JUDGMENT : Heard learned counsel for the appellants as well as learned APP for the State on this criminal appeal. 2. This criminal appeal has been preferred against the Judgment and Order of conviction and sentence dated 29.07.2002 passed by Sessions Judge, Madhepura in Sessions Trial No. 31 of 1995 arising out of Madhepura (Ghailarh) P.S. Case No. 135 of 1992, whereby the learned trial court convicted the accused persons, namely, Shiv Nandan Yadav and Pankaj Yadav for the offence punishable under Section 395 of the Indian Penal Code and sentenced them to undergo R.I. for five years for the said offence. 3. Factual matrix of the case is that Madhepura (Ghailarh) P.S. Case No. 135 of 1992 was instituted under Section 395 of the Indian Penal Code against the accused persons, namely, Pankaj Yadav, Shivnandan Yadav and 17 other unknown miscreants on the basis of the fardbeyan of Radhe Shyam Yadav, Son of Late Saryug Yadav, Resident of Village-Chiknotwa, P.S.- Ghailarh, District-Madhepura recorded by S.I. Mirdula Kumari, O/c of P.S. Ghailarh, District-Madhepura on 06.06.1992 at 08:30 AM with the allegation in succinct that on 06.06.1992 in the mid night, 18-19 unknown miscreants armed with rod, lathi, spade, etc. descended the house of the informant and flashed torch light on his face. On quizzing about their identity, they pulled him down from the cot and assaulted him by means of rod and lathi. They asked him about money kept by him. On refusal to have money, 5-6 miscreants kept surrounding him while others intruding into his house committed dacoity and looted away household articles, three boxes and cereals. The aforesaid dacoits also committed dacoity in the house of his uncle, namely, Kamleshwari Yadav and looted household articles and cereals from his house as well tying his cousin Jai Kumar Yadav and Shiv Kumar Yadav. The informant identified one of the miscreants in the occurrence as Pankaj Yadav in the torch light flashed by him while his cousin Jai Kumar Yadav identified the accused Shiv Nandan Yadav in the torch and lantern light. After committing dacoity, the miscreants left the scene with the booty. Thereafter responding hulla, villagers rushed there and gave chase to the miscreants, but in vain. 4. Aforesaid case was investigated by the police and on conclusion of the investigation, I.O. submitted charge-sheet against the aforesaid accused persons under Section 395 of the Indian Penal Code. 5. After committing dacoity, the miscreants left the scene with the booty. Thereafter responding hulla, villagers rushed there and gave chase to the miscreants, but in vain. 4. Aforesaid case was investigated by the police and on conclusion of the investigation, I.O. submitted charge-sheet against the aforesaid accused persons under Section 395 of the Indian Penal Code. 5. On receiving the charge-sheet and the case diary and perusing the same, the learned Magistrate took cognizance of the offence and committed the case to the court of sessions and on transfer finally the case came in the seisin of District and Sessions Judge, Madhepura for trial. 6. Charge against the accused persons was framed under Section 395 of the Indian Penal Code. Charge was read over and explained to them to which they pleaded not guilty and claimed to be tried. 7. To substantiate its case, in ocular evidence, the prosecution has examined altogether five prosecution witnesses namely, Deo Narain Yadav as PW-1, Monakka Devi as PW-2, Jai Kumar Yadav as PW-3, informant Radhey Shyam Prasad Yadav as PW-4 and 2nd I.O. Lalit Kumar Singh who has submitted the charge sheet in the case as PW-5. The prosecution has also filed and proved some documents by way of documentary evidence. 8. Statement of the accused persons was recorded under Section 313 of the Code of Criminal procedure. The case of the defence is complete denial of the occurrence. In buttress of their case, in ocular evidence, the accused persons have examined two witnesses, namely, Khushi Lal Thakur as DW-1 and Tapeshwari Rai as DW-2 and they have also filed and proved some documents by way of documentary evidence. 9. After hearing the parties and perusing the record, the learned trial court passed the aforesaid Judgment and Order of conviction and sentence as detailed in the earlier paragraph. 10. Being aggrieved and dissatisfied with the aforesaid Judgment and Order of conviction and sentence, the convicts have preferred this Criminal Appeal. 11. The point for consideration in this case is, as to whether the prosecution has been able to bring home the charge levelled against the appellants beyond all reasonable doubts or not. 12. 10. Being aggrieved and dissatisfied with the aforesaid Judgment and Order of conviction and sentence, the convicts have preferred this Criminal Appeal. 11. The point for consideration in this case is, as to whether the prosecution has been able to bring home the charge levelled against the appellants beyond all reasonable doubts or not. 12. It is submitted by learned counsel for the appellants that the informant is said to have identified the appellant Pankaj Yadav in the torch light flashed by him on his face while PW-3 Jai Kumar Yadav is said to have identified the appellant Shiv Nandan Yadv in the lantern light and also in the light of torch flashed by him. The occurrence is said to be of mid night, so it is not possible for a person to identify the person flashing torch on him in the dark night as darkness prevails behind the lit torch and the person litting the torch cannot be identified in such darkness. It is further submitted that as per the account of witness, appellants were known to prosecution party and as per the witness account also, some of the miscreants had covered their face barring the appellants. So the aforesaid prosecution story appears to be improbable and unacceptable as the appellants were known to the prosecution party and the appellants had chosen the time of midnight to commit occurrence of dacoity to take advantage of the darkness, they would not have dared to keep their face unmuffled at the risk of their identification in the course of occurrence. It is further submitted by learned counsel for the appellants that as per the prosecution case, wife of the informant stepped out of the house breaking the thatched fens and kothi meant for keeping cereal and other things were broken during the course of occurrence and blood from the wound of the informant and inmates of the house was fallen on the ground during the course of occurrence, but I.O. who has investigated the case has not been examined by the prosecution and no plausible explanation has been assigned by the prosecution for his non-examination. Due to non-examination of the I.O., aforesaid aspect of the case indicating the commission of the occurrence has not been brought on record. Due to non-examination of the I.O., aforesaid aspect of the case indicating the commission of the occurrence has not been brought on record. It is further submitted that neither another cousin brother of the informant, namely, Shiv Kumar Yadav who was also present at the time of occurrence and was tied by the miscreants during the occurrence and independent witnesses who had arrived at the place of occurrence responding hulla made by the informant and had given chase to the miscreants have not been examined by the prosecution which creates serious doubt about the prosecution case. It is further submitted that as per the witness account, glass of lantern turned slightly blackish and the object was not clearly visible in the light of the said lantern, but neither the said lantern was seized by the police nor the said material object has been produced before the court. Thus, the prosecution has failed to substantiate the identification of the appellants by the informant and PW-3 during the course of occurrence and hence the appellants are entitled to get the benefit of doubt. 13. On the other hand, learned APP advocating the correctness and validity of the impugned Judgment and Order of conviction and sentence submitted that the informant (PW-4) and his cousin brother (PW-3) who happen to be the victims of the occurrence and were present at the place of occurrence at the time of occurrence have identified the appellants during the course of occurrence in the torch and lantern light and have also proved their identification in their respective examination before the Court. The aforesaid witnesses and other two witnesses examined by the prosecution have also supported the factum of commission of the occurrence of dacoity in the house of the informant and his uncle by the appellants and other miscreants by giving consistent statement and the learned lower court correctly appreciating the facts and evidence available on record has rightly passed the impugned Judgment and Order of conviction and sentence which is liable to be upheld and this appeal has no substance in it and is liable to be dismissed. 14. From perusal of the record, it appears that in the mid-night of 06.06.1992, 18-19 miscreants armed with lathi, rod, spade, etc. are said to have committed dacoity in the house of the informant and his uncle and looted away the household articles and cereals. 14. From perusal of the record, it appears that in the mid-night of 06.06.1992, 18-19 miscreants armed with lathi, rod, spade, etc. are said to have committed dacoity in the house of the informant and his uncle and looted away the household articles and cereals. Miscreants also assaulted the informant and his wife by means of rod etc. during the course of occurrence. Out of the aforesaid miscreants, Pankaj Yadav was identified by the informant in the light of torch flashed by the said miscreant while appellant Shiv Nandan Yadav was identified by the cousin brother of the informant, namely, Jai Kumar Yadav (PW-3) in the light of torch flashed by him as well as in the lantern light. To substantiate the aforesaid occurrence, the prosecution has examined four material witnesses of the case. 15. From perusal of the testimony of the aforesaid witnesses, it appears that PW-1 Deo Narain Yadav is not the eye witness of the occurrence. As as per his examination-in-chief, he rushed to the house of the informant responding halla of dacoity and found hands of the informant Radhey Shyam Yadav, Jai Kumar Yadav and Shiv Kumar Yadav tied. After untying their hands and on quizzing, Radhey Shyam Yadav divulged him that dacoits have escaped towards the West. Radhey Shyam Yadav also divulged him the name of Pankaj Yadav while Jai Kumar Yadav divulged him the name of Shiv Nandan Yadav in the occurrence. The aforesaid evidence of PW-1 indicates that he had not arrived at the place of occurrence during the course of occurrence of dacoity rather had arrived there after culmination of the occurrence of dacoity and escaping of the miscreants there from. 16. While PWs-2, 3 and 4 who happen to be the inmates of the ill-fated houses have made an abortive bid to support the prosecution case by stating in their respective examination-in-chief about the commission of the aforesaid occurrence of dacoity in their houses by the dacoits as narrated in the fardbeyan and PW-3 and PW-4 have claimed to have identified appellants Shiv Nandan Yadav and Pankaj Yadav respectively during the occurrence. 17. So far as identification of the appellants during the course of occurrence by the informant and PW-3 is concerned, the informant has stated in his examination-in-chief that he has identified Pankaj Yadav in the light of torch flashed by him on his face. 17. So far as identification of the appellants during the course of occurrence by the informant and PW-3 is concerned, the informant has stated in his examination-in-chief that he has identified Pankaj Yadav in the light of torch flashed by him on his face. Likewise PW-3 has claimed to have identified the appellant Shiv Nandan Yadav in the light of torch flashed by him. Besides it, he has also claimed to have identified Shiv Nandan Yadav in the lantern light, but it is not possible for a person to identify a person flashing the torch on him in the dark night, as behind the lit torch darkness prevails and the person flashing torch could not be identified in such a dark night. So far as identification of the appellant Shiv Nandan Yadav in the lantern light is concerned, PW-3 has stated in Para-17 of his cross-examination that the glass of the lantern was turned slightly blackish and object was not clearly visible in light of the said lantern. In Para-12 of his cross-examination, he has also stated that he had shown the lantern to the S.I. in the light of which he had identified the dacoits but I.O. had not taken the aforesaid lantern in his custody. The aforesaid lantern has neither been seized by the I.O. nor said material object has been produced before the court. Hence, identification of the appellant Shiv Nandan Yadav in the lantern light by PW-3 appears to be doubtful. 18. As per the prosecution case as alleged in the F.I.R., the informant identified Pankaj Yadav during the course of occurrence while his cousin Jai Kumar Yadav (PW-3) divulged him the factum of identification of the appellant Shiv Nandan Yadav by him in the occurrence, but in quite contradiction to the aforesaid prosecution case PW-3 has stated in Para-1 of his examination-in-chief that he had identified Shiv Nandan Yadav and Pankaj Yadav both among the dacoits. In the said Para, he has further stated that the informant Radhey Shyam Yadav had also divulged him the factum of identification of both Pankaj Yadav and Shiv Nandan Yadav by him. In Para-20 of his cross-examination, he has also stated that he had divulged to Radhey Shyam Yadav that he had identified the appellant Pankaj Yadav in the occurrence. In the said Para, he has further stated that the informant Radhey Shyam Yadav had also divulged him the factum of identification of both Pankaj Yadav and Shiv Nandan Yadav by him. In Para-20 of his cross-examination, he has also stated that he had divulged to Radhey Shyam Yadav that he had identified the appellant Pankaj Yadav in the occurrence. Thus the aforesaid aspect of the case creates serious doubt about the identification of the appellants by the informant and PW-3 during the course of occurrence. 19. PW-3 has stated in Para-16 of his cross-examination that he knows Pankaj Yadav and Shiv Nandan Yadav since much before. In Para-17 of his cross-examination, he has further stated that some of the dacoits had covered their face while some had not. The face of Shiv Nandan Yadav was unmuffled. Aforesaid case of the prosecution appears to be improbable and unacceptable as if the appellants were known to the prosecution party from before and the appellants have chosen time of occurrence as mid-night to take advantage of the darkness, they would have taken utmost care to cover their face during the occurrence like other dacoits so that they could not have been identified during the course of occurrence and they would not have left their face unmuffled at the risk of their identification during the course of occurrence and to face the conviction. 20. As per the account of PW-2 in Para-8 of her cross-examination, dacoits assaulted her brother-in-law, husband and sons Anil Kumar and Sunil Kumar by means of bamboo and iron rod. She had sustained eight iron rod blow. Her wound was bleeding and blood was fallen on the ground. Blood from wound of her husband was also fallen on the ground. As per the prosecution case as given in the fardbeyan, during the course of occurrence PW-2 had stepped out of the house breaking the thatched fens to give call to her nephew Manik Chand. PW-1 has stated in para-2 of his examination-in-chief that Kothi and other things were broken in the occurrence, but I.O. has not been examined by the prosecution to substantiate the aforesaid aspect of the case. 21. PW-1 has stated in para-2 of his examination-in-chief that Kothi and other things were broken in the occurrence, but I.O. has not been examined by the prosecution to substantiate the aforesaid aspect of the case. 21. From perusal of the record, it appears that all the witnesses examined by the prosecution happen to be the informant and his family members as PW-4 happens to be the informant, PW-1 happens to be his uncle, PW-2 his wife and PW-3 his cousin brother. As per the prosecution case and statement of the witnesses, large number of villagers had congregated at the place of occurrence responding hulla and had given chase to the miscreants, but none of the independent witnesses has been examined by the prosecution and moreover one of the cousin brother of the informant, namely, Shiv Kumar Yadav who was also tied by the miscreants during the course of occurrence and was present at his ill-fated house during the course of occurrence has not been examined by the prosecution and no plausible explanation has been assigned by the prosecution for their non-examination. Hence, adverse inference is drawn against the prosecution. 22. From perusal of Exhibit ‘C’ and ‘B’ filed by the defence, it appears that both the parties are on inimical terms preceding to the occurrence as Exhibit ‘C’ indicates that sanaha has been lodged by the father of the appellant Pankaj Yadav, namely, Tapeshwari Rai against the informant and others regarding extending threatening by them to falsely implicate and got them booked in the jail over getting the cattles of the informant impounded for grazing their field. Exhibit ‘B’ indicates that the said Tapeshwari Rai had caught five she buffaloes of the informant and his cousin Jai Kumar Yadav and others and got it impounded in fataka. Animosity cuts both the edges. But in view of the aforesaid failure to establish the identification of the appellants in the occurrence and finding the objective material at the place of occurrence regarding commission of the occurrence and contradiction regarding identification of the appellants by the witnesses and non-corroboration of the prosecution case by the independent witnesses, false implication of the appellants in the occurrence due to animosity cannot be ruled out. 23. 23. In the facts and circumstances of the case, I find and hold that the prosecution has utterly and miserably failed to substantiate the prosecution case beyond all reasonable doubts by adducing consistent, trustworthy and reliable ocular and documentary evidence. Hence, the impugned judgment and order of conviction and sentence passed by the learned lower court is set aside and the appellants are acquitted from the charge levelled against them giving them benefit of doubt. As the appellants are on bail, they are discharged from the liability of their bail bonds. Accordingly, this criminal appeal is allowed.