S. M. M. Alam, J.

1. All the three Cr. Appeals have been preferred against the judgment and order of conviction dated 21st August, 2001 passed by Sri S. C. Pandey, 7th Additional Sessions Judge, Gaya, in Sessions Trial No.341 of 1999/322 of 1999 whereby he has been pleased to convict all the above noted five appellants under Sec.396 of the Indian Penal code (hereinafter will be called an IPC ). He has further been pleased to convict appellants Chun Chun Manjhi, Munna manjhi, Anil Rajak and Raju Manjhi under Sec.412 of the IPC also. After convicting all the appellants, he passed order of sentence only under Sec.396 of the IPC and directed all the appellants to undergo RI for life under the said section with fine of rupees one thousand each and in default thereof to undergo further RI for a period of six months. He has not imposed separate sentence under Sec.412 of the Indian Penal Code.

2. The prosecution case as per the fardbeyan of PW 3 Kamdeo Singh son of saho Singh of village Bangareya P. S. Hulasganj, Dist. Jahanabad residing at mohalla Lakhibag, P. S. Muffasil, Dist. Gaya recorded by S. I. Md. Jameel Akhter, officer-in-Charge, of Muffasil P. S. on 12.1.1999 at 2.00 a. m. at Lakhibag at his house, in brief, is that he was karamchari at Mohanpur Block and from there he was transferred to Manpur block. After his transfer, he had gone to join Manpur Block and was staying in his house. In the night, he along with his family members were sleeping in the house in different rooms. At about 1.00 a. m. he woke up on hearing some sound and saw four persons entering into his house. On seeing some persons, he opened the door of his room and went over the roof. In the meantime, he heard the cry of his son Neeraj Kumar (PW 2) as well as of his father-in-law Kameshwar Singh. Hearing the cry he immediately came down from the roof and tried to save them from being assaulted as the criminals who had entered into his house were assaulting them. In the process of saving them, he also received injury on his head and back. His son Neeraj Kumar received bleeding injury on his head, whereas, his father-in-law, who had also sustained injury on his head due to the assault made by the dacoits was bleeding profusely. It is further said that the dacoits snatched the golden chain, payal and other ornaments from his wife sita Devi as well as from his daughterin-law Reena Devi. The dacoits also assaulted them. It is said that the dacoits took away golden kangan, two golden rings, two full pants and rupees five thousand cash which was kept in the ataichi of Neeraj Kumar. It is said that dacoits who were 10-12 in numbers were aged in between 20 to 25 years. They were wearing shirt, lungi, full pant etc. the informant identified them in the electric light. The dacoits took away property worth Rs.25,000.00 and after committing dacoity they fled away towards east. On hulla, people of the locality came at the house of the informant. The informant claimed to identify the dacoits.

3. On the basis of the above fardbeyan of the informant Gaya (Muffasil) P. S. case No.4 of 1999, dated 12.1.1999 was instituted under Section 395 of the Indian Penal Code against 10-12 unknown dacoits. It appears that after institution of the case injured kameshwar Singh died and, as such, sec. 396 of the IPC was added in the case. It further transpires that during investigation some recoveries were also made and so, on the basis of the materials collected by the I,o. charge-sheet under Sections 396/412 of the Indian Penal Code was submitted against the appellants and others showing Rameshwar manjhi @ Umeshwari Manjhi as ab-sconder. On the basis of the charge-sheet cognizance was taken and thereafter the case was committed to the Court of sessions. On 8.3.2000, charge under sec. 396 of the Indian Penal Code was framed against all the five appellants besides one Binod Manjhi. Against appellants Munna Manjhi, Anil Rajak @ Anil Dhobi, Chunchun Manjhi0 and rajo Manjhi charge under