Madhavendra Saran, J.

1. This appeal is directed against the judgment and order of 3rd Additional Sessions Judge, Arrah, Bhojpur dated 25.7.92 rendered in Sessions Trial no. 58/ 1986 under which the appellant has been convicted for the offence u/s 395 of the IPC and sentenced to undergo R.I. for five years. However, he has been acquitted of the charge u/s 412 of the IPC.

2. The prosecution case, in short, is that informant Lallan Thakur (PW13) on 4.5.1984 at about 8.30 AM gave his fard bayan before police in Sadar Hospital, Arrah to the effect that on 2.5.1984 after taking supper he was sleeping on the roof of his house along with his son, daughter and others. At about 1 AM he woke up on the alarm raised by his sisters daughter aged about 10-12 years. He saw two persons standing in front of him and when he tried to catch hold one of them, the other person assaulted by rold on his left hand. He then saw 8-10 dacoits on the roof of the house and out of them 4-5 dacoits were armed with big gun and rest were carrying small pistol and Hansuli. He saw few dacoits standing in the courtyard. He identified appellant Farman Mian only. The informant with a view to save his life jumped from the roof of the house and concealed himself in the fodder room. On alarm being raised the villagers assembled and then the dacoits fled away. The informant also heard the sound of firing. While being taken to the hospital the informant learnt that entire articles of the house worth Rs. 50 to 60 thousand has been taken away. He disclosed before the police that he identified the dacoits in torch light. It appears that informant was first taken to the Piro hospital and from there he was brought to Sadar Hospital, Arrah where his fard bayan was recorded. On the basis of the fard bayan of the informant the present case was registered as Tarari (Sikarhatta) PS case no. 63/ 1984 dated 4.5.1984. On submission of charge sheet and commitment trial proceeded with the result that appellant was convicted u/ s 395 of the IPC and sentenced to undergo R.I. for 5 years. He was, however, acquitted of the charge u/s 412 of the IPC.

3. The defence of the appellant was total denial and false implication. According to appellant one Amantullah Ansari executed a Waqfnama in favour of Idgah Islamian through the appellant. The informant and others were trying to encroach upon the land which disturbed the communal harmony due to which the appellant has been implicated in the case.

4. It appears that in all 14 witnesses were examined on behalf of prosecution in support of the allegation and out of them PW 14, Anwar Ansari is a formal witness who had simply proved formal FIR, fard bayan, T.I. chart of recovered articles and case diary which have been marked as Exhibits- 2, 3, 4 and 5 respectively. PWs 1 and 2 have been declared hostile and cross-examined by the prosecution but there is nothing in their evidence to support the prosecution case against the appellant. PWs 4 and 9 have simply been tendered for evidence by the prosecution. Thus, we have to consider the evidence of PWs 3, 5, 6, 7, 8, 10, 11, 12 and 13 on the factum of the occurrence.

5. PW 13, the informant, has supported the prosecution case and has stated that in the night of 2/3-5-1984 at about 1 AM he was sleeping on the roof of the house. He got up on alarm raised by his sisters daughter. Two of the docoits came near him and one of them assaulted on his left hand by iron rod. He became injured. He saw 8-10 dacoits on the roof of his house. They were armed with small and big gun. Some of them were carrying Hansuli. He identified the appellant in the flash of torch flashed by the dacoits. According to this witness the appellant was armed with small gun. He has further stated that with a view to save his life he concealed himself in the fodder room. He heard sound of firing. According to this witness dacoits took away the articles of the house. The villagers took the informant to Piro Hospital and from there h