There are two appeals Criminal appeal No. 221 of 1984 has been presented by accused Kedar and Kapildeo Mahton. Criminal Appeal No. 257 of 1984 has been presented by accused Gayannath Mandal. Both the appeals arise out of the same judgment of additional Sessions Judge Katihar by which all the three appellants have been convicted under section 396 of the, Indian Penal Code (hereinafter referred to 'as the code') and sentenced to suffer imprisonment for life. For the sake of convenience both the appeals have been heard together and are being disposed of by this judgment.

2. A dacoity was committed in the house of the informant P.W.17 Rajendra Poddar on 12.10.1980 at about 18.15 P.M. in village Gandhitila (kuli para) under police station Manihari in district of Katihar about 25-30 persons raided the house. Rajendra Poddar was sleeping in a room. He got up on being assaulted by one of the dacoit He noticed that the dacoity were carrying guns, Lathies and other incriminating weapons. A few of them had entered inside room started damaging valuables from him and also ransacked the whole house. They broke open the boxes and removed articles worth several thousands. Harbansh Poddar, the elder brother of the informant was reading some news-paper in some other room. There was a lantern in that room. Some one among the dacoits fired a shot at him which proved fetal. The female inmates of the house were also assaulted. One Makhan Paswan P.W. 11, who was a Sarpanch and was casually roaming outside, was caught by some of the dacoits. He was brought inside Informant's, house and was asked to keep quiet. In the meantime, some one among the dacoits exploded a bomb. The loud report attracted the attention of the villagers. They ran towards Informants house hut before any one could arrive, all the dacoits ran away with the booty. They took away ornaments, radio, watch, utensils, tape-recorder and other valuable articles.

3. It has been shown in evidence that one Abdul Wahid of village Maheshpur had informed the police on the same day at about 6 P.M. in the evening that he had seen nearly 28 persons crossing the river by a boat moving towards village Manihari. He informed the police that they all looked like dacoits. The police after making an station-diary entry of the fact had rushed to village Manihari. But by the time police could arrive, the dacoity was committed in the house of the informant Rajendra Poddar. Police recorded the fardbeyan of Rajendra Poddar, on the basis of which, a formal, F.I.R. was drawn up and a case under section 396 of the code was registered against un-known. The police took up investigation and in course of investigation succeeded in arresting all the aforesaid three accused, who were subsequently put on a Test Identification Parade. Accused appellant Kedar was identified by two of the witnesses namely, P.W.10 Panchanand Poddarand P.W.11 Makhan Paswan. The other accused appellant Kapildeo Mahton was identified by P.W.10 Panchanand poddar only. The test identification parade was conducted by P.W.13, a Judicial Magistrate. After completing the investigation, the police submitted charge-sheet against the aforesaid accused and also against one Jagdeo Yadav. They were thus, put on trial before the court of Additional Sessions Judge. The learned Judge however, acquitted Jagdeo Yadav for want of identification and convicted the a foresaid three of the charge, against which this appeal has arisen.

4. Counsel for the appellants in both the appeals have very candidly conceded and did not challange the findings of the learned Sessions Judge with regard to the commission of dacoity. Evidence is conclusive that dacoity was committed in the house of Rajendra Poddar and come among the dacoits killed his brother Haribansh Poddar. Only the question of identification is disputed. Thus, a very short issue has been raised before us for a decision.

5 Accused Gayanath Mandal of Criminal Appeal no. 257 of 1984 was arrested on 16.10.1980.