SHYAM KISHORE SHARMA, J.

1. Both the above appellants have preferred this appeal against the judgment of conviction dated 17/11/1997 and order of sentence dated 19/11/1997 passed by Additional Sessions judge II, Katihar in Sessions Case No.2/262 of 1996 whereby both were convicted for offence punishable under Sec.395 of the indian Penal Code and were sentenced to undergo rigorous imprisonment for 5 years but they were acquitted for the offence under sec.412 of the Indian Penal Code. Co-accused Sallahuddin who also faced the trial was acquitted for offence under Sec.395 read with Sec.120b of the Indian Penal code.

2. According to fardbeyan of Raj Kumar Deb (P. W.12) recorded at 4. A. M. on 10/8/1995 by Sub-Inspector of Police, S. M. Khursheed, officer-in- charge, Balia Belon Police station (not examined), he, Jyotish Lal Yadav and other traders used to do business at Kurum hat within Balia Belon police station in the district of Katihar and after collecting money from various traders, they used to stay at the shop of accused Sallahuddin in the night This was their usual practice. On 9th August, 1995 after attending the work of Hat, informant (P. W.12) and Jyotish Lal Yadav