Heard learned counsel for the appellants as well as learned APP for the State on this criminal appeal.

2. This criminal appeal has been preferred against the Judgment and Order of conviction and sentence dated 29.07.2002 passed by Sessions Judge, Madhepura in Sessions Trial No. 31 of 1995 arising out of Madhepura (Ghailarh) P.S. Case No. 135 of 1992, whereby the learned trial court convicted the accused persons, namely, Shiv Nandan Yadav and Pankaj Yadav for the offence punishable under Section 395 of the Indian Penal Code and sentenced them to undergo R.I. for five years for the said offence.

3. Factual matrix of the case is that Madhepura (Ghailarh) P.S. Case No. 135 of 1992 was instituted under Section 395 of the Indian Penal Code against the accused persons, namely, Pankaj Yadav, Shivnandan Yadav and 17 other unknown miscreants on the basis of the fardbeyan of Radhe Shyam Yadav, Son of Late Saryug Yadav, Resident of Village-Chiknotwa, P.S.- Ghailarh, District-Madhepura recorded by S.I. Mirdula Kumari, O/c of P.S. Ghailarh, District-Madhepura on 06.06.1992 at 08:30 AM with the allegation in succinct that on 06.06.1992 in the mid night, 18-19 unknown miscreants armed with rod, lathi, spade, etc. descended the house of the informant and flashed torch light on his face. On quizzing about their identity, they pulled him down from the cot and assaulted him by means of rod and lathi. They asked him about money kept by him. On refusal to have money, 5-6 miscreants kept surrounding him while others intruding into his house committed dacoity and looted away household articles, three boxes and cereals. The aforesaid dacoits also committed dacoity in the house of his uncle, namely, Kamleshwari Yadav and looted household articles and cereals from his house as well tying his cousin Jai Kumar Yadav and Shiv Kumar Yadav. The informant identified one of the miscreants in the occurrence as Pankaj Yadav in the torch light flashed by him while his cousin Jai Kumar Yadav identified the accused Shiv Nandan Yadav in the torch and lantern light. After committing dacoity, the miscreants left the scene with the booty. Thereafter responding hulla, villagers rushed there and gave chase to the miscreants, but in vain.

4. Aforesaid case was investigated by the police and on conclusion of the investigation, I.O. submitted charge-sheet against the aforesaid accused persons under Section 395 of the Indian Penal Code.

5. On receiving the charge-sheet and the case diary and perusing the same, the learned Magistrate took cognizance of the offence and committed the case to the court of sessions and on transfer finally the case came in the seisin of District and Sessions Judge, Madhepura for trial.

6. Charge against the accused persons was framed under Section 395 of the Indian Penal Code. Charge was read over and explained to them to which they pleaded not guilty and claimed to be tried.

7. To substantiate its case, in ocular evidence, the prosecution has examined altogether five prosecution witnesses namely, Deo Narain Yadav as PW-1, Monakka Devi as PW-2, Jai Kumar Yadav as PW-3, informant Radhey Shyam Prasad Yadav as PW-4 and 2nd I.O. Lalit Kumar Singh who has submitted the charge sheet in the case as PW-5. The prosecution has also filed and proved some documents by way of documentary evidence.

8. Statement of the accused persons was recorded under Section 313 of the Code of Criminal procedure. The case of the defence is complete denial of the occurrence. In buttress of their case, in ocular evidence, the accused persons have examined two witnesses, namely, Khushi Lal Thakur as DW-1 and Tapeshwari Rai as DW-2 and they have also filed and proved some documents by way of documentary evidence.

9. After hearing the parties and perusing the record, the learned trial court passed the aforesaid Judgment and Order of conviction and sentence as detailed in the earlier paragraph.

10. Being aggrieved and dissatisfied with the aforesaid Judgment and Order of convictio