1. Both these appeals have been heard together as they arise out of the same judgment, and they are being disposed of by this common judgment.

2. Cr. Appeal No. 118/1981 has been filed by the five appellants who have been convicted under S. 395 of the Indian Penal Code, (in short the Penal Code), and have been sentenced to undergo rigorous imprisonment for ten years.

3. Cr. Appeal No. 114/1981 has been filed by the sole appellant who has been convicted under S. 412 of the Penal Code and has been sentenced to undergo rigorous imprisonment for ten years.

4. The prosecution case, in short, is that a dacoity was committed in the night of the 27th Aug. 1973 in the house of the Informant P. W. 3 at about 8.00 P.M. in village Dabanpur within Bhagwanpur Police Station in the district of Rohtas. According to the F. I. R. while the Informant (P. W. 3) was talking to one co-villager Sankata Pandey, P.W. 4 in his "Hatikhana" and his sons, namely, Narmedeshwar Pandey P.W. 1, Narsingh Pandey P.W. 2 and Nanku Dusadh (not examined), were also sitting there, suddenly 16 to 18 persons came armed with lathis, bhalas and gun and, all of a sudden, started assaulting the Informant P.W. 3 as well as Sankata Pandey P. W. 4 with lathi and bhala and demanded the gun of the Informant P. W. 3 at which the Informant stated that he had sent his gun to his relation. It is said that Sankata Pandey, P.W. 4 raised alarm at which the villagers came there. The dacoits fired gun as a result of which, the villagers scattered away and the dacoits are alleged to have taken away gold ornaments of 50 bhari, cash of Rs. 10,000/-, clothes, double barrel gun and 18 live cartridges. It is further alleged that the dacoits also assaulted Narmedeshwar Pandey P.W. 1. The informant P. W. 3 has specifically denied to have identified any dacoits at the time of commission of the dacoity.

5. The Informant lodged the First Information Report (Exhibit-1), on the basis of the aforesaid information, the police registered a case under S. 395 of the Penal Code against 18 unknown persons being Bhagwanpur P. S. case No. 25(8)73. The police took up the investigation and after completing the same, submitted charge-sheet against these six appellants of both the Criminal Appeals along with one Kedar Chamar, whose case was bifurcated due to his absconding and one Ram Nath Chamar, who died during the pendency of the Sessions case.

6. The prosecution has examined 8 witnesses. Out of them, P.Ws. 1, 2, 3 and 4 are said to be present at the place of occurrence. P. W. 5 has been tendered. P. Ws. 6 and 7 are seizure list witnesses, in whose presence a gun has been recovered by P. W. 8 from the house of Jaggarnath Dhobi, the sole appellant in Cr. Appeal No. 114/81. It is not in dispute that in this case neither the Magistrate who held the Test Identification Parade, nor the Investigating Officer who investigated this case, has been examined by the prosecution.

7. The defence of the appellants in Criminal Appeal No. 118/1981 is that they have been falsely implicated in this case due to the previous enmity. According to them, these appellants were known to the witnesses from before the date of occurrence. It is further stated that appellant No. 1 Ramadhar Chamar was a candidate for Mukhiya of Gram Panchyat of villages Dabanpur and Oregaon in the year 1970, and he was elected in the said election after defeating the Informant P. W. 3 and other appellants were his supporters. Therefore, they have been falsely implicated in this case.

8. So far as the defence of the sole appellant in Cr. Appeal No. 114/81 is concerned, his defence is that he has been falsely implicated out of enmity and, as a matter of fact, he is an innocent person.

9. The learned Assistant Sessions Judge, after going through the evidence on the record, gave benefit of doubt to the sole appellant Jaggarnath Dhobi (in Cr. Appeal No. 114/81) under S. 395 of the Penal Code, but he convicted him under S. 412 of the Penal Code and sent