germane to the appeals are that on 15.4.1996 at about 2.30 a.m. Ram Babu s/o Sia Ram Verma, resident of village Khadini P.S. Saurikh District Farrukhabad submitted a written report stating that in the night he was sleeping along with his children on the roof of his house. His younger brothers Shyam Babu @ Chhotey and Rakesh @ Pampal with their wives were sleeping on the roof of the adjoining rooms while parents were sleeping in separate room. All of a sudden 10-12 miscreants climbed over the roof through ladder, tied his hands and brought them down through stairs. On their demand out of fear he handed over key of almirah to them. While they were taking out valuables from almirah his brother Shyam Babu and his wife Rani Devi protested but their were beaten by them with khanta. Pointed khanta was wielded on Rani Devi who died on the spot. Rakesh @ Pampal with wife Suman Devi on hearing noise arrived there and they were also beaten with iron rods. There was electric light in the house and they all recognised the miscreants as Pratap s/o Kali Charan, Ram Vilas @ Pauwa s/o Ram Charan, Mohar singh s/o Mauji Lal, Prakash s/o Soney Lal, Subhas s/o Chhotey, and Itwari s/o Gutai Kanjar, all residents of Nagaria Mahadev P.S. Saurikh and Dinesh s/o Lallu r/o Nikwa Talgram P.S. Talgram District Farrukhabad as all of them used to visit the jewellery shop of complainant for purchasing ornaments etc. and can recognize their associates. The miscreants making fires went away along with the robbed silver ornaments weighing 10 Kgs, 5 gold rings, 4 gold chains, other gold ornaments and cash of Rs. 14,500/-. It was further mentioned that the list of looted articles would be produced after his brother Shyam Babu regained consciousness. Along with injured Shyam Babu, Rakesh @ Pampal and his wife Suman Devi, the complainant went at police station and submitted written report scribed by Shivbhan Singh s/o Sahab Singh r/o village Gyaspur P.S. Saurikh District Farrukhabad. On the basis of the written report case u/s 396 IPC at crime no. 114/1996 was registered at the police station, investigation whereof was taken over by S.O. Vijay Singh. Injured Rakesh, Suman Devi and Chhotey were sent for medical examination by the police to PHC, Saurikh where they were examined by Dr. V. K. Gupta from 3 a.m. onwards. Dr. Gupta found following injuries on the person of injured:
Chhotey Lal - aged 30 years - 3.00 a.m.
1.Lacerated wound over upper mid part of fore head in an area of 2.5 cm x 0.5 cm x 6.0 cm from bridge of nose. Vertically placed. Soft blood clots present around the wound.
2.Lacerated wound over anterior parietal region in an area 1.5 cm x 0.5 cm x 7.5 cm on bridge of nose. Soft blood clots present around the wound.
3.Lacerated wound over left anterior parietal region skull in an area of 2.5 cm x 0.5 cm x 8.0 cm from left side bridge of nose. Soft blood clots present around the wound.
4.Lacerated wound over right eye brow in an area of 5.5 cm x 1.0 cm just over the right eye brow muscle deep. Soft blood clots present around the wound.
5.Lacerated wound over right side cheek in an area of 2.0 cm x 0.5 cm x 0.5 cm away from bridge of nose, obliquely placed. Soft blood clots present around the wound.
6.Lacerated wound over upper part of nose in an area of 1.5 cm x 0.5 cm. 1.0 cm away from bridge of nose. Obliquely placed. Soft blood clots present around the wound. Suspected bony fracture. Advised x-ray of nose - AP and lateral view.
7.Lacerated wound over upper and inner aspect of left ear pinna in an area of 2.0 cm x 0.5 cm x 3.0 cm away and above from left ear lobe. Soft blood clots present around the wound.
All injuries expect injury no. 6, according to the doctor were simple, duration was about fresh and were caused by hard and blunt object. Injury no. 6 was kept under observation and x-ray examination was advised.
Rakesh Kumar aged 21 years at 3.30 a.m.
1.Lacerated wound over mid part of fore head in an area of 4.5 cm x 0.5 cm - 5.0 cm away and above from bridge of nose. Obliquely placed. Muscle deep. Soft blood clots present around the wound.
2.An incised wound over lower border of left mandible in an area of 2.0 cm x 0.5 cm x 4.0 cm away and below from left angle of mandible up to muscle deep. Soft blood clots present around the wound.
According to the doctor the injuries were simple and about fresh. Injury no. 1 was caused by hard and blunt object while injury no. 2 by sharp object.
Smt. Suman Kumari aged 18 years - 3.45 a.m.
1.Lacerated wound over mid part of fore head in an area of 1.5 cm x 0.5 cm x 1.5 away from bridge of nose muscle deep, obliquely placed. Soft blood clots present around the wound.
2.Lacerated wound over left posterior parietal region in an area of 3.0 cm x 0.5 x 6.0 cm away and above from left ear pinna upper margin wound up to scalp. Obliquely placed. Soft blood clots present around the wound.
3.Lacerated wound over left posterior parietal region of skull in an area of 4.5 cm x 1.0 cm x 7.5 cm away and above from left ear pinna upper margins up to scalp deep. Soft blood clots present around the wound.
4.Lacerated wound over left posterior parietal region of skull in an area of 2.0 cm x 0.5 cm x 11.0 cm above from bridge of nose. Wound up to muscle deep. Obliquely placed. Soft blood clots present around the wound.
5.An incised wound over mid parietal region of skull in an area of 4.0 cm x 0.5 cm x 12.0 cam away and above from right ear pinna upper margins wound up to muscle deep. Soft blood clots present around the wound. Obliquely placed. Margins are sharp and clean cuts.
All injuries were about fresh. Injury no. 5 was caused by sharp object while rest were caused by hard and blunt object. After sending the injured to hospital, Inspector Yadav reached at the place of occurrence in the night and got the inquest upon the dead body Smt. Rani prepared through SI R. K. Kardam, who prepared the report and in sealed cover sent the dead body for autopsy. Dr. S. K. Saxena performed post-mortem examination upon the cadaver of deceased Smt. Rani on 15.4.1996 at 4.45 p. m. and found the following ante mortem injuries on her person:
1.Penetrating wound 2.5 cm x 0.5 cm x bone deep on left tragus of pinna. Margins lacerated and dilated. Ange sharp. On dissection left temporal middle fona core fractured. Brain and membrances lacerated with swelling.
2.Contusion 4 cm x 7 cm on outer surface of left shoulder In the opinion of the doctor, the 25-years' old deceased suffered death about half day before on account of shock and haemohrrage due to ante mortem injuries. The investigating officer interrogated the witnesses, prepared site plan and collected blood stained piece of brick, simple and blood stained piece of floor of roof from complainants house as 6 empty cartridges - four of 12-bore and 2-brass empties of 303 bore, sealed them in containers and prepared recovery memo. On 21.4.1996, the investigating officer arrested accused Bakhedi and Panna Lal and recovered one silver kardhani weighing 200 grams from Bakhedi and one silver shyamal 175 grams in weight from accused Panna Lal in presence of the complainant and prepared recovery memo. The investigation ended in charge sheet against accused Subhash, Itwari, Dinesh, Badkhedi, Panna, Munna, Pratap, Ram Vilas @ Pauwa, Mohar Singh and Prakash for the offences punishable u/s 396/412 IPC.
3. After taking cognizance, the Magistrate committed the case to the Court of Sessions. The Addl. Sessions Judge on 26.9.1996 framed charge u/s 396/412 IPC against accused Pratap, Ram Vilas, Mohar Singh, Prakash, Subhash, Itwari and Dinesh. Accused Bakhedi, Panna and Munna were also charged for the offence u/s 412 IPC. All the accused persons abjured the guilt and claimed trial.
4. The prosecution, in order to prove its case, had examined Complainant Ram Babu PW 1, complainant's wife Smt. Pushpa Devi PW 2, Ram Gopal PW 3, injured Smt. Suman Devi PW 4, retired S.I. Ram Kishore Kardam PW 5, Inspector Vijay Singh Yadav PW 6, Dr. V. K. Gupta PW 7, SI Ram Pal Singh PW 8 and Dr. S. K. Saxena PW 9. All the accused in their separate statements u/s 313 Cr.P.C. have again denied the entire prosecution story stating that they have been falsely implicated in the case.
5. During trial accused Bakhedi and Mohar Singh died, so case against them stood abated. The Addl. Sessions Judge acquitted accused Panna and Munna for the offence punishable u/s 412 IPC. However, accused Pratap, Ram Vilas @ Pauwa, Prakash, Subhash, Itwari and Dinesh have been convicted for the offence punishable u/s 396 IPC and each of them have been sentenced to undergo imprisonment for life and fine of Rs. 10,000/- had also been imposed. Aggrieved, the accused persons have filed the above appeals.
6. We have heard the learned counsel for the appellants and the learned AGA for the State at length and perused the record of the case carefully.
7. Learned counsel for the appellants has vehemently argued that except the complainant no other alleged eye witness or injured have named any of the accused persons for having committed dacoity in their house or causing injuries to them nor the accused were put up for test identification by any of the witnesses. Even the statement of complainant is full of material contradictions and discrepancies; that the prosecution has not been able to prove the place where the injured were beaten or Smt. Rani Devi was done to death by the miscreants; that learned trial Court has misconstrued the evidence led by the prosecution; that the accused persons have been illegally found guilty even for the offence punishable u/s 396 IPC and they are entitled to be acquitted. He further submitted that the prosecution story with regard to recovery of looted ornaments has not been believed by the learned trial Court, so the case u/s 396 IPC against the appellants also fails. Per contra the AGA supporting the impugned judgment has contended that since the accused persons were named in the promptly lodged FIR, so there was no need for conducting test identification parade. She further submitted that injuries found on the person of the deceased and the injured support the prosecution story as contained in the FIR and acquittal of other accused u/s 412 IPC has no effect on the case against the appellants.
8. The alleged incident took place between 1-1.30 a.m. in the night of 14/15.4.1996 and its written report was submitted at 2.30 a.m. the same night by complainant. The distance of police station from the village of incident, as per check report Ex. Ka-11 is 6 kilometres. At a glance the report appears to be prompt one, but in the facts and circumstances of the case, it appears to be ante-timed for the following reasons and there are material discrepancies and infirmity in the prosecution story apart from others, which would find mentioned in later paragraphs:
(i) The complainant has allegedly accompanied three injured to police station leaving the dead body of Smt. Rani at home. The dead body of Smt. Rani was not found at the spot, but it was removed from the place of her death and kept at the door. The complainant must have searched his house to know the articles, which were taken away by the miscreants and in all these activities sufficient time must have been taken by the complainant. Moreover, considering the gravity of the incident the entire family must have been under great shock and grief. Although PW 1 has not been cross-examined on these lines by the defence counsel, but these facts are apparent from the facts of the case. In these circumstances, it was not possible for the complainant to have immediately left for the police station during night along with three seriously injured persons including one young lady.
(ii) The scribe of written report is resident of village Gyaspur and the complainant has stated that he has accompanied him to police station. It has not been explained as to how the scribe reached village Khadini.
(iii) Although the complainant has stated in his deposition that he got the report scribed from Shiv Bhan Singh of village Gyaspur, but at one place in cross-examination he has stated that it was dictated by the sub-inspector of police. To quote in his own words -" ge yksx Fkkus nks cts jkr igqWp x;s FksA Fkkus igqWpus ds 10 feuV ckn esjh fjiksVZ fy[k xbZ FkhA f'koHkku flag us fjiksVZ fy[kkbZ Fkh] ;s X;kliqj ds jgus okys gSaA f'koHkku flag esjs lkFk gh Fkkus x;s FksA fjiksVZ eSaus Fkkus esa gh fy[kkbZ FkhA ;s fjiksVZ njksxk th us cksydj fy[kkbZ FkhA-------" The contrary conclusion drawn by the learned trial Court repelling the arguments of the defence on this score on page-12 of the judgment, is not correct. There was no confusion in questions put to the witness, which were put to him in the context of previous questions asked by the defence counsel from the complainant.
(iv) It has come in evidence of complainant, PW 2 and PW 4 that the injured became unconscious after sustaining injuries and they regained consciousness next day. Then the complainant might have gone to police station in some vehicle along with the injured and for arranging conveyance some time must have certainly been consumed, do he could not have left his house immediately after the incident.
(v) The complainant PW 1 has stated in cross-examination that police of P.S. Saurikh reached at his house at 2.00 a.m. in the night and leaving him at home, the police took the injured to police station and when need arose for report at police station, he was taken by the police in jeep. This statement clearly shows that report was recorded afterwards at the police station and for which the complainant was called from his house by th epolice.
(vi) Retired SI Ram Kishore Kardam PW 5 has stated in cross- examination that they have reached at the spot at about 1.30 and inquest was prepared at 2.30 a.m., while the alleged time of registration of the case is 2.30 a.m. Itself on 15.4.1996.
(vii) Smt. Pushpa Kumari PW 2 has stated in cross-examination that the miscreants went back from her house at 3 a.m. and thereafter police came and they took them and the injured to the police station. She had specifically stated that Ram Babu was also taken by the police with them.
(viii) Even the investigating officer Inspector Vijay Singh Yadav PW 6 has stated in cross-examination that when he reached at the spot injured Shyam Babu, Suman and Rakesh were unconscious. According to this witness, they reached at the spot at 3.30 a. m. and as per complainant PW 1 he has taken the injured to the police station, then it was not possible for him to have seen the injured at their house and if he had seen them at their house, then the story of complainant is falsified. Further as per injury reports of the injured at that time they were in the hospital for medical examination and if statement of PW 1 is believed then they came back home the next day evening. Although this witness has further denied that he carried the injured to the police station. If the police reached at the spot before the injured and the complainant left for the police station, then it was very much probable that conveyance for them was arranged by the police.
(ix) In the written report the complainant has given the parentage and address of seven named accused persons who do not belong to his village and they all are not resident of the same village. The complainant has stated that the accused often visited his shop for getting the ornaments manufactured. If for the sake of arguments, this contention is accepted then their names and addressed would have been available at his business place i.e. the shop of the complainant and not at his house.
(x) The complainant has changed the place of sleeping of his family members during deposition before the Court for reasons best known to him. In the written report he has clearly mentioned that he along with his wife and children was sleeping on the roof of the house and on nearby roofs his brothers Shyam Babu and Rakesh along with respective wives were sleeping. However, in examination- in-chief itself he has not corroborated his own report stating that his aforesaid brothers were sleeping in separate rooms. Here he has not mentioned whether his brothers were sleeping in the rooms situated on the 1st floor or the ground floor of the house.
(xi) In the written report the PW 1 has stated that the miscreants have taken silver ornaments weighing 10 Kgs, 5 gold rings, 4 gold chains, other gold ornaments and cash of Rs. 14,500/- from his house. However, the I.O. PW 6 has stated in cross-examination that PW 1 has not stated to him that the miscreants have silver ornaments weighing 10 Kgs, 5 gold rings, 4 gold chains, other gold ornaments and cash of Rs. 14,500/-. This is material contradiction and it means by the time the I.O. Interrogated PW 1, the written report was not in existence.
All the above-noted grounds clearly prove that the report of the incident was not lodged at the time given in the check report Ex.Ka-11 and it was prepared much later in point of time. It is trite that first information report in a criminal case particularly in heinous one like the present case is very much important. If the report is delayed or ante-timed then all possible inferences can be drawn that it has been prepared with active consultation and deliberations of the police, when the culprits are not known to the family of victim from before or there was no previous enmity between them. If the report is found to be not genuine or it smells hand of the police in its preparation, then it cannot be read in corroboration of prosecution story. This inference is not without reasons. During the course of arguments learned AGA detailed long criminal history of the accused persons, which can only be in the knowledge of the local police and not of the complainant because the accused-appellants do not belong to the village of the complainant, then the possibility cannot be ruled out that the names of the accused-appellants have been introduced at the behest of the police. This conclusion is further fortified by the fact that during examination-in-chief the complainant could not dare to say that all the named accused persons are present in Court and he still recognizes them very well. It is noteworthy that in a criminal trial the FIR is the foundation of the prosecution story, and if it is shrouded with strong doubts and not genuine, then the entire edifice of the prosecution falls on the ground. In this connection we can usefully refer to the observations of the Apex Court given in the case of Marudunal Augusti Vs. State of Kerala AIR 1980 SC 638, wherein it was noted that the 'entire fabric of the prosecution case would collapse if the FIR is held to be fabricated or brought into existence long after the occurrence and any number of witnesses could be added without there being anything to check the authenticity of their evidence.'
9. In the written report the complainant has stated that the miscreants tying his hands brought him and his family members down stairs, asked for the key of the almirah and out of fear he handed over key to them. He has further stated that when his brothers and their wives protested they were beaten with iron rods and khanta and in this process Smt. Rani Devi wife of Rakesh died on the spot. It has not come in his statement that this incident took place on the roof of the house. However, the police has recovered empty cartridges, simple and blood stained pieces of roof. This recovery has been proved by Inspector Vijay Singh Yadav PW 6. Had the scuffle with the accused or miscreants took place on the ground floor of the house, then it was not possible that the articles pertaining to the crime were seized by the police from the roof of the complainant's house. It is noteworthy that the dead body of Smt. Rani Devi was removed from the spot, as is clear from the statements of Ram Gopal PW 3 and PW 5. According to PW 3 the inquest was prepared at the door of the house of the complainant where the dead body was kept and not at the place where she was killed, while PW 5, who is the writer of inquest report has stated in cross-examination that it was prepared at the place where the deceased suffered death. At the end of the report the complainant has stated that the miscreants fled away after making fires. No fire was admittedly made by any accused during the course of dacoity, which was committed in the rooms of complainant's house, then why the accused would use the roof of the house for making their escape their good because they could have made their exit through the main door of the house on the ground floor. Why we say so? It is only because the empty cartridges have been recovered by the investigating officer from the roof of the complainant's house and not from the ground floor and incident of assault on inmates of house of complainant took place on the ground floor of the house. Thus, the alleged place causing injuries to the inmates of the house is not duly proved by the prosecution.
10. Now as regards the real incident of dacoity/murder and involvement of the accused-appellants we have the sole testimony of the complainant Ram Babu PW 1 to connect the accused with the crime in question because except him no other eye witness has named any of them, rather both the other lady witnesses, one of whom is injured i.e. PW 2 and PW 4 have clearly stated in cross-examination that they could not recognize any of them. There is no corroboration to the testimony of the complainant with regard to the identity of the accused-appellants. We are oblivious of the fact that conviction of an accused can be based on the sole testimony of an eye witness, but the quality of his deposition should be above board, exceptionally good and without any shadow of doubt. He should be wholly reliable and not partially reliable. Corroboration is required to place reliance on the testimony of partially reliable witness. As we have noted earlier, the complainant has given parentage and address of all seven accused persons who have been named in the FIR. They are not residents of same village. The complainant has stated that he knew them from before as they used to often visit his shop for getting jewellery prepared. If it is so, then their names and address could be available with him in the records of his shop and not at his residence. The complainant has disclosed his vocation as 'gold smith' at the beginning of his deposition in the trial Court. He has not stated the place where he is running his shop. The complainant has not stated during his examination-in-chief that the accused named by him in the report are present in Court. Neither the complainant's wife Smt. Pushpa Devi PW 2 nor injured Smt. Suman Devi PW 4 has named any of the accused in their examination-in-chief. PW 2 has stated in the opening sentence of her cross-examination that she could not see as to who were the miscreants? She could not see their weapons as it was dark night and there was no electricity and there was only lamp light. This statement is in contradiction to the statement of PW 1 and PW 4 who have stated that there was electric light as usual during night hours in their house. PW 4 has stated that she could not count the miscreants as she was unconscious. This statement of the witness is not correct, because Dr. Gupta PW 7 has stated in cross-examination that the injured were not brought before him in unconscious state. He has denied the suggestion (given on the basis of statement of PW 1) that the injured regained consciousness after 24-hours.
11. There is one other very important aspect of the case, which belies the prosecution story as has been set up in the case. If the statement of PW 1 is believed that he knew the accused from before as they were his customers, then except him there was no other person in his family, who could have recognized the accused persons by name and face. The instant dacoity took place during dead hour of night. As per statement of witnesses of fact, no one from the accused has tried to conceal his identity and their faces were not covered. The common tendency of the miscreants committing crime during night is that they would normally try to conceal their identity for fear of recognition. Crime in the night is also committed because at that time the miscreants would face least resistance from the victim or support by the neighbours. If any such criminal finds that he has been identified by any one during commission of the crime, then he would certainly try to eliminate him, but in the present case surprisingly neither the complainant nor his wife suffered even scratch on their skin, while their kith and kins suffered many injuries and Shyam Babu @ Chhotey has lost his wife and he received more injuries than any other injured. It is not the case of PW 2 that at the time of incident she had hidden herself in any part of her house, so she remained unhurt. These facts belie the presence of complainant at his house at the time of occurrence, because he would not have restrained himself from saving his brothers and their spouse and in that eventuality, he and his wife would have certainly suffered some kind of injuries on their person. This circumstance force us to raise suspicion about the presence of complainant and his wife at the time of incident.
12. We have already noted that except the complainant, no other member of his family knew the accused from before. In these circumstances, it was imperative for the investigating officer to get test identification parade held for the inmates of complainant's family, which could have corroborated PW 1. This was essential for fair investigation of the case. The prosecution cannot escape its responsibility in this regard on the premise that the accused persons were named in the FIR, so holding of test identification parade was not required. The investigating officer should be sensitive enough in investigating a heinous case of murder with dacoity. He owes a duty towards the victim as well as the accused persons. Independent and fair investigation requires that no innocent persons is indicted in any criminal case and nor the real culprit should escape from the clutches of law.
13. There is yet another aspect which totally belies the theory of the accused persons' frequent visit to the gold-smith shop of the complainant. It is a matter of common experience that only affluent persons of the society often see a jewellery or gold-smith's shop. At the end of his cross-examination the complainant has stated that the accused persons appear to be poor fellows. To quote his own words -
" lHkh eqyfteku xjhc fn[kkbZ iMrs gSaA "
This single sentence of the complainant demolishes the entire case about his identification of accused persons and their involvement in the crime in question , because poor persons will not make frequent visits to the jeweller's shop. His entire life is spent in arranging livelihood for his family members.
14. We have seen above that the complainant did not detail the articles robbed by the miscreants from his house during incident to the investigating officer in his statement u/s 161 CrPC. It has come in the statement of PW 1 that after a week of the incident his brother Shyam Babu told him that silver ornaments weighing 10 kgs were not looted by the miscreants, because he has kept 5 Kgs ornaments separately, meaning thereby silver jewellery weighing 5 Kgs only was robbed by the miscreants. Further, the wife of complainant (PW 2) in her cross-examination had stated that 13 kgs silver was seized from the miscreants and out of it, 10 kgs. was returned to them. If only 5 Kgs silver was taken away by the accused or the miscreants then how 10 kgs. could be returned to the complainant?
15. The specific case of complainant PW 1 is that the accused have wielded khanta, an instrument used for cutting wood, on his brother and pointed khanta, to his wife Smt. Rani Devi, but he did not disclose these facts to the investigating officer, which had been so told by the investigating officer PW 6 in his cross-examination. These are material contradictions and it appears that to make his statement in consonance with medical reports, the complainant has given this statement in his examination-in-chief with legal advice.
16. Although this is the choice of the prosecution to pick and chose the witnesses for examination in a criminal trial to unfold their story, but if the facts and circumstances of a particular case show that the prosecution for oblique motive has with-held any material witness, then certainly adverse inference can be drawn by the Court against it. In the instant case, there were six adult members of the complainant's family at the time of alleged incident and out of them presence of four namely - Smt. Rani Devi w/o Shyam Babu, Smt. Suman Devi PW 4, Shyam Babu and Rakesh cannot be doubted, because all of them suffered injuries during incident at the hands of miscreants and Smt. Rani Devi succumbed to the injuries at the spot soon after sustaining penetrating injury on her left ear. The prosecution has not examined either Shyam Babu or Rakesh, who could have better proved the prosecution case if it was true with regard to involvement of the accused-appellants. Although it has not come in prosecution evidence as to in what vocation or profession these two brothers of the complainant were engaged, but the fact that a week after the incident Shyam Babu told his brother (complainant) that he has kept 5 Kgs of silver ornaments elsewhere, show that he was also doing gold-smith business with the complainant. We say so, because he could have kept 5 Kgs of silver jewellery separately from other silver ornaments, only when he knew that these items were stored at home and in that eventuality he could also recognize the miscreants if they often visited the shop of complainant for purchasing and getting the ornaments made from his shop. Thus, non-production of either of Shyam Babu @ Chhotey or Rakesh is fatal to the prosecution.
17. Before parting with the case, it is relevant to note that all injuries sustained by all injured - Chhotey Lal, Rakesh and Smt. Suman and the deceased are situated above the neck of each injured/deceased i.e. on or around face and head. The seat of these injuries clearly show that they have been caused to the person concerned while he or she was taking sound sleep. It is difficult to conceive that they have been caused to them when they came to protest the nefarious activities of the miscreants because in that event, considering the nature of arms carried and used by them, they would have certainly sustained injuries on other parts of their body.
18. In view of what has been said and done above, we find that the sole testimony of complainant is not wholly reliable. His conduct is not above board. The FIR is ante-timed and doubtful; the place of actually assaulting the deceased and the injured is not proved; the investigation has not been fair. Simply because the accused were named in the FIR and that too with active assistance of the police, they cannot be held guilty, particularly when one important part of the prosecution story i. e. recovery of looted ornaments from three other accused persons has already been disbelieved by the trial Court. A criminal Court cannot afford to deprive liberty of the appellants, lifelong liberty, without having at least a reasonable level of certainty that appellants were real culprits. In the facts and circumstances of the case, we really entertain doubt about the involvement of the appellants in the instant case. The prosecution has failed to prove its case beyond all reasonable doubt against the appellants for the offence punishable u/s 396 IPC and the learned trial Court has erred in finding them guilty and imposing punishment. The appeals aforesaid are allowed. The impugned judgment, conviction and sentence of accused-appellants are set aside and all the accused are acquitted for the offence punishable under Section 396 IPC.. They are in jail and be immediately released, if not required in any other case. Fine if paid, be refunded to the accused-appellants. Office is directed to immediately transmit the copy of the judgment to the Court concerned for compliance, which should be reported to this Court forthwith.