JUDGMENT : The instant Criminal Appeals have been preferred against a common judgment of conviction dated 13.01.2004 and order of sentence dated 14.01.2004, passed by learned Additional District & Sessions Judge, Fast Track Court No.-I, Gumla, in Sessions Trial No. 274/2001, whereby the appellant Balchand Sahu has been found guilty under Section 395 of the Indian Penal Code and awarded rigorous imprisonment for seven years and a fine of Rs. 1000/- and in default of payment of fine, simple imprisonment for three months and Deepnarayan Singh has been found guilty for the offence committed under Section 412 of the Indian Penal Code and awarded rigorous imprisonment for five years and a fine of Rs. 1000/- and in case of default of payment of fine, simple imprisonment for three months. 2. Brief fact of the prosecution case is that in the night of 17/18.07.2000, a dacoity was committed by unknown criminals. The house belongs to Babu Lal Sahu having shop also, the accused persons have taken Rs. twelve thousand cash, wrist watch, golden ornaments and they were demanding golden chain of the wife of the informant. The accused persons after committed dacoity went out of the house, locking the door from outside. In the morning Babu Lal Sahu called the neighbours, after which they came out of the house and called the police. On the basis of the fardbeyan, police has registered Kamdara P.S. Case No. 20/2000 dated 18.07.2000, under Section 395 of the Indian Penal Code against 6-7 unknown criminals. 3. After investigation, the police has submitted charge sheet vide no. 29 of 2000 dated 30.09.2000 under Sections 395 and 412 of the Indian Penal Code against six accused persons. The cognizance of the offence has been taken vide order dated 12.10.2000 and the case has been committed to the court of Sessions vide order dated 12.12.2001. The charge has been framed against six accused persons under Section 395 of the Indian Penal Code and against Deepnarayan Singh additionally under Section 412 of the Indian Penal Code on 14.05.2000 to which the appellants have pleaded their innocence and thus put under trial. 4. The prosecution has examined altogether eight witnesses and also exhibited a number of documents to prove their case. Bhikhua Sahu (father of the informant) has been examined as P.W. 1. 4. The prosecution has examined altogether eight witnesses and also exhibited a number of documents to prove their case. Bhikhua Sahu (father of the informant) has been examined as P.W. 1. Manilal Sahu and Surendra Sahu (both brothers of the informant) have been examined as P.W. 2 and P.W. 3 respectively. They are hearsay witnesses, as they were residing in a different house than the house of the informant. Geeta Devi (wife of the informant and eye-witness to the occurrence) has been examined as P.W. 4, she has supported the prosecution case but during examination-in-chief, she has stated that only two accused persons entered into the house. She has further stated during cross-examination that the umbrella that was recovered, is a common article, which is available outside also. 5. Babulal Sahu (informant of the case) has been examined as P.W. 5. This witness has supported the prosecution case and has tried to develop his case during his examination, in the court, by saying that accused persons have also closed his eyes and have taken his wrist watch and other articles. He has admitted that two accused persons have entered into the house, but subsequently during examination has said that 6-7 persons were involved in committing dacoity. This witness has further stated that two dacoits have taken his wife inside the room. When he was asked to open shutter of the shop, his eyes were opened by the accused persons. This witness has further stated in para-3 of his cross-examination, that the umbrella has no special marking. This witness has developed his case by stating during his cross-examination, that in the night, he has identified Balchand Sahu by his voice, as his eyes were blind-folded and Balchand Sahu has also admitted his guilt before the police. This witness has further stated, that there is no case of dacoity against Balchand Sahu, prior to this and lastly, he has said that, he cannot say with certainty, that Balchand Sahu was involved in dacoity. This witness has developed his case while saying that 6-7 accused persons were involved in commission of dacoity. He proved his fardbeyan and signature and marked as Exhibit-1. This witness has further stated that he and his wife Geeta Devi has identified the accused Balchand Sahu, in the Test Identification Parade and also identified the umbrella which was recovered from the dacoits. 6. He proved his fardbeyan and signature and marked as Exhibit-1. This witness has further stated that he and his wife Geeta Devi has identified the accused Balchand Sahu, in the Test Identification Parade and also identified the umbrella which was recovered from the dacoits. 6. Brij Mohan Singh has been examined as P.W. 6. He is a seizure witness and has proved his signature as Exhibit-2. 7. Mogal Sahu has been examined as P.W. 7. He is a hearsay witness who heard about the occurrence from the informant. 8. Amarnath Surin (P.W. 8), Sub-Inspector, who is the investigating Officer of the case and has proved the F.I.R. and marked as Exhibit-3, confessional statement of Balchand Sahu has been, marked as Exhibit-4, seizure list of umbrella has been marked as Exhibit-5, test identification parade of umbrella has been marked as Exhibit-6, test identification parade of Balchand Sahu has been marked as Exhibit-7. This witness has stated that on inspection of the place of occurrence, he did not found anything scattered. This witness has stated, that a copy of the seizure list has not been provided to Deepnarayan Singh, from whose house three umbrellas were recovered, as because Deepnaryana Singh was absconding. This witness (P.W. 8) has further stated during cross-examination, at paragraph 9, that informant Babu Lal Sahu has stated that his uncle Sadhucharan Sahu with Baleshwar Sahu and Manoj Sahu are involved in the commission of the offence. This witness has further stated in paragraph 11 of his cross-examination, that informant Babu Lal Sahu has not produced the receipt with regard to the articles, which was stolen by the accused persons. The witness has further stated, that none of the accused has criminal antecedent. 9. After closure of the prosecution evidence, the statements of the appellants were recorded under Section 313 Cr.P.C., on 05.01.2004. Defence has not examined any witness nor exhibited any documents in their support. After hearing the parties, the learned Trial Court passed the impugned judgment of conviction and order of sentence. By the said impugned judgment, learned Trial Court has acquitted four of the accused persons and convicted Balchand Sahu under Section 395 of the Indian Penal Code and Deepnarayan Singh under Section 412 of the Indian Penal Code. After hearing the parties, the learned Trial Court passed the impugned judgment of conviction and order of sentence. By the said impugned judgment, learned Trial Court has acquitted four of the accused persons and convicted Balchand Sahu under Section 395 of the Indian Penal Code and Deepnarayan Singh under Section 412 of the Indian Penal Code. Being aggrieved and dissatisfied with the impugned judgment of conviction, two separate appeals have been preferred by the appellants in this Court, both are being disposed by a common judgment. 10. Heard learned counsel for the appellants Mr. Amit Kumar Choubey appearing for Balchand Sahu [in Cr. Appeal (SJ) No. 169 of 2004] and Mr. Mohit Prakash assisted by Mrs. Vani Kumari, Advocates [in Cr. Appeal (SJ) No. 496 of 2004]. 11. Learned counsel for the appellants has submitted that the impugned judgment of conviction and order of sentence is bad in law. The conviction of Balchand Sahu under Section 395 of the Indian Penal Code is not sustainable in the eyes of law as from perusal of the First Information Report and the evidence brought on record. The dispute between the parties are admitted. The house of Balchand Sahu is situated in front of the house of the informant. The informant during fardbeyan has never stated, that his eyes were blind-folded. During cross-examination, the informant has developed his case by saying that his eyes were blind-folded and he could identify the accused Balchand Sahu, from his voice. Learned counsel has drawn the attention of this court towards the evidence of the Investigating Officer, where the Investigating Officer has stated that the name of other suspects, namely Sadhucharan Sahu, Baleshwar Sahu and Manoj Sahu, by the informant but has not alleged against Balchand Sahu, in the First Information Report. Learned counsel for the appellants has also drawn the attention of this court towards the evidence of P.W. 5 (Babulal Sahu), who has stated during cross-examination that with certainty, he cannot say Balchand Sahu was involved in commission of the dacoity. Learned counsel for the appellant has further submitted, that there was no recovery from the house of Balchand Sahu. Learned counsel for the appellant has further submitted, that there is a contradictory version of the prosecution witnesses. Learned counsel for the appellant has further submitted, that there was no recovery from the house of Balchand Sahu. Learned counsel for the appellant has further submitted, that there is a contradictory version of the prosecution witnesses. Geeta Devi (P.W. 4-wife of the informant), has only alleged against two persons, P.W. 5 (Babulal Sahu), informant of the case has also alleged against two persons but subsequently, he has stated that, 6-7 persons were involved, in commission of the dacoity but without saying that other four accused persons have entered into the house or not, such statement made by the informant, which is contradictory to the statement of P.W. 4 as well as P.W. 5, as such, learned counsel for the appellant has submitted that it is not a case under Section 395 of the Indian Penal Code, where involvement of five persons are mandatory. Learned counsel has further submitted that except a word, 6-7 persons were involved in the commission of dacoity, the informant has not stated about their presence, at the place of occurrence also and as such, the conviction under Section 395 of the Indian Penal Code cannot sustain in the eyes of law. Learned counsel for the appellant has further submitted, that witnesses are related witnesses and if a dacoity has been committed in the residential area, then some of the independent witness must be examined, although they were named in the First Information Report. Informant has stated during cross-examination, that he cannot say with certainty, that Balchand Sahu was involved in the commission of the offence. Learned counsel for the appellant has drawn the attention of this court towards the evidence of Investigating Officer (P.W. 8), who has stated that informant has shown suspicion against other suspects, but not against Balchand Sahu and as such, the learned counsel has prayed, that since Balchand Sahu has no criminal antecedent as admitted by P.W. 8 (the investigating Officer), the conviction of the appellant, Balchand Sahu under Section 395 of the Indian Penal Code on the basis of the suspicion cannot sustain in the eyes of law and he (Balchand Sahu) may be acquitted. 12. Learned counsel for the appellant (Deepnarayan Singh), in [Cr. Appeal (SJ) No. 496 of 2004] Mohit Prakash assisted by Ms. 12. Learned counsel for the appellant (Deepnarayan Singh), in [Cr. Appeal (SJ) No. 496 of 2004] Mohit Prakash assisted by Ms. Vani Kumar, Advocates, has submitted, that conviction under Section 412 of the Indian Penal Code cannot sustain in the eyes of law, as the informant’s wife (Geeta Devi-P.W. 4), has categorically stated, that recovered umbrella is also available to the outside market. Learned counsel for the appellant, has submitted, that the statement of the appellant recorded under Section 313 Cr.P.C., is not in accordance with law to prove the guilt of Deepnarayan Singh, that the umbrella, which was in his house, was a looted article and as such, in the absence of specific averment made in Section 313 Cr.P.C., is not in accordance with law. Learned counsel for the appellant, Mr. Mohit Prakash assisted by Mrs. Vani Kumari, Advocate has also submitted, that informant has admitted in paragraph 3 of his cross-examination, that no such mark was made over the umbrella. Learned counsel for the appellant has submitted, that considering these two depositions of P.W. 4 (Geeta Devi) and P.W. 5 (the informant), conviction of the appellant (Deepnarayan Singh), under Section 412 of the Indian Penal Code cannot sustain in the eyes of law. 13. Learned counsel for the State, Mr. Suraj Mohan, Additional Public Prosecutor has submitted, that the impugned judgment of conviction and order of sentence is based on the materials available on record. Learned counsel for the State has further submitted, that Balchand Sahu has been identified during Test Identification Parade (already marked as Exhibit-7). Learned counsel for the State has further submitted, that Test Identification Parade of umbrella has been proved and marked as Exhibit-6. Learned counsel for the State has further submitted, that seizure list of the umbrella has been marked as Exhibit- 5 and the confessional statement of Balchand Sahu, recorded by the police has been marked as Exhibit- 4 and as such, there is a consistent evidence, on the basis of which, the learned Trial Court has rightly convicted the appellants Balchand Sahu under Section 395 of the Indian Penal Code and Deepnarayan Singh under Section 412 of the Indian Penal Code. Learned counsel for the State has further submitted, that the Test Identification Parade of Balchand Sahu has also been proved by both the witnesses, Geeta Devi (P.W. 4) and the informant (P.W. 5), by identifying Balchand Sahu in the court and as such, there is no infirmity in the impugned judgment of conviction and order of sentence and the learned Trial Court has rightly convicted the appellants Balchand Sahu under Section 395 and Deepnarayan Singh under Section 412 of the Indian Penal Code. 14. Having heard learned counsel for the appellants, Mr. Amit Kr. Choubey in Cr. Appeal (SJ) No. 169 of 2004, Mohit Prakash assisted by Mrs. Vani Kumar, Advocates in Cr. Appeal (SJ) No. 496 of 2004 and Mr. Suraj Mohan, Additional Public Prosecutor, on behalf of the State in both Criminal appeals, and on perusal of the material brought on record, the F.I.R., framing of charge, depositions and the exhibits, this court is of the opinion that there is a contradiction with respect to the evidence of the prosecution witnesses. P.W. 4 (Geeta Devi) and P.W. 5 (informant), who are the only eye-witnesses to the occurrence, if their evidence are considered, the presence of only two accused persons are proved. P.W. 4 (Geeta Devi) has never alleged, that 6-7 persons are involved, it is only the informant, who has subsequently alleged that 6-7 persons were there but specifically stated that two accused persons entered into the house. This court is of the opinion that the informant (P.W. 5- Babulal Sahu) has admitted, that he cannot say with certainty, that Balchand Sahu was involved in the commission of the dacoity. Amar Nath Surin (P.W. 8), Investigating Officer of the case has categorically stated, that informant- Babulal Sahu (P.W. 5) has shown suspicion against other three suspects, but not against Balchand Sahu. The informant Babulal Sahu (P.W. 5), has developed his case during evidence by saying that, when his eyes were tied by the accused persons, he could identify Balchand Sahu from his voice. The informant Babulal Sahu (P.W. 5), has developed his case during evidence by saying that, when his eyes were tied by the accused persons, he could identify Balchand Sahu from his voice. From perusal of the First Information Report, it appears that the First Information Report was instituted against 6-7 unknown accused persons and there was no such allegation, that the eyes of the informant Babulal Sahu (P.W.5) was tied by the accused persons, as such this Court is of the opinion, that prosecution has tried to develop its case by falsely implicating Balchand Sahu, with whom there is an admitted dispute. If a person is residing in front of the house of the informant being his uncle, he can be identified and he can be named in the First Information Report. Furthermore, Babulal Sahu (P.W. 5- informant of the case) has himself admitted that he cannot say with certainty, that Balchand Sahu (appellant) was involved in the commission of dacoity. Under such background, Balchand Sahu, appellant [in Cr. Appeal (SJ) No. 169 of 2004] is acquitted of the charge under Section 395 of the Indian Penal Code by giving benefit of doubt. So far Deepnaryan Singh, appellant [in Cr. Appeal (SJ) No. 496 of 2004] is concerned, the evidence has been scrutinized, the informant P.W. 5 (Babulal Sahu) has admitted, that there was no special mark on the umbrella. P.W. 4 (Geeta Devi) has also stated that, such umbrellas are easily available in the market. Learned counsel for the State has submitted, that in the impugned judgment, it is mentioned that Deepnarayan Singh has been remanded in this case, from another case but from perusal of the evidence of the Investigating Officer (P.W. 8), it has been categorically mentioned that the accused persons have no criminal antecedent. Thus, this court also gives benefit of doubt to Deepnarayan Singh and acquit him of charge under Section 412 of the Indian Penal Code, as the prosecution has failed to prove its case beyond all reasonable doubts. 15. In the above facts and circumstances, judgment of conviction dated 13.01.2004 and order of sentence dated 14.01.2004, passed by learned Additional District & Sessions Judge, Fast Track Court No. I, Gumla, in Sessions Trial No. 274/2001 of Kamdara P.S. Case No. 20/2000 arising out of G.R. Case No. 504/2000 in both the cases are hereby set-aside and the appellants Balchand Sahu [in Cr. Appeal (SJ) No. 169 of 2004] is acquitted u/s 395 of the Indian Penal Code and Deepnaryan Sahu [in Cr. Appeal (SJ) No. 496 of 2004] is also acquitted under Section 412 of the Indian Penal Code by giving benefit of doubt. 16. The appellants, who are on bail are discharged from liability of their bail bonds. 17. In the result, the appeals are allowed. 18. Let the lower court record be sent along with a copy of this judgment to the court concerned, at once for necessary action.