Kundan Singh, J.:— This appeal has been preferred against the judgment and order dated 17-11-89, passed by Sri U.C Saxena, the then Special Judge (D.A.A)/IIIrd Additional Sessions Judge, Etah, in Session Trial No. 144 of 1987, whereby appellant Parshu Ram has been convicted under Ss. 302, 395, 307/149 and 148, I.P.C and sentenced to imprisonment for life, 7 years ‘R.I, 4 years’ R.I and one year's R.I respectively, while Babu Ram has been convicted under Ss. 302/149, 395, 307/149 and 147 I.P.C and sentenced to life imprisonment, 7 years’ R.I, 4 years’ R.I and six months’ R.I, respectively. The other appellants have been convicted under Sections 302/149, 395, 307/149 and 148, I.P.C and sentenced to imprisonment for life, 7 years’ R.I, 4 years’ R.I and one year's R.I, respectively and all the sentences of each of the accused appellant were directed to run concurrently.

2. The prosecution case as set out in the F.I.R lodged by Kishan Lal at 5.10 a.m on 24-7-87 at police station Malavan, District Etah, is that all the accused persons and Kishan Lal informant are residents of village Saithari, P.S Malavan, District Etah. Accused Parshu Ram and Amar Singh are sons of accused Had Ram, who died during the pendency of the trial. There was bitter enmity between the informant on one hand and Hari Ram and his sons on the other and litigations were pending between them. Informant Kishan Lal P.W 1 had a dilapidated house in the village, hence he along with his family members was residing at the tube-well outside the village. On the fafeful night on 23/24-7-87 at about 3.00 a.m Kishan Lal, his wife Smt. Ram Beti P.W 2, son Virendra Kumar, daughter Sunita and one sister Smt. Prem Wati were sleeping at the tube-well. An electric bulb was illuminating light there. All the appellants along with Hari Ram and three unknown persons came there. Out of them, Parshu Ram and Amar Singh were armed with country made pistols, Hari Ram and Babu Ram were carryinglathis. Sukhwasi. Indra Paland Ram Prakash were having country made pistols, while Shiv Kumar was armed with his licensed gun. They loudly exhorted to assault the informant and his family members. The complainant party woke up and the informant took out his gun and stood up by the side of a wall and cried for help. The accused persons inflicted injuries of lathis, country made pistols and licensed gun on the person of complainant and his family members. The informant also fired shot which might have hit the accused persons. Amar Singh and Hari Ram caught hold of Virendra Kumar son of the informant and Parshu Ram fired shots with his country made pistol which hit the stomach of Virendra Kumar. He fell down on receiving the gun shot injuries. Amar Singh, Hari Ram, Parshu Ram and Babu Ram entered into the room of Tube-well and had taken away a box containing clothes of the informant and his son. They also took away gullak (Cash Box) containing currency notes of Rupees 10,500/- which were kept for purchasing tfie sugar of ration and Jewellery of his daughter Mithlesh. Informant also sustained injuries. Shiv Kumar fired a shot with his licensed gun causing gunshot injuries on the person of informant. Mahendra P.W 3, Bansi, Ram Swamp and Latoori residents of the village were attracted to the scene of occurrence on the hue and cry raised by the complainant and his family members. The witnesses threw brick-bats and chased the accused persons. Virendra Kumar died on the spot. The informant and other family members also sustained injuries during the incident. The informant got a report scribed from the Durga Prasad and sent it through his brother Ram Swarup to the police station, who lodged it at the Police Station, Malavan (Etah) at 5.10 a.m on 24-7-87, the distance being 12 kms. from the place of occurrence.

3. Sri Narendra Singh Bargoti, S.O (P.W 7), took up the investigation of the case in his hand. He recorded the statement of Narendra Chandra, Head Constable, who prepared the chick report on the same day and then proceeded to the village of occurrence. The inquest report of Virendra Kumar was prepared by S.I Hukam Singh at the dictation of Sri Narendra Singh Bargoti S.O The other papers such as challan lash, letter to CM., photo lash and namoona mohar were also prepared. The dead body was handed over to constables Atar Singh and Bimlesh, who took it to the Mortuary for postmortem examination. The Investigating Officer recorded the statement of Kishan Lal, inspected the spot and prepared a site plan. He also took blood stained and ordinary earth into custody and necessary papers were prepared. One discharged cartridge was also recovered from the spot. Empty cash box was recovered from a place at a distance of one k.m from the village of occurrence. The necessary memo was also prepared. The blood stained clothes of Km. Sunita and Smt. Ram Beti were also taken into custody. The I.O interrogated Mahendra, Ram Swarup, Latoori Bansi and Bimal witnesses of the inquest report. The injured were sent to district hospital for medical examination. He also recorded the statements of Smt. Ram Beti, Sunita and Prem Wati and other witnesses.

4. Dr. Satya Mittra (P.W 5) examined the injuries of the injured persons between 10.00 a.m to 11.00 a.m on 24-7-87. On the person of Prem Wati two lacerated wounds and one abraded contusion were found, while on the body of Km. Sunita one fire arm wound of entry besides wound of exit was found. On the person of Smt. Ram Beti two lacerated wounds 3 traumatic swelling and one contusion were found, while on the person of Kishan Pal 6 lacerated wounds, 3 incised wounds, one contusion and one fire arm wound were found. The autopsy on the body of Virendra Kumar deceased was conducted by Dr. V.K Gupta (P.W 4) at 4.00 p.m on 24-7-87, who found one gun shot wound of entry besides wound of exit on his body. After completing other formalities the investigating officer submitted a charge-sheet against all the accused persons.

5. The prosecution examined 7 witnesses in all to prove its case. Out of them P.W 1 Kishan Lal, P.W 2 Smt. Ram Beti and P.W 3 Mahendra Pal are the witnesses of the factum of the incident, while other witnesses are of formal character.

6. The accused persons denied the prosecution case and pleaded not guilty. They stated that they have been falsely implicated due to enmity and party friction. They also stated that the complainant party was sleeping in the village at the time when the incident took place. There was no electric light. The defence also examined Sri Krishna Chandra Upadhyay, S.D.O Electricity Department, who stated that according to the log sheet for the rural and urban supply of the electricity of 24-7-87 and also according to that log sheet, N.E feeder line for the village Saithari, the supply was disconnected from 1.45 a.m to 7.50 a.m on 24-7-87. The log sheet was hand written and bore the signature of Sri P. Pandey, S.S 0. He tendered true copy of the relevant extracts in evidence which were marked as exhibits Kha-1 and Kha-2.

7. The learned trial Judge after going through the evidence on record, held the accused appellants guilty of the offences charged with and accordingly he convicted and sentenced as stated above.

8. Sri A.D Giri, learned senior counsel for the appellants, contended that this Court and the Apex Court in various cases have laid down separate principles for assessing the evidence of the witnesses in the case of Dacoity and murder. The very object of the dacoity is to extort valuables by force, putting in fear of death or grievous hurt. During the extortion nobody is spared by the accused. Even death is caused of the persons who resist or create obstruction in extortion. He also narrated the principle of Dacoity that nobody commits Dacoity without taking precaution to conceal his identity in the house of a known person. The dacoits muffle their faces with dhatas so that they may not be identified. In the ordinary course of nature, known persons are not expected to commit Dacoity without concealing their identity. In case any how the identity of any dacoit is exposed to the inmates of the house where the dacoity is committed or to the witnesses he will incur the risk of prosecution. However, in the case of murder, the paramount object is to take revenge because of enmity. There may be cases where the murder is committed and any member of the assailants party takes away property also in a casual manner. In such a case the nature of the offence will not be changed and it will remain a case of murder and not of dacoity and the principle of dacoity will not be attracted. The learned counsel for the appellants referred to certain portions of the evidence of the present case to show that it was a case of dacoity and not of murder and the deceased and injured persons had sustained injuries during the course of dacoity. Few of the instances are narrated here.

9. In the F.I.R it is mentioned that out of the accused Parshu Ram, Amar Singh, Hari Ram and Babu Ram entered into the house of the complainant and took away the box containing the clothes of the complainant and his son, a cash box, containing the currency notes of Rs. 10,500/-, and the jewellery of Mithlesh, daughter of the informant. The accused persons had also snatched away the licensed gun of the informant. The F.I.R of the incident was lodged under Section 391, I.P.C Investigating Officer has stated that information was sent to the higher offic ers on R.T Set that a dacoity has been committed.

10. We do not agree with the learned cou nsel for the appellants inasmuch as there can be no separate water tight compartment principles, computerised principles or jacket formula for making distinction between the case of a dacoity and a murder. No person can claim for a particular finding in a set of particular facts and circumstances. Justice is dis pensed with accountability, reliability, probability of natural human conduct of facts and circumstances of each case basing upon legal evidence. We are not unaware of the cases where the conviction and sentence were recorded by the courts relying upon single testimony of highly interested and partisan witnesses or testimony of single identifying witness or testimony of single witness against an unknown accused without holding identification test provided the testrmony of the witness is proved natural, reliable and worthy of credence. The evidence of a witness naming an accused in the dacoity or robbery cannot be brushed aside solely on the ground that the accused was previously known as resident of the same locality and the accused committed offence without taking precaution to conceal his identity. Some time the evidence of a witness naming an accused in a dacoity has also to be accepted on taking into account the entire and total circumstances of the case. Therefore, we have to analyse the evidence on record and examine the entire facts and circumstances of the case for reaching at a right and definite conclusion. Law does not require multiplicity of evidence but quality of evidence is needed for arriving at a finding. Thus no hard and fast rule can be laid down for appreciation of evidence demarcating a line between the cases of dacoity and murder.

11. Learned counsel for the appellants contended that it is a case where the deposition of eye-witnesses is totally false and is not to be accepted in any event. Firstly, he submitted that the prosecution has relied on the electric light in which the incident is said to have taken place and the witnesses recognized the accused persons. At the very initial stage when the accused applied for bail, they had come with a definite case that there was no electric light on the spot on the fateful night and in support of that plea the defence also examined an officer of the Electricity Department to prove that in the night in question no electricity was supplied to the village of occurrence as feeder line remained disconnected between 1.45 a.m and 7-50 a.m Then the prosecution took a somersault and came with a case that emergency light was available on the spot, though there is no mention about it in the F.I.R or in the statements of the witnesses recorded during the investigation. The learned Sessions Judge found material contradiction regarding the place where the bulb was lighting and hence he did not place reliance on the evidence pro tanto the source of light of electricity bulb or the emergency light. In that backdrop the learned counsel for the appellants emphasized that the evidence of witnesses was totally unreliable and unworthy of credence.

12. We have given our anxious thought to the submissions made by the learned counsel for the appellants. It is true that in the F.I.R the informant has mentioned that the incident took place at about 3.00 a.m and electric light was available at the spot. Kishan Lal P.W 1 admitted in his cross-examination that the emergency light was installed outside at a distance of 2 or 3 feet from the electric pole and that bulb was fitted on the top of the room of the Tube Well and that bulb was not fitted on the electric pole but that bulb was not shown to the Investigating Officerduring the spot inspection. He also admitted in his deposition that he has not mentioned in the F.I.R about any emergency light. He had also not disclosed to I.O about the emergency light nor the I.O had also made any inquiry about it. Any officer had also not asked him about the emergency light prior to the date of the deposition in Court and tiis was the reason that he had not stated about emergency light before anybody. Similarly Smt. Ram Beti P.W 2 also stated in her statement that a bulb was diffusing light inside the thatch (Chapper) which was placed on the northern wall of the tube well. She denied to have stated to have given any statement to the I.O that there was light of other electric bulbs and she expressed ignorance that how that was written by the Investigating Officer in herstatement. The I.O in para 9 of the statement has stated that he had shown the points of light by word ‘L’ in the site plan. He showed ‘L’ at 3 separate points where the bulbs were diffusing light. He had not shown any light either in thatch or ‘Usara’ nor has he mentioned about it in the case diary. He has also not written anywhere in the case diary that there was light on the door inside the thatch. In spite of these material contradictions regarding light in the statements of the witnesses the learned Sessions Judge made an observation that if the question of light is ignored still the witnesses could have been in a position to recognize the accused very well because incident had taken place in open outside the abadi. The I.O had found the dead body of Virendra Kumar lying inside the thatch outside the kothari of Tube Well. The Investigating Officer also collected blood stained earth and discharged cartridge from inside the thatched room. Smt. Ram Beti had deposed that it was the month of rainy season when the incident took place. From the presence of the dead body inside the thatched room, the possibility cannot be ruled out that Virendra Kumar was shot at and killed inside the chhappar where there was no source of light and in that event it could not be inferred that Kishan Lal and his wife were in a position to recognize tne assai lants. In the present case when the prosecution felt real difficulty in establishing the existence of electric light on the spot then it introduced the emergency light unsuccessfully which seriously cast doubt on the veracity of the statements of the witnesses who have spoken about the presence of light on the spot.

13. Learned counsel for the appellants next contended that it is a case in which even according to the prosecution the offence was committed by three unknown persons in the cahoot of 8 others named in the F.I.R If for the sake of arguments it is assumed that the appellants had hired bad character to achieve their end, then it does not appeal to reason and passes our comprehension that why the appel lants joined those hired bad element in the commission of offence and incurred risk of their being recognized by the witnesses of the present case. It appears that some unknown persons had committed the present crime and the appellants with whom the complainant had enmity they have been nominated as culprits. The appellants are respect able persons having substantial source of livelihood including sufficient landed property. They are not regular or professional criminals nor they are previ ous convict nor they were earlier challaned in any dacoity case. Learned counsel for the appellants’ relied on the decision of the Supreme Court in the Laxman Prasad v. State of Bihar, 1981 Supp SCC 22 : AIR 1981 SC 1388 : (1981 CriLJ 1010); Rama Shanker v. State of U.P, AIR 1956 SC 441 : (1956 Cri LJ 822) and Munni Singh v. State of Bihar, 1993 SCC (Cri) 142 in support of his contention.

14. We have given our anxious thought to the above submission of the learned counsel for the appellants. It is true that it is a case in which dacoity was committed by 11 persons. Out of them, 8 persons were previously known and were named in the F.I.R and 3 were unknown. It is worthy of note that in the present case the named persons who are residents of the same village and they are alleged to have committed dacoity with an open face without putting on any dhatas to conceal their identity.

15. Kishan Lal (P.W 1) admitted in his deposition that all the miscreants who committed the dacoity with open faces. Accused Parshu Ram and Amar Singh are real brothers and Hari Ram accused is their father. At the time of incident Hari Ram was about 60 years old. Hari Ram had only two sons. Amar Singh was employed in the Judgeship of Etah prior to the incident. Accused Parshu Ram was also serving as peon in the Judgeship of Etah District prior to the incident. They have 30 Bighas cultivable land and a tube-well. Appellant Babu Ram is the only son of one Tika Ram and he was having a cycle shop in Ferozabad City for the last about 4 or 6 years prior to incident. He has also agricultural holding in the village. Accused Indra Pal, Sukhwasi are real brothers and they too have agricultural land in the village. Ram Prakash is also the only son of his father Ram Murti. He was a student of B.A prior to the incident. Appellant Shiv Kumar accused is cousin of Ram Prakash accused. Shiv Kumar was also studying in Agra City at the relevant time but he did not remember whether he was a student of M. Sc. at the time of incident. All the accused persons have sufficient landed property and none of them was prosecuted even before in any dacoity case.

16. In view of the admission made by the informant Kishan Lal, it appears that all the accused were men of means and well off persons having sufficient landed property and some of them had additional means by employment-also. None of them had bad antecedent in the past. It is not believable that the appellants who are residents of the same village, would go to the house of the complainant in the night and commit dacoity at the house of a known person with bare faces without taking any precaution to conceal their identity when they knew that if they participated in dacoity with naked faces the inmates of the house and other fellow villagers, who might have rushed at the spot on hearii g hue and cry, would recognize them and down right name them as the culprits. It is a matter of common knowledge that in the villages dacoities are mostly committed in the inky nights. The reason is obvious. That time is chosen so that inmates and fellow villagers may not cause much resistance and recognize the felons. Here the appellants were already known to the complainant and his family members and if they had chosen the time of night and that too of 3.00 a.m when every body was fast asleep, that could only be to avoid to chances of being recognized by the villagers as well as the inmates of the house of Kishan Lal, the complainant. That being so, it is not expected that the appellants, who were already known to the villagers and the family members of complainant would have gone with stark naked faces to commit dacoity at the house of the complainant. None of the appellants is said to be hazardous person to give a lesson to the complainant party by committing dacoity without concealing their identity. We have also considered the litigation between some of the appellants on one hand and the complainant party on the other. Kishan Lal admitted in his deposition that Babu Ram appellant lodged and F.I.R on 1-7-76 in respect of the incident which took place on 1-7-76 against Kishan Lal and others. Amar Singh son of Hari Ram, brother of Parshu Ram lodged a report against Kishan Lal, his son Virendra Kumar and some other persons on 27-5-87 at 8.10 p.m in respect of an incident which had taken place at about 7.00 p.m on 27-5-87 which was registered as Case Crime No. 342 of 1987 under Sections 452, 147, 322, 324, 335 and 308, I.P.C Hari Ram father of Parshu Ram and Amar Singh filed Suit No. 261 of 1975 against Kishan Lal informant and others for permanent injunction and that suit was decreed on 12-5-78. Amar Singh lodged a F.I.R regarding ‘Marpeet’ against Ramesh Chandra, Chandra Pal, Virendra and Ishwar Devi about two months prior to the incident. In that case Chandra Pal s/o Garib Das and Genda Lal son of Ram Singh were witnesses against informant Kishan Lai. The informant showed his ignorance that Chandra Pal son of Garib Das and Genda Lal son of Ram Singh were witnesses against him. Further it was admitted by him (informant) that Chandra Pal son of Garib Das is brother of Sukhwasi appellant. Indra Pal is also son of Garib Das. A suit being No. 232 of 1986, was filed by Lala Ram brother of Kishan Lal informant and others against Indra Pal, Sukhwasi and others. Hari Ram also moved an application dated 18-3-86 (Ext. Kha-8) before District Magistrate against Kishan Lal apprehending danger of false implication at the instance of Kishan Lal and his party men. Amar Singh also moved an application dated 1-6-87 (Ext. Kha-7) before the District Magistrate, Etah, apprehending great danger to his life and property from Kishan Lal and others.

17. From the evidence on record, it appears that there was enmity between the complainant party and the accused. The accused persons were taking legal process by filling civil suit, F.I.R, and other proceedings against the complainant. In case they, were taking legal process against the complainant party and they being respectable and law abiding persons, it is not expected of them that they would take revenge by committing dacoity at the house of the complainant and that too with bare faces.

18. In the present case learned counsel for the appellants next contended that the prosecution has examined three eye-witnesses namely Kishan Lal, his wife Ram Beti and one Mahendra Pal. The evidence of Mahendra Pal has been discarded by the learned Sessions Judge. The evidence of Kishan Lal and his wife Smt. Ram Beti also suffers from various infirmities and is not reliable inasmuch as the eyewitness account given by Kishan Lal and Ram Beti is highly improbable, inconsistent and against the medical evidence. Their evidence is totally unreliable which has not been corroborated by any independent witness.

19. We have considered the submission of the learned counsel in the light of medical evidence also. In that context the submission of the learned counsel for the appellants was that Kishan Lal sustained three incised wounds and in the opinion of the Dr. those injuries were caused by some sharp edged weapon. Here it is note-worthy that the injuries caused on the body part appearto be incised wounds and no suggestion was put by the prosecution to the doctor, who examined the injuries of Kishan Lal, whether those injuries could be inflicted by a blunt weapon also. Had a suggestion been thrown to the Doctor in that regard perhaps a suitable explanation would have been offered by him. In absence of such a suggestion it is not open to the learned counsel for the State to contend that those injuries were inflicted by some blunt weapon. The learned counsel for the appellants relied orf the case Masji Tato Rawool v. State of Maharashtra, reported in 1971 (3) SC 416 : (1971 Cri LJ (NOC) 43). In that case in the opinion of the Doctor injuries Nos. 1, 2 and 3 were incised wounds and were caused by a sharp edged object. During the examination of thedoctorin the Couitno suggestion was put to him by the prosecution that those injuries could have been inflicted by blunt object also and the Supreme Court had belied the prosecution case on that ground as well.

20. We are unable to accept the contention of the learned counsel for the State based on the literature of medical Jurisprudence only. Smt. Ram Beti admitted in her statement before the trial Court that her son was assaulted with a danda once or twice before he actually, was shot dead. From the medical evidence no blunt weapon injury was found on the person of deceased Virendra Kumar at the time of post-mortem examination. Amar Singh and Harp Ram caught hold of Virendra Kumar and then Parshu Ram fired a shot with his country made pistol. Kishan Lal has admitted in his cross-examination that the barrel of the country made pistol was at a distance of 3 cubic (4’/2 feet) from the chest of the deceased. The manner in which the deceased was fired at and shot dead does not appear to be probable inasmuch as the deceased was a young lad of about 20 years. He could have wrestled, jarked and taken turn in order to save his life and in that event the gun shot injuries could have been sustained by those persons also who were grappling with the deceased. The miscreants would not have taken such a risk that the injuries could have been inflicted on their persons, though it was possible only in a situation, had the shot been fired from a point blank-range that the miscreants could have staved off the risk of receiving injuries on their person. Another noticeable feature is that Kishan Lal was the main target of accused persons but Virendra Kumar son of Kishan Lal who was not in the focus of enmity was killed. The accused had no motive at all to cause any injury to Smt. Prem Wati or Km. Sunita who was aged about 11 years at that time. Even Smt. Ram Beti was %ol an eye-sore of the accused. Their mai n target was Kishan Lal who had sustained only incised wound, fire arm injuries and injuries of blunt weapon. Had he been the main target of the accused persons he would not have spared by the accused persons at any rate. On the other hand from the tenor of the evidence it appears that the injuries to Smt. Ram Beti, Smt. Prem Wati and Kishan Lal were caused with lathis when they did not disclose whereabouts of the valuables and gun shot injuries were sustained by the deceased when he might have resisted his seizure by the miscreants. Km. Sunita and Kishan Lal appear to have sustained gun shot injuries when they caused interference during the course of dacoity. The accused persons had no motive to cause injuries to Smt. Ram Beti, Km Sunita and Smt. Prem Wati or to cause death of Virendra Kumar.

21. The learned counsel for the appellants also argued that the investigation in this case is tainted one. The F.I.R is ante timed inasmuch as the chick report is not signed by Ram Swarup nor his state ment was recorded by I.O at the Police Station. The Chitthi Majroobi have not been endorsed by the Investigating Officer with the Crime Number and particulars of the case. We do not find any force in this contention inasmuch as law does not require the 1.0 or police official to mention the crime number and particulars of the case in chitthi Majrrobi. In the absence of any such entry on the letter sent to the Medical Officer for examination of the injured per son no adverse inference can be drawn against the prosecution. The fact that chick report was not signed by Ram Swarup nor his statement was re corded by the I.O under Section 161, Cr.P.C at the police station itself are not indicative of the fact that the report was not carried by Ram Swarup to the police station. The cumulative effect of the facts mentioned above is that the evidence of both the interested witnesses is false in respect of the light of electric bulb and when they failed to prove existence of electric light they introduced emergency light at the trial stage which was also not proved. There was inconsistency in medical and oral evidence. The manner in which the incident is said to have taken place is not probable in the ordinary course of nature. The prosecution lends no assurance from recovery of any incriminating article or looted prop erty from any of the appellants. No incriminating articles or looted property was recovered from the possession of the appellants. In such circumstance we are constrained to hold, that the evidence of Kishan Lal and his wife Smt. Ram Beti is wholly unreliable and unworthy of credence and that the appellants had not participated in the dacoity committed at the house of Kishan Lai. The prosecution has failed to prove its case beyond a reasonable shadow of doubts against the appellants and accordingly they are entitled to their acquittal.

22. Accordingly the appeal succeeds and is thereby allowed. The conviction and sentence passed by the Special Judge (D.A.A)/IIIrd Addl. Sessions Judge, Eatah on 17-11-89 are set aside. The appellants are on bail. They need not surrender. Their bail bonds are cancelled and sureties discharged.

23. Appeal allowed.