Judgment R.N.Prasad and Loknath Prasad JJ. 1. The appellants have filed this appeal against the jugment and order dated 30-7-1991 passed by 9th Additional Sessions Judge, Arrah in Session Trial No. 228 of 1983 whereby they have been convicted for the offence under Section 396 of the Indian Penal Code and have been sentenced to undergo rigorous imprisonment for life. 2. One Suresh Bhar of village Baraki Bhrauli gave a fardbeyan. Ext. 5, at Kasath Police camp on 15-12-1983 at abont 8 a. m. stating therein that on the preceding night he was sleeping near mill of one Khunti Bhar. At about 11.39 p. m. 8 to 10 dacoits armed with gun came and entered the house of Tulsi Bhar the deceased from the northern side Tulsi his uncle raisd alarm on which the docoits fired which hit his uncle Tulsi Bhar. The dacoits took away she buffalo and he identified Keshri Ahir and Daroga Ahir the appellants amongst the dacoits. He claimed to identify the other docoits by face. The informant and other followed the dacoit but the dacoits fired due to which they did not dare to follow furthermore. The dacoits were abusing while fleeing away. They were wearing Dhoti, Kurta, Lungi etc. The dacoit ran away towards village Maria. 3. On the aforesaid fardbeyan a formal first information report Ext. 3 was drawn and investigation of the case was taken up. During the investigation names of three other persons came and after completion of the investigation charge-sheet was submitted under Section 396 of the Indian Penal Code against five persons. On receipt of the charge-sheet in the court cognizance was taken up and the case was committed to the court of session for trial. 4. The case of the defence was that they were falsely implicated in this case out of malice and enmity. They also denied their participation in the alleged occurence. 5. The prosecution in support of its case examined 9 witnesses out out of whom PW 3 and PW 5 are eye-witnesses to the occurrence and have claimed to identify the appellants. The case of the defence was that they were falsely implicated in this case out of malice and enmity. They also denied their participation in the alleged occurence. 5. The prosecution in support of its case examined 9 witnesses out out of whom PW 3 and PW 5 are eye-witnesses to the occurrence and have claimed to identify the appellants. PW I and PW 2 did not identify the appellants but they have deposed that PW 3 and PW 5 disclosed the names of the appellants just after the occurence PW 4 has been tendered PW 6 is the doctor who held post-mortem examination over the deadbody of Tulsi Bhar PW 8 is the wife of the deceased and she claimed to have identified Lallan Ahir and Subedar Ahir of her village. Murat Ram has been examined twice as PW 7 and PW 9. He has proved the fardbeyan, Ext. 5 first information report Ext. 3 and the diary from paragraph 1 to 97 as Ex. 8. 6. In this case the death of Tulsi Bhar and the place of occurence have not been disputed by the defence it is the prosecution case that the occurrence took place in the house of the deceased and Tulsi Bhar died due to the injuries caused by the dacoits by fire-arm. The evidence of the withnesses is also consistent on the aforesaid point The doctor PW 6 who held the post-mortem examination over the deadbody of Tulsi Bhar had also found ante-mortem injuries on the person of the deceassed and hence the place of occurrence and the death of Tulsi Bhar have been well proved. 7. In this case five persons were put on trial out of whom three persons have been acquitted and the appellants have been convicted PW 3 and PW 5 are eye-witnesses. PW 3 has stated in his evidence that he was sleeping in the mill of PW 1 which is near the house of the deceased at a distance of 5 Kathas north. He went to the place of occurrence on hearing the sound of firing and alarm raised by the wife of the deceased PW 8. He identified the appellants in the light of the torch as the appellants had come to purchase the she buffalo a few days ago. He went to the place of occurrence on hearing the sound of firing and alarm raised by the wife of the deceased PW 8. He identified the appellants in the light of the torch as the appellants had come to purchase the she buffalo a few days ago. He has further stated in his evidence that his house is near the mill and he used to sleep in the mill arid the dacoits were also chased PW 5 has also corroborated the evidence of PW 3. He has stated in his evidence that he went to the place of occurrence on hearing the sound of firing and the alarm raised by the wife of the deceased. He had a torch in hand and had identified the dacoit in the light of the torch. He had sefn the dacoit from a close range. He has further stated in his evidence that the PW 3, PW 1 and others also chased the dacoits PW 1 and PW 2 did not claim to have identified the dacoits. However PW 1 has stated in his evidence that he was sleeping in his mill and PW 3 was also sleeping there. He had a torch in his hand. He went to the place of occurrence on hearing the alarm raised by PW 8 the wife of the deceased PW 3 and PW5 disclosed the name of the appellants just after the occurrence. He also stated that he was examined by the police next day of the occurrence. Simlar is the evidence of PW 2 who has deposed that PW 3 and PW 5 disclosed the name of the appellants just after the occurrence and had claimed that they had identified the dacoits in the light of the torch PW 1 and PW 2 though not claimed to have identified the dacoits but they corroborated the evedence of the eye-witnesses namely, PW 3 and PW 5 on the point of identification of the appellants in the light of the torch. Their evidence appears to be consistent on the point of occurrence and on the point of identification in the light of the torch PW 6 is the doctor who held post-mortem examination over the deadbody of the deceased. He has deposed that he found ante-mortem fire-arm injury on the person of the deceased which was sufficient to cause death. Their evidence appears to be consistent on the point of occurrence and on the point of identification in the light of the torch PW 6 is the doctor who held post-mortem examination over the deadbody of the deceased. He has deposed that he found ante-mortem fire-arm injury on the person of the deceased which was sufficient to cause death. All the witnesses have stated in their evidence that Tulsi fihar died due to the injury caused by fire-arm PW 8 the wife of the deceased has deposed that she identified Lallan and Subedar, the co-villager. But it appears from her evidence that she did not name the aforesaid accused persons in her statement before the police nor she stated with regard to the means of identification in her evidence. Thus her evidence was not relied upon by the court below and Lallan and Subedar were acquitted. However, she has stated that PW 3 and PW 5 disclosed the name of the appellants just after the occurrence. Thus her evidence also supports the prosecution case on the point of identification of the pellants by PW 3 and PW 5. 8. However learned counsel for the appellants contended that in the first information report nothing has been mentioned with regard to the means of identification. The witnesses have claimed to have identified the appellants in the light of the torches but the same were neither produced before the police nor before the court and hence their evidence cannot be accepted on the point of idendification. Learned counsel in support of his submission relief upon a decision in the case of Harisharan Ahir and others v. State of Bihar, 1985 BLJ 55, on a perusal whereof it appears that it was not a decision on the point that non-production of the means of identification would be fatal to the prosecution rather considering the other surrounding circumstances of the case it was held that the prosecution has failed to prove its case. However in the case of Shakti Patra and another v. State of West Bengal, 1981 SC 1217, it has been held that where direct testimony shows that torch light was available at the scene of occurrence mere non-mentioning of torch in the first information report or in the statement of the witnesses before the police will not disprove the identification of the accused in the torch light in the instant case. PW 5 has stated that he had a torch in his hand PW 1 also stated that he had torch in his hand PW 3 also claimed to have identified the dacoits in the light of the torch PW 4 has corroborated the evidence of PWs 1, 3 and 5 on the point of possession of torch in their hands. The evidence of the witnesses are also trustworthy and thus, in our view the decision relied upon by the learned counsel for the appellants do not help him in the facts and circumstances of of the case. 9. Learned counsel for the appellants further contended that the witnesses have claimed to have identified the appellants while they were running away and hence the identification is not possible and hence the evidence of the witnesses are not worthy of reliance in support of his contention he relied upon a decision in the case of Bali Ahir and others v. State of Bihar, 1983 BLJ 206, wherein it has been held that identification of dacoits while running away from a distance of 50 yards is not possible in the instant case PW 5 has categorically stated in paragraph No. 15 of his evidence that he identified the dacoits from a very close range. There was also altercation with the dacoits and the PW 5 PW 3 has also stated in his evidence that he identified the decoits from a close range. Nothing has been brought in the cross-examination to disbelieve the evidence of the aforesaid eye-witnesses namely, PW 3 and PW 5 PW 1 has also stated that PW 3 and PW 5 and others were chasing the dacoits but he was behind the PW 3 and PW 5. Thus in our view the submission of the learned counsel cannot be accepted. Besides the decision relied upon has no application on the facts and in the circumstances of the case. 10. Learned counsel for the appellants further contended that PW 5, Degree Yadav was inimical to the appellants. He pointed out that the appellants are of village Mariya and one Ram Chandra Yadav is their co-villager PW 5 is the cousin brother (Phuphera Bhai) of the aforesaid Ram Chandra Yadav. 10. Learned counsel for the appellants further contended that PW 5, Degree Yadav was inimical to the appellants. He pointed out that the appellants are of village Mariya and one Ram Chandra Yadav is their co-villager PW 5 is the cousin brother (Phuphera Bhai) of the aforesaid Ram Chandra Yadav. A criminal case was instituted against Ram Chandra Yadav in which the appellants had deposed against the aforesaid Ram Chandra Yadav and the appellants had been falsely implicated in the case at the instance of PW 5. In this regard it appears that suggestion was given to PW 5 with regard to the aforesaid facts which PW 5 categorically denied and stated that he had no relationship with the aforesaid Ram Chandra Yadav. However, one Rameshwar Singh was examined as D. W. 1 in support of the defence version who stated in his evidence that Ram Chandra Yadav of village Mariya is the Phuphera Bhai (cousin brother) of PW 5 D. A. 1 is a resident of another village and is not related with the family of either PW 5 or Ram Chandra Yadav and he had no special means of knowledge with regard to the relationship with PW5 and Ram Chandra Yadav. Under Section 50 of the Evidence Act, the evidence of only such person with regard to relationship shall be admissible who has special means of knowledge with regard to the same. Moreover, D. W. 1 has admitted in his evidence that he did not know the Phua (fathers sister) of PW 5 or to whom she was married. He also could not be able to say about the family members of PW 5 and Ram Chandra Yadav nor could ho be able to say with regard to the special means of knowledge about the relationship between them. Furthermore, D. W. 1 has not stated in his evidence with regard to any criminal case lodged against the aforesaid Ram Chandra Yadav in which the appellants claimed to have deposed. Thus, we find no substance in the submission of the learned counsel for the appellants and the same has to be rejected. 11. Furthermore, D. W. 1 has not stated in his evidence with regard to any criminal case lodged against the aforesaid Ram Chandra Yadav in which the appellants claimed to have deposed. Thus, we find no substance in the submission of the learned counsel for the appellants and the same has to be rejected. 11. Learned Counsel for the appellants further contended that the investigating officer has not been examined in this case and thus the defence case has been prejudiced it appears from the records that all steps were taken for examination of the investigating officer but his attendance could not be procured. Non-examination of the investigating officer by the prosecution in spite of the steps taken for his evidence is not always fatal to the prosecution case unless it is shown that the defence case has been prejudiced and interest of justice has suffered in this connection a decision in the case of Ramdeo Rajwar and another v. State of Bihar, 1991 BBCJ 1666, may be referred to in the instant case it appears than no attention of the witnesses has been drawn on the material point rather it appears that attention of the witnesses has been drawn only on the very flimsy nature of contradiction such as non-production of torch. Moreover learned counsel for the appellants could not be able to point out as to how the case of the defence was prejudiced or interest of justice has suffered and hence the contention of the appellants cannot be accepted sepcially in the circumstances that the evidence of the witnesses is consistent and worthy of reliance on all material points. 12. Accordingly, we do not find any ment in this appeal. Accordingly, this appeal is dismissed.