1. - Since both the appeals arise out of the judgment dated 27.7.2001 in sessions case No. 30/99, they are being decided by a common judgment.

2. Vide judgment under challenge, the learned trial court has convicted all the five accused appellants for offence under Sections 395 and 397 IPC and sentenced each of them to undergo rigorous imprisonment for 7 years with a fine of Rs. 10000/- each, in default of payment of fine, each of the accused was to further undergo rigorous imprisonment for 18 months each separately for both the offences. Appellant Goriya has further been convicted under Section 4/27 IPC and sentenced to undergo rigorous imprisonment for 3 years with a fine of Rs. 500/- each, in default thereof, he was to further undergo simple imprisonment for six months.

3. On 14.3.1999, PW 2 Amra alongwith PW4 Kalu, PW9 Nanda, PW6 Bhooli Bai and Chowkidar PW15 Kishan Lal came to Police Station Dug (Jhalawar) in a Tractor Trolly and he submitted an oral report to the effect that in the night at about 11-12 while he was sleeping in his house, light flashed at the door of his house and as a result thereof, he awaked. He saw 8-10 persons standing there. All were wearing Dhotis and Kurtas. Out of them, one accused struck 2-3 lathi blows on him, as a result of which he fell down. The accused after cutting the door with the help of an axe, entered in his house. They belaboured his wife Sita Bai and took away with them a pot (Bhandi) containing opium weighing 8 Kgs. Thereafter they entered the house of Kalu and after beating Kalu and his wife looted opium weighing 10 kgs from his house. When Kishan Lal Chowkidar came running, the accused opened fire at him.

4. On the basis of above report, police registered a case for offence under Sections 395 and 397 IPC vide FIR, Ext. P2 and proceeded with the investigation. In the course of investigation, the police inspected the site, prepared site plan, recovered the pallets of gun, seized blood stained shirt of Kalu and recorded the statements of witnesses. The police arrested accused Badri Singh, Umrao Singh, Tufan Singh and Hariya. On the information of accused Badri Singh, police recovered Rs. 4500/- lying in a brief-case. On the information of accused Umrao Singh, a kettle (Dekchi) was recovered from the bushes near the well of accused Toofan Singh. Another Dekchi containing 3.900 kgs opium was also recovered on his information. A Kulhari was recovered on the information and at the instance of accused Hariya, while a Farsa was recovered on the information and at the instance of accused Goriya. On the information of appellant Haria, a Tiffin with Rs. 3000/- was recovered. On the information of Toofan Singh 4 Kgs opium was recovered.

5. Having, completed investigation, the police submitted a charge sheet against the appellants. The learned trial Court, on the facts of evidence and material collected during investigation and placed before it framed charges against the appellants for offences under Section 8/18 of the NDPS Act and Sections 395 and 397 IPC. The appellants denied the charges and claimed trial.

6. In the course of trial, the prosecution in support of its case examined as many as 25 witnesses and got exhibited some documents. After the prosecution evidence was completed, the accused were examined under Section 313 Cr.RC. In defence, the accused did not examine any witness.

7. At the conclusion of trial, the learned trial Judge acquitted the appellants of the offence under the NDPS Act. However, the Trial Judge convicted and sentenced the appellants in the manner stated herein above. Hence the present appeals against conviction.

8. I have heard learned counsel for the parties and have gone through the impugned judgment, the evidence and material on record.

9. There are two sets of evidence and the learned trial Judge having found the evidence of recovery as being reliable and worthy of credence has based conviction of the appellants. The first set of evidence is the identificatio