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 assembled at the shop of co-accused Sallahuddin at about 8.00 P. M. While they were sitting at the shop, co-accused Sallahuddin went out and 10 to 15 minutes thereafter, five miscreants entered into the shop, surrounded the informant and assaulted him and two miscreants whipped out pistols and pointed at the chest of Jyotish lal Yadav and the miscreants took away the bags containing money.

3. On alarm being raised, the Hat people chased the miscreants and after chase they were able to catch both the appellants with looted bags. Thereafter a mob including chaukidars, dafadar and others gathered and on their interrogation, the appellants disclosed their names and the names of their associates who managed to escape as Bhavesh chaudhary, Ramesh Chaudhary, Shankar chaudhary, Mashuwa Chaudhary, Nawajish and Sk. Dukhwa. It was further alleged that on 7/8/1995, accused Sk. Sallauddin had told the accused persons that the traders who assembled at his shop after selling their clothes possessed huge money which can be easily looted.

4. On the date of occurrence, Sk. Sallahuddin left his shop and informed the dacoit. So the dacoity was facilitated and Rs.1750.00 which was in the bag of jyotish Lal yadav and rs.196.00 which was in the bag of informant were looted and later on recovered. For that the present case was registered for offences under Sec.395 and 412 of the Indian penal Code. After completion of investigation, charge sheet was submitted under the aforesaid sections against the appellants and also Sk. Sal!ahuddin. The cognizance was taken and thereafter case was committed to the court of Sessions. Charges under Sections 395/120b of the Indian Penal Code was framed against co-accused Sallahuddin whereas charges under Sec.395 and 412 of the indian Penal Code were framed against these appellants.

5. The accused persons pleaded innocence and preferred to face trial. So the trial proceeded. The defence of the appellants was that they were not amongst the dacoits. They were not arrested at the spot. They were arrested from their village which is adjacent to the village of the informant and looted money was never recovered from their possession. In order to prove its case, the prosecution has examined altogether 12 witnesses. P. W.1 is Fani Gopal Rai who is a Dafadar of the area and claims to be an eye witness of the occurrence. P. W.2 Ramakant Rai and P. W.3 Dhirendra Rai are the Chaukidars. They have been tendered. P. W.4 Pocha Singh has supported the factum of dacoity but he denied that any statement was taken by the police. Later on he declared hostile. P. W.5 ganesh Prasad Yadav has been tendered. P. W.6 Habib has been declared hostile. P. W.7 md. Muzaffar Hussain has been tendered. P. W.8 Rajendra Sharma and P. W.9 Bipin sharma have also been tendered. P