycle. He has further stated that the dacoits went away after looting these articles .He has further stated that he went to the Kasmar police station in early morning of 28.7.2001 and he submitted a FIR in duplicate written by Jadu Bhagat of Kasmar police station and he signed the FIR which is marked as Ext.2 and he has proved his signature which is marked as Ext 2/1. He has proved the hand writing of Jadu Bhagat which was written in his presence as per his dictation. He has further deposed that when the dacoity was being committed, a lantern was burning in the courtyard and dibri was burning inside. He has further deposed that he could identify the accused Rajan Mahato in court. In his cross examination he deposed that he had six sons. Out of them Manu Singh, Sudhir Singh, Mateswar Singh and Govind Singh are in jail at Tenughat. He has further stated that he did not know that his sons were in jail in connection with the murder of the paternal uncle of Bhadru Mian and it was moon lit night but as the clouds covered the moon, it was dark. He further deposed that his sons are residing separately with one courtyard but different rooms. He deposed that dacoits had Turban (Pugri) on their head. He was able to see in night. He has further stated that he was in talking terms with Rajan Mahato prior to the occurrence and Rajan Mahato is friend of Alam and Bhadru from the very beginning. He has further deposed that he has raised alarm when dacoits left the village. On his alarm Harihar Singh, Udangh Singh, Jailal Singh, Bhiku Singh, Tulsing Singh, Gokul Singh and Badhan Singh came to the place of occurrence. Harihar Singh and Udangh Singh are his nephew and Bhiku Singh is his brother and the rest are villagers. He further deposed that he was examined by the police. 11. P.W.6 is Ashok Kumar Singh. On his alarm Harihar Singh, Udangh Singh, Jailal Singh, Bhiku Singh, Tulsing Singh, Gokul Singh and Badhan Singh came to the place of occurrence. Harihar Singh and Udangh Singh are his nephew and Bhiku Singh is his brother and the rest are villagers. He further deposed that he was examined by the police. 11. P.W.6 is Ashok Kumar Singh. He deposed that he was the officer incharge of Kasmer police station on 30.7.2001 and on that day at 9.00 a.m. the informant Garjan Singh submitted a written report and on the basis of which Kasmar P.S Case no. 34 of 2001 was registered. He proved the written report which is marked ext. 2 and it has his endorsement which is marked as ext.1/2. He further deposed that he drew up the formal FIR in this connection which is marked as ext.1. He inspected the place of occurrence which is the house of informant Garjan Singh. He further deposed that he recorded the re-statement of the informant and also recorded the statement of Mateshwar Singh Raju Singh, Bhitu Singh, Karuna Devi, Basuki Devi, Sadhu Singh and Ugandh Singh. He has further deposed that he collected the antecedent of the accused persons and found that Rajan Mahato was a suspect in Kasmar P.S Case No. 39 of 1999 under section 395 of the Indian Penal Code and charge sheet has been filed against him in Kasmar P.S Case No. 9 of 2000 under section 379 of the Indian Penal Code. He has further stated that after completion of the investigation he submitted the charge-sheet against the appellant Rajan Mahato on 30.9.2001 and therein he mentioned Badru Mian and Mukhtar Alam Ansari as absconders. He proved the charge sheet which is marked as Ext.3 and he apprehended the accused Rajan Mahato on 27.8.2001 at 12.45 p.m from his house and he was forwarded to the court of A.C.J.M Bermo at Tenughat on 28.8.2001 at 7.30 a.m. He identified the accused person who is present in the court. In his cross-examination he has deposed that Purnapani Tola consists of 20-25 houses and all the houses are of people of “Singh Caste”. In para 17 of this deposition he deposed that P.W1 stated before him about buffaloes being looted but he did not tell that how many buffalos were looted. In his cross-examination he has deposed that Purnapani Tola consists of 20-25 houses and all the houses are of people of “Singh Caste”. In para 17 of this deposition he deposed that P.W1 stated before him about buffaloes being looted but he did not tell that how many buffalos were looted. He also deposed that P.W 2 also did not say him as to how many buffaloes were looted. 12. The learned counsel for the appellant has raised the following points in respect of his defence. (i) The learned court below ignored the difference and variation in number of dacoits, who participated in commission of dacoity which is alleged to have been taken place in the house of the informant, in the deposition of the P.Ws and F.I.R. In F.I.R number of dacoits have been mentioned as 15-20 numbers where as P.W 1 and P.W 3 deposed the number of dacoits as 20-25 and 25-30 respectively. (ii) He also pointed out from the deposition of P.Ws 1 and 3 and F.I.R regarding items that have been looted and stated that there is variation in the number of items so because of this inconsistency what was looted cannot be believed. (iii) He has further stated that all the eye witnesses, apart from the P.W 4 and 6, are related to each other. (iv) He has further submitted that the learned court below failed to appreciate the fact which has come on record that there is prior enmity existing between the informant party as well as the accused/appellant due to murder of one Ahmad Ansari who was uncle of the accused persons Alam Ansari and Bhadru Mian who are friends of this appellant person and therefore, this case was instituted in vengeance and the learned court below failed to appreciate this aspect. (v) He has further pointed out the deposition regarding number of houses wherein P.W 1 deposed that 10-12 houses exists in his tola whereas P.W 5 and P.W 6 deposed that 8-9 houses and 20-25 exists in his tola. (vi) The learned counsel for the appellant has further pointed out that the learned court below has not taken into account that number of accused persons in FIR are eight in number whereas only the mentioned three persons were charge-sheeted because these three persons were having enmity with the family of the informant which falsifies the case. (vi) The learned counsel for the appellant has further pointed out that the learned court below has not taken into account that number of accused persons in FIR are eight in number whereas only the mentioned three persons were charge-sheeted because these three persons were having enmity with the family of the informant which falsifies the case. Hence the offence under section 395 of the Indian Penal Code is not made out against the present appellant and as such the learned court below has committed an illegality in convicting the present appellant. (vii) The learned court below has not taken into account the variations in the depositions regarding the persons who are present in the house at the time of occurrence which would help to falsify the case. The learned court below has also committed an error regarding the inconsistency between the various prosecution witnesses. P.W.5 deposed that he and his one son named Raju Singh (P.W 1) were present during commission of dacoity whereas P.W 3 deposed that her husband and two sons namely Raju Singh and Nimai Singh were present. However, Mateshwar Singh (P.W 2) deposed that he was also present at the time of dacoity whereas P.W.5, P.W.3 and P.W.1 deposed that Mateshwar Singh was in Jail custody. So there is gross inconsistency regarding the persons who were present at the place of occurrence at that time particularly, the presence of Mateshwar Singh (P.W2) who apparently, claimed to be in the house while others denied him being in the house because he was in jail custody. The learned court below has totally overlooked this aspect and convicted the appellant. The learned counsel for the appellant has pointed out the para 13 of the judgment of the trial court in which it has been noted in relation to Kasmar P.S Case No. 28 of 2001. From the Exts A and B mentioned therein it appears that Matlu Singh was in Judicial custody on the date of commission of dacoity i.e. on 27.7. 2001 and from the impugned judgment it seems that the defense has not put any question to P.W 2 suggesting that he was in judicial custody on the date of occurrence or that P.W 2 is also known as Matlu Singh. 2001 and from the impugned judgment it seems that the defense has not put any question to P.W 2 suggesting that he was in judicial custody on the date of occurrence or that P.W 2 is also known as Matlu Singh. In the other hand, from the deposition of the P.W 5 it seems that Maltu Singh was in judicial custody on the date of the occurrence and meaning thereby he could not have been a witness to anything of the occurrence on that date. Therefore, it seems that the learned court below totally ignored this fact. The learned counsel for the appellant has further asserted that on the basis of the evidence of the P.W 2 convicting of the appellant cannot be sustained. (viii) The learned court below has not appreciated the inconsistencies or contradictions of the statement made by the P.W.5 in the F.I.R and his deposition. (ix) The learned court below has failed to appreciate regarding non-recovery of any material with regard to looted articles from the possession of the present appellant. (x) The learned court below has failed to appreciate regarding the deposition of P.W 1 Raju Singh that though it was a moon lit night because of bad weather it was dark. It was dark to such an extent that one can not see another. (xi) The learned court below has ignored the vital point that P.W1 in his deposition deposed that there are 10/12 houses existing in his basti and there only people of “Singh” Caste reside. In this instance more witnesses should have come forward and not only family members. 13. The learned counsel for the appellant in support of his argument has cited three judgments, firstly, the case of Ram Lakhan Vs. State of U.P reported in AIR 1983 S.C 352 (1), secondly; Bhattu Manjhi Vs. State of Bihar reported in [1999(2) East Cr. Case 871(Patna) and thirdly, Rabi Dan andAnr. Vs. State of Bihar (now Jharkhand) reported in [ 2011(2) JCR 85 (Jhr). 14. In the case of Ram Lakhan (Supra) the Hon'ble Supreme Court observed that :- “In this appeal the appellant has been convicted under section 395 and sentenced to 7 years rigorous imprisonment. In our opinion, this appeal must succeed on a short point. It appears from the FIR that only 9 persons VIZ 1. Ram Kurmi 2. Ramdhoop Kurmi.3. Rambodh Kurmi 4. In our opinion, this appeal must succeed on a short point. It appears from the FIR that only 9 persons VIZ 1. Ram Kurmi 2. Ramdhoop Kurmi.3. Rambodh Kurmi 4. Ram Noker Kurmi 5.Sampuran Kurmi 6. Rambachan Kurmi 7. Ram Lakhan Kurmi.8. Ram Ujagir Kurmi and 9. Ram Pyare Kurmi have participated in the dacoity which is alleged to have been committed in the course of which ornaments, grains and other property were looted away. The trial court had acquitted 5 persons and convicted four. But on appeal the High Court acquitted the remaining three persons and convicted Ram Lakhan the present appellant. The position now is that out of 9 persons named in the FIR who are alleged to have participated in the dacoity Ram Lakhan is alone left. Before an offence under section 395 can be made out there must be an assembly of 5 or more persons. On the findings of the court below it is manifest that only one person is now left. In this circumstances therefore the appellant cannot be convicted for an offence under section 395.The High court has not found that Ram Lakhan was guilty of any overt act so as to bring his case within any other minor offence. For these reasons therefore the conviction and sentence imposed on the appellant are set aside and he is acquitted of offence charged under section 395. The appeal is accordingly allowed. The accused is on bail. His bail bonds are cancelled”. In the case of Bhattu Manjhi (Supra) the learned Single judge observed that - “8. …In the First Information Report, the informant named only four persons and has not stated that there were other miscreants along with those named, hence no case under section 395 IPC is made out on the allegation in the FIR.” 9. In the result, on consideration of the evidence, I am of the view that the conviction of these appellants on the meager evidence produced by the prosecution is highly unsafe. The appellants, therefore, deserve benefit of reasonable doubt. Both the appeals are accordingly allowed and the conviction of the appellants is set aside and they are acquitted of the charges by giving them benefit of doubt. It is to be mentioned that the appellants had remained in custody for about nine months and now they are on bail. The appellants, therefore, deserve benefit of reasonable doubt. Both the appeals are accordingly allowed and the conviction of the appellants is set aside and they are acquitted of the charges by giving them benefit of doubt. It is to be mentioned that the appellants had remained in custody for about nine months and now they are on bail. They are directed to be discharged the liability of their bail bonds.” Finally in the case of Rabi Dan (Supra) the conviction and sentence of the appellant under section 395 was set aside and the appeal was allowed as there was an old enmity between informant's family and accused persons. 15. The learned A.P.P has read out the deposition and has said that deposition of P.Ws 1 and 5 are consistent to each other and also deposition of P.Ws 2 and 3 as to the source of light identification are also consistent each other and that defense has not disputed that lantern and dibri were burning. He has also stated that P.W 1 has also identified the present appellant in dock and stated that he has committed dacoity in the house of the informant. He also pointed out the deposition of P.W 5 and stated that dacoits entered into the house of sons of the informant and he had seen them entering into the house. He has also submitted from the deposition of P.W 1 that there is no dispute about the occurrence of dacoity. The learned counsel for the State pointed out the deposition of P.W 2 Mateshwer Singh from which it appears that while he was sleeping in his house at Puranpani at Village Manjura, he awake up and found that some miscreants entered into his house and looted seven buffalos, twelve bullocks and all utensils and money from his house. He has also pointed out para-9 of the deposition of the P.W.3 (Karuna Devi) from which it seems that lantern was burning in the courtyard of her house and dibri was burning inside and she saw the dacoits from inside the house. So the evidence of P.W 3 fully supports the conviction of the appellant. She further stated that when they raised hulla the dacoits threatened to kill and none of the villagers came to the spot. So the evidence of P.W 3 fully supports the conviction of the appellant. She further stated that when they raised hulla the dacoits threatened to kill and none of the villagers came to the spot. He has also pointed out the para-3 of the deposition of the P.W 3 from which it appears that dacoits looted three pair of he-buffalos, one she-buffalo, one buffalo calf, two milking cows with calf, two bullocks and two big calf’s from our house. They also looted the utensils and one cycle and jewelries from their house. Referring to the deposition of P.W.4 who is a formal witness he has stated that formal FIR was written by Sri. Ashok Kumar Singh, S.I of police which is proved by him and marked as Ext.1 and his signature is also on it marked as Ext. 1/2. So far as P.W 5 is concerned, who is the informant, he has again referred to items looted from the house of the informant and made specific reference to Rajan Mahato who looted the house hold articles from the house of Raju Singh. In his cross examination P.W 5 has stated that he raised hulla when the dacoits left the village and on his hulla some villagers came there. The learned A.P.P lastly pointed out the criminal antecedent of the appellant pertaining to cases instituted against him for the offence punishable under section 379 of the Indian Penal Code. FINDINGS: 16. Counsel for the appellant has given various reasons for proving his defence. Though some are major or significant one, the lesser grounds may add up to create a cumulative doubt. He has raised doubts regarding the inconsistent citing of actually how many dacoits there were. He says in the written report it was 15-20 persons and dacoits and then in the depositions of others it increases to 20-25 to 25 -30 persons and though P.W 5 named eight persons in his evidence. Finally, only three were charge sheeted, of which two are absconders and only one person, the current appellant was tried and convicted. The question that surely comes to mind is that why did not the appellant name the other persons or at least some of them from the rest of the persons alleged to have participated ranging from 15 to 30. The question that surely comes to mind is that why did not the appellant name the other persons or at least some of them from the rest of the persons alleged to have participated ranging from 15 to 30. Did he in compliance of some honour code, yes even amongst dacoits refuse to mention any other person. Probability is that there were no other persons. Counsel for the appellant has raised the argument that no recovery was made of the looted article or even of any one of the animals from the appellant, so there is no looted evidence to sustain the allegation against the appellant, because no recovery of any looted articles or animals was made from the appellant. Further even from the depositions the number of animals looted or driven away are 9 for Raju Singh, 19 for Mateshwar Singh, and 4 for Sudhir Singh, which would amount to 32 animals. From the records what happened to these animals is not clear whether recovered or not .There are no animals mentioned for the two other brothers. 17. One important argument that appellant's counsel has raised is the question of who was present during the dacoity in the house. P.W.5, the informant has deposed that amongst male member, he and his son Raju Singh were present, while Karuna Devi, P.W3 deposed that her husband and two sons, Raju Singh including Nimai Singh were present. So the wife adds or includes Nimai. Mateshwar Singh, P.W.2 another son deposed the most contradictory statement and in fact disturbing statement. He has deposed that he was present during the occurrence, but also stated that he was in judicial custody at that time, supposedly for the murder of Ahmad Ansari, the uncle of the two absconding accused. So the mother and father have for some reasons not stated he was in the house or may be deliberately not done so. However, on the other hand they have deposed that he was in jail custody at the time. Even Raju Singh has deposed that he was in jail custody at that time. 18. Learned counsel for the appellant has also cited that there was enmity between the parties from before the incident and hence, false allegations have been made against the absconding persons and also the appellant. That is why, no other witnesses, except the concerned family members have come forward to give evidence. 18. Learned counsel for the appellant has also cited that there was enmity between the parties from before the incident and hence, false allegations have been made against the absconding persons and also the appellant. That is why, no other witnesses, except the concerned family members have come forward to give evidence. Even so three sons, Nimai Singh and Govind Singh and Manu Singh have not deposed. Loot has also been indicated from the house of Manu Singh and Govind Singh. No independent witness has come forward to depose, even though, it has been admitted that the tola (area of village) consisted of one caste “Singh” caste. P.W 5 in para 18 has deposed that when he made alarm, 6-7 persons of the village including a brother and one nephews and other villagers had come. But they have not come forward as witnesses. This argument seems to be paralled to the one cited in Rabi Dan (Supra) and therein the appellant was allowed his appeal, so similarly here, it can also be done so. The argument of learned counsel for State merely consists of the assertion of the evidence or deposition of the witnesses, but given the reason indicated above, it does not lead to a convincing conviction of the appellant. 19. Having heard the learned counsel for the appellant and having regard to the case records and in the facts and circumstances of the case, there are many chinks in the evidence of the witnesses to create a reasonable doubt regarding the allegations, hence I do not find that the appellant is found guilty for the offence punishable under section 395 of the Indian Penal Code and his conviction and sentence passed in S.T. No. 31 of 2002 is set aside and the appeal is allowed. Appellant is on bail. He is discharged from the liability of his bail bond.