JUDGMENT (Delivered by Hon'ble Arvind Kumar Tripathi, J.) 1. The present criminal appeal and connected appeals no. 3176 of 1983 and 3177 of 1983 have been preferred against the judgement and order of conviction and sentence dated 17.12.1983 passed by IIIrd Additional Session Judge, Farrukhabad in S.T. No. 319 of 1980 (State Vs. Jagdeo and 3 Others) arising out of Case Crime No. 529 of 1978, under Section 396 I.P.C., hence all the appeals are being considered jointly. 2. However, since appellant no. 1 Ram Pal in the present appeal and appellants Jegdeo and Nand Ram in the connected appeals died hence appeal in respect of them stood abated vide order dated 09.08.2016. The present appeal survives only on behalf of sole appellant no. 2 Ram Bhajan. Appellant Jagdeo, Ram Bhajan and Nandram were convicted and sentenced under Section 396 I.P.C. for 5 years rigorous imprisonment with fine of sum of Rs. 2,000/- and in-default 6 months further rigorous imprisonment, accused-appellant Ram Pal was convicted under Section 396 I.P.C. for life imprisonment. 3. Mr. Sanjeev Kumar Trivedi, learned Advocate appeared on behalf of appellant and Mr. Virendra Singh Yadav, learned A.G.A. appeared on behalf of State. 4. The brief facts of the case is that First Information Report was lodged by Shiv Lal s/o Sita Ram Kishaan, R/o Machha, P.S. Kannauj, District Farrukhabad. According to the version of F.I.R., informant Shiv Lal s/o Sita Ram Kishaan was the resident of Village Machha. Amber and Ladaite were step brothers and Amber had died. Grand mother of Ladaite Smt. Jasoda was kept of Tijja, uncle of Jagdeo. After the death of Tijja, Smt. Jasoda before her death executed sale deed of the land in favour of Amber and Ladaite regarding land measuring 14 Bigha, there was dispute in between Ladaite and Jagdeo in Tehsil and after that at Fatehgarh. On 26.12.1978 the date was fixed for the case due to that reason Jagdeo has grudge against them and Jagdeo on last Tuesday, threatened him and Ladaite, before the next date i.e. 26.12.1978 he would cause damage to them since the case was initiated in between the parties. There was no talking terms in between the parties. On 26.12.1978 the date was fixed for the case due to that reason Jagdeo has grudge against them and Jagdeo on last Tuesday, threatened him and Ladaite, before the next date i.e. 26.12.1978 he would cause damage to them since the case was initiated in between the parties. There was no talking terms in between the parties. Due to that reason in the the night of 25.12.1978 at about 9: 00 p.m when informant, his brother Ladaite, his wife Ganga Devi and mother Mahrana, after taking dinner just laid to sleep, dibbi was burning, 12-13 miscreants attacked with the gun, country-made pistol and lathi, they over powered to the informant and his brother Ladaite and looted all house hold articles from kotha, snatched one Kheduwa (Jewelry) from the leg of Ganga Devi and from the right leg they could not snatched, injury was also caused. Jagdeo was exhorted to teach them lesson for contesting case and snatched all the jewelry and house hold goods. They identified the miscreants in the light of diya as Ram Pal Kishaan, r/o Village Tikapurwa armed with gun, Ram Bhajan Kishaan armed with country-made pistol (katta), Moti Lal Kishaan armed with country-made Pistol (Katta) and Nand Ram Kishaan also armed with gun who residing Village Kacchiyapur. When miscreants left the house of the informant then accused-appellant Jagdeo, asked, other co-accused appellants to snatch the house holds articles of his neighbour Manna and his nephew who was doing pairvi on behalf of Ladaite. Thereafter they went to the house of Manna, entered into the house and started looting housing hold articles, they raised alarm, the number of villagers including Madan Lal Yadav, Ganga Charan Yadav, Munshi Lal Yadav, Banwari Yadav, Ram Kumar Yadav, Ram Lal Kishaan, Rajendra Singh and others came running towards the place of incident, flashing their torches. When they were going towards west from beneath the tree of Viriya, Madan Lal Pradhan moved forward and exhorted to catch the miscreants, then one of the miscreants shot fire by gun causing fire arm injuries to Madan Lal Pradhan and Rajendra Singh. In the meantime, Nokhe, neighbour of Manna started hurling brickbats from the roof of the house towards miscreants then Ram Pal shot fire with his gun causing fire arm injury on the face of Nokhey, who fell down on the roof and died on the spot. In the meantime, Nokhe, neighbour of Manna started hurling brickbats from the roof of the house towards miscreants then Ram Pal shot fire with his gun causing fire arm injury on the face of Nokhey, who fell down on the roof and died on the spot. The family members of Manna in the light of diya and other villagers in the light of torch saw and identified the assailants and they could identify on seeing them. Some assailants were of young age, some were of middle age. They were wearing khaki cloths, big coats and some were wearing plain cloths. The language of some miscreants was of gangapar and some of miscreants was of nearly places, list of Jewelries were also mentioned. The F.I.R. was registered as Case Crime No. 529 of 1978 at P.S. Kannauj at 09: 30 a.m. on 26.12.1978, the distance of Police Station, from the place of incident was about 7 k.m. north. In the F.I.R., Jagdeo, Ram Pal Kishaan, Ram Bhajan, Moti Kishaan and Nand Ram Kishaan were named and 7-8 assailants were unnamed. The investigation was taken over by Sub-inspector/Station Officer, Hausla Prasad Sharma. He went to inspect the place of the incident, the inquest report was prepared in the presence of the witnesses, their signatures were taken there, dead body was sealed and sent with necessary papers to mortuary, Sadar Hosptial, Fatehgarh for postmortem examination. He recorded the statement of informant Shiv Lal, Manna, Sitaram, Baladin and others. The torch of the witnesses were seen and handed over in their custody. Dibri was seen and handed over to them. Inspected the place of incident and prepare the site plan. Injured Gendan Lal and Rajendra Singh were sent along with Constable Raj Bahadur Singh for medical. He searched assailants and made search at the house of Ram Pal, Ram Bhajan. After completing the investigation and necessary formalities charge sheet was submitted. Thereafter the case was committed to the Court of Session. 5. Injured Rajendra was examined on 26.12.1978 at 11: 45 a.m., three injuries were noted as below: - 1. One gunshot wound of entry 1/10" X 1/10" X muscle deep on the right side front of chest lower part. Margins are inverted and lacerated. No blackening and tattooing present. 2. One gunshot wound of entry 1/10" X 1/10" X muscle deep on the left side groin region. Margins are inverted and lacerated. One gunshot wound of entry 1/10" X 1/10" X muscle deep on the right side front of chest lower part. Margins are inverted and lacerated. No blackening and tattooing present. 2. One gunshot wound of entry 1/10" X 1/10" X muscle deep on the left side groin region. Margins are inverted and lacerated. No blackening and tattooing present. 3. One gunshot wound of entry 1/10" X 1/10" X muscle deep on the outer aspect of right elbow. Joint injuries are inverted and lacerated. No blackening and tattooing present. All injuries are simple, caused by some fire arm. 6. Injured Gendan Lal was examined on 26.12.1978 at 11: 30 a.m., three multiple gunshot wound were found on his person. 1. Multiple gunshot wounds of entry in an area at 7" X 5" on the left side abdomen front, each measuring 1/10" X 1/10" X muscle deep. Margins are inverted and lacerated. No blackening and tattooing present. 2. Multiple gunshot wounds of entry in an area at 10" X 2½" on the outer aspect of right forearm and hand (dorsum), each measuring 1/10" X 1/10" X muscle deep. Margins are inverted and lacerated. No blackening and tattooing presents. 3. Multiple gunshot wound of entry in an ear at 6" X3" on the inner aspect of the left forearm and hand (palmer sufeses), each measuring 1/10" X 1/10" X muscle deep. Margins are inverted and lacerated. No blackening and tattooing presents. All injuries kept U.O. and advised X-ray, all are caused by some firearm, duration about ½ day. 7. Postmortem examination on body of Nokhe Lal was conduct on 27.12.1978 at 03: 00 p.m. by Medical Officer in District Hospital, Fatehgarh. Following injuries were noted;- 1. Gunshot wound of entry 1/8" X 1/8" X bone deep present just below left eye brow on the right side. No blackening present, margin inverted. 2. Gunshot wound of exit 1/4" X 1/4" X communicated injury no. 1 present forehead right side. Margin everted. Direction - downward to upward. Cause of death was due to shock and hemorrhage 8. The injury reports and postmortem report were admitted and as such no witnesses examined to prove the injury report and postmortem examination report. 9. The prosecution to prove its case, examined as many as 4 witnesses. PW1/informant Shiv Lal (eye witness), PW2 Baladin (eye witness). Direction - downward to upward. Cause of death was due to shock and hemorrhage 8. The injury reports and postmortem report were admitted and as such no witnesses examined to prove the injury report and postmortem examination report. 9. The prosecution to prove its case, examined as many as 4 witnesses. PW1/informant Shiv Lal (eye witness), PW2 Baladin (eye witness). Two formal witnesses, S.I. Haushla Prasad Sharma, Investigating Officer was examined as PW3 and Constable Virbhan Singh who carried the dead body to District Hospital for postmortem examination, was examined as PW4. After evidence was closed by the prosecution statement of accused were recorded under Section 313 Cr.P.C. They denied the charges and stated that they were falsely implicated due to enmity as there was case pending in between the informant and Jagdeo and other accused were relative of accused Jagdeo or were assisting Jagdeo. In defence, neither any oral evidence nor documentary evidence was adduced on behalf of defence. After considering the evidence and hearing the parties, the trial Court held the accused-appellants guilty hence convicted and sentenced them under Section 396 I.P.C. The only surviving appellant Ram Bhajan was convicted and sentenced five years rigorous imprisonment with fine. 10. Learned counsel for the appellant challenged the impugned judgement and submitted that even if there was any dispute that was with Jagdeo with regard to the land of Smt. Jasoda Devi. Appellant Ram Bhajan and other accused were also implicated because he was the relative of Jagdeo and supporting him. According to prosecution case and statement of witnesses, 12 assailants entered into the house and looted jewelries as mentioned in the F.I.R. not only from the house of Shiv Lal and Ladaite but even from the house of other neighbour of Shiv Lal, namely Nanhe s/o Gajja Kishaan. It appears that dacoity was committed by unknown miscreants and due to suspicion and enmity with Jagdeo, as litigation was going on in between them. Hence, not only Jagdeo was implicated but even appellants were implicated being relative and close to Jagdeo. He has also contended that merely by committing dacoity, case could not be solved in respect of the land in dispute. The accused did not assault any member of family there was no attempt to assault with intention to kill them because the dispute regarding the land could be solved after the death of informant and step-brother Ladaite. He has also contended that merely by committing dacoity, case could not be solved in respect of the land in dispute. The accused did not assault any member of family there was no attempt to assault with intention to kill them because the dispute regarding the land could be solved after the death of informant and step-brother Ladaite. Nothing was recovered from appellant Ram Bhajan though search was made by the Investigating Officer at the house of accused Ram Bhajan and other co-accused. Neither any looted article was recovered nor country-made pistol from the appellant Ram Bhajan. None of the injured witnesses were examined to support of the prosecution case. No injury was caused to PW1 and his brother Ladaite. Ladaite was also not examined. Since the prosecution story is doubtful, and prosecution failed to prove the case beyond doubt, hence, the impugned judgement of conviction and sentence is liable to be set aside. 11. Learned A.G.A. opposed the prayer and submitted that the statement of PW1 and PW2 are intact and there was no major contradiction or discrepancy. All the witnesses are not required to be examined. Since PW1 and PW2 who are eye witness are reliable and as such trial Court rightly held the appellants guilty and rightly convicted and awarded sentence and as such the appeal is liable to be dismissed. 12. Considered the submissions of the learned counsel for the parties. According to the F.I.R. the enmity was because 20 bigha land was transferred by Smt. Jasoda Devi, through registered sale deed in favour of Ladaite and Amber, step-brothers of informant Shiv Lal. Smt. Jasoda Devi was kept of one Tijja, uncle of accused-appellant Jagdeo, hence, he was annoyed and had grudge against Ladaite and other family members. He threatened to informant and Ladaite to ruing them. In the night 12-13 miscreants entered into the house, armed with gun, country-made pistol and looted house hold articles, jewelries, thereafter they left the house, Jagdeo exhorted to snatch the house hold articles of Manna, neighbour of the informant also because he was also doing pairvi. According to the statement of Shiv Lal PW1, 10-12 miscreants were involved in the dacoity which took place in his house, they identified them in the light of diya which was kept in lighted in the house and he identified Ram Pal, Jagdeo, Moti, Nand Ram, Ram Bhajan. According to the statement of Shiv Lal PW1, 10-12 miscreants were involved in the dacoity which took place in his house, they identified them in the light of diya which was kept in lighted in the house and he identified Ram Pal, Jagdeo, Moti, Nand Ram, Ram Bhajan. Subsequently, he stated that out of 12-13 miscreants who entered into the house, 6-7 miscreants went to the house of Manna for committing dacoity which is against version of the F.I.R. and this was improvement. Further from perusal of F.I.R. and statements it is clear that when Madan Lal challenged the dacoits who were going with the booty then they shot fire and when Nokhey started pelting brickbat from the roof of the house of Manna then Ram Pal shot fire which shows the intention was only for committing dacoity and not to commit murder. The enmity from Jagdeo was shown with the informant and his brother Ladaite but they were not assaulted by them. Further they have not concealed their faces, though they were well know to the informant and family members. Ladaite was not examined. Even injured witnesses Madan Lal and Rajendra Singh were also not examined in support of the prosecution case. 13. Shiv Lal was very close to Baladin. As per suggestion made to PW2 Baladin, in his cross-examination, he has stated that it was incorrect to say that since he was very close, hence, he was giving statement. When dacoity was committed in the house of Shiv Lal he was sleeping beneath a chhappar (thatched roof). After hearing alarm, he awoke and saw the dacoits in the light of torch. He saw the dacoits when they were coming from the house of Shiv Lal and Manna, who were 12-13 in number. Jagdeo, Ram Pal and Nand Ram were armed with weapon, gun, Ram Bhajan was armed with country-made pistol. In view of the statement it is clear that no injury was caused either to the informant or Ladaite with whom there was enmity, which shows that intention was to commit dacoity and when they were challenged and assaulted then they shot fire. The incident took place on 25.12.1978 at about 09: 30 p.m. but the F.I.R. was lodged at 09: 30 a.m. on 26.12.1978. There was no recovery of either any fire arm or any looted article, from the appellant Ram Bhajan. The incident took place on 25.12.1978 at about 09: 30 p.m. but the F.I.R. was lodged at 09: 30 a.m. on 26.12.1978. There was no recovery of either any fire arm or any looted article, from the appellant Ram Bhajan. He is on bail during pendency of appeal. 14. Villagers who received injury, they were not produced before the trial Court in support of prosecution story. According to the statement of Baladin, he was sleeping beneath the chhappar, however, subsequently he stated that he was sleeping inside his kotha. The charge sheet was not submitted against Nand Ram. Subsequently he was summoned under Section 319 Cr.P.C. The dacoity was committed not only in the house of Ladaite and informant but also in the house of Manna. These circumstances shows that the dacoity was committed by unknown persons and due to enmity and suspicion accused-appellant was falsely implicated. Hence, in view of the facts and circumstances mentioned above, the prosecution story is found doubtful. 15. In view of the above noted discussion the only surviving appellant Ram Bhajan is entitled for benefit of doubt. Hence, the impugned judgement and order of conviction and sentence dated 17.12.1983 passed in S.T. No. 319 of 1980, District Farrukhabad, is hereby set aside. The bail bond and sureties are discharged. 16. Accordingly the appeal of Ram Bhajan is hereby allowed