The prosecution must provide positive evidence for the elements of the offences charged and overcome the presumption of innocence.

1. Heard learned counsel for the appellants as well as learned Additional Public Prosecutor.

2. Cr. Appeal (SJ) No.516 of 2002 wherein Ram Ekwal Rai , Ram Naresh Rai , Nathuni Sah , Yugal Rai are appellants while in Cr. Appeal (SJ) No.517 of 2002 wherein Ram Nath Rai is the sole appellant, commonly originate out of judgment of conviction and sentence dated 31-08-2002 delivered by Presiding Officer, FTC-II, Sitamarhi in Sessions Trial No.248 of 1987, 252 of 1987, 92 of 2002 convicting all the appellants for an offence punishable under Section 399, 402 IPC, directing each of them to undergo R.I. for 10 years as well as slapped with fine of Rs.2000/- in default thereof, to undergo S.I. for six months, R.I. for seven years, fine of Rs.2000/- in default thereof, to undergo S.I. for six months, with a further direction to run the sentences concurrently, have preferred these appeals. As such have been heard analogously and are being disposed of by a common judgment.

3. PW-2, Chandra Bhushan, Officer-in-charge of Majorganj P.S. filed written report on 17-01-1983 divulging the fact that after being informed confidentially regarding assemblage of dacoits under the leadership of renowned criminal Ram Swaroom Rai, at village-Bangraha lying under Bajpatti, to commit dacoity and on account thereof, after informing of concern, raided the place with assistance of concerned police and found 12-14 persons near the Khalihan of Mukhiya, Sikandar Rai at village- Bangraha who at that very moment were engaged in eating and drinking. Having torch flashed over them was perceived as arrival of police party and on account thereof, they began to escape. However, during course thereof, six persons were apprehended out of whom, from the possession of one Yugal Rai one 12 bore cartridge, from the possession of Ram Ekbal Rai, one 12 bore cartridge, one blank cartridge were seized. Being so, all have been booked in the present case.

4. After institution of Bajpatti P.S. Case No.4 of 1983, investigation was taken up followed with submission of charge sheet whereupon, being the offences exclusively triable by the court of Session, met with committal and on account thereof, trial commenced and concluded in a manner, the subject matter of these appeals.

5. The defence, as is evident from mode of cross-examination as well as statement recorded under Section 313 of the Cr. P.C. is that of complete denial of the occurrence coupled with the theme of false implication. However, neither any DW nor any document has been exhibited.

6. In order to substantiate its case, prosecution had examined only two PWs out of ten witnesses named in the charge sheet, namely PW-1, Wosi Ahmad, PW-2, Chandra Bhushan. Side by side also exhibited Ext.-1, Fardbeyan, Ext.-2, Seizure list.

7. While assailing the judgment of conviction and sentence, the learned counsel for the appellant submitted that as the PW-2 was hostile to appellant Ram Ekbal Rai and on account thereof, he managed the whole thing under his own leadership otherwise would have informed the Officer-in-charge of Bajpatti P.S. who would have taken cared off. It has further been submitted that on account of non-examination of seizure list witnesses as well as non-production of alleged seized 12 bore cartridges, gives another jerk to the prosecution case apart from the fact that there happens to be non-explanation at the end of prosecution on that very score. Furthermore, it has also been argued that mere parrot like statement that assembly was for the purpose of preparation to commit dacoity will not fulfill the ingredients of Section 399 or 402 of the IPC in light of judicial pronouncement laid down by the Hon’ble Apex Court reported in AIR 1974 SC 778. Something more, which was required to be placed at the end of the prosecution, was identity. Because of the fact that identity has not been properly identified during trial as such, the assemblage as narrated by the prosecution, would not attract Section 399, 402 of the IPC