SHYAM KISHORE SHARMA, J.

1. Both the appeals are arising out of one judgment as such they have been heard together and are being disposed of by this common judgment.

2. All the appellants have filed these appeals against the judgment of conviction and order of sentence dated 19.12.1992 passed ny the 9th Additional Sessions Judge, Rohtas at Sasaram in Sessions Trial No. 75 of 1981 whereby the appellants were found guilty for committing the offence under sec. 395 of the Indian Penal Code and were sentenced to undergo R.I. for five years.

Exhibit-3 is the basis of the prosecution case which is the fard beyan of informant Pw 5 relating to Bikramganj P.S. Case No. 23(4) of 1976 which was registered against 24 accused persons. Allegation was that in the night of 26/27th April, 1976 PW 9 was irrigating his orchard which was situated just besides the house, the informant noticed flash of torches and cried and when the informant went near the dacoits then the dacoits fired. The informant thereafter, went to village Panwara and brought the gun man. Some of the dacoits went on the roof of the informants house and entered inside the Angan through the roof and some remained at the roof. Other dacoits were standing outside the house. Total number of dacoits was alleged to be sixty. They committed plundering there for about 2 and H hours. On cry Ram Snehi Yadav and Rajdeo Yadav arrived but they were fired upon and injured by the dacoits. The villagers arrived and saw the occurrence. In the mean while Lallan Singh, Bishwanath Singh, Kishore Singh, Bhagwan Singh, Bachan Singh, Baban : Singh etc of village Panwara arrived with firearms and they opened fire which caused injury to some of the dacoits. The dacoits escaped after plundering the house, looted away number of articles details of which were given in the FIR itself. At the time of escaping1, the dacoits also took away licensed gun bearing no. 11895 with 20 cartridges. The informant identified Lallu Kanu, Bikrama Nonia and 23 others whose name has been mentioned in the FIR itself. The informants wife, daughter and daughter-in-law also identified one of the dacoits Awadhesh Mauar who was killed by the firing of the villagers. The statement of the informant was investigated into and after investigation final form was submitted. A protest petition was filed by the informant and thereafter summons were issued. The case was committed to the Court of sessions where charges were explained to the accused persons. They denied their implication and claimed to be tried.

3. In order to prove the case the prosecution examined altogether 15 witnesses. They are PW 1 Kailash Pal, PW 8 Rangnath Singh, PW 13 Sheoshankar Singh, PW 14 Ramjee Singh. These witnesses are formal witnesses and they have proved Ext-1 (FIR), Ext-2 (Protest Petition), Signature of Officer In Charge of Bikramganj Police Station (Ext-5), Service report of the summons (Ext-7), Signature of Sheokumar Mishra, Bishwanath Singh and Ramesh Kumar Rai (Ext7/1 to 7/3), Endorsement of Officer In charge Sahpur Police Station (Ext-7/4). PW 4 Ram Pravesh Yadav, PW 5 Ramdular Singh, PW 6 Hiralal Singh are the other witnesses of the prosecution. PW 15 has proved some paragraphs of the case diary. The informant has been examined as PW 9. The informants wife Kaporva Devi has been examined as PW 10. Informants daughter has been examined as. PW 11, another daughter of the informant has been examined as PW 7.

4. The case of the appellants was that many of the alleged dacoits were the co-villagers of the informant and informant with evil eye implicated the accused persons. PW 9 in his evidence has described the manner of occurrence. According to him when the dacoits came, they were flashing torch light and in the torch light the informant identified the dacoits whose name has been given by the informant in his deposition. He has stated that the dacoits were firing as a result of which Ramsnehi Yadav and Rajendra Yadav were injured. When the nearby