JUDGMENT Hon’ble Bharat Bhushan, J.—Appellants, Murari, Jeevan, Hema and late Shyama were charged under Section 396 of Indian Penal Code (in short I.P.C.) on 31.5.1982 by the Court of Special Judge constituted under U.P. Dacoity Affected Area Act 1983 (in short Dacoity Act). 2. Appellant Shyama died during course of trial, therefore, his trial stood abated. Remaining three appellants, namely, Murari, Jeevan and Hema were convicted under Section 396 I.P.C. and sentenced to undergo imprisonment for life vide judgment and order dated 20.4.1983 passed in S.T. No. 22 of 1982 arising out of Crime No. 17 of 1982 (State v. Murari and others) Police Station(P.S.) Achnera, District Agra. 3. Brief facts giving rise to this appeal are, that between the night of 22/23.1.1982 around 11 pm. in village Nagar, P.S. Achnera, Bhoop Singh (P.W. 2) was having conversation with his brother Preetam Singh in the verandah of his house after coming back from their agriculture field. His son Bahadur Singh (P.W. 4) was sleeping inside the room. Suddenly, some 20-21 dacoits entered his house after breaking the door of his house. The dacoits picked up the double barrel gun of Bhoop Singh (P.W.2) and commenced the dacoity. Bahadur Singh (P.W.4) got awakened, picked up a lathi and assaulted one dacoit. The dacoit, who lost his riffle in this attack, got infuriated. The dacoits grabbed Bahadur Singh (P.W. 4), took him to gallery and hit him with lathies and butt of guns. The light of lantern was available in the verandah. Dacoits were using flashlights also. Miscreants were armed with various kinds of fire-arm weapons, though one or two dacoits were only using lathies. It is said that dacoits plundered the house of Bhoop Singh (P.W.2) and Preetam Singh for almost half an hour and thereafter ransacked the residence of Vijay Singh (P.W. 1). Virendra Singh son of Vijay Singh was busy in studies in his room but Vijay Singh’s nephew Ram Bhajan (P.W. 5) and his brother-in-law Nihal Singh got awakened after hearing the noise of fire-arm weapons. Deceased Virendra Singh son of P.W. 1 Vijay Singh fought with dacoits and allegedly shouted that he had recognized accused/appellant Hema. He is said to have grabbed the appellant Hema, whereupon another dacoit, namely, appellant Murari shot Virendra Singh from very close quarters and killed him. 4. Deceased Virendra Singh son of P.W. 1 Vijay Singh fought with dacoits and allegedly shouted that he had recognized accused/appellant Hema. He is said to have grabbed the appellant Hema, whereupon another dacoit, namely, appellant Murari shot Virendra Singh from very close quarters and killed him. 4. Vijay Singh (P.W. 1) claims to have recognized accused appellants Hema, Murari, Jeevan, late Shyama his sons Kartar and Randheer. He also sighted other dacoits but could not recognize them. The dacoits pillaged the residence of Vijay Singh for almost forty five minutes and thereafter left. 5. Core of prosecution story is that the dacoity was committed at the residence of P.W. 1 Vijay Singh and P.W. 2 Bhoop Singh wherein Virendra Singh son of Vijay Singh was killed and Bahadur Singh (P.W. 4) son of P.W. 2 Bhoop Singh was severely wounded. The prosecution has claimed that Vijay Singh (P.W. 1) had recognized appellant Murari, Hema, Jeewan, late Shyama, his sons Kartar and Randheer while Bhoop Singh (P.W. 2) was also able to recognize appellants Murari, Jeevan, Hema and three others, namely, late Shyama, his sons Randheer and Kartar. A First Information Report (F.I.R.) (Exh. Ka-4) was lodged by one Hitler Singh (P.W. 3) resident of same village Nagar without naming any accused. This report was lodged in morning at 7 am. at P.S. Achnera, District Agra. The distance between the police station Achnera and village Nagar is said to be seven miles as per chick report (Exh. Ka-5). Subsequent to lodging of F.I.R., investigation was conducted by P.W. 7 H.K. Vashishtha, the then Station House Officer (S.H.O.), P.S. Achnera. He rushed to the place of occurrence, recorded the statements of various witnesses, prepared site plan, took samples of blood stained earth and simple earth and thereafter submitted charge-sheet (Exh.Ka-16) against the appellants Hema, Jeevan, Murari and late Shyama. 6. The trial Judge framed charges against appellants Murari, Jeevan and Hema alongwith late Shyama under Section 396 I.P.C. Appellants pleaded not guilty and desired to be tried. During course of trial as many as 7 witnesses were produced by prosecution. Vijay Singh father of deceased Virendra Singh gave his evidence as P.W. 1. 6. The trial Judge framed charges against appellants Murari, Jeevan and Hema alongwith late Shyama under Section 396 I.P.C. Appellants pleaded not guilty and desired to be tried. During course of trial as many as 7 witnesses were produced by prosecution. Vijay Singh father of deceased Virendra Singh gave his evidence as P.W. 1. Bhoop Singh father of injured Bahadur Singh as P.W.2, Hitler Singh, informant as P.W. 3, Bahadur Singh as P.W. 4, Ram Bhajan eye-witness as P.W. 5, constable Kashmir Singh as P.W. 6 and H.K. Vashishtha the then S.H.O., P.S. Achnera as P.W. 7. The statements of appellants were recorded under Section 313 Cr.P.C. wherein they denied all allegations. Defence also produced Ram Vilas Singh, the then Mess Commander, Armoured division Head quarter Squadron, Ambala as D.W. 1 for supporting the plea of alibi raised on behalf of appellant Jewan. As stated earlier, Shyama died during trial, therefore, the criminal proceedings against late Shyama stood abated. The trial Court found three appellants, namely, Murari, Jeevan and Hema guilty of offence under Section 396 I.P.C. They were sentenced to undergo an imprisonment for life. This judgment is under challenge before this Court. 7. Heard Sri S.P. Tewari learned counsel for appellants and learned A.G.A. on behalf of State. 8. Before embarking to analyze the prosecution evidence, it would be appropriate to refer briefly the content of evidence available on record. 9. F.I.R. (Exh.Ka-4) was lodged by P.W. 3 Hitler Singh, admittedly neighbour of victims of dacoity, namely, P.W. 1 Vijay Singh and P.W. 2 Bhoop Singh. Incidentally appellants Murari and Jeevan also belong to the same village Nagar. It is admitted by P.W. 1 Vijay Singh that only 5-6 houses situate between his house and residence of appellant Murari. Similarly Jeevan also lives in the neighbourhood. Hema is admittedly related to appellant Murari and had in fact received his initial education in the same village. Admittedly, he was known to village folks and certainly to P.W. 1 Vijay Singh. However, F.I.R. does not contain the names of any accused. Though presence of several witnesses, namely, Preetam Singh, Nawab Singh, Gyasi, Fauran Singh, Kashmir Singh, Kirodi, Bhagwan Singh, Sonveer and Atar Singh have been mentioned in F.I.R. 10. P.W. 1 Vijay Singh is the father of deceased Virendra Singh. He could not lodge the F.I.R. though he has deposed about the incident in detail. Though presence of several witnesses, namely, Preetam Singh, Nawab Singh, Gyasi, Fauran Singh, Kashmir Singh, Kirodi, Bhagwan Singh, Sonveer and Atar Singh have been mentioned in F.I.R. 10. P.W. 1 Vijay Singh is the father of deceased Virendra Singh. He could not lodge the F.I.R. though he has deposed about the incident in detail. He has testified that in the night of occurrence, he was sleeping in his room alongwith his nephew Ram Bhajan and his brother-in-law Nihal Singh. His deceased son Virendra Singh was reading in the same room. All of them got awakened on hearing the noise of fire-arm weapons. The dacoits entered into his house by using staircase. This witness could perceive that the house of P.W. 2 Bhoop Singh had also been robbed. His son Virendra Singh entered into scuffle with one desperado and allegedly shouted that he had recognized the appellant Hema. He is said to have also caught appellant Hema but allegation is that appellant Murari put the gun at Virendra Singh’s body and shot him. House was robbed by dacoits who were 20-21 in number. But P.W. 1 claims to have recognized only appellant Hema, Murari, Jeevan and three others, namely, late Shyama, his sons Kartar and Randheer. He has also claimed that he would be able to recognize other accused persons as well, if produced before him. He has testified that Bahadur Singh (P.W.4) son of Bhoop Singh (P.W.2) was also hurt in the same incident. He was beaten by butt of fire-arms and Pharsa (axe). It is claimed that several villagers, namely, Preetam Singh, Nawab Singh, Gyasi, Fauran Singh, Kashmir Singh and Kirodi etc. arrived on the spot. Some of them were armed with lathies and some of them were armed with fire-arm weapon and that; these witnesses opened retaliatory fire upon miscreants. Accused/appellants and their cohorts, therefore, left the village with looted goods. It is pertinent to point out that this witness initially claimed that miscreants had concealed their identity by covering their faces but still he was able to recognize appellants. The testimony of P.W. 1 Vijay Singh indicates that he had prior inimical relationship with appellant Murari on account of his stated failure to recover the loaned money from Murari. 11. P.W. 2 Bhoop Singh has also testified in the similar vein. He has stated that miscreants had covered their faces. The testimony of P.W. 1 Vijay Singh indicates that he had prior inimical relationship with appellant Murari on account of his stated failure to recover the loaned money from Murari. 11. P.W. 2 Bhoop Singh has also testified in the similar vein. He has stated that miscreants had covered their faces. However, he could manage to recognize appellants Murari, Jeevan and Hema as well as other accused, namely late Shyama and his sons Randheer and Kartar. P.W. 2 Bhoop Singh has said that 20-21 dacoits entered into his house and looted him for almost half an hour. Lantern was burning in his house. Dacoits were also flashing torches. He also claimed that he would be able to recognize other miscreants as well, if produced before him. This witness has stated that Leela, Bachchu and Mukhtar had arrived in the aftermath of dacoity. He has also conceded that there was some prior tension between him and late appellant Shyama on account of refusal of Shyama to marry his daughter to Bahadur Singh (P.W. 4) son of Bhoop Singh even after engagement. This witness has also stated that his son Bahadur Singh (P.W. 4) was severely beaten by dacoits though no medical report of Bahadur Singh has been placed or proved by prosecution. 12. P.W.3 Hitler Singh, neighbour of P.W. 1 Vijay Singh, lodged the F.I.R. He has reinforced the contention of prosecution that some 20-21 dacoits first marauded the house of P.W. 2 Bhoop Singh and thereafter robbed P.W. 1 Vijay Singh. He has reiterated that P.W. 4 Bahadur son of P.W. 2 Bhoop Singh was beaten by lathies and Farsa (axe) by dacoits. Miscreants also snatched the double barrel gun of Bhoop Singh (P.W. 2) while Virendra Singh son of P.W. 1 Vijay Singh was murdered. But this witness has not named any miscreant. He has specifically asserted that he did not recognize even a single perpetrator of crime. He has denied the claim of other witnesses that any shouts were made by anyone regarding stated recognition of late appellant Shyama, his sons Randhir and Kartar and appellant Hema etc. He has denied that any accused was recognized by any village folk. 13. P.W. 4 Bahadur Singh is an injured witness. He has supported the prosecution version saying that 20-21 miscreants robbed his house and thereafter plundered the house of P.W. 1 Vijay Singh. He has denied that any accused was recognized by any village folk. 13. P.W. 4 Bahadur Singh is an injured witness. He has supported the prosecution version saying that 20-21 miscreants robbed his house and thereafter plundered the house of P.W. 1 Vijay Singh. He has stated that he was beaten in the same episode. He claimed to have recognized the appellants Jeevan, Murari, Hema, late Shyama and his sons Kartar and Randhir. Interestingly, this witness has also said that dacoits had concealed their faces by employing the scarves across their faces, though he has also said that during marpeet the cloths covering their faces fell down. Interestingly, he has not specified whether the coverings across the face of all dacoits fell away or only some of dacoits failed to conceal their identities properly. This witness has also admitted that his marriage was fixed with daughter of late appellant Shyama and that; engagement was done and later on it was broken and that; buffalo calf was given by Shyama to P.W. 2 Bhoop Singh (his father) on account of this engagement which was not returned by his father Bhoop Singh saying that he had spent money in the maintenance of buffalo calf. 14. Fifteen years old Ram Bhajan (P.W. 5) is nephew of P.W. 1 Vijay Singh. He was sleeping with his uncle in the same room at the time of incident. He has said that 20-21 dacoits entered their residence and that; one dacoit, namely, appellant Hema was caught by his deceased brother Virendra Singh and that; appellant Murari killed his brother. He claims to have recognized appellant Murari and Hema in the light generated by flashlights and lantern. Interestingly, this witness has also conceded that appellants Murari and Jeevan had covered their faces with the piece of cloth though they fastened it around the head but their faces were open from the front. 15. P.W. 6 Kashmir Singh is formal witness who had recorded the F.I.R. on 23.1.1982 at 7 am. of Hitler Singh and carved out a chick report (Exh. Ka-5) and made relevant entry in G.D. No. 8 (general diary) proved as Exh. Ka-6. 16. P.W. 7 the then S.H.O. Sri H.K. Vashishtha investigated this case. He has given the details of investigation, though he has conceded that several claims made by witnesses during their deposition were infact not made to him during investigation. 17. Ka-5) and made relevant entry in G.D. No. 8 (general diary) proved as Exh. Ka-6. 16. P.W. 7 the then S.H.O. Sri H.K. Vashishtha investigated this case. He has given the details of investigation, though he has conceded that several claims made by witnesses during their deposition were infact not made to him during investigation. 17. Learned counsel for appellant has argued that the names of accused were not mentioned in the F.I.R. despite the fact that report was lodged after 7-8 hours by neighbours of P.W 1 Vijay Singh and P.W. 2 Bhoop Singh and that; evidence discloses that accused persons had concealed their faces from scarf and yet prosecution witnesses managed to identify only those people with whom they had inimical relationship. Submission is that medical report of Bahadur Singh (P.W. 4) has not been placed on record. It is also argued that a hand of appellant Jeevan got crippled prior to this incident and that it was not possible to him to participate in crime of this magnitude with his lame hand. It is further submitted that no recovery of any kind was made from any accused named during course of investigation and that; appellants have no criminal history. It is further submitted that it is inconceivable that the residents of same village would commit offence of this magnitude without effectively concealing their identity. 18. Per contra learned A.G.A. has submitted that the incident occurred in the night and that; appellant had been recognized during the course of dacoity. The learned A.G.A. has submitted that it depends on the personal courage of accused whether they would hide their identity or not and merely because miscreants had not covered their faces effectively or hidden their identities efficiently, the prosecution case cannot be disbelieved. 19. As far as factum of dacoity is concerned, it admits of no doubt. We believe that dacoity indeed took place in the houses of P.W. 1 Vijay Singh and P.W. 2 Bhoop Singh. During course of this dacoity, Virendra Singh son of Vijay Singh (P.W. 1) lost his life. P.W. 2 Bhoop Singh claims that his son Bahadur Singh (P.W. 4) was also severely injured in this alleged dacoity. P.W. 4 Bahadur Singh himself has reiterated the allegation that he was beaten by miscreants with the butt of fire-arm weapons etc and that; he was injured in the same episode. P.W. 2 Bhoop Singh claims that his son Bahadur Singh (P.W. 4) was also severely injured in this alleged dacoity. P.W. 4 Bahadur Singh himself has reiterated the allegation that he was beaten by miscreants with the butt of fire-arm weapons etc and that; he was injured in the same episode. But the medical report of Bahadur Singh has not been placed on record to substantiate the claim of injuries. P.W. 2 Bhoop Singh claims that he did not file F.I.R. as he was busy in taking his son Bahadur Singh (P.W. 4) to the hospital. He has admitted that Bahadur Singh (P.W. 4) was indeed taken to the hospital. Unfortunately, the medical reports of Bahadur Singh or the documents prepared during the stated treatment of Bahadur Singh have not been placed on record thereby giving the legitimate opportunity to the appellants for disputing the factum of injuries on the person of P.W. 4 Bahadur Singh. It has also given opportunity to the appellants to claim that Bahadur Singh was not present on the spot otherwise, his medical report would have been placed on record. 20. But considering the fact that Virendra Singh, son of P.W. 1 Vijay Singh lost his life in this episode and that; incident of dacoity was seen by several persons and four witnesses of fact have supported the claim of dacoity, we believe that there is no dispute as far as factum of dacoity is concerned. Even the appellants have not challenged the factum of dacoity per se. 21. The only question that falls for consideration is whether or not appellants participated in the crime. P.W. 1 Vijay Singh has stated that as many as 20-21 people committed the stated dacoity out of which he could recognize the appellants Hema, Murari, Jeevan and late Shyama and his sons Kartar and Randheer. Four persons, namely, Hema, Murari, Jeevan and late Shyama were prosecuted in the instant case. P.W. 2 Bhoop Singh has also taken the same names. These names were repeated by P.W. 4 Bahadur Singh as well. However, P.W. 5 Ram Bhajan who was sleeping in the same room with P.W. 1 Vijay Singh has named only four appellants, namely, Hema, Murari, Jeevan and late Shyama. He did not name Kartar and Randhir (sons of late appellant Shyama). These names were repeated by P.W. 4 Bahadur Singh as well. However, P.W. 5 Ram Bhajan who was sleeping in the same room with P.W. 1 Vijay Singh has named only four appellants, namely, Hema, Murari, Jeevan and late Shyama. He did not name Kartar and Randhir (sons of late appellant Shyama). To that extent there are discrepancies between the evidence of P.W. 5 Ram Bhajan (eye-witness) and other eye-witnesses. All these witnesses have conceded that miscreants had concealed their identity by covering their faces by scarfs. It was quite natural for miscreants to cover their faces for the simple reason that stated miscreants were in fact known to these witnesses since long. Therefore, the claim that miscreants had muffled their faces is acceptable and yet all the witnesses of fact have claimed that they were able to recognize the identities of only those perpetrators of the crime with whom they had inimical relationship. P.W. 1 Vijay Singh specifically conceded that criminals had muffled their faces and yet he was able to recognize at least six miscreants. He did not explain under what circumstances he was able to recognize the muffled faces of perpetrator of crime. Similarly, P.W. 2 Bhoop Singh was able to recognize the appellants out of which two appellants, namely, Murari and Jeevan were the resident of the same village. Appellant Hema is not only nephew of Murari but was educated initially in the same village. Even P.W. 2 Bhoop Singh did not give any satisfactory explanation for his ability to recognize miscreants despite the fact that miscreants had covered their faces with the piece of cloths. P.W. 4 Bahadur Singh has tried to give some explanation by saying that miscreants had indeed covered their faces with the pieces of cloth but during the scuffle, the pieces of cloth fell away whereby he was able to recognize the appellants. Interestingly, he also claimed that the face of late appellant Shyama was open, contrary to the evidence of P.W. 1 Vijay and P.W. 2 Bhoop Singh. P.W. 5 Ram Bhajan has stated that the faces of appellants Jeevan and Murari were open. In para No. 8 of his testimony he has given interesting explanation that the appellants Murari and Jeevan had covered their faces from all other sides but their faces were open from front side, without realizing the incongruity of his statement. P.W. 5 Ram Bhajan has stated that the faces of appellants Jeevan and Murari were open. In para No. 8 of his testimony he has given interesting explanation that the appellants Murari and Jeevan had covered their faces from all other sides but their faces were open from front side, without realizing the incongruity of his statement. If appellants committed dacoity in the same village, it was natural for them to conceal their identities and if they had indeed covered their faces as stated by prosecution witnesses, then it is inconceivable that they would have covered their faces from all other sides but kept it open from the front side. 22. As far as the statement of P.W. 4 Bahadur Singh (son of P.W. 2 Bhoop Singh) is concerned, his evidence is strange. He recognized only those miscreants with whom his father Bhoop Singh and Vijay Singh had hostile relationship. He claims that face of late Shyama was open, is contrary to the prosecution story. He reluctantly conceded his family’s antagonistic relationship with late Shyama. His testimony is neither credible nor trustworthy. Attempt to implicate certain people is palpable. His presence on the spot is doubtful for the simple reason that his medical report subsequent to the incident has not been placed on record despite the claim that he spent several days in hospital. 23. We believe that the contents of F.I.R. and the testimony of P.W. 3 Hitler Singh (informant) need to be taken into consideration as well. It may be stated at the risk of repetition that incident occurred around 11 am. in the night and F.I.R. was lodged in the morning at 7 am. The informant Hitler Singh (P.W. 3) of the same village lodged the F.I.R. at P.S. Achnera. He has stated very clearly in his testimony that he was present at the time of dacoity. This fact has been confirmed both by P.W. 1 Vijay and P.W. 2 Bhoop Singh. In fact P.W. 3 Hitler Singh tried to intervene by using his licensed gun and firing few shots towards dacoits. After departure of dacoits, P.W.3 Hitler Singh visited residence of both P.W. 1 Vijay Singh and P.W. 2 Bhoop Singh. He has admitted that large number of people had gathered at the residences of both persons. In fact P.W. 3 Hitler Singh tried to intervene by using his licensed gun and firing few shots towards dacoits. After departure of dacoits, P.W.3 Hitler Singh visited residence of both P.W. 1 Vijay Singh and P.W. 2 Bhoop Singh. He has admitted that large number of people had gathered at the residences of both persons. After visiting both residences in the presence of hundreds of people, he went to the Police Station Achnera for lodging the F.I.R. at 6 am. At least four alleged perpetrators of crime named by P.W. 1 Vijay Singh and P.W. 2 Bhoop Singh were also known to P.W. 3 Hitler Singh and yet he did not name even a single person in this F.I.R. He has denied that either P.W. 1 Vijay Singh, P.W. 2 Bhoop Singh or P.W. 4 Bahadur Singh had disclosed the identities of some of the miscreants to anyone in village. This witness has also claimed that dacoits went out of village after crossing his house i.e all the dacoits 15-20 in number crossed his residence for leaving the village. This witness has also mentioned the use of battery torches etc. and yet this witness, a member of same village, Nagar did not recognize a single person. It is pertinent to point out that he had informed Investigating Officer that he could recognize the miscreants if produce before him. Meaning thereby that he had seen the dacoits but did not find any known person amongst them and that is why F.I.R. does not contain names of appellants inasmuch as, the appellants also known to informant, did not participate in the crime. 24. Surprisingly, test identification parade was held but assistance of P.W. 3 Hitler Singh was not taken. The record does not indicate that appellants were put up for test identification parade. Though two persons, namely Guddo and Bhopal were put up for test identification which was held almost after three months of the incident i.e.16.4.1982. The testimony of P.W. 3 Hitler Singh has debunked the claim of other eye-witnesses that they had recognized the appellants during commission of dacoity. It is pertinent to point out that at least two appellants, namely, Murari and Jeevan belong to same village and appellant Hema had received his early education in the same village and eye-witnesses have admitted that they knew these appellants since long. 25. It is pertinent to point out that at least two appellants, namely, Murari and Jeevan belong to same village and appellant Hema had received his early education in the same village and eye-witnesses have admitted that they knew these appellants since long. 25. Now question arises why the eye-witnesses have taken the name of appellants. A bare perusal of evidence would reveal that witnesses have accepted that they had antipathetic relationship with both appellants Murari and late Shyama. It has come on record that marriage of P.W. 4 Bahadur Singh was settled with the daughter of late accused Shyama and this engagement was later on broken on account of some dispute. Bahadur Singh (P.W. 4) says that they had wriggled out the marriage commitments, though it has been argued on behalf of appellants that late appellant Shyama later on came to know that Bahadur Singh P.W. 4 was not suitable for his daughter and because of this bad blood developed between two parties. 26. A careful examination of evidence demonstrates that there was indeed bad blood between P.W. 2 Bhoop Singh, P.W. 4 Bahadur Singh and late appellant Shyama. Similarly there was adversarial relationship between P.W. 1 Vijay Singh and appellant Murari. P.W. 1 Vijay Singh reluctantly conceded that appellant Murari owed considerable amount of money to him and that; appellant Murari had not returned his money. The prosecution evidence would indicate that there was some tension between P.W. 1 Vijay Singh and appellant Murari. Appellant Hema admittedly is relative of appellant Murari. This therefore, furnishes an immediate motive for false implication. 27. We believe that the Trial Judge has overlooked another important point. P.W. 5 Ram Bhajan is nephew of P.W. 1 Vijay Singh. Similarly, P.W. 4 Bahadur Singh is son of P.W. 2 Bhoop Singh. Only these four witnesses have been produced. The evidence of these four witnesses could have been sufficient in ordinary circumstances but in present case due to prior inimical relationship, their testimony has to be seen with suspicion especially on account of significant discrepancies. P.W. 1 Vijay Singh has conceded that there were several persons around his house. In para No. 5 of his evidence he took the names of Kashi, Bachu, Mukhtar Singh, Nawab, Fauran Singh Gyasi etc. who arrived on the spot alongwith several village folks and some of these village folks were armed with lathies and fire-arm weapons. P.W. 1 Vijay Singh has conceded that there were several persons around his house. In para No. 5 of his evidence he took the names of Kashi, Bachu, Mukhtar Singh, Nawab, Fauran Singh Gyasi etc. who arrived on the spot alongwith several village folks and some of these village folks were armed with lathies and fire-arm weapons. In fact these witnesses have admitted that dacoits left the village due to arrival of these armed neighbours. But not a single person, named by P.W. 1 Vijay Singh in paras No. 2, 5, 12 and 14 of his evidence has been produced by prosecution. Presence of several other persons has been admitted by P.W. 2 Bhoop Singh as well. In para-15 of his testimony, he also claims that he communicated the names of perpetrators of the crime to Leela, Bachu and Mukhtar yet none of those persons, have been produced by the prosecution. P.W. 2 Bhoop Singh also named Gyasi, Kashi, Fauran, Har Prasad, Mohan Singh, Tej Singh, Preetam and Revti, who were present but none of them have been produced. P.W. 3 Hitler Singh has also named Gyasi Ram, Kirodi, Preetam Singh, Kashi Ram, Nawab Singh and none of them have been produced. The only independent witness, P.W. 3 Hitler Singh, has not supported the prosecution allegation against appellant. He has not named a single person while supporting the factum of dacoity. If we take the testimony of P.W. 5 Ram Bhajan and P.W. 7 H.K. Vashishtha I.O. into consideration, it would reveal that police became aware of some of the perpetrators of the crime on next date in the afternoon. Two appellants namely, Murari and Jeevan were resident of same village and yet not a single recovery of stolen articles were made from their residence. 28. As per prosecution version several persons had assembled at the place of occurrence. Some of them were armed with fire-arm weapons, others with lathi and farsa (axe). We fail to understand why these persons did not choose to support the prosecution case. Perhaps they did not want to be participant in false implication. Interestingly, criminal history of appellants has not been made available. More than 20-21 persons committed dacoity. One person died during course of this crime. It is alleged that another person was severely injured. We fail to understand why these persons did not choose to support the prosecution case. Perhaps they did not want to be participant in false implication. Interestingly, criminal history of appellants has not been made available. More than 20-21 persons committed dacoity. One person died during course of this crime. It is alleged that another person was severely injured. Only those persons were identified by P.W. 1 Vijay Singh and P.W. 2 Bhoop Singh with whom they had inimical relationship and yet no recovery was made. Ordinarily, it is inconceivable that a crime of this magnitude would be committed by a persons with no criminal history. 29. Evidence reveals that one hand of appellant Jeevan got crippled prior to this incident. Counsel for the appellants has argued that it is not believable that man with such disability would have had committed this crime in his own village. Appellant Jeevan has infact been accused of using fire-arm weapon during dacoity which in ordinary circumstances would have been very difficult for a disabled person. In addition to that, the disability of appellant Jeevan could have been used by victims for identifying him. In fact looks strange that criminals would use appellant Jeevan in actual commission of crime. They might have used a disabled person for backroom purposes but to use him in actual commission of crime meant inviting trouble. 30. It is pertinent to point out that appellant Jeewan has taken plea of alibi. He has claimed that he was living with his brother at Ambala Armoured division Head quarter at Ambala. He has submitted that from 21.1.1982 till 29.1.1982 he was present in Ambala Mess. This has been fortified by testimony of D.W. 1 Ram Vilas Singh, Mess Commander of Armoured division Head quarter Ambala. He has testified that Purushottam Singh brother of appellant Jeewan Singh was posted at Ambala and Jeevan Singh was frequent visitor to Ambala Mess and at the time of incident he was present at Ambala Mess. He has shown the record of the Mess for demonstrating the presence of appellant Jeewan in Ambala at the time of incident. In our opinion there is no reason to disbelieve the testimony of D.W. 1. Ram Vilas Singh. It is pertinent to point out that, the testimony of both, prosecution as well as defence witness have to be appraised on same yardstick. In our opinion there is no reason to disbelieve the testimony of D.W. 1. Ram Vilas Singh. It is pertinent to point out that, the testimony of both, prosecution as well as defence witness have to be appraised on same yardstick. The Courts cannot say that they will not believe the defence witnesses merely because they have been produced by defence. The evidence of all witnesses have to be adjudged on the touch stone of credibility and truthfulness. If the evidence of defence is trustworthy then that evidence cannot be discarded merely because it has been produced by the defence. Mess Commander is an independent person. He has testified on oath that on the date of incident appellant Jeewan was present at Ambala Mess. There is no reason to discard his testimony specially in the light of significant discrepancies in the prosecution evidence and lack of coherent, credible and trustworthy evidence. Doctor, who conducted autopsy, has also been withheld without any explanation. 31. We have carefully examined all material on record. Evidence produced by prosecution is not convincing at all. We believe that prosecution has failed to bring home the stated guilt of surviving appellants with trustworthy evidence. 32. In view of the aforesaid, the judgment and order dated 20.4.1983 passed by the Special Sessions Judge, Dacoity Afffected Area, Agra in Sessions Trial No. 22 of 1982 is hereby, set aside. The appeal is allowed. The surviving appellants, namely, Murari, Jeewan and Hema are acquitted. Their bail bonds are cancelled and sureties are discharged. The appellants be released forthwith if they are in custody and not wanted in any other case. 33. Let a copy of this order be certified to concerned Court through Sessions Judge, Agra within a fortnight for compliance. The Court concerned shall report the compliance within a month thereafter.