1. Criminal Appeal (DB) No. 313 of 2000 has been preferred by the appellants from jail whereas Cr. Appeal (DB) No. 361 of 1997 (P) has been filed through lawyer. Since both the appeals arise out of the same order of conviction and sentence, both of them have been taken up together for disposal.

2. All the four appellants have preferred these appeals against the judgment and order dated 28.4.1997 and 30.4.1997 passed by Sessions Judge Sahibganj in Session Trial No. 99 of 1994 whereby and whereunder all the four appellants have been convicted under Section 396 of the Indian Penal Code and sentenced to undergo RI for life.

3. Brief facts leading to these appeals are that in the night of 23/24.12.1991, mauza Dhanbhitta P.S. Barhait situated in interior of Sahibganj was raided by dacoits. As further stated many houses were ransacked and household articles including cash were looted from the hamlets. During this dacoity the house inmates were assaulted on resistance made by them. The police arrived at the village next day in the after noon and recorded the statement of informant Bhima Pahariya son of Maisa Pahariya in presence of Margo Parhiya and one Maisa Pahariya. According to the informant at about 12 at night on alarm raised by villagers, he came out of the house, he was caught hold by six persons and relieved of his writ watch as well as house holds articles, two cocks, two umbrella. He named the appellants as four of dacoits carrying lathi in their hands. He further asserted that after the dacoits fled away Maisi Paharin has narrated that her house was also invaded in which dacoits assaulted the house inmates and took away valuables. He further asserted when Surya Pahariya resisted, he was badly assaulted resulting in his death. According to him the dacoits have taken away two bags of bar-bati, one radio and other house hold articles from other houses as well. He further asserted that the appellants of village Barmasa were known to them. Barhalt police registered Barhait P.S. Case No. 100 of 1991 under Section 396 of the Indian Penal Code and started investigation to finally submit charge-sheet against the five persons including the appellants. All the five persons were committed for trial before the Court of sessions, Sahebganj. During trial one Dharma Pahariya died thereafter four appellants faced the trial under Section 396 of the IPC. The appellants had pleaded not guilty and claimed false prosecution. However, the learned trial Court after examining the witnesses found and held all of them guilty for the offence as per charge framed against them and sentenced them to serve RI for life.

4. The present appeals have been preferred on the grounds that the learned trial Court has failed to consider the contradictions apparent on the records, ft is further asserted that none of the witnesses examined before the trial Court has asserted that they saw the appellants committing the offence. It is further mentioned that the contradictions available on record itself makes the whole prosecution story doubtful. Learned amicus curiae Sri Raj an Kumar Singh submitted that the appellants could not be identified, as there was no source of light in the dead of night. According to Sri Singh the whole prosecution version becomes doubtful as the appellants residing by the side of the village could not have come to commit dacoity without concealing their faces. Sri Singh further

asserted that non-examination of the I.O. has caused material prejudice to the defence. Therefore, the appellant who have already remained in custody for last more than 13 years may be acquitted of the charges.

5. We have gone through the materials on record to appreciate the submissions made on behalf of the appellants. The factum that some dacoity has taken place in the cluster of the houses situated at Dhanbhitta and near hillocks in the night of 23/24.12.1991 is not disputed. According to the informant Bhima Pahariya PW 7 has identified the appellants when daco