B.N.P.Singh, J.

1. In the intervening nights of 2nd/3rd April, 1995, while house inmates were fast asleep after taking their meals, it is alleged that some dacoits holding arms with them, scaling over the wall of the house, gained their access in the inner apartment of house of Dhananjay Kumar (P.W. 4). It was alleged that they took recourse to firing to scare house inmates, collected them in the courtyard and coercing them, relieved them of their house belongings/which include ornaments, wearing apparels, watches, utensils, etc. and decamped with the booty. The fardbeyan of Dhananjay Kumar, with these accusations, was recorded by Shri CD. Sharma, Sub Inspector of Police of Noorsarai Police Station on 3rd April, 1995 at 6 a.m. at Sitarampur, pursuant to which first information report was drawn up and Police came into action. In usual course of investigation, the Police recorded statement of witnesses, visited place of occurrence and got autopsy held over the dead-body of Chandrika Sharan Singh, who was shot dead by the miscreants, and eventually on conclusion of investigation, laid charge sheet before the Court. Though a good number of dacoits allegedly participated in the dacoity, only two of the house inmates Bijay Kumar (P.W. 3) and Dharmshila Devi, wife of Dhananjay Kumar, claimed identification of the appellant alone. In the eventual trial, that commenced, the State examined altogether six witnesses, who were house inmates, the doctor, who held autopsy over the dead-body of Chandrika Sharan Singh and also the Police Officer, who investigated the case.

2. The defence of the appellant before the Court below and also this Court had been that of innocence and explicit defence of the appellant was that he was not paid wages by the house owner where he was working for quite some time and on that account, there had been some quarrel, and hence false implication. No witness, however, was examined on behalf of the appellant. The trial Court, on consideration of rival contentions raised at Bar and due regard being had to the evidence of the prosecution witnesses, recorded finding of guilt under Section 396 Indian Penal Code, 1860 against the appellant and sentenced him to suffer rigorous imprisonment for life.

3. Variety of reasons were assigned by the earned Counsel for the appellant to assail the propriety of the findings recorded by the Court below and without there being such evidence, it is sought to be urged that though the miscreants took recourse to firing from a distance of not more than 15 ft., pursuant to which Chandrika Sharan Singh was found dead, there was no positive finding by the doctor about there being evidence of charring around the wound, on the person of the deceased. Contentions are raised that though the miscreants were suggested to have ransacked the house for quite some time in course of which Chandrika Sharan Singh was shot dead, the Investigating Officer/who visited the place of occurrence, did not find any mark of violence and that apart, there was no seizure of either blood from the place of occurrence or even broken pieces of bottles and glasses which the house inmates were suggested to have pelted on the miscreants. Failure of the house inmates to produce the torch that was suggested to be the means of identification of the miscreants was also taken to be a ground to suspect the bona fide of the prosecution case. Yet, it is urged that in view of the admission made by house inmates that the appellant had worked for quite some time in the house, it was most unlikely that he would indulge in commission of dacoity in the house without taking precaution for concealment of his face. Non-examination of the persons who were witnesses to the preparation of the inquest report was also taken to be a ground to discard the credibility of the prosecution case. It is urged that since the appellant alone had been charged for commission of offence u/s. 396 Indian Penal Code, 1860 , there was serious error, an