K.S. Rakhra, J.

1. Appellants Ram Vishal & Ram Prasad both residents of village Bhagwanpur Police Station Ghazipur District Fatehpur have challenged their conviction under Sections 396 Indian Penal Code and sentence tor life imprisonment for that offence awarded t0 them by Vth Additional Sessions Judge Fatehpur through impugned his judgment and order dated 25.2.1982 in Sessions Trial No. 105 of 1981.

2. A dacoity took place in the night of 26/27.1.1980 in the house of the informant Prahlad P.W.2 in which dacoits killed his daughter Chandrani and inflicted injuries to Prahlad, his wife Angni, daughter in-law Kalawati and looted valuable properties from their house. On the report lodged by Prahlad on 27.1.1980 at about 9.00 a.m. Crime No. 24 of 1980 under Section 396 IPC was registered at Police Station Ghazipur District Fatehpur.

3. According to the first information report informant Prahlad alongwith his wife Angni, daughter Chandrani, unmarried sons Hira Lal and Balwant and married son Phool Singh along with his daughter-in-law Kalawati were sleeping in different portions of their house. As usual a lantern was burning inside the house. At about 1 a.m. in the night four malefactors sneaked into his house by climbing Over a wall. One of them unbolted the main door from inside and his lather socio crimis entered into the house. Three or four dacoits remain Standing outside the house of the informant. For knowing the places where the valuables were kept the dacoits started beating the inmates of the house. Their companion from outside were also moving in & out of the house to facilitate dacoity. Some of the dacoits thrusted lathi in the vagina of Chandrani and daughter in law Kalawati which. resulted into terrible bleeding from their private parts. His son Phool Singh succeeded in escaping out of the house and collected co-villager by raising alarm. Kailash P.W.4, Baboole P.W.5, Raja P.W.7, and Nanha Singh P.W.8 and others collected at the place of the dacoity flashing their torches and carrying lathi. Mean while brother of the informant set ablaze the stocked "Puwal" (dry grass) kept in front of (he house of the informant facilitating identification of the dacoits and their activitys The dacoits were armed with country made pistols, axes, knives and lathis. They were talking to each other in the local dialect. Informant and the witnesses identified Vishal i.e. Ram Vishal and Ram Prasad both resident of Bhagwanpur and Lonia by caste amongst the daeoits. After committing dacoity the robbers left with booty firing their fire arms. While Chandrani injured was being transported to Ghazipur hospital by the informant she died m the way. The list of looted articles was attached by the informant along with his FIR.

4. Investigation into the crime resulted in charge sheet against the appellants who were summoned by the Magistrate and committed to the court of Sessions for trial. v. additional Sessions Judge, Fatehpur framed charges against them on 10.8.81 under Section 396 IPC against them which charge the appellants denied and they claimed to be tried.

5. The case against the appellants rested on the testimony of eye-witnesses. No stolen property was recovered during investigation.

6. In the trial, to prove the charge prosecution examined nine witnesses i.e. Dr. U.C.S. Solanki P.W.1 who had examined the injuries of Smt. Kalawani, Prahlad and Smt. Angani and issued injury reports Ex.Ka. 1. Ka.2 and Ka 3 respectively. Prahlad infomant is P.W. 2 is the informant ot the crime who had lodged the first information report Ex. ka.7 and gave an ocular version of the incident making specific allegations against the appellants about their involvement in the dacoity. Dr. V.K. Tripathi, P.W. 3 had conducted post mortem examination ol Smt. Chandrani on 28.1.1980 at about 2.00p.m.and had proved post mortem report Ex. Ka. 6. In his opinion Chandrani had died about 11/2 days ago due to shock and haemorrhage as a result of ante-mortem injuries. He had found that the vagina of Chandrani was lacerated posteriorly because of insertion of some hard object. He had found various other injuries on the body of Chandrani including injuries on her legs, thighs, forearms red patella, lip and the entire back etc. Kailash P.W.4, Baboole P.W.5, Phool Singh son of informant P.W.6, Raja PAY.7 and Nanha Singh P.W.8 were examined as eye witnesses and constable Vijai Bahadur P.W.9 is a formal witness. The investigating officer was not examined by the prosecution nor any explanation was offered by the prosecution for not examining him during the trial.

7. The accused persons did not challenge factum of dacoity taken place at the house of informant but they claimed that they have been falsely implicated on account of enmity and they were not involved in the crime.

8. Out of the witnesses of fact, Kailash P.W.4 Raja, P.W.7, Nanha Singh P.W.8 were declared hostile by the prosecution as they failed to support the prosecution version. Kailash P.W.4 who is the resident of the same village admitted that he and other persons from the village shad rushed to the place of occurrence where dacoity was being committed but added that the dacoits were making indiscriminate firing and he could not see or recognise any of the dacoits. Similarly Raja P.W.7 in his examination in chief stated that the amongst the dacoits he had recognised appellant Ram Vishal and Ram Prasad but in his cross examination he admitted that he had reached the place of occurrence after dacoits had fled away and thus he damaged his own earlier deposition. Further he had deposed that informants son Phool Singh had informed him the name of appellants which was not known to him from before and that is why he had named them in his deposition. To the same effect is the testimony of Nanha Singh, P.W. 8 who had stated that the dacoits had already left when he had reached the place of occurrence. Hostile witnesses were suggested by the prosecution that during investigation they had disclosed the names of the decoits which suggestion had been denied by all of them. The aforesaid statements under Section 161 Cr.P.C. have also not got been proved through the evidence of 10 as he had not been examined at all in the trial. Thus the suggestion of the prosecution remained an inadmissible evidence being hit by Section 162 Cr.P.C. and therefore we have no option but the eschew the same from our consideration while judging the guilt of the appellants.

9. This leaves us only with the testimony of Prahlad P.W.2. Baboole P.W.5, Phool Singh son of Prahlad P.W.6. A perusal of then statements during the trial shows that their testimony suffers from material contradictions which renders it unbelievable and untrustworthy. So far Prahlad P.W.2 is concerned, he had not assigned any specific role to the appellants in the FIR Ex.Ka.7. In his Statement before the court he had not only alleged that he had identified appellants who had inserted lathis in the vagina of Chandrani and Kalawati. We are of the view that had the said fact been true the same would have been mentioned in the FIR itself. Further the said fact was not disclosed by this witness to the I.O. also during his interrogation under Section 161 CR.P.C. and he had admitted that he had stated the said fact for the first time in court after a gap of more that one year and eight months. This fact therefore is an. embellishment. We are unable to place reliance on such a testimony as the two appellants are a resident of the same village and had the said version of prosecution be true the informant would not have missed it to mention it to the I.O. The non-narration of said fact earlier there is serious suspicion in the veracity of statement about the same. Another suspicious conduct of the appellants which indicate their false implication and absence in the incident is their bizzare conduct of not covering their faces with any veil even though the were committing dacoity in their own village. There is no evidence on record to suggest that the appellants are hardened criminals and they had got a criminal background. The crime in question seems to be their first offence. Under such facts it is difficult for us to believe that the appellants will participate in crime of such a magnitude without taking precaution to conceal their identity. They had no criminal bent of mind nor were social out laws. This Prosecution version is therefore not acceptable that they participated in dacoity without precaution to conceal their identity as it is an abnormal behaviour.

10. Further the informant has admitted that both the appellants are of same village and they always help each other. He admitted that he had enmity with the appellant Ram Prasad since last three or four years. Ram Prasad had forcibly fixed a peg in front of his house which gave rise to a dispute between them. They had hurled abuses and had fought with each other. According to Baboole, P.W.5 Ram Prasads peg is still fixed in front of the house of the informant. The above facts show that Ram Prasad is not only a co-villager but appears to be the immediate neighbour having differences with the informant. Therefore, the possibility of his being falsely implicated in the case can not be ruled out.

11. In addition to this according to informant Prahlad P.W. 2. appellants also looted ornaments and other property. This fact is not only conspicuously missing in the first information report but there is nothing on record to show that the houses of the appellants were ever searched by the investigating officer so as to make recovery of looted property from them. No recovery has been made from their possession. This circumstance again goes strongly in favour of the appellants and dents the prosecution version to a great extent.

12. Further the testimony of Prahlad P.W.2 vis - a vis his FIR version shows that the first information report was ante-timed and was lodged after due consultation and deliberations. Prahlad PW 2 deposed that in the night itself he did not try to contact Chaukidar and next morning at dawn he left for the police station to lodge report. The police station is about five miles away from the place of occurrence. He deposed that he met village Pradhan Deoraj 11/2 mile before police station and got the report scribed through him. Chandrani had not expired till then but in the first information report Ex.Ka.7 he has specifically got it scribed that Chandrani had died near a water canal before reaching police station Ghazipur. This tact clearly indicates that the written report was got scribed after the death of deceased and not earlier to it and therefore was not prepared at the time as claimed by the informant. Further the informant is an illiterate person and has put his thumb impression on the original FIR Ext Ka 4, a report which he had given at the police station. The thumb impression appears to have been made from an ink pad. It is difficult to believe that village Pradhan Deoraj Singh who incidently met the informant on his way to the police station at dawn time, was not only carrying with him a paper and a pen for writing a report but was also carrying ink pad for taking thumb impression of the informant. Informant Prahlad had said that he had made his thumb impression by using ink which village Pradhan had provided from a "Dibia", from his pocket. We find it wholly unacceptable. Further the said scribe has not been examined to substantiate the version of the informant. The defence suggestion, therefore, that the written report was prepared at the instance of someone else and was ante timed can not be brushed aside as not possible.

13. Baboole P.W.5 has deposed in the trial that the dacoits had covered their faces and since other persons were staying that appellants are also amongst the dacoits therefore he has named them. This evidence firstly is not admissible being hearsay evidence and secondly it also indicates that the deposition of PW 2 the informant of the case is false and no body had recognised the decoits. His testimony being in direct contradiction with the testimony of the informant PW2 therefore, also damages prosecution version.

14. This leaves us with the statement of Phool Singh son of the informant. For the reasons for which we are not inclined to accept the testimony of Prahlad, for the same reason we discard the evidence of this witness as well. Phool Singh P.W.6 has also admitted that prior to the incident of dacoity, Ram Prasad had beaten his father Prahlad on the dispute of fixing a peg in front of the house of informant.

15. On the basis of discussions made above, we agree with the argument of Sri G.C. Saxena, learned Counsel for the appellants that there was absolutely no creditworthy evidence before the trail court for convicting the appellants in the aforesaid crime. The argument of Sri S.A. Murtaza learned Aga that the testimony of informant Prahald and his son Phool Singh is dreliable and sufficient does not appeal to us and we reject the said contention.

16. Resultantly, we allow this appeal set aside the conviction of the appellants under Section 396 IPC and their sentence of life imprisonment and acquit them of the said charge. Appellants are on bail. They need not surrender. Their personal and surety bonds stands dicharged.