JUDGMENT : RATNAKER BHENGRA, J. 1. Heard Mr. Gopal K. Sinha, the learned counsel appears for the appellants in these cases and Mr. Prabhu Dayal Agrawal in Cr. Appeal (SJ) No. 546 of 2010 and Mrs. Vandana Bharti in Cr. Appeal (SJ) No. 522 of 2010 and Cr. Appeal (SJ) No. 547 of 2010, the learned APPs, for the State of Jharkhand. 2. These criminal appeals are preferred against the judgment of conviction dated 11th June 2010 and the order of sentence dated 19th June 2010, passed by the learned Additional Sessions Judge, FTC-I, Garhwa in S.T. Case No. 392 of 1996, whereby and whereunder, the appellants were convicted under Section 395 of the Indian Penal Code and sentenced to undergo RI for five years and any period already undergone by the appellants was ordered to be set off. 3. The prosecution case was initiated on the basis of the fardbeyan dated 16.05.1994 of the informant PW-3 Rameshwar Shukla of village Kharaundha, P.S. Manjhiaon, recorded by A.S.I. Baliram Singh at Kandi O.P. on 16.05.1994 at 09:00 a.m. The informant had stated in the fardbeyan that in the night of 15.05.1994, he along with his brothers Shambhu Nath Shukla (PW-6), Tarkeshwar Nath, Bhola Nath (PW-11) and children were sleeping on a cot in front of the main door of his house and due to hot weather he was not completely asleep. Informant further stated that at about 11.00 p.m., he saw 20-22 persons approaching them by katcha path from south west direction. They came near the informant very fast and started flashing torch. Informant identified Binod Ojha, Kamlesh Ojha, Kara Mian, Lila Bacha, Pramod Dubey, Gopal Pandey, Alauddin, Jakir Mian and claimed to identify remaining 10-12 persons on seeing them. Informant further stated Binod Ojha was armed with rifle, Karar Mian was armed with gun, Kamlesh Ojha was also armed with rifle and all these accused persons threatened them to kill. 4-5 dacoits scaled the roof of the house and remaining dacoits tied the hands of the informant and his brothers and took them inside the courtyard and enclosed them inside south west room. Some women were sleeping in the courtyard and were wearing gold ornaments, which dacoits took out. Dacoits committed dacoity for about 40 minutes in the courtyard. Dacoits looted articles and fled away and shut the main door from outside. Some women were sleeping in the courtyard and were wearing gold ornaments, which dacoits took out. Dacoits committed dacoity for about 40 minutes in the courtyard. Dacoits looted articles and fled away and shut the main door from outside. Thereafter, they started shouting and on his shout, neighbour Dashrath Baitha (PW-1) came and opened the main door and the room in which they were confined. Then all the four brothers came in the courtyard and found the entire house open and the dacoits had looted boxes, attache, watches and others articles. Informant further stated that his B.S.A. cycle of value Rs. 1050/- one Radio valued Rs. 600/- 3 blankets valued Rs. 1500/- 3 gold earrings valued Rs. 6,000/- 2 gold locket valued Rs. 10,000/- Silver anklet valued Rs. 600/- and clothes were looted. Informant further stated the articles belonging to Shambhu Nath Shukla which were looted-2 gold ear rings valued Rs. 2,000/-Chhuchhiya gold valued Rs. 200/- silver chain valued Rs. 2000/- 11 sarees, pettycoat, blouse and frock valued Rs. 3000/- Murphy Radio valued Rs. 400/- H.M.T. watch valued Rs. 400/- cash 500/- and attaiche containing pant and shirt valued Rs. 1500/-. Informant further stated the looted articles belonging to Tarkeshwar Nath Shukla-Gold ear rings of 7 anna bhar valued Rs. 2500/- Gold nose ring valued Rs. 200/- silver chain valued Rs. 200/- Gold mangtika valued Rs. 2000/- nathuni valued Rs. 200/- Silver anklet valued Rs. 300/- ladies H.M.T. watch valued Rs. 300/-and saree, shirt and pant. Informant further stated the articles belonging to Bhola Nath Shukla which were looted ear rings valued Rs. 2500/- Gold locket valued Rs. 5000/- silver anklets valued Rs. 3000/- six sarees valued Rs. 2500/-and cash Rs. 5000/-. Informant further stated that articles the value of which totaling Rs. 60,450/- were looted. 4. On the basis of fardbeyan of the informant Manjhiaon P.S. Case No. 21 of 1994 dated 16.05.1994 was registered under Section 395 of the Indian Penal Code against the accused persons named in the FIR. After investigation police submitted charge-sheet against the accused persons Karar Mian and Pramod Dubey along with four other accused persons, namely, Gopal Pandey, Lila Bachcha, Alauddin Mian and Jakir Mian showing them absconder and cognizance of the offences were taken and the case was committed to the Court of Sessions. Charges were framed against the appellant herein under section 395 IPC and trial was held. Charges were framed against the appellant herein under section 395 IPC and trial was held. At the conclusion of the trial the appellants were convicted and sentenced as aforesaid, hence, these appeals. 5. Prosecution had examined altogether twelve prosecution witnesses out of whom PW-3 is Rameshwar Nath Shukla, who is the informant of the case; PW-6 is Shambhu Nath Shukla and PW-11 is Bhola Nath Shukla, who are the brothers of the informant; PW-1 is Dashrath Baitha; PW-2 is Badri Sah; PW-4 is Taluka Devi, who is informant’s wife; PW-5 is Shyamnandan Paswan, who is chowkidar; PW-7 is Bashishta Tiwari, who is hostile witness; PW-8 is Sheela Devi, who is informant’s sister-in-law; PW-9 is Bishwanath Shukla; PW-10 is Muneshwar Dubey and PW-12 is Sudhakar Shukla, an advocate clerk and formal witness. 6. Defence had examined 6 witnesses out of whom DW-1 is Ambika Pd. Mehta, DW-2 is Rabinath Prasad, DW-3 is Om Prakash Ram, DW-4 is Raghav Pati Ram, DW-5 is Awdhesh Mehta and DW-6 is Jagdish Mehta. Besides this defence had also exbited Ext.A to Ext.D, before the learned trial court, for proving previous enmity relating to the land dispute with the informant. 7. PW-1 is Dashrath Baitha, who is the neighbour of the informant Rameshwar Shukla. PW-1 had stated in his evidence that dacoity was committed in the house of the informant. At the time of dacoity he was sleeping in his house, Rameshwar Shukla called him that they are inside the house and the lock (sikari) was closed from outside. Informant told him to open the lock and then, he opened the lock. In his cross-examination PW-1 stated that his house is about 5 hands away in south to the house of the informant Rameshwar Shukla. 8. PW-3 is Rameshwar Nath Shukla, who is the informant of the case. Informant had stated in his evidence that on 15.05.1994,on Sunday at 11.00 p.m., in the night, they four brothers were lying on cot in front of door of his house. He along with his brother Shambhu Nath Shukla, Tarkeshwar Nath Shukla, Bhola Nath Shukla and nephew Rishi Ranjan Shukla were there. Suddenly they heard sound of leaves from the western side and then he flashed torch and saw 20-22 persons armed with rifle, gun and sword came to his cot. He along with his brother Shambhu Nath Shukla, Tarkeshwar Nath Shukla, Bhola Nath Shukla and nephew Rishi Ranjan Shukla were there. Suddenly they heard sound of leaves from the western side and then he flashed torch and saw 20-22 persons armed with rifle, gun and sword came to his cot. Lantern was on the peg and in the light of lantern he identified appellant Binod Ojha armed with rifle, appellant Karar Mian armed with gun, accused Leela Bachcha armed with gun, appellant Pramod Dubey armed with sword. Jahir Mian, Allauddin Mian and Kamlesh Ojha were armed with katar like object. One chamar of Chamartola name not known, was also among them and many other persons were also in that group, whom informant can identity on seeing them again. Informant further stated that accused persons tied hands of all the four brothers and some accused persons scaled the roof of house and jumped into the courtyard and opened the door from inside. Accused persons who had tied them threatened to shoot and kill them if they shout. Miscreants asked key and on refusal Karar Mian kicked Taluka Devi. The name of one of the dacoits was Deena Chamar. Dacoits looted radio, watches, sarees, ornaments, attache, cash etc. In dacoity property valued about one lakh rupees were looted. Informant further stated chaukidar had informed the police. Informant had identified his signature on the fardbeyan which was marked as Ext.1. Informant had also identified the signature of his brother Shambhu Nath Shukla on the fardbeyan which was marked as Ext.1/a. In his cross-examination informant stated that house of the Karar Mian is on the boundary of the village and he knows the appellant Karar Mian before the incident of dacoity. During the dacoity miscreants did not hide their face and their face were open. Informant was re-examined by the appellant Binod Ojha. Informant had stated that appellant Binod Kumar Ojha was also involved in dacoity and he was on the door armed with rifle. In his further cross-examination, informant stated that house of the appellant is in his village itself. 9. PW-4 is Taluka Devi, who is the wife of informant. PW-4 had stated in her evidence that miscreants came to the courtyard after scaling the khapra and there were 7 miscreants in the courtyard. In his further cross-examination, informant stated that house of the appellant is in his village itself. 9. PW-4 is Taluka Devi, who is the wife of informant. PW-4 had stated in her evidence that miscreants came to the courtyard after scaling the khapra and there were 7 miscreants in the courtyard. Informant further stated that she tried to flee away, then he was caught by the appellant Karar Mian and he took her ornaments including gold locket, gold earring and siver anklet. Miscreants also looted box, one pair of gold bangle, Mangal sutra, silver anklet of her daughter-in-law. PW-4 identified Binod Ojha, Pramod Dubey and Deena Chamar among the dacoits and did not identify the remaining accused persons. Miscreants were armed with rifle and gun. Miscreants also looted articles of her gotani kept in box. Miscreants looted property of about 1.5 to 2 lakhs. In her cross-examination, PW-4 stated that police had not taken her statement. 10. PW-5 is Chaukidar Shyamnandan Paswan. PW-5 had stated in his evidence that on the next morning of the occurrence, younger brother of Rameshwar Shukla came and told that dacoity took place in his house. He went to village Kharaundha, inquired from the villagers and people and they told that dacoity took place in his house and he informed at the police station. PW-5 further stated that the name of dacoits was not told to him. 11. PW-6 is Shambhu Nath Shukla, who is the brother of the informant. PW-6 had stated in his evidence that on 15.05.1994 at 11.00 a.m. he was sleeping outside of his house along with his elder brother Rameshwar Nath Shukla, Tarkeshwar Nath Shukla and Bholanath Shukla. They heard sound of some persons approaching towards them from southwest of his house. His elder brother Tarkeshwar lit torch then miscreants caught them. In the light of torch he saw that there were about 20 miscrants. In torch light he identified Binod Ojha armed with rifle, Pramod Dubey armed with katar, Karar Mian armed with gun and Deena Ram armed with knife. Dacoits tied their hands and one of the dacoits scaled over the roof and opened the door from inside, thereafter, dacoits started looting. Dacoits looted ornaments, radio, watch, cycle and cloths of value more then rupees one lakh. Dacoits tied their hands and one of the dacoits scaled over the roof and opened the door from inside, thereafter, dacoits started looting. Dacoits looted ornaments, radio, watch, cycle and cloths of value more then rupees one lakh. PW-6 had identified his signature on the fardbeyan which was already marked as Ext.1/a. PW-6 was re-examined against the accused Binod Kumar Ojha and in his cross-examination, PW-6 deposed that there was title suit between Bishwa Nath Shukla and uncle of Binod Ojha. PW-6 stated that Bishwa Nath Shukla and Kedar Nath Shukla are his cousin brothers and Binod Ojha also lives in the village Kharaundha. 12. PW-8 is Sheela Devi, who is the informant’s sister-in-law. PW-8 had stated in her evidence that on the day of occurrence, she was sleeping in the courtyard. Dacoits tied the hands of the male members of the family and dacoits scaled over the khapra and came down into the courtyard. All the male members were locked in a room. Dacoits looted the ornaments of female members. PW-6 further stated her mangtika, ear ring, nose ring, sikri all made of gold along with gold ring, lady watch, silver anklets and cash Rs. 5,000/- were looted by the dacoits. Articles belonging to her gotani Taluka Devi and daughter-in-law Durga Devi, Ramrati Devi, Shobha Devi were also looted by dacoits. The faces of the dacoits were open. 13. PW-9 is Bishwanath Shukla and PW-9 had stated in his evidence that the occurrence was about 10 years old. It was 11:00 p.m. and he was sleeping in his house. On halla of dacoity, he had gone to the place of occurrence. His house is 200 steps away from place of occurrence. He came to know that dacoity took place in the house of Rameshwar Shukla and when he reached there dacoits had already escaped. 14. PW-11 is Bhola Nath Shukla, he is the brother of the informant and his house was also looted. PW-11 had stated in his evidence that on 15.05.1994 at 11.00 p.m. he was lying outside the door of his house along with his elder brothers Rameshwar Nath Shukla, Tarkeshwar Nath Shukla and Shambhu Nath Shukla and children. From the western side of the house 20-25 miscreants came near them. In the light of torch he identified Binod Ojha and Karar Mian among the miscreants but he did not identify the remaining miscreants. From the western side of the house 20-25 miscreants came near them. In the light of torch he identified Binod Ojha and Karar Mian among the miscreants but he did not identify the remaining miscreants. Some of the miscreants scaled on khapra and jumped into the courtyard and opened the outside door and thereafter, other miscreants also entered into the house and started looting. Miscreants looted ornaments from the female members and gold ear ring of his wife was snatched. They were closed in a room after being tied their hands. 15. PW-12 is Sudhakar Shukla, who is an advocate clerk and a formal witness. PW-12 had identified the signature of A.S.I. Balram Singh on the fardbeyan which was marked as Ext.2. PW-12 also identified writing and signature of R.N. Singh on the formal FIR which was marked as Ext.3. In his cross-examination, PW-12 stated that both R.N. Singh and A.S.I. Balram Singh had not signed in his presence. 16. Defence had also examined 6 witnesses. DW-1 had stated that no dacoity took place in the house of the informant Rameshwar Shukla and there was previous land dispute between family of Rameshwar Shukla and Binod Ojha and both Binod Ojha and informant are resident of same village. DW-2 had stated that Binod Ojha was implicated in false case due to land dispute. DW-3 had stated that there was land dispute between Rameshwar Shukla and Binod Ojha. DW-4 had stated that no dacoity took place in the house of the informant and a land dispute was continuing between Binod Ojha and Rameshwar Shukla since 1986-87. Likewise DW-5 and DW-6 had also stated that no dacoity took place in the house of the informant Rameshwar Shukla. ARGUMENTS ON BEHALF OF THE APPELLANTS 17. Learned counsel for the appellant, Mr. Gopal Kumar Sinha, has first and foremost argued that this is a case based on prior land dispute or admitted land dispute and therefore, due to prior enmity between the parties appellants were implicated in this false case. Learned counsel pointed out that appellant Karar Mian, in his statement under section 313 Cr.P.C. had stated that he is a tailor and he owed Rs. 1200-1300/- from the informant Rameshwar Shukla and when he demanded the same, informant did not pay the money. Learned counsel pointed out that appellant Karar Mian, in his statement under section 313 Cr.P.C. had stated that he is a tailor and he owed Rs. 1200-1300/- from the informant Rameshwar Shukla and when he demanded the same, informant did not pay the money. Appellant Karar Mian had also stated that near his land is the land of Binod Ojha which is cultivated by his brothers and informant Rameshwar Shukla had asked to vacate that land and for all these reasons he had been falsely implicated by the informant. Learned counsel further stated that appellant Binod Ojha had stated in his statement under section 313 Cr.P.C. that many cases relating to the land is going on with the informant Rameshwar Shukla since 1987. Appellant Binod Ojha had also stated that he had a land dispute with one K.N. Shukla, who is an advocate, and the said advocate used to institute false cases against him. Appellant Binod Ojha had further in his defence stated that in the murder case of son of one Jai Govind Singh, advocate K.N. Shukla, had falsely implicated his name and in that case, the said K.N. Shukla was representing himself as an advocate. Learned counsel for the appellants further submitted from Para-34 of the evidence of the informant that there was case between Ram Swarath Ojha, who is the father of the appellant Binod Ojha and Bishwanath Shukla. 18. Learned counsel for the appellants further pointed out from the evidence of defence witnesses DW-1 to DW-6 and submitted that all the defence witnesses had stated that in the present case the allegations were based on prior enmity related to land dispute and no dacoity had taken place in the house of the informant Rameshwar Shukla. 19. Learned counsel has further pointed out Ext.A to Ext.D filed by the defence, before the learned trial court. Ext.A is notice in Demarcation Case No. 13/87-88 issued by the Court of Deputy Collector, Garhwa, in which one of the party is Ram Swarath Ojha, who is the father of the appellant Binod Ojha and opposite parties were Bishwa Nath Shukla, Kedar Nath Shukla and Kameshwar Shukla all R/o village Kharaundha P.S. Manjhiaon. Ext.B is the deposition of Rameshwar Nath Shukla son of Ramdahin Shukla aged 66 years of village Kharaundha in Title Suit No. 32 of 1992, Bishwanath Shukla vs. Ramraj Ojha. Ext.B is the deposition of Rameshwar Nath Shukla son of Ramdahin Shukla aged 66 years of village Kharaundha in Title Suit No. 32 of 1992, Bishwanath Shukla vs. Ramraj Ojha. Ext.C is plaint of T.S. No. 32 of 1992 Bishwanath Shukla Vs. Ramswarath Ojha and others of village Kharaundha, P.S. Manjhiaon, District Garhwa, Ext.D is the deposition of Bishwanath Shukla as PW-4 in S.T. No. 37 of 1988 in which the witnesses deposed against accused Binod Kumar Ojha, and these defence exhibits had also been discussed by the learned trial court in the impugned judgment and hence these defence exhibits amply indicates the dispute and enmity that existed between the parties. Counsel therefore says that the entire case has to be seen in the background of these disputes. Learned counsel also submitted that the evidences of the informant PW-3, PW-4 Taluka Devi, PW-6 Shambhunath Shukla, PW-8 Sheela Devi, PW-9 Bishwanath Shukla and PW-11 Bhola Nath Shukla, indicates that all these witnesses are related witnesses or family witnesses and, therefore, given the background of prior enmity between the parties, it cannot be doubted that the allegations made by the prosecution witnesses are false and fabricated. 20. Learned counsel further submitted there are other witnesses, who can be considered as independent, who are PW-1 Dashrath Baitha, PW-2 Badri Sah and chowkidar PW-5 Shyamanandan Paswan and these witnesses are independent witnesses but they had not supported the prosecution case in the sense that PW-1 and PW-2 had not named anyone of the appellants herein. Likewise PW-5, who the chawkidar had deposed that informant party had not disclosed the name of the dacoits to him. 21. Learned counsel further submitted that in the case in hand appellants have been convicted and sentenced under section 395 of IPC and for such grave offence it was necessary that the Investigating Officer of the case to be examined but Investigating Officer has not been examined. It is crucial to establish whether occurrence had really taken place because it is clear from the evidence of the independent witnesses that they had not named anyone of the appellants and also it is clear from the evidence of even the informant that appellant Karar Mian and appellant Binod Ojha was known to the informant from before and both these appellants had alleged prior enmity with the informant. 22. 22. Learned counsel has further argued that no recovery of the alleged looted articles from the appellants were made except that there is a reference to a recovery of a bicycle being recovered from the relative of one of the appellant Karar Mian. Learned counsel says that this is unbelievable because the list of items alleged to have been looted run into dozen and many ornaments such as earrings, anklets, mangal sutra made of gold and silver were alleged to have been looted but nothing was recovered raises doubt. 23. Learned counsel for the appellant has cited a judgment of Iqbal and Another vs. State of Uttar Pradesh, (2015) 6 SCC 623 , delivered by the Hon’ble Apex Court and submitted that in the case in hand also no recovery of articles, which are the subject of dacoity was made from the appellants. Learned counsel further cited the case of Raj Kumar alias Raju vs. State of Uttaranchal (Now Uttarakhand), (2008) 11 SCC 709 and relied on this case for allowing the benefit of acquittal to the appellants. Learned counsel lastly argued that apart from the argument of clear acquittal he also pleads that on the aforesaid arguments definitely a case of benefit of doubt is made out and that should be extended to the appellants. ARGUMENTS ON BEHALF OF THE STATE 24. The learned counsel for the State, learned APP Mrs. Vandana Bharti has argued that the conviction and accompanying sentence of the appellants shall be fully sustained and upheld. She has submitted that the conviction of the appellants are based on ample evidence of both the independent witness and family witnesses, who can be considered direct witnesses and both the independent witnesses as well as family witnesses had deposed that occurrence of dacoity had taken place in the house of the informant. Learned counsel says that the issue of enmity would cuts both ways and therefore based on this plea, the appellants should not be allowed to go scot free. Further on the ground of non-examination of the Investigating Officer, the evidences of family witnesses or independent witnesses numbering to as many as about 10 witnesses cannot be discarded and therefore the conviction and accompanied sentences should be sustained and minor inconsistencies or contradictions cannot stand in the way of conviction and sentence. Further on the ground of non-examination of the Investigating Officer, the evidences of family witnesses or independent witnesses numbering to as many as about 10 witnesses cannot be discarded and therefore the conviction and accompanied sentences should be sustained and minor inconsistencies or contradictions cannot stand in the way of conviction and sentence. Learned counsel for the State has further submitted that the informant PW-3 Rameshwar Nath Shukla had supported the prosecution case in his evidence and he has supported substantially the cases laid out in the FIR and therefore informant is consistent in his evidence. Learned counsel says that evidence of the informant PW-3 read along with the evidence of other family witnesses PW-4 Taluka Devi, PW-6 Shambhunath Shukla, PW-8 Sheela Devi, PW-9 Bishwanath Shukla and PW-11 Bhola Nath Shukla, the occurrence of dacoity having taken place in the informant’s house is well proved. Based on the evidence of these aforesaid witnesses itself, who are consistent in their evidence, the occurrence of dacoity, manner of occurrence and the place of occurrence cannot be denied. 25. Learned APP further submitted that PW-1 Dashrath Baitha, PW-2 Badri Sah and PW-5 Chowkidar Shyamnandan Paswan, who are the independent witnesses and whose evidence would carry qualitative weight in the sense that they cannot be said to be biased have also supported the prosecution case and they have also supported about the occurrence of dacoity taking place in the house of the informant. Therefore, based on the all the aforesaid evidence of supporting witnesses, who are almost 10 in numbers, conviction of the appellant under section 395 of the Indian Penal Code and the accompanying sentence of RI for five years can be fully sustained and upheld. 26. The learned counsel for the State has also relied on the judgment delivered by the Hon’ble Apex Court in the case of Saktu and Another vs. State of Uttar Pradesh, (1973) 1 SCC 202 , and submitted that even if convicts are below five in number conviction under section 395 IPC can be sustained. Learned counsel also cited the case of Behari Prasad vs. State of Bihar, (1996) 2 SCC 317 and Bahadur Naik vs. State of Bihar, (2000) 9 SCC 153 and argued that in both these cases, the issue of non-examination of the Investigating Officer was raised. Learned counsel also cited the case of Behari Prasad vs. State of Bihar, (1996) 2 SCC 317 and Bahadur Naik vs. State of Bihar, (2000) 9 SCC 153 and argued that in both these cases, the issue of non-examination of the Investigating Officer was raised. In Bahadur Naik case (supra), Hon’ble Apex Court had noted that under the fact and circumstances, non-examination of Investigating Officer was of no consequence and it was not shown what prejudice was caused due to non-examination of Investigating Officer. CONCLUSIONS 27. Having heard both counsels; having gone through the records of the case and the evidences, I find that it is important to look into the background of the case which is prior enmity between the parties relating to land dispute. Ext.A, Ext.B, Ext.C and Ext.D filed by the defence, before the learned trial court, also demonstrates the extent of dispute and enmity between the parties. Hence, the entire case or allegations or conviction and sentence has to be seen in the background of such dispute or prior enmity between the parties. Moreover, when some other grounds set out by the appellants are added and then the dispute is seen in retrospection, then, a more meaningful conclusion can be reached. 28. Coming to the evidence, I find that informant PW-3 Rameshwar Nath Shukla, in his examination-in-chief had deposed that appellant Binod Ojha was armed with rifle, appellant Karar Mian was armed with gun and appellant Promod Dubey was armed with sword and he had identified these appellants in lantern light. But, in his cross-examination at Para-9, informant had deposed that appellant Karar Mian lives at the boundary of his village and he knew appellant Karar Mian before the incident of dacoity. Likewise, at para-22 of his cross-examination, informant had deposed that house of Binod Ojha is at his village itself and house of appellant Binod Ojha is at the distance of 500 yards from his house. So, informant Rameshwar Nath Shukla, and appellant Binod Ojha, are the resident of the same village and appellant Karan Mian lives at the boundary of the informant's village. Hence, the informant and these two appellants were known to each other from before the incident of alleged dacoity. But, surprisingly at Para-10 of his cross-examination, informant had specifically deposed that dacoits had not covered their faces and their face were open, which raises doubt in the prosecution case. Hence, the informant and these two appellants were known to each other from before the incident of alleged dacoity. But, surprisingly at Para-10 of his cross-examination, informant had specifically deposed that dacoits had not covered their faces and their face were open, which raises doubt in the prosecution case. It is unbelievable that appellant Karar Mian and appellant Binod Ojha, who are the resident of the village of the informant and informant knew both these appellants from before, would commit dacoity without covering their faces and give opportunity for their identification. Further, at Para-26 of his cross-examination informant had specifically deposed that he did not identify all the miscreants and police also did not call him for identification. Here, it is pertinent to note that investigating officer of the case was not examined and specific deposition of the informant that police did not call him for identification is a great lacuna in the prosecution case. Examination of investigating officer was necessary in the case in hand as case pertains to grievous offence of one under section 395 IPC. 29. In the FIR, Informant had stated that on the alleged day of occurrence i.e. in the night of 15.05.1994, dacoits had looted articles from informant as well as from the family members of his three brothers namely Sambhu Nath Shkula (PW-6), Bhola Nath Shukla (PW-11) and Tarkeshwar Nath Shukla. On going through the FIR and evidence of witnesses, I find that witnesses had stated that articles looted from them were radio, gold earrings, silver anklets, gold mangtika, gold locket, nathuni, silver chains, sarees and various other articles. But, in his cross-examination informant had specifically deposed that no looted articles were recovered from the house of the appellant Karar Mian and appellant Binod Ojha. In case of Iqbal (supra) relied on by the learned counsel of the appellants, Hon’ble Apex Court at Para-17, had held that in order to bring home the guilt of the accused persons, it is the duty of prosecution to prove that the stolen property was in possession of the accused persons. In the case in hand, non-recovery of aforesaid looted articles or even test identification chart of the alleged looted articles being not exhibited, raises doubt in the prosecution case. 30. In the case in hand, non-recovery of aforesaid looted articles or even test identification chart of the alleged looted articles being not exhibited, raises doubt in the prosecution case. 30. The case of Behari Prasad (supra) and Bahadur Naik (supra) relied on by the learned counsel for the state is not applicable in the facts and circumstances of the case in hand as both these cases are related to conviction under section 302 IPC and in the case in hand, conviction of the appellants are under section 395 IPC and investigating officer of the case was not examined and the examination of investigating officer was necessary to prove the place of occurrence and to cross-examine the investigating officer about the non-recovery of the alleged looted articles. 31. Hence, from the aforesaid findings more specifically the previous enmity between the parties, non-examination of Investigating officer of the case, non-recovery of any of the looted articles or not exhibiting test identification chart of the recovered articles, charge under section 395 IPC is not proved. 32. Accordingly, the impugned judgment of conviction dated 11th June 2010 and order of sentence dated 19th June 2010, passed by the learned Additional Sessions Judge, FTC-I, Garhwa in S.T. Case No. 392 of 1996, against the appellants Karar Main, Binod Ojha @ Binod Kumar Ojha and Pramod Dubey cannot sustain and are hereby set aside. The appellants Karar Main, Binod Ojha @ Binod Kumar Ojha and Pramod Dubey are discharged from the liability of their respective bail bond. 33. Accordingly, all these three aforesaid appeals are allowed.