Heard learned counsel for the appellant Mr. Gopal Krishna Sinha, Advocate as well as learned counsel for the State, Mr. Pankaj Kumar, Additional Public Prosecutor.

2. The instant Criminal Appeal has been preferred against the judgment of conviction dated 17.12.2003 and order of sentence dated 19.12.2003 passed by 5th Additional Sessions Judge, Bermo at Tenughat in S.T. Case No. 63 of 2002, whereby the sole appellant has been convicted for offence committed under Section 394 and 397 I.P.C. and awarded rigorous imprisonment for seven years for the offence punishable under Section 397 IPC and rigorous imprisonment for four years and a fine of Rs. 1000/- under Section 394 I.P.C. and in default of payment of fine rigorous imprisonment for one month, both the sentences are directed to run concurrently. By the said impugned judgment, the learned Trial Court has acquitted the appellant Gujra Karmali of the offence under Section 411 of the Indian Penal Code.

3. Being aggrieved by the said impugned judgment of conviction and order of sentence, the present appeal has been preferred before this Hon’ble Court, which has been admitted on 22.04.2004 and since then the appeal is pending before this Court.

4. The prosecution case is based upon fardbeyan of Jagdish Turi (P.W. 4) recorded by S.I. Uday Kumar (P.W.7), Officer-in-Charge, Tenughat outpost on 29.09.2000 at 1.10 a.m. at Tenughat outpost premises, where the informant has stated that in the night at 10-11 p.m, while the inmates of the house were inside the house, watching television, the three accused persons came climbing over the boundary wall and entered into the courtyard. One of the accused came near the informant and caught hold of him. The informant raised hulla as dacoit dacoit. The informant thrashed one of the dacoit on the ground and asked his son to bring farsha and also snatched the farsha from the hand of one of the accused. Another dacoit having farsha in his hand, assaulted him at his abdomen and left hand causing injury. Third accused having iron rod and a knife in his hand, assaulted him due to which informant became unconscious. Thereafter he was put inside the cot and was covered by a mattress and other two dacoits also assaulted the family members. The dacoit also gave threatening and after committing dacoity for half an hour took four bronze plate, two bronze lota, one brass lota, two bronze glass, one new aluminium utensil, one bronze plate, one bronze lota written as Moti/Moti Turi. The accused persons have also taken three new saree, one of the saree is brown in colour, other is green in color and one is of red colour and 9-10 old sarees, one pair silver payal, four silver finger ring have been looted away. The informant has alleged that the dacoit with whom he had scuffle was aged about 30-35 years, good built, wearing brown pant and shirt. The second dacoit was young, black in color, wearing pant and banyan, both were having average height having a muscle lump at the back. Third dacoit was tall, fair and wearing pant-shirt. The informant has further stated, that dacoit with whom he has scuffle came to his house earlier in the afternoon at 2-2.30 P.M. on 27.09.2000 for breeding cow with one another person claiming as an owner of the cow, resident of village Khetko and they have said that the cow will be brought by 4.00 p.m. for the purpose of breeding and thereafter both went away. The informant has further stated that on 28.9.2000, out of those two persons, one person (dacoit) came at 2.30 p.m. and disclosed that from Silly saram two cows are being brought for breeding. The said person had only came to inform the informant as he is not available in house all the time. On enquiry made by the informant, the person said that he has houses at 3 places, one is in village Khetko and second is in Silly Saram and third is at Jainamore and he is working in the C.C.L. The informant has scuffle with this person, who is a dacoit. The informant has further stated th