Prabha Shankar Mishra, J.

1. The appellants herein have been convicted under Sec.395 of the Indian Penal Code, Order sheet of the appeal shows that initially Mr. Syed Alamdar Husain appeared for the appellants but it transpired that appellant Hazari Chaubey had-somehow managed his release on bail on a forged bail order fabricated to have been passed by R. N. Prasad, J. one of the Hon ble Judges of this Court and noticing that the said release was unauthorised this Court declined to release him on bail during the pendency of the appeal and directed for an enquiry into the forgery of the order. Mr. Hussain, however, got his appearance cancelled and the appellants were thus given notice by this Court to appear through a counsel of their choice. After notice by this Court, the appellants have entered appearance through M/S Ram Bhushan Pandey and Girish Chandra Sharma, Advocates. The appeal was listed for hearing on May 13, 1987. Since no one appeared on behalf of the appellants, the Court found it difficult to proceed with the hearing of this case without the appellants being represented at the hearing of the appeal. Mr. Hariji Upadhaya, however, agreed to appear Amicus Curiae for the appellants and accordingly we permitted him to appear and represent the appellants.

2. The facts of this case are tell-taled. In the night of the 1st/2nd October, 1979, the informant Taj Bali Ram (P. W. 7) was sitting on a Chouki in front of his house along with a small child and an uncle of village relationship. A mob consisting of several persons with fire arms and other deadly weapons arrived. 15-20 of them went towards the Zanani Kita of the house of Bishwanath Rai (P. W. 8) and the informant and they started indiscriminately firing from their guns and rifles. A group entered into the Zanani Kita of the house of the informant and two of them climbed on the upper floor and fired from their guns and one of them who was carrying Bhala acted as watchman of the movement in the Gali leading to the house of the informant. Some of the dacoits surrounded the informant and abused him. The mob remained for about 45 minutes in the Zanani Kita and committed loot pat. After committing dacoity and looting properties of several lacs, the mob fled away. After the departure of the dacoits, the informant went into the house. He, however, found that the dacoits had not touched any female members of the family or any child but had broken open the doors, indiscriminately fired and ransacked the house. He lodged the information about the occurrence at Mohania police station. In the first information report, he claimed that he identified the appellants and also stated that other witnesses had identified the accused person.

3. In the eventual trial, the prosecution examined as many as nine witnesses including the informant, his brother Bachan Singh and other eye-witnesses. P. W. 9. Lal Bahadur Singh has deposed that he had taken over the investigation of the case from the officer who had initially held the local inspection and recorded the statement of the witnesses under Sec.161 of the Code of Criminal Procedure but Brameshwar Nath Choubey, who was the Officer-incharge of Mohania police Station and had recorded the fardbeyan and investigated the case, was not examined as a witness. The learned Session Judge has said that inspite of all sincere efforts taken by the prosecution Brameshwar Nath Choubey could not be examined.

4. Deposing as P. W. 7 the informant had narrated that he was sitting on a Chouki on a Chabutara along with a small child and his neighbour Dwarika Rai (P. W. 1) who was sitting on a separate cot. A lantern was burning in the Oriyani of verandah of the Dalan. They heard sound of gun firing coming from the Zanani Kita of the house of Bishwanath Rai (P. W. 8) and also heard voice of men using abusive language. Suddenly 15 to 20 dacoits came towards the house of the informant and from the Zanani Kita of the house of Bishwanath Rai (P. W. 8). 5 to