ANIL KUMAR UPADHYAY, J.

1. This appeal arises out of a judgment of conviction and order of sentence dated 16.01.2002 passed by the 4th Additional District and Sessions Judge, Sitamarhi in sessions Trial No. 267 of 1995/214 of 2000 whereby the appellants have been convicted for an offence under section 324 read with section 34 of the Indian Penal Code. Both the appellants were sentenced to undergo rigorous imprisonment for 3 years under section 324/34 IPC and the appellant No. 1 Kaushal Kishore Rai has been further sentenced to undergo rigorous imprisonment of 10 years with fine of Rs. 5 thousand under section 3 and 4 of the Explosive Substances Act, 1908 and incase of default of payment of fine he was further sentenced to undergo R.I. for 2 years. However all the sentences were to run concurrently.

2. The prosecution case in short is that on 10.11.1994 at about 8.30 p.m. while the informant along with Ram Lakhan Rai, his covillager, was returning after easing themselves from an orchard, they saw all the named accused of the F.I.R. standing carrying lathi in their hands and identified them in the moon-light night. The informant thought that all the named accused had returned