R.L. Gupta, J.
1. Appellant Tarachand has been convicted under Section 395, IPC, and sentenced to rigorous imprisonment for seven years and a fine of Rs. 500/-, in default of payment of fine to under go further rigorous imprisonment for six months, by the Additional Sessions Judge, Dholpur, by his judgment dated 17-5-76.
2. The prosecution case, in brief, is that in the intervening night of 11th and 12th May, 1973, about 10-11 dacoits committed the dacoity in the house of Ajudhya Prasad and others in village Tod. It was further alleged that the appellant Tarachand was with the dacoits at the time of occurrence and tie assisted the dacoits in pointing out the house of Ajudhya Prasad. It was further alleged that the male members of the family of Ajudhya Prasad and others went in a marriage to a nearby village Sabalpura. There were ladies only left at the house of Ajudhya Prasad. When the dacoits came the ladies, out of fear, ran away except Anar Dei (PW. 2) and Baijanti (PW. 3), who were sleeping in the house of Ajudhya Prasad. When dacoits came they woke up these ladies, that is, Anar Dai and Baijanti, and asked them to part with the ornaments they were wearing. This was done. After breaking open the lock of the house of Ajudhya Prasad ornaments, cloths etc. were looked and taken away by the dacoits. The dacoits then made good their escape. Thereafter Nabbu Teli was sent to village Sabalpura where the marriage party had gone to inform about the dacoity having taken place. The marriage party returned in the morning. Gulab Singh (PW. 1) enquired about the matter and then lodged the first information report at the police station, Dholpur. It seems the police failed to find out the dacoits, who actually had committed the dacoits and taken away the property and also failed to recover the property or any part of it taken away by the dacoits. It, however, prosecuted Tarachand, the appellant, under Section 395, I.P.C., for his act of assisting in the dacoity. After trial by the learned Additional Sessions Judge, Dholpur, the appellant was convicted and sentenced, as mentioned above.
3. I have heard the arguments of the learned Counsel for the appellant and the learned Public Prosecutor for the State and gone through the record of the case.
4. The main contention of the learned Counsel for the appellant is that the police has not been able to find out any of the dacoits who actually committed the dacoity. It has also failed to recover any ornaments or booty. But simply because there had been enmity between the Gulabsingh and his family and the appellant, he has been assigned thisrole of assisting in the dacoity by pointing out the house of Ajudhya Prasad. He has been falsely implicated.' To support his contention he has tried to point out that there are improbabilities in the prosecution case and there are contradictions which go at the root of the case. It is also against human conduct that the appellant would, for the purpose of pointing out the house of Ajudhya Prasad, go with the dacoits and take the risk of his being identified by the witnesses, particularly when he belonged to that very village and there was every risk of his being identified. His contention, therefore, is that the prosecution has not established the guilt of the appellant beyond reasonable doubt. He has pointed out the contradictions in the statements of the prosecution witnesses and that there is no corroboration of the statements of the partisan witnesses with whom there is long standing enmity.
5. The learned Public Prosecutor has supported the judgment of the trial court and his contention is that the alleged contradictions,, pointed out by, the learned Counsel for the appellant, are not material in the circumstances of the case and there is no reason to disbelieve the statements of PW. 2 Anar Dei and PW. 3 Baijanti, particularly that of PW. 3 Baijanti and a conviction can be based even on the sole testimony of a single witness.
6. It is true that a conviction can be based even on the testimony of a single witness in criminal cases, but that sole witness should be a witness of sterling worth and that his testimony must be honest and trustworthy. In the present case it can safely be said that there is a long standing enmity between the accused and the family of Gulab Singh, to which family PW. 2 Anar Dei and PW. 3 Baijanti belong. It is true that this enmity is a double edged sword. It may supply a motive to the accused for an act on the one hand, while on the other it may also give rise to a suspicion for falsely implicating the accused. However, one fact is true and that is that the court should be cautious in scrutinizing the evidence of prosecution witnesses in such circumstances.
7. In the present case no part in the actual commission of the dacoity has beem attributed to the appellant. The only part that has been attributed to him is that he was with the dacoits and he pointed out the dacoits the house of Ajudhya Prasad and did nothing else; The court has, therefore, to concentrate itself to this aspect of the' case and when the prosecution evidence is judged from that angle it can be said that it creates doubt in the mind of the court as the presence of the appellant with the dacoits and also of his pointing out the house of Ajudhya Prasad, particularly, when it is seen with the background that there is enmity between the parties. Baijanti (PW. 3) has deposed that the dacoits came there and they first woke them up and thereafter the appellant told that this is the' house. This seems to be some-what uijnatural of human conduct. When the dacoits had already reached the house and they first woke up the ladies Baijanti and Anar Dei, thereafter what remained the occasion for the appellant to point out the house. His pointing out the house at that juncture of the event becomes redundant and this goes to show that this part of the statement of Mst. Baijanti is not trustworthy. Besides, soon after the dacoits made good their escape, Sheela, Deokumar, Tejpuri, Nabbu and Nat hi happened to come at the scene of occurrence and it was but natural that these prosecution witnesses should have informed these persons, who assembled there, that Tarachand v as there in the dacoits, but it was not pointed out to them, soon after the occurrence that the appellant was with the dacoits and that he pointed the house of Ajudhya Prasad It is only in the first information report lodged by Gulab Singh that the appellant is named. This circumstance also goes in favour of the accused. In assessing the value to be attached to the evidence of the type with which we are concerned, the court have to rely more on human probabilities than on the assertion of the witnesses. After all we must judge the facts by the ordinary standard of common sense and probabilities and it is not necessary to show that strarge and unexpected things do happen in this world. The learned trial judge has pointed out that Nabbu, Sheela, Deokumar, Tej Puri and Nathi have not been produced and, therefore, it cannot be said that Anar Dei and Baijanti did not mention the name of the appellant. The non-production of Nathi, Nabbu, Sheela, Tejpuri and Deokumar goes against the prosecution and not against the accused. It was for the prosecution to have produced them for the purpose of corroborating the evidence of Anar Dei and Baijanti to prove their conduct that immediately after the occurrence they named the appellant to be amongst the dacoits and he pointed out the house of Ajudhya Prasad. Besides this, there are contradictions in the statements of PW. 3 Baijanti and PW. 2 Anar Dei as to the place where the accused was alleged to be standing at the time of the occurrence. This fact becomes material in the circumstances of the present case when we are to judge his presence at the scene of occurrence. Baijanti (PW. 3) has deposed that Tarachand was in the Tibara inside the house and from that place he pointed out that this is the house, while Anar Dei (PW. 2) has deposed that Tarachand did not enter the house nor he participated in the dacoity. He simply remained standing infront of the house. According to Shrawanlal (PW. 4) there was no Tibara outside the house of Ajudhya Prasad and he has, therefore, not pointed out any Tibara in the site plan Ex. P/7. Thus, the place where the appellant was present at the scene of occurrence also becomes doubtful. It may also be mentioned that there is long standing enmity of the family of Gulabsingh with the accused, as has been admitted by Anar Dei (PW. 2), but Gulabsingh has tried to supress this fact also in his statement before the court, though he has admitted this fact in his police statement. Thus, on weighing the entire prosecution evidence and after scrutiny it can safely be said that the case against the accused has not been proved beyond reasonable doubt and in such circumstances the benefit of doubt goes to the accused-appellant.
8. The appeal is, therefore, accepted, the conviction and sentence of the appellant under Section 395, I.P.C., as passed by the learned Additional Sessions Judge, Dholpur, is set aside and he is acquitted. The accused is said to be in Jail. He shall be released forthwith if not required in any other case.