Arvind Kumar Mishra, J.
1. The present Criminal Appeal has been preferred by the appellant Patali against the judgment and order dated 11.3.1982 passed by Vth Additional Sessions Judge, Aligarh, in Sessions Trial No. 417 of 1976 arising out of case crime No. 45 wherein the appellant has been convicted under section 396 I.P.C. and sentenced to life imprisonment. As per version of the prosecution, the occurrence took place in the night intervening between 28th/29th April 1976, at about 12.00 midnight wherein an armed dacoity was committed at the house of Hukam Singh in village Mithanpur, situated within police circle Hathras Junction, district Aligarh in which 8 or 9 miscreants participated, and looted the property of Hukam Singh from his house for about half an hour, and made their escape good with the looted property. On alarm being raised, a number of witnesses arrived at the spot and bushes were set to fire at two places near the house of Hukam Singh which created sufficient light.
2. Witnesses Shishpal Singh and Ramesh also arrived at the spot with torches in their hands which they flashed. A lantern was also burning at the roof of the house of Hukam Singh where Smt. Kiran Devi and other members of the family were sleeping. In all that light, the faces of the miscreants could be seen by the witnesses present on the spot. A case of docoity was registered at the police station Hathras Junction on the oral report of Ram Chandra Singh, the son-in-law of Hukum Singh who was present in the village Mithanpur on that date and was sleeping in the Khaliyan. He on coming to know about the occurrence of dacoity at the house of his father-in-law went to police station Hathras Junction along with his brother-in-law Khacher Mal and reported the matter there which was initially registered at Crime No. 53 under Sections 395, 397 I.P.C. at 12.45 a.m. on 29.4.1976 vide Ex. Ka-8.
3. During the course of occurrence, some of the miscreants fired at Ashok, one of the members of the family of Hukum Singh due to which Ashok was injured and he died subsequently during course of treatment on 10.5.1976. Consequently, a case of dacoity with murder was registered under section 396 I.P.C. at the police station and was investigated into. During the course of investigation, on 30.7.1976, S.I. (The second Investigating Officer), Fateh Alam (P.W.-6) arrested all the three accused including the appellant and made them Baparda. As per version of Investigating Officer, the accused persons confessed to him to have committed dacoity at the house of Hukum Singh. They were later on paraded for test identification on 8.9.1976.
4. The investigation of the case was completed in routine manner and charge-sheet against accused persons including the present appellant was filed whereupon the case was committed to the Court of Session. The appellant was heard on point of charge by the concerned trial court and prima facie ground was found existing for framing charge against appellant under section 396 I.P.C. Accordingly, charge under section 396 I.P.C. was framed, read over and explained to the accused-appellant who denied the charge and claimed to be tried.
5. Thereafter the prosecution was asked to adduce its evidence. In support of prosecution case, in all eight witnesses were examined in the trial Court. Brief description of respective deposition is mentioned hereunder:
6. P.W. 1- Shishpal Singh, an eye witness of the incident, stated that Hukam Singh resides in village Mithanpur and Khacher Mal, son of Hukam Singh and Netrapal of his village are both married in Nizamatpur. The main door of the house of Hukam Singh faces towards north-west and in front of it, there is vacant land of Abadi and a well. House of Sonpal Singh is to the west of the main door of Hukam Singh. A gali intervenes in between the houses of Sonpal Singh and Bhanwarpal which goes towards the west. The house of Bhikam is situated to the north of Bhanwarpal and the house of Bhojraj Singh is situated to the east of the house of Hukam Singh while the houses of Raghubir and Narpat are situated on the southern side. On the date of occurrence, at about 12.00 mid night, Smt. Kiran Devi, wife of Khacher Mal and Km. Gurhia, the sister's daughter of Khacher Mal were sleeping on the roof of the house where a lantern was also burning.
7. Rabhubir Singh was also sleeping on the roof of the house while Khacher Mal was sleeping at the Khaliyan. He himself was at his house and he woke up on hearing the alarm. He came down to his house and reached near the house of Bhikam Singh along with Kalyan Singh, Ramesh Chandra, Bhajanlal and Bhikam Singh. He possessed a torch. Kalyan Singh set fire to a heap of rubbish etc. near Bhikam's house on the Rasta. Similarly, Bhojraj also set fire to heap of rubbish near the house of Sonpal Singh. The residents of the village raised alarm whereupon the miscreants started running away. They opened also 8 or 10 fire shots and one of the fires of the miscreants hit Ashok who was on the roof of the house of Hukam Singh. The miscreants ran away towards east of the village, but their faces could be identified in the light of torches and the fire so set ablazed at the time of incident. He did not know any of the miscreants from before. Ashok subsequently died as a result of injuries caused to him with the fire of the miscreants. Ramesh Chandra also held a torch at the time of the occurrence. The Sub-Inspector visited the scene of the occurrence and saw his torch and that of Ramesh Chandra for which memo Ex.Ka-1 was prepared which bears his signatures. The witness identified accused Chandrapal, Patali as well as Narain alias Narendra among the miscreants who committed docoity at the house of Hukam Singh and who were not known to him from before the occurrence. He had seen them in the docoity and thereafter in jail at the test identification parade and not in between.
8. RW.2 - Ramesh Chandra, stated that on the date of occurrence, at about 12.00 mid night, docoity was committed at the house of Hukam Singh. He was on the roof of his house when he heard alarm and the sound of fires. He was then attracted to the spot and reached near the house of Sonpal where Hukam Singh, Bhojraj and others were also present. Bhojraj set fire to a heap of rubbish near the house of Sonpal which created sufficient light. All of them raised alarm and the dacoits opened 8 or 10 fire shots. Ashok was injured by such fire shot, who died after 10 or 12 days of the occurrence. After about half an hour of his reaching to the spot, the dacoits appeared through the passage on western side and made their escape good towards the east. He saw the faces of the dacoits in the light of the burning of the fire and did not know any of them from before. He identified them in the test identification parade in jail. The witness picked up accused Patali in the Court as the person whom he identified in jail and who was one of the miscreants in the occurrence and whom he had seen on the spot and thereafter in the test identification parade and not in the intervening period (right from incident upto identification parade).
9. P.W.3 Smt. Kiran Devi, wife of Khacher Mal, the only prosecution witness who claimed to have came in close and direct contact with the miscreants, stated that Hukam Singh is her father-in-law and about two years and nine months before the date of her statement, a dacoity was committed at her house when she was sleeping on the roof along with Km. Gurhia. Her father-in-law was sleeping on the roof of the house of Raghubir while her husband and the husband of sister-in-law were sleeping on the Khaliyan. A lantern was burning on the roof when 8 or 10 docoits entered into her house at about mid-night and demanded keys from her. She raised alarm whereupon her father-in-law challenged the miscreants when one of them warned that none should interfere. One of the miscreants injured Ashok. The miscreants also belaboured her with lathis and butts of the guns and took her down stairs. They committed dacoity at her house for about half an hour. She and Ashok were later on taken to Hathras where they were medically examined. Ashok died after about 10 or 12 days from the date of occurrence due to injuries sustained by him. The miscreants had looted her property.
10. P.W. 4 Kalyan Singh also supported the prosecution version that a dacoity was committed at the house of Hukam Singh on the day of occurrence at that point of time he and Beni Ram were sleeping at the 'Nohara'. On hearing the alarm, he woke up and went to the house of Bhikam Singh, Shishupal, Ramesh and others also reached on the spot. This witness has testified on the same line as has been done by the aforesaid two witnesses P.W. 1 and P.W. 2, namely Shishpal and Ramesh Chandra, respectively. He has identified the other co- accused (Chandra Pal and Narayan) in test identification parade but he did not identify the appellant (Patali).
11. P.W.5 Ram Chandra Singh the complainant, stated that Hukam Singh is his father-in-law and a dacoity had taken place at his house when he himself was present there at the house of his father-in-law. At the relevant time of dacoity, he was sleeping in the Khaliyan. As soon as he came to know that dacoity is being committed at the house of his father-in-law, he and his brother-in-law Khacher Mal went to the police station where he reported the matter to the police. He is only a formal witness in the case. At his instance report was lodged at Police Station Hathras Junction at 00:45 hours on 29.4.1976.
12. P.W. 6 S.I. Fateh Alam Khan, stated that he took over the investigation of the case on 12.7.1976 after transfer of the then station officer Santam Veer Singh. On 30.7.1976, he arrested accused Chandrapal son of Makkhan, Chandra alias Chandrapal, accused Patali as well as Narain Singh who confessed to him to have participated in the dacoity and made them Baparda on the spot. He confined them under Parda at the lock up of the police station for which necessary entry was made in the general diary by constable clerk Piareylal, the copy of which is Ex. Ka 5. He submitted report for identification of the accused and after conclusion of the investigation, submitted charge-sheet against the accused on 17.9.1976 vide Ex.Ka6.
13. P.W.7, the head constable Netra Singh, on 30.7.1976 along with other constables took accused Chandrapal, Patali and others under Parda from police station Hathras Junction and confined them in Jail, Aligarh in the same condition.
14. P.W. 8 Inspector Santam Veer Singh disclosed that on 29.4.1976, the present case was registered at the police station in his presence. He inspected the scene of occurrence and prepared the site plan Ex. Ka-7. He also proved memos Exs. Ka-1 to Ka-4 in respect of different articles which he took in his possession from the spot as already stated above in the discussion of other prosecution witnesses. He examined necessary witnesses of the case. Since he was transferred in the meanwhile from the police station, he could not complete the investigation of the case which was completed by S.I. Fateh Alam Khan P.W. 6 as already mentioned above. He also proved the Check F.I.R. of the case Ex. Ka-8 as well as the copy of general diary entry about registration of the case Ex. Ka-9 which was written by head constable Hari Saran with whose writing and signature the witness is acquainted with.
15. Genuineness of the injury reports of Smt. Kiran Devi and Ashok Kumar as well as the post-mortem report of deceased Ashok Kumar were admitted to the defence therefore formal proof of the same were dispensed with and the documents were exhibited as Ex.-Ka 10 to Ex. Ka.-12 respectively. As per medical examination, Smt. Kiran Devi sustained two contusions on her person. The first one 2" x 1/2" left shoulder top reddish in colour and injury No. 2 contusion 3" x 1/2" left forearm middle part. Medical examination was conducted on 29.4.1976 at 4.35 a.m. Injuries were suggested to be fresh and simple in nature. Similarly as per medical examination report, Ashok Kumar sustained multiple gun-shot wounds in an area of 8" x 6" each 1/8" x 1/8" muscle deep on the left side of the hip and abdomen on the lower part. Medical examination of Ashok Kumar was done at 4.30 a.m. on 29.4.1976. The injuries were caused by firearm. The post-mortem report (Ex. Ka.-12) of Ashok Kumar mentions that six ante-mortem injuries were found on his body. Injury No. 1 caused to him was multiple gun-shot wound on the left side of front and left side of thigh in an area of 10" x 7". Similarly another injury caused was multiple abrasion on the left side of knee in an area of 2" x 1-1/2 while four other injuries caused to him were stitched wounds. The cause of death of Ashok Kumar, in the opinion of the doctor, was chock, septicaemia and toxaemia as a result of ante mortem injuries.
16. Genuineness of the identification memo (Ex. Ka.-13) in respect of accused appellant was admitted to defence, therefore, its formal proof was dispensed with and the same was exhibited as Ex. Ka.13 on record.
17. Thereafter the evidence for the prosecution was closed and the matter was placed for recording statement of accused appellant under Section 313 Cr.P.C. In his statement recorded under Section 313 Cr.P.C., the accused denied his participation in the incident. He further submitted that he was never kept under Parda and had been shown to the witnesses at the police station where the small pox marks on his face were also seen by the witnesses.
18. The defence did not adduce any evidence, whatsoever. The trial court after hearing the prosecution and the appellant on merit and analysing the entire evidence and facts of the case available on record, found the charge under section 396 I.P.C. proved beyond reasonable doubt and recorded finding of conviction against accused appellant (under aforesaid trial) and passed sentence against him punishing him with life imprisonment. Hence this appeal.
19. As per record, this appeal was preferred in March 1982 and the appellant Patali was enlarged on bail vide order dated 15.3.1982 by this Court.
20. The counsel for the appellant Patali did not appear in the Court even after repeated calls. Notice was issued to Patali but no response was received. The bail was cancelled and the Chief Judicial Magistrate concerned was asked to produce Patali. The report of the Chief Judicial Magistrate records that his whereabouts are not known. Since this being a very old appeal pertaining to the year 1982, over three decade old, Ms. Himkanya Sri. vastava advocate was appointed as Amicus Curiae. We have heard the Amicus Curiae on behalf of the appellant and learned A.G.A. on merit at considerable length and have also gone through the record of the case very carefully.
21. It has been argued from the side of the appellant that the appellant has been falsely roped in, in this case. The incident is alleged to take place in the intervening night of 28th/29th April 1976. It was the dark night and there was no moon light. 8 or 10 docoits are alleged to have participated in the incident. They caused injury to Smt. Kiran Devi and Ashok Kumar. Ashok Kumar subsequently died due to gun-shot injury. F.I.R. of the incident was lodged at the police station at 12.45 night on 28/29.4.1976, which police station is 3 miles away from the place of occurrence. The police reached the spot of incident in the morning of 29.4.1976. P.W.1 Shishpal Singh has stated that the residents of the village raised alarm whereafter the miscreants ran away from the scene. They fired 8 to 10 times. One of the fires of the miscreants hit Ashok who was on the roof of the house of Hukam Singh. The miscreants ran away towards east of the village and their faces could be identified in torch light and the light created by putting heap of rubbish to fire, near the house of Bhikam Singh on the Rasta, by Kalyan Singh and the fire was set by Bhojraj near the house of Sonpal Singh. The witness (P.W.1) is silent with regards to the visit of the police on the spot when the matter was reported at 12.45 in the intervening night of the occurrence. He claimed that the faces of assailants could be identified but he does not mention about any small pox marks on the face of appellant Patali when he actually saw him commit the dacoity. Similarly P.W. 2 and all the prosecution witnesses of fact have testified to the effect that they saw and identified the dacoits in torch light and the light created by setting heap of rubbish to fire but none of them stated that they saw one of the miscreants having small pox marks on his face.
22. It is relevant to take note of the fact that even in the statement recorded under Section 161 Cr.P.C. the eye witnesses had not stated anything about existence of small pox marks on the face of any of the accused. P.W. 3 Smt. Kiran Devi is the star witness. She was present at the time of incident. She had stated that docoity was committed at her house when she was sleeping on the roof along with Km. Gurhia. A lantern was burning on the roof. It was around 12.00 midnight when 8-10 dacoits entered into her house and demanded keys from her and she was taken down stairs by the dacoits where they committed loot for about half an hour. She raised alarm whereupon her father-in-law challenged the miscreants when one of them said that none should interfere. One of the miscreants injured Ashok. The miscreants also belaboured her with lathis and butts of the guns. She, however did not claim to identify any of the miscreants.
23. P.W. 4 Kalyan Singh also stated that dacoity was committed at the house of Hukam Singh on the day of occurrence. Shishupal carried a torch. Bhojraj had set fire near the Ber tree near the house of Hukam Singh. The miscreants had opened several fires by firearms on the spot and were asking the residents of the village to keep away from them. After committing dacoity for about half an hour, they ran away towards the east and he identified them in the light of fire and torches. He also stated that the sub-inspector had visited the village the next day and had prepared the memo Ex. Ka-1. This witness too does not speak of small pox marks on the face of any of the assailants. P.W. 5, Ram Chandra Singh stated that Hukam Singh is his father-in-law and dacoity had taken place at his house when he himself was present there at the house of his father-in-law. At the relevant point of commission of dacoity he was sleeping in the Khaliyan. As soon as, he came to know that dacoity was being committed at the house of his father-in-law, he and his brother-in-law Khacher Mal went to the police station where he reported the matter to the police. He is only a formal witness in the case. P.W. 6 S.I. Fateh Alam Khan stated that he took investigation of the case on 12.7.1976 after the transfer of the then station officer Santam Veer. On 30.7.1976 he arrested appellant Patali along with two other accused persons. He claims that the accused persons confessed to him to have committed dacoity at the house of Hukam Singh.
24. The Amicus Curiae has submitted that as per the version of P.W. 1 Shishpal, he claims to have seen the assailants, but he states that on noise of villagers assailants ran away but he does not specify as to what was his actual position at that relevant point of time. Whether he was standing close to or at distance from the assailants and was in a position to actually identify the appellant in light while they were running away from the scene. He (P.W. 1) also stated that the roof of Hukum Singh was not visible and he did not see any assailant guarding the front door of Hukum Singh. He did not see Ashok being fired on by any one of the assailants. He saw the assailants while they were running away and none of the villagers followed the assailants. He admitted that the dacoits were armed with weapons which looked like Lathi from distance. Due to dark night, it was not possible to identify the nature of weapons i.e. whether it was a spear or 'Kanta'. Their statements were recorded the very next day by the Inspector. P.W. 2 has stated that he did not see any villager flashing torch light on the dacoits. He deposed about small pox marks on the face of one dacoit but the Investigating Officer did not record any such statement under Section 161 Cr.P.C. P.W. 3 Kiran Devi - who is star witness did not identify any of the assailants nor the statement of Ashok Kumar was recorded by the police with regards identity of any of the accused before his death. P.W. 4 Chandrapal claims to have seen the assailants in the light of fire and torch but he states that due to darkness he cannot tell about the number of assailants. It has been also argued on behalf of the appellant that P.W. 6 Fateh Alam the Station Officer concerned states that on 30.7.1976 he arrested five hooligans including the appellant, who were making plan for committing docoity. They confessed to him to have committed dacoity previously.
25. The learned counsel for the appellant vehemently argued that there are serious discrepancies/contradictions in the statements of prosecution witnesses. The role of police is also not free from doubt. No recovery of looted property has been made either from the possession of the appellant Patali or anybody else so as to connect the appellant with the offence.
26. While refuting the aforesaid submissions of the learned counsel for the appellant, learned A.G. A. has argued that P.W.-1, Shishpal Singh identified the accused Patali before the trial Court. P.W.-2 Ramesh Chandra also identified accused Patali before the trial Court. Both the above witnesses correctly identified the accused in the test identification parade held on 8.9.1976 as mentioned in the identification memo Ex. Ka. 13. Again witnesses correctly identified accused appellant before the trial Court. P.W.-1, Shishpal Singh committed no mistake in the test identification parade while identifying the appellant. Similarly P.W. 2 has deposed that he saw and identified accused by small pox marks on his face. P.W. 1 Shishpal Singh, in his cross examination, has stated about the accused appellant that he had seen the small-pox marks in jail at the time of identification on the face of accused and he identified the accused by such marks. P.W.2 Ramesh Chandra also stated in his cross-examination that he identified the accused appellant because of small pox marks on his face.
27. It has been further argued on behalf of the State that there was sufficient source of light say- torch light and the fire so created by the villagers by setting fire to rubbish. As per the statement of Shishpal Singh P.W. 1 fire had been set at two places near the house of Hukam Singh and this naturally created sufficient light on the spot facilitating identification of the dacoits involved in the occurrence. Due to sufficiency of light on the spot, the residents of the village could identify the offenders whereas the inmates of the house of Hukum Singh were unable to identify them due to deficiency of light. There was no reason with the witnesses to falsely implicate the accused in this case and the local police had also no animus against them, therefore, it could not be believed that the accused had been falsely implicated in the case. It is incorrect to say that the witnesses of the case could identify them only after having been seen the accused at the police station after their arrest. The evidence satisfactorily establishes the charge under section 396 of I.P.C against the accused. There is no contradictions in the statement of prosecution witnesses.
28. In view of above rival submissions the following moot point arises for consideration in this case- whether the prosecution has been able to prove the charge under section 396 I.P.C. against appellant-Patali beyond reasonable doubt as per fact, evidence and attending circumstances of the case?
29. After close scrutiny and analysis of the materials available in this case on record, we find that the incident took place in the intervening mid night of 28th/29th April 1976, in darkness. The report of the incident was promptly registered at 12.45 a.m. on 29.4.1976 i.e. after 45 minutes of the incident. The police station is only three miles away from the place of occurrence. But the police reached the place of occurrence only in the following morning and prepared recovery memos etc. The police noticed the source of lights but neither of the two Investigating Officers recorded any particulars relating to the assail-ants/dacoits nor did they mention in the relevant documents any details or particulars of the looted articles. This was essential so as to conduct a just and fair investigation and finally to link the looted property after arrest of the accused with the articles if any recovered.
30. We further notice that the loot was committed in the house of Hukam Singh for about half an hour but the entire prosecution case is silent on point of articles looted in the incident. This very aspect of loot is one of the relevant circumstances of the case which cannot be overlooked because of inaction of the Investigating Officer and the perennial silence of prosecution witnesses regarding the articles looted by the dacoits. We would elaborate on this aspect of the case vis-a-vis. evidence and facts as we proceed further with our appreciation of facts. At this stage, it would be relevant to contemplate that two aspects are required to be proved to establish guilt of the accused. First one- the very fact that the accused committed the offence in question and the second one that he was correctly identified by the prosecution witnesses.
31. None resisted the dacoits except P.W-3. Kiran Devi and Ashok Kumar. It appears during course of the commission of dacoity, the informant reached police station and informed the police about dacoity. Injured Ashok Kumar died after 11-12 days of the incident. The statement of Kiran Devi and Ashok Kumar throw no light on identity of the assailants.
32. The prosecution witness Shispal P.W.I has testified that he did not give any particulars of any miscreants to the Investigating Officer. But the Investigating Officer has recorded that in his statement (under Section 161 Cr.P.C), P.W. 1 had stated that some of the miscreants had dark complexion and some were fair. This witness has denied the above statement to have been ever made to the Investigating Officer. This witness deposed that despite the darkness he saw one of the assailants with small pox marks. Can such a statement be believed when no such statement was recorded by the Investigating Officer under section 161 Cr.P.C. He (P.W.-1) has stated that this statement was given by him to the Investigating Officer but he cannot assign any reason as to why the Investigating Officer has not recorded the same.
33. The statement of Ramesh Chandra PW-2 on the point of identification of accused Patali is more or less the same. He also deposed that he had told the Investigating Officer about an accused with small pox marks but he cannot assign any reasons as to why this description does not find mention in his statement recorded by 'Daroga Ji'.
34. Witness PW-3 Kiran Devi is absolutely silent on point of any identity of accused Patali. The eyewitness Kalyan Singh PW-4 has stated that he saw Chandra Pal and Narain at the time of incident and also identified them in jail. He did not identify Patali as one of the dacoits.
35. Perusal of the statement of Investigating Officer, Faateh Alam Khan PW-6 reveals that the accused appellant along with other co-accused confessed to him about their involvement in the offence of dacoity. The statement given to police is not admissible under section 25 of the Evidence Act, unless corroborated by other credible link or evidence.
36. The source of light as alleged by the witnesses is also doubtful inasmuch as P.W.1 stated that there was darkness and he could not identify weapons the dacoits were armed with either as spear/lathi. They saw them while they were running away.
37. In this way, absence of any recovery of looted articles from any of the miscreants or the appellant reasonably creates suspicion on point of complicity of appellant in the incident of dacoity. We note that in the absence of any recovery of looted article
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s the corroborative force is almost missing in this case. In the light of unstable fire set to the heap of rubbish, the identification of a man with little small pox marks on the face is highly suspicious. Surprisingly, the previous Investigating Officer P.W. 8 Inspector Santam Veer Singh, who inspected the scene of occurrence has not recorded any statement regarding a man with small pox being involved in the dacoity. None of the witnesses had properly identified the accused. Guilt of appellant Patali cannot be reasonably inferred once his involvement and identity is not proved with certainty. We find it difficult to record on the evidence on record that the accused appellant has actually participated in the incident. Moreso, the first Investigating Officer could not come out with any clue regarding the culprits involved in the commission of crime. 38. In the facts and circumstances of the case, we can hardly agree to the theory of correct and innocuous identification of accused Patali by the prosecution witness. Even the prosecution witnesses are not sure about the very identity of specific weapons which in fact the miscreants were carrying with them because of darkness therefore how could they identify a man. The very identification Parade also loses its veracity in view of fact that one of the prosecution witnesses has stated that there was only one man with small pox marks at the time of identification parade and because of the accused not kept in parda. 39. Similarly, it would not be safe to link the appellant with the crime in absence of recovery of any looted article. Even at the time of argument, learned AGA could not reply satisfactorily our query as to why the prosecution kept everlasting silence on point of looted articles. Thus the finding of conviction as recorded by the court below is on its face erroneous and suffers from inherent defects and the same cannot be sustained in the eye of law. 40. The Hon. Apex Court in the case of State of U.P. Vs. Awdhesh, has observed that "The golden thread which runs through the web of administration of justice in criminal cases is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and other to his innocence, the view which is favourable to the accused should be adopted. The paramount consideration of the court is to ensure that miscarriage of justice is prevented. A miscarriage of justice which may arise from acquittal of the guilty is not less than from the conviction of an innocent. 41. For the reasons discussed above, the appeal filed by the appellant Patau' is allowed. The judgment and order of conviction of the trial Court dated 11.3.1982 passed in Sessions Trial No. 417 of 1976 against appellant Patali under Section 396 I.P.C. is set aside/quashed. He is set at liberty forthwith if not required to be detained in any other case. His bail and surety bonds are discharged. Ms. Himkanya Srivastava, was appointed as amicus curiae to assist the Court. She has rendered a valuable assistance in the matter. Let her be paid Rs. 8,000/- for the assistance provided to the Court in the matter.