HARRIES, C.J. :- This is an appeal by one Kanai Lal Dwary who was tried by a learned Assistant Sessions Judge and jury upon a charge of dacoity. The jury unanimously found the appellant guilty under S. 395, Penal Code, and the learned Judge agreeing with the verdict convicted the appellant under that section and sentenced him to five years rigorous imprisonment. It is from that conviction and sentence that the present appeal has been preferred.

2. The charge against Kanai was that he and others on 17th March 1949, committed dacoity in the house of one Durgadas Nandi at Kanchannagar. A number of dacoits are said to have broken into the house and looted cash and property to the value of Rs. 1300.

3. At the trial the factual of dacoity was not contested and the only point at the trial was whether or not Kanai and four others who were standing their trial, were amongst the dacoits and had been satisfactorily identified by the witnesses. The only other piece of evidence against the accused was a confession by one Tej Bahadur which had been subsequently retracted.

4. Mr. Sudhanau Mukherji who has appeared on behalf of the appellant has confined his argument to the summing up of the