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16. Laxman Singh P.W.3 has deposed that he had 7 sons. The elder son is Rajveer Singh P.W. 1. All his sons are employed in private jobs. The incident took place in between the night of 30/31.1.2004 at about 12.30 hours. He along with his wife Smt. Chameli Devi was sleeping in his gallery. His two sons Dharampal (deceased) and Jai Pal were sleeping in the rooms constructed on the first floor. Rest of his sons were sleeping in their other rooms. Two dacoits came in the gallery through stair case situated towards south. They opened the bolt of the main gate of the house whereby three other dacoits entered the house and they started assaulting him and his wife. On his shriek and cries his elder son Rajveer came with torch. That torch was of a tube light connected with a battery. Thereafter his other sons reached there. Rajpal had a three cell torch. His remaining sons were wielding lathi, Bhala and Ballam. His sons grappled with the dacoits. Dacoits were armed with country made pistol. They fired their weapons. The scuffle with the dacoits took place in the gallery and thereafter dacoits ran away out of the house. The sons chased them. Accused Satendra fired at Dharampal who sustained injuries. He was carried in the gallery where he died. The witness has claimed to have identified accused Neetu as one of the dacoits and deposed that he could not identify any other dacoits, but if they are brought before him he may identify them. The witness claimed to have identified accused Neetu by removing his Dhata from his face and insisted that all the dacoits had covered up their faces with their Dhatas.

29. Accused Satendra and Neetu both are the residents of the same village in which dacoity took place. From the evidence of Laxman Singh P.W. 3 it is clear that they had covered their faces. It means that they had entered into the house of informant Rajveer Singh for the purpose of committing dacoity after taking precautions to conceal their identity. Accused Neetu could not be recognised till his Dhata opened and according to the witnesses his Dhata was opened when the witnesses grappled with him. Above witnesses themselves connote that appellants Neetu and Satendra and all other participants/miscreants had country made pistols while none of the witnesses were wielding fire arms weapons, therefore, grappling of these witnesses with accused Neetu appears to be improbable because within all human probabilities they would not think it proper to grapple with the dacoits armed with fire arms as they must have had every apprehension of their lives. In case the appellants had concealed their identity by covering their faces as they were known to the inmates of the house in which dacoits had gone to commit dacoity, they would have taken precaution to conceal their identity by putting dhata in a manner that it remains intact. The evidence of Rajveer P.W.1 and Rajpal P.W. 2 that appellants had not concealed their faces during commission of dacoity suffers from inherent improbabilities and it is difficult to accept that the appellants went to commit dacoity in their neighbourhood and in the house of a known person without covering their faces because they would have every apprehension of being recognised, identified and being prosecuted. The prosecution witnesses were not uniform and consistent on the point of concealment of faces by the dacoits. Rajveer and Rajpal deposed that none of the dacoits had concealed their faces while Laxman Singh had stated that all the dacoits had concealed their faces and accused Neetu got identified for the simple reason that his dhata was opened during scuffle with his sons with him. It appears to be a planned venture as it appears and it is not out of place to mention here that there is nothing on record to indicate that appellants were desperate criminals or of hazardous character so much so that they could commit dacoity in the same village without taking precaution to conceal their identity. Therefore the evidence of all the three prosecution witnesses on facts cannot be relied on.

30. Be it known that sufficient light and opportunity to identify the culprits by the witnesses are two other important factors in a case of dacoity like the present one committed during night hours.

31. Laxman Singh P.W.3 does not claim to have left the gallery at any point of time during the incident. He is verbose in expressing his ignorance concerning the scuffle between his sons and the miscreants and also regarding the place of scuffle as outside the gallery or out of the main gate of his house. The case of prosecution is that deceased Dharampal was fired from out of the main gate of the house. Therefore, it is held that Laxman Singh (P.W.3) had no opportunity to see and recognise the assailant of Dharampal who was fired at out of the boundary where he never went during the incident. As regards the claim of Rajbir Singh P.W. 1 and Rajpal Singh P.W.2 to have seen accused Satendra firing at Dharampal from about 10 to 12 Ft. out of the main gate , it is apparently relevant that they did not claim that there was any gas lantern light outside the gate. As regards the torches, be it known, as already discussed above that Rajbir Singh P.W. (1) does not appear to have any torch in his hand during the incident. In his F.I.R. there is no specific mention that he had a torch with him. He has admitted not to have stated to the Investigating Officer that he had a torch with him during the incident. The Investigating Officer has deposed that Rajbir Singh had not told him that he had a torch with him during the incident. The aforesaid facts are further falsified by his own evidence that he lit the lantern gas and then came out of the door at the risk of absurdity. He deposed that first of all he came out of the door with torch and thereafter he re-entered in the room and lit the lantern. Both the aforesaid situation does not appear to be worthy of credence. He stated that he had purchased the torch 4 months back and since then he was using the same. His torch was made of China; it was two cell torch, but contradicting his version Laxman Singh P.W. 3 has deposed that the torch of Rajbir Singh was made of Tube light connected with the Battery. Assuming to be correct that he has a torch with him, there is evidence of Rajpal Singh P.W. 2 that there were only two torches with them during the course of dacoity one belonged to Rajbir Singh and the other three cell torch was with Rajpal Singh and there was no torch with either of his brothers. He further stated that when they came out from their rooms with lathi, Danda and torch dacoits started firing. During the course of firing, they did not identify either of the dacoits. Subsequently he stated that there had been a scuffle in between the dacoits and his brothers including him. During the course of scuffle he and his brother Rajbir put the torch on the ground and did not pick it up even upto the time of chasing of the dacoits. The position of torch being so, by no stretch of imagination, it can be said that either of the brothers of informant had any torch or any source of light outside the gate of the house in question where Dharampal was fired at. At the risk of absurdity Rajveer Singh P.W. 1 deposed that during the commission of dacoity he had hanged the gas lantern in the Neem tree situated in his sehan at a distance of 17-18 Ft. from the gallery. It is highly improbable that the bandits would have allowed him to take out the gas lantern from inside the room and travel upto the Neem tree for hanging the same therein specially when it has come in the evidence of P.W. 1, 2 and 3 that when they came out of the rooms with lathi and torches dacoits started firing at them and it was but natural because none of the dacoit would like the witnesses to create light to identify them. It would not be out of place to mention here that the aforesaid torches and gas lantern were not seized by the police nor produced before the Court during the trial, therefore, no reliance can be placed on the evidence of availability of said torch and gas lantern at the spot. It has further come in the evidence of Rajpal and Laxman Singh the prosecution witnesses that it was a complete dark night at that hour and the whole incident took place in the darkness of the night therefore, it cannot be said that there was any source of light to identify the assailants of Dharampal. Rajbir Singh P.W. 1 has deposed that the gas lantern hanging in the Neem tree remained there as it is till the arrival of the police at the spot. After their arrival it was brought in the gallery near the dead body of Dharam Pal. It is unbelievable that the witnesses would have been waiting for the police to bring the gas lantern from the Neem tree to the gallery and till then the dead body was allowed to remain in the darkness of the night. Another important aspect of the matter is there which does not permit us to hold that witnesses had any opportunity to identify and recognise the Bandits. The prosecution case is that all the dacoits had fire arms with them and the prosecution witnesses grappled with them. Had this been the position, the dacoits must have fired at them either in the gallery or outside the gallery within the precinct of the house in question to make themselves safe from coming into the grip of the prosecution witnesses. This part of the evidence of grappling of the prosecution witness with all the dacoits is wholly unnatural, improbable, unbelievable to which no credence can be attached. The prosecution has insisted mainly on the point that the Dhata of Neetu appellant was opened during the grappling with him. According to Rajbir Singh P.W. 1 it was Laxman Singh who grappled with Neetu, but he himself has admitted that when the scuffle in between Laxman and four miscreants was going on, there was no source of light in the gallery. Informant P.W. 1 has not claimed that when he came out of his room, he flashed the torch allegedly lying with him. He has further admitted that he could not identify either of the miscreants during the firing made by them in his gallery and outside the gallery. He has further gone to the extent of saying that the two miscreants who opened the main door could not be identified by him and his brothers. When they reached in the gallery, intermittent gun fire were made by the miscreants. Under this scenario of facts no opportunity appears to be available to them to identify and recognise the faces of dacoits which were altogether covered up by Dhatas. Undisputedly, no dacoity was committed in the house and therefore, the duration of stay of dacoits in the house of the informant would have been very short which minimises the opportunity of the P.Ws. to see and recognise the bandits. Still the claims of the witnesses that they have identified accused Satendra and Neetu are not believable specially when none of these prosecution witnesses could give any description of the unknown dacoits whom they have alleged to identify in the dacoity nor they have given any identification marks such as the stature, complexion, height of the accused. Further under the stress and strain of such a serious incident as the present one, it would not have been possible for the witnesses to identify the culprits specially when the culprits were under mask as held in the case law Tahir Mohd. Vs. State of U.P. [1993 supp. (2) SCC 697].