JUDGMENT P.K. SARKAR, J.:- This criminal appeal is directed against the judgment and order dated 5.2.94 passed by Sri Chakradhar Rai 1st Addl. Sessions Judge, Samastipur in sessions trial no 69/85 whereby the Addl. 47/89 Sessions Judge convicted all the five accused-appellants under section 396 of the Indian Penal Code and sentenced each of them to undergo rigorous imprisonment for life. However, the learned Sessions Judge found the accused-appellants not guilty under sections 302 and 380 of the Indian Penal Code. 2. The facts leading to this appeal briefly stated as follows :- "In the night intervening 28/29th July 84 at 12.30 A.M. the police of Dalsingsarai police station in course of their patrolling duty reached village Bajidpur Gado and learnt that an occurrence of murder had taken place. So they reached the house of the deceased Ram Kripal Jha and recorded the fardbeyan of the informant Sunil Kumar Jha (PW9) grand son of the deceased at his door. The informant stated in his fardbeyan that in the aforesaid night after taking their meal, his grand father, deceased, Ram Kripal Jha, brother Sushil Kr. Jha (PW2) and Ajay Kumar Jha (PW3) were sleeping on the outer verandah of the house. At about 11.30 P.M. 15.20 culprits came to his darwaja and started awaking his grand father Ram Kripal Jha, five-six persons brought Sushil Kumar Jha and Ajoy Kr. Jha to his adjacent room and tied all of them with wrapper, chadder and Gamcha and thereafter those culprits started watching in front of the said room. Out of them one had a danta of green bamboo with its root and others were armed with bhala and lathi. Suddenly, electric supply was resumed and in the electric light he identified 3 persons out of them as Biju Jha, Mahadeo Jha and Ram Balak Das. Biju Jha, a co-villager of the informant had tied a red Gamcha on his head. The informant further stated that his two brothers also identified the above 3 accused persons. In the meantime, they also saw that 5 to 6 culprits started dragging his deceased grand father towards angan asking him for the key. His grand father told them to release him and he will hand over the key but they did not listen to him and dragged him towards angan. Thereafter the culprits chained their room from outside. In the meantime, they also saw that 5 to 6 culprits started dragging his deceased grand father towards angan asking him for the key. His grand father told them to release him and he will hand over the key but they did not listen to him and dragged him towards angan. Thereafter the culprits chained their room from outside. The culprits thereafter started pushing the door of northern room of the said verandah. The informant and others heard the sound. They also heard the sound of the culprits trying to break open the door of the angan. After some time, the informant heard the voice of his grand father saying that "RE ASHOKWA RE RAMCHANDR ENA KEYA KARAI CHHAIN." There was further altercation between his grand father and the culprits. From the said altercation and their voice the informant could identify the other culprits as their co-villager Ashok Jha son of Jagdish Jha and Ram Chandra Jha son of Palaki Jha. While this altercation was going on between the deceased Ram Kripal Jha and the aforesaid culprits, the informant and others heard the sound of firing. Villagers also woke up and they started raising hue and cry. Thereafter two more rounds were fired by the culprits to terrorise the villagers from coming towards the house of the informant and they fled away towards south uttering that their wishes have been fulfilled and also 'GANGA MAIYA KI JAI'. After their retreat villagers came to his darwaja and some of them unchained their room and they found their father and several villagers standing there. His father untied their hands and thereafter they chased the culprits towards the side they fled away. However, the culprits could not be apprehended. When the informant and others returned they saw Ram Kripal Jha lying dead on the verandah of the kitchen room located in the east side of the angan. There was one bullet injury in his chest. Thereafter they looked around the room and found that in the northern room of the verandah box and sanduk kept there were there. All papers have been scattered here and there. The handle of the iron chest is also bend. The iron chest was fixed in the wall and some of the bricks were removed and broken but the iron chest was intact. All papers have been scattered here and there. The handle of the iron chest is also bend. The iron chest was fixed in the wall and some of the bricks were removed and broken but the iron chest was intact. Informant found in the room of his father bed sheet and other clothes were scattered and on enquiry his mother said that Rs.150/-cash, golden bali, ring and wrist watch were looted away from the almirah. He further found that the pant and other clothes belonging to him and his brother have been removed. Two or three sarees of his mother were also removed. On the same evening his deceased grand father had sold a buffalo for Rs. 2200/-. But he does not know where he had kept the same amount. On the outer verandah the culprits had left one old lungi, one old hawai chappal. In the meantime, police who were on patrolling duty arrived on the place of occurrence. The informant further said that some important papers and documents concerning litigation are missing. Informant further stated that he will give full details after the situation is normalised. At that time, due to the death of his grand father, the family were disturbed and weeping so he was not in a position to give full details of the papers and documents. However, price of the property removed was given as 3 to 4 thousand. The informant also stated that Ram Karan Jha, Parmanand Chaudhary, Chandra Shekhar Mahto and others saw the occurrence. He has also claimed that he can identify those culprits by face. The motive behind the occurrence was civil litigation which were going on in between the grand father of the informant and Ashok Jha and Ram Balak Das. It was his grand father who was conversant with the papers and he was also incharge of making pairvi in the court. The informant, therefore, claims that his grand father has been killed in a pre-planned way. 3. On the basis of the aforesaid fardbeyan, formal FIR was drawn up and a case under sections 302 and 380/34 IPC was registered. As the police has already reached at the place of occurrence, they took up the investigation of this case I.O. conducted inquest on the dead body of the deceased and sent it for post mortem examination. 3. On the basis of the aforesaid fardbeyan, formal FIR was drawn up and a case under sections 302 and 380/34 IPC was registered. As the police has already reached at the place of occurrence, they took up the investigation of this case I.O. conducted inquest on the dead body of the deceased and sent it for post mortem examination. In course of investigation, police examined different witnesses and submitted chargesheet in this case under sections 302, 380/34 IPC on 27.2.88. Cognizance was accordingly taken and the case was committed to the court of session for trial. 4. Initially, a charge under sections 302 and 380 IPC was framed against all five accused persons by Sri S.N.P. Verma, the then Addl. Sessions Judge, Samastipur. Subsequently, the case was transferred to the court of Sri J.P. Yadav, 4th Addl. Sessions Judge, Samastipur who framed alternative charge on 22.4.88 under section 396 IPC against all the five accused appellants. Accordingly, trial was taken up and ultimately, judgment was delivered by Sri Chakradhar Rai, 1st Addl. Sessions Judge, Samastipur who convicted and sentenced the accused-appellants in the manner as indicated above. 5. Being aggrieved by and dissatisfied with the order, present appeal has been filed. 6. As it appears from the evidence and other papers on record the accused persons pleaded innocence and submitted that they have been falsely implicated on account of old enmity due to "litigation. 7. Learned counsel for the appellants, in course of submission, during hearing of this appeal, challenged the impugned judgment and submitted that the learned Addl. Sessions Judge failed to appreciate the evidence on record and reached to a wrong conclusion and convicted the accused appellants. Hence he submitted that the impugned order/judgment deserves to be set aside. 8. Prosecution has examined 17 witnesses in this case. Out of whom P.W1 Mohan Mahto, P.W.2 Sushil Kr. Jha, P.W.3 Ajoy Kr. Jha and P.W.9 Sunil Kr. Jha (informant) have claimed themselves as eye "witnesses of the occurrence. P. W. 7 Bishundeo Mahto and P.W.8 Bhola Nath Jha have supported the occurrence but it appears that they have claimed that they reached the place of occurrence just after the occurrence. P.W.10 Satya Nr. Jha and P.W.11 Sheela Devi are father and mother of the informant and youngest son of the deceased Ram Kirpal Jha. They are witnesses on the point of dacoity and murder of Ram Kirpal Jha. P.W.10 Satya Nr. Jha and P.W.11 Sheela Devi are father and mother of the informant and youngest son of the deceased Ram Kirpal Jha. They are witnesses on the point of dacoity and murder of Ram Kirpal Jha. P.W.12 Ram Karan Jha, P.W.13 Sada Nand Jha, P. W.15 Parmanand Chaudhary have been declared hostile, P.W.4 Ahmad Sultan, P.W.16 Brij Nandan Prasad are formal witnesses as they have proved certain papers only. P.W.6 Chandeshwar Mahto was tendered. P.W.14 Deo Nr. Jha is an advocate practising at Samastipur civil court and son of the deceased who came to the village on receipt of information of dacoity and murder of his father on the next day and learnt about the names of the accused from P.W.9 (informant). P.W.5 is the doctor Jamaluddin, who conducted the post mortem examination on the dead body of the deceased Ram Kirpal Jha and P.W.17 is Sri Prakash Trivedi, I.O. of the case. 9. Thus, there are two points for consideration in this case. Firstly, whether occurrence of murder and dacoity happened in the house of the informant in the manner alleged by the prosecution and secondly, whether the prosecution has been able to establish the fact beyond all shadow of reasonable doubt that the accused-appellants are responsible for committing dacoity and murder as alleged? 10. P.W.5 the doctor, who conducted post mortem examination on the dead body of the deceased, has deposed that on' 29.7.84 he was posted at Samastipur Sadar hospital as C.A.S. On that day at about 2.10 P.M. he conducted post mortem examination on the dead body of Ram Kirpal Jha son of late Magni Jha and found the following antemortem injuries on the person of the deceased : (i) One abrasion 1½" x ¼" on middle of the thumb of right hand. (ii) One abrasion on left upper eyelid 1" x ¼". (iii) One abrasion below the left 1½" x ¼". (iv) One oval wound on lower part of the front in the right side of the chest 1½" x ¾" Chest cavity deep. The edge of the wound was inverted and the skin around the wound was blackened and burnt. The hairs around the wound were also burnt. On dissection, there was fracture of VIII and IXth ribs of the right side. There was fracture of xiphi sternum. The chest cavity was full of blood. Left lung was ruptured at multiple sides. The edge of the wound was inverted and the skin around the wound was blackened and burnt. The hairs around the wound were also burnt. On dissection, there was fracture of VIII and IXth ribs of the right side. There was fracture of xiphi sternum. The chest cavity was full of blood. Left lung was ruptured at multiple sides. Two cork's of card board of the cartridge and several pillets were removed from the chest cavity and were preserved in a seal vial and were handed over to the accompanying police. Weapon used fire arm. Time elapsed since death 6 to 18 hours. Cause of death due to shock and hemorrhage due to injury no. iv. P.W.5 has proved exhibit 2 i.e. the post mortem report. 11. On a careful consideration of the cross-examination of the doctor (PW5) there is nothing by which the aforesaid evidence can be disbelieved. Thus, from the evidence of P.W.5, it has been fully established that Ram Kripal Jha was found dead with several injuries including gun shot injury in his right chest and the corks of card board of the cartridge and pillets were embedded in the chest cavity. From the aforesaid evidence, it, therefore, appears that Ram Kripal Jha died unnatural death which was found homicidal. 12. P.W.9 is the informant. P.Ws.2 and 3 are admittedly his brother. P.W.2 is his own brother and P.W.3 is cousin brother and all 3 persons had slept alongwith the deceased Ram Kripal Jha, in the outer verandah at the time of occurrence when some culprits came and dragged grand father of the informant and these witnesses namely P.W.2 and P.W.3 and ultimately, committed murder. These witnesses alongwith father and mother of the informant (P.W.9) namely P.W.10 and P.W.11 also corroborated the fact that dacoity was committed in the house in which house hold articles like cloths, money, ornaments like golden Bali, ring and wrist watch and certain important papers were looted away. While leaving that place, the culprits left one lungi and one hawai chappal. P.Ws.7 and 8 though did not support the entire occurrence and identification of the accused persons yet they have supported the factum of the occurrence so far dacoity etc. is concerned. P.W. 17, I.O. who reached the place of occurrence, soon after the occurrence also saw different incriminating articles at the place of occurrence. 13. P.Ws.7 and 8 though did not support the entire occurrence and identification of the accused persons yet they have supported the factum of the occurrence so far dacoity etc. is concerned. P.W. 17, I.O. who reached the place of occurrence, soon after the occurrence also saw different incriminating articles at the place of occurrence. 13. So far the evidence of P.W.1 is concerned though he supported the entire occurrence including identification of the accused persons the court below found his evidence unreliable. However, on the basis of the evidence of the other witnesses, there are enough evidence to establish the fact that there was a dacoity in the house of the informant on the night of occurrence in which murder of Ram Kripal Jha, grand father of the informant was committed. P.W.14 who came to his house on the next day also corroborated the fact of the occurrence but he is hearsay witness. There is nothing in the cross-examination of the witnesses referred to above by which their aforesaid evidence with respect to the fact of occurrence can be disbelieved. In view of the facts stated above, there is nothing on record by which it can be said that findings of the court below so far as his conclusion regarding the occurrence of the dacoity and murder in the house of PW9 (informant) on the day of occurrence can be treated as illegal/irregular. Thus on the basis of the evidence on record it can be concluded that in the night of the occurrence, some dacoits came to the house of the Informant, looted away certain articles including papers and committed murder of the grand father of the informant, namely, Ram Kripal Jha. 14. The next point, therefore, that arises for consideration is whether the assertion of the prosecution and the findings of the court below that the accused-appellants alongwith others committed the aforesaid dacoity and murder of Ram Kripal Jha can be sustained on the basis of evidence both oral and documentary. 15. P.W.9 (informant) has clearly stated that on 28.7.84 at about 11.30 P.M. he alongwith his brother Sushil Kr. Jha and cousin brother Ajoy Kr. Jha were sleeping at their darwaja on the Verandah. His grand father was sleeping nearby on a chauki. He has further stated that he and his brother were sleeping on a separate chauki and his grand father was sleeping in another chauki. Jha and cousin brother Ajoy Kr. Jha were sleeping at their darwaja on the Verandah. His grand father was sleeping nearby on a chauki. He has further stated that he and his brother were sleeping on a separate chauki and his grand father was sleeping in another chauki. At that time, some persons came and started awakening his grand father they were 15-20 in number. Out of them 5 to 6 persons came and caught hold of his brother Sushil Kr. Jha and Ajoy Kr. Jha and alongwith him put three of them in one room and tied their hands by bed sheet and gamcha (towel). P.W.9 has clearly stated that at that time suddenly electric supply was restored and he alongwith his other brothers recognized Biju Jha, Mahadeo Jha and Ram Balak Das in the electric light. Out of the aforesaid accused persons who were keeping watch on their room armed with bambo, Garasa etc. P.W.9 has further stated that at that time, Biju Jha had tied a red towel in his head. Thus, P.W.9 has clearly stated that he identified the aforesaid three accused-appellants namely, Biju Jha, Mahadeo Jha and Ram Balak Das in the electric light, the line of which suddenly resumed. P.W.9 has also stated that the room in which they were kept was closed from outside and some persons were pushing the room in the northern side and also pushing the door of the angan which they were seeing. At that time, they recognized two more persons who are Ashok Kr. Jha and Ram Chandra Jha of their village by their voice. They also heard their grand father saying "RE ASHOKWA RE RAMCHANDRWA ENA KEY A KARAI CHHAIN." These statements coupled with the voice of the accused appellants clearly establishes the identity of these two accused-appellants. P.W.9 has further stated that when altercation between his grand father and culprits were still going on they heard the sound of firing from the side of the kitchen. Some villagers came on hearing the sound of the firing and the culprits started running away but, while retreating they fired twice to terrorise the people. Then they ran away saying that their mission is complete. P.W.9 has further stated that villagers came and opened their door and they came out. P.W.9 has further stated that he saw his father among other villagers. Then they ran away saying that their mission is complete. P.W.9 has further stated that villagers came and opened their door and they came out. P.W.9 has further stated that he saw his father among other villagers. They united their hands and then they chased the culprits towards the direction where they ran away but none of them were caught. Thereafter, they returned and found his grand father, Ram Kripal Jha dead. There was mark of firing on his right side chest. A chair was also found upturned at that place. He also found iron chest and boxes were broken and articles scattered. However, the iron chest was not broken and simply the handle was bent. P.W.9 has further stated that he went towards the room of his father and found the almirah opened and some clothes scattered and came to know from his mother that Rs. 150/- in cash and one pair of golden earring one golden ring, wrist watch and some Sarees were missing which were taken away by the culprits. P.W.9 has also stated that on that day, his grand father sold a buffalo for Rs. 2200/- but he did not know where he kept the said money. P.W.9 has said that he told about the occurrence to the villagers namely, Bhola Jha, Bishun Mahto, Doluh Mahto and others. P.W.9 has further stated that some time after the occurrence, ASI came alongwith the patrolling party in his darwaja and he gave his statement which was recorded and read over to him and finding it as correct he signed on the same. It was also signed by Prakash Trivedi. He has proved the fardbeyan exhibit-3. 16. P.Ws. 2 and 3 who are brothers and cousin brother of the informant and said to be sleeping with him at the time of occurrence, have fully corroborated the aforesaid evidence of P.W.9 wherein they have also clearly stated about the fact that they were sleeping together alongwith the deceased when the culprits came who tied their hands by bed sheets and gamcha and put them in a room together. They have also clearly stated that suddenly electric supply was resumed and they recognized 3 accused-appellants, namely, Biju Jha, Mahadeo Jha and Ram Balak Das among the culprits who were guarding them. They have also clearly stated that suddenly electric supply was resumed and they recognized 3 accused-appellants, namely, Biju Jha, Mahadeo Jha and Ram Balak Das among the culprits who were guarding them. They have also corroborated the evidence of P.W.9 and prosecution case inasmuch as the hearing of the sound of firing and also recognition of 2 other accused-appellants, namely, Ashok Jha and Ram Chandra Jha by their voice. They also corroborated the fact that they heard their grand father saying "RE ASHOKWA RE RAMCHANDRA ENA KEY KARAI CHHAIN." These two witnesses have also corroborated the fact that while retreating the culprits said that their mission has been completed. Subsequently, people came and unchained their room and all of them chased the culprits but they failed to catch hold of them. They also corroborated the fact regarding looting the articles, papers, ornaments etc. 17. P.W.3 has also stated that the accused Ashok Jha was found absent from his house after the occurrence. They have also stated that they have found Ram Kripal Jha dead. 18. From the evidence of P.W.9 (informant) P.Ws. 2 and 3 who are his other two brothers, it appears that they have fully corroborated each other not only on the fact of the dacoity and murder but also they clearly identified 3 accused appellants namely, Biju Jha, Mahadeo Jha and Ram Balak Das. They have also claimed to identify another two accused-appellants by voice namely, Ramchandra Jha and Ashok Jha. They also claimed that they heard the deceased saying the names of these accused-appellants "RE ASHOKWA RE RAMCHANDRA". 19. P.Ws. 10 and 11 father and mother of the informant, have also corroborated the fact of the occurrence of dacoity and murder and fully corroborated the statements of the aforesaid 3 witnesses. 20. P.W. 10 who is son of the deceased and father of the informant has clearly stated that on 28.7.84 (Saturday) at 11.30 P.M. he was sleeping in his room near the angan. At that timek, he heard the sound of firing from the court-yard near the kitchen. He also heard the sound on the door of the southern room from which he could infer that some dacoits had come. So in order to save his life, he went out by the northern door of the house and went to the village and started raising alarm. He also heard the sound on the door of the southern room from which he could infer that some dacoits had come. So in order to save his life, he went out by the northern door of the house and went to the village and started raising alarm. When the villagers assembled and they returned near the door of their house the dacoits fired twice to terrorise them and said that they have completed their mission. Thereafter he alongwith other villagers came to the dalan. The door of the southern room was opened by some villagers where he found his sons Sushil Kr. Jha and Ajoy Kr. Jha with tied hands. He untied their hands and thereafter all of them tried to chase the culprits on the direction they went but could not get them. Then he found his father Ram Kripal Jha lying dead on the eastern side of the angan. There was mark of firing on the right chest of his dead body. They also found the boxes etc. as broken and some papers were scattered. Iron chest could not be broken but the handle was bent and some bricks were removed. Then he went towards his own room and found the almirah opened and certain clothes etc. were taken away by the dacoits. P.W.10 also stated that he learnt from his son Sunil Kr. Jha (PW9) that he identified Biju Jha, Mahadeo Jha and Ram Balak Das. He also learnt from his son that his grand father was having some altercation with Ashok Jha and Ram Chandra Jha and his grand father was naming those appellants as "RE ASHOKWA RE RAMCHANDRA." Thus, these two accused-appellants were also identified. He has also stated that in the evening his father sold a buffalo for a sum of Rs. 2200/- but the money was not there. He also found a chair overturned where his father was found dead. P.W.10 has also stated that there was 3 title suit pending in between his father and Ashok Jha and Ram Chandra Jha. In that case, his father used to take steps. 21. P.W.11 wife of P.W.10 and mother of the informant, has also stated that on the night of the occurrence, which was Saturday, at about 11-00/11.30 P.M. she was in her room alongwith her husband and was sleeping. In that case, his father used to take steps. 21. P.W.11 wife of P.W.10 and mother of the informant, has also stated that on the night of the occurrence, which was Saturday, at about 11-00/11.30 P.M. she was in her room alongwith her husband and was sleeping. When she heard the sound of firing and also sound of pushing the door. Her sleep was disturbed. Her husband also got up and went towards the courtyard, in the north and she went towards the room of Ashok Jha. At that time, he was not in his room. She heard the sound of 3-4 persons who were searching her husband. Subsequently, she heard two more sound of firing and persons who came went away. Thereafter she returned to her room and found almirah opened and articles were scattered on the ground. One pair of golden ear ring, a sum of Rs.150/-, one golden ring, 2 sarees and one wrist watch and some shirts etc. were found missing. She went towards the kitchen and found her father-in-Law Ram Kripal Jha dead. She also found that the iron chest was opened and the papers were scattered. P.W.11 has also stated that he told her son Sunil (informant) about the articles. Sunil also told her that criminals got him, his two brothers closed in a room. He also told her that he recognized Biju Jha, Mahadeo Jha and Ram Balak Das out of those persons. He also stated that in course of hot exchange of words between the criminals and his grand father, he recognized Ashok Jha and Ram Chandra Jha. 22. Thus, from the evidence of P.W.9 (informant) P. Ws. 2, 3, 10 and 11, it appears that they have fully corroborated the prosecution case and also their own statements and clearly stated that at the time of occurrence Biju Jha, Mahadeo Jha and Ram Balak Das were clearly identified in the electric light which suddenly came at that time due to resumption of supply and also hearing the conversation of his grand father with the culprits, they recognized other two accused-appellants as Ashok Jha and Ram Chandra Jha. Thus, these witnesses have fully corroborated the fact that the accused-appellants committed the dacoity and also murder of Ram Kripal Jha (deceased). 23. Admittedly, P.Ws. 2, 3, 9, 10 and 11 are closely related to each other. Thus, these witnesses have fully corroborated the fact that the accused-appellants committed the dacoity and also murder of Ram Kripal Jha (deceased). 23. Admittedly, P.Ws. 2, 3, 9, 10 and 11 are closely related to each other. It is an established principle of law that the evidence of such witnesses should be viewed with care and caution before they are relied upon. P.Ws. 2, 3 & 9 have consistently stated that criminals tied their hands and put them in a room which was bolted from outside. However, from their evidence, it appears that there was darkness due to disconnection of electric line. Due to sudden resumption of the electricity the entire place was lighted and out of the culprits, they identified 3 accused-appellants, namely Biju Jha, Mahadeo Jha and Ram Balak Das. They told this to P.Ws. 10 and 11. Thus, as far as identification of these appellants is concerned, there appears no contradiction/inconsistency. From the cross-examination of the P.Ws. and also from the evidence of the defence witnesses, it appears that the defence has challenged this fact of sudden resumption of electric light which gave an opportunity to the informant and others to identify the accused persons. The accused appellants in their defence have stated that there was no supply of electricity in the P.O. village in the night in question. 24. DW2 Mahesh Chandra Mahto has been examined on the aforesaid point. DW2 has stated that on 28.7.84 he was posted as Switch Board Operator in the Electricity Board at Dalsingsarai. On that day he was on duty at 2 P.M. to 10 P.M. His work was to distribute power which was available in the power sub-station. The aforesaid incoming and outgoing power position is recorded also in a register. On that day, Ram Bibak Tiwari was on duty from 6 A.M. to 2 P.M. and thereafter he was on duty after him from 2 P.M. to 6 P.M. Again Ram Bibak Tiwary was on duty. He has proved exhibit A entry at pages 94-95 in the supply register dt. 28.7.84. In his cross-examination DW2 has clearly stated that he has no knowledge whether the register has any authenticity. He has also admitted that page no.2 to 5 are blank. The date of authentication appears from page no.1 is 12.11.84 that is much after the date of occurrence. He could not say when the register was seized. 28.7.84. In his cross-examination DW2 has clearly stated that he has no knowledge whether the register has any authenticity. He has also admitted that page no.2 to 5 are blank. The date of authentication appears from page no.1 is 12.11.84 that is much after the date of occurrence. He could not say when the register was seized. He has also stated that there is overwriting in page no. 24-25. Subsequently, he has also stated that there was no electricity from 22.15 to 24.00 and again 28.7.84 from 22.15 to 2.30 on 29.7.84. In his cross-examination DW 2 could not say the number of villages covered by Pagra feeder under Vidyapathi sub Division. They have also nothing to do in its maintenance. He could not say whether any register is maintained for consumption of the electricity in Vidyapathi sub-station. He has also accepted that an overseer and some staff are posted at Vidyapathi sub-station. He has further stated that this supply electricity to all the villages under Vidyapathi section. Thus, from a careful perusal of the evidence of DW 2 it appears that he has no proper knowledge about the supply position. Register which he has produced/provided also appears to be unreliable. He was also not on duty at the time of occurrence. Thus, on the basis of the evidence of DW 2, it cannot be said that supply of the electricity was not resumed at the time of occurrence. 25. On the other hand, there is nothing in the cross-examinations of P.Ws. 9, 2 and 3 by which their statements regarding resumption of the electric supply at the time of the occurrence and identification of 3 accused-appellants namely, Biju Jha, Mahadeo Jha and Ram Balak Das in the electric light can be disbelieved. 26. It appears from the cross-examination of these witnesses alongwith P.Ws. 10 and 11, that a number of cases are pending in between the family of the informant and Ashok Jha and Ramchandra Jha. It also appears that Ashok Jha and Ramchandra Jha and some other appellants are Gotia of the informant and they live in adjacent houses. Counsel for the accused-appellants therefore, submitted that the commission of dacoity and murder by such known persons appears unreliable. It also appears that Ashok Jha and Ramchandra Jha and some other appellants are Gotia of the informant and they live in adjacent houses. Counsel for the accused-appellants therefore, submitted that the commission of dacoity and murder by such known persons appears unreliable. However, the statements of the witnesses and circumstances of the case, show that the main intention of the accused-appellates was to loot away some important documents rather than to take other properties. The pendency of several civil and criminal litigations between the parties also corroborates the motive of looting of the documents by the appellants. 27. So far as identification of the accused-appellants, Ashok Jha and Ram Chandra Jha is concerned, it appears that they were not seen by the witnesses at the time of occurrence. P.Ws. 9, 2, 3 have mainly identified these appellants by hearing their voices during hot discussion in between them and the deceased. It is also said that the deceased also took out their names at the time of occurrence by saying "RE ASHOKWA RE RAM CHANDRAWA KIYA KARE CHAI." The accused-appellant Ashok Jha was also not found at the time of occurrence in his room which fact also corroborates his involvement in the crime resulting in the aforesaid statements of the deceased. 28. Learned counsel for the appellants submitted that the identification of the accused persons by voice can not be a proper identification and raises a doubt. It is an established principle of law that such identification cannot be given much credence. 29. It is true that much reliance cannot be given on the identification of the witnesses by voice unless there are other corroborative evidences. The circumstances in this case, however, are different. In this case, these persons are very well known to the witnesses. Moreover at the time of occurrence P.W.11 did not see Ashok Jha present in his room in such late hours of night. Subsequently, also he was not found by the police. Moreover P.Ws. 9, 2 and 3 have also stated that the deceased raised an alarm saying "RE ASHOKWA RE RAM CHANDRA KYA KARE CHAI." Since both of them were known to the deceased and were also related it is quite consistent with the normal human behaviour that the deceased was surprised to see these persons involved in the crime and uttered their names by surprise. This statement of the deceased can also be considered as an oral dying declaration. It, thus, appears that besides the identification by voice there were some more corroborative evidence/circumstance which consistently establishes the fact that the other two appellants namely, Ashok Jha and Ramchandra Jha were also fully identified during the occurrence. 30. P.W.1 Mohan Mahto claimed to have seen all the accused persons running away. He, however, has been disbelieved by the court below mainly on the ground that he could not remember whether the culprits were going by covering their faces, besides also considering the fact that P.W.1 is a plough man of the deceased. The defence has examined Sita Ram Mahto as DW1 who corroborates the fact that PW1 is a plough man of the deceased. Since PW1 has been disbelieved by the court below it is not necessary to go into details of his evidence. 31. P.W.7 Bishundeo Mahto and P.W.8 Bhola Nath Jha claim to have reached just after the occurrence. They have corroborated the fact of occurrence and stated that the informant and others told them that they identified Biju Jha, Mahadeo Jha and Ram Balak Das by face and two others namely, Ashok Jha and Ram Chandra Jha by voice. Thus, these two witnesses who are neighbour reached immediately after the occurrence were told by the informant and other witnesses the names of the accused persons whom they identified. 32. P.W.4 Ahmad Sultan is a formal witness who simply proved exhibit 1 i.e. the formal FIR. P.W.6 Chandra Shekhar Mahto was tendered. There are nothing much of importance in their cross-examination also. P.W.12 Ram Karan Jha, P.W.13 Sada Nand Jha and P.W.15 Parmanand Choudhary have been declared hostile by the prosecution as they did not fully corroborate their earlier version, before police during investigation. However, these witnesses have fully supported the fact that Ram Kripa Jha as murdered in the night of occurrence and they saw his dead body. They, however, did not corroborate their earlier statements regarding identification of the accused-appellants. P.W.12 has proved exhibit 5 i.e. his signature on the inquest report and also exhibit 5/1 i.e. his signature on the seizure list prepared for seizing hawai chappal, lungi etc. by the police. Their attention was drawn towards their earlier statements before the police which they denied. They, however, did not corroborate their earlier statements regarding identification of the accused-appellants. P.W.12 has proved exhibit 5 i.e. his signature on the inquest report and also exhibit 5/1 i.e. his signature on the seizure list prepared for seizing hawai chappal, lungi etc. by the police. Their attention was drawn towards their earlier statements before the police which they denied. Subsequently, the attention of I.O. (PW 17) was drawn towards statements of those witnesses in which they said about identification of the accused-appellants. P.W.17 has corroborated the fact of recording such statements of these witnesses. P.W.14 Deo Nr. Jha is the son of the deceased. He is an advocate of the Samastipur court. He came on the next morning of the occurrence on hearing the news. He has corroborated the prosecution story on the basis of the information which he received from the informant and others. Admittedly, this witness is a hearsay witness. P.W.15 Parmanand Chaudhary reached the place of occurrence after the occurrence. He further stated that he did not recognize the dacoits. He has proved exhibit 5/2 i.e. his signature on the statement of the informant and exhibit 5/3 i.e. his signature on the inquest report. He has also corroborated the fact of seizure of some articles by the police. P.W.16 Braj Nandan Prasad has proved exhibits-6 and 7 i.e. his endorsement and signature of Satyendra Singh, clerk of 3rd Sub Judge. There are nothing much any importance in his cross-examination. P.W.16 is, thus, a formal witness. 33. P.W.17 Shree Prakash Trivedi, is the I.O. of the case. He has fully corroborated the fact that after the occurrence he reached the village and went to the house of Ram Kripal Jha and recorded fardbeyan of Sunil, grand son of the deceased. He has also proved exhibit-3 that is the fardbeyan. He has also stated that on the basis of the aforesaid fardbeyan a case was registered. He has proved his endorsement exhibit-8. He has also stated that he prepared inquest of the dead body in presence of two independent witnesses. He has proved exhibit-9 i.e. the inquest report. He has also identified the seizure list already marked exhibit-4. He has also stated that he inspected the place of occurrence and found blood near a chair. It was not possible to take out the blood. He has also stated that he has found electrical fitting in the entire house. He has proved exhibit-9 i.e. the inquest report. He has also identified the seizure list already marked exhibit-4. He has also stated that he inspected the place of occurrence and found blood near a chair. It was not possible to take out the blood. He has also stated that he has found electrical fitting in the entire house. He also found electric light while he visited the place of occurrence. He also saw maize-field near the house and found mark of trampling of the crops there. He also prepared a sketch map for the place of occurrence which has been proved by him as exhibit-10. He has also stated that he recorded the statement of Parmanand Chaudhary, who told him that at the time of occurrence, electric light was burning at the house of Ram Kripal Jha and he was also having a torch. In that light he identified Biju Jha, Mahadeo Jha and Ram Balak Das. P.W.12 Ram Karan Jha also made statement before him that in the electric light and in the light of torch, he identified Ashok Jha, Ramchandra Jha, Biju Jha, Mahadeo Jha and Ram Balak Das. In his cross-examination, he did not disclose the name of the person from whom he learnt about the occurrence. He also stated in his cross-examination that on 30.7.84 at 3.20 A.M. police arrested Biju Jha, Mahadeo Jha, Ram Balak Das from their house. He has also accepted in his cross-examination that Ashok Jha used to reside in a part of the house. 34. The evidence of the P.Ws discussed above shows that they have fully corroborated the prosecution case and appears to be quite reliable. 35. Out of Nine DWs examined by the defence DWs 1 and 2 have already been discussed. DW 3 Raghu Nath Pd. Srivastava was SDPO in Dalsingsarai on 30.10.86. Under the orders of the S.P., Samastipur on an application filed by Asha Devi, he enquired into the matter and submitted his report. He has proved exhibit-B i.e. his report. DW 4 Abdul Gaffar has proved exhibit-C which is a sale deed dated 24.9.71 executed by Ram Kripal Jha and Jagdish Jha. DW5 Ram Prit Das has proved exhibit-D i.e. notice issued by the Assistant Registrar, Cooperative Society. DW6 Uma Shankar Prasad has proved exhibit-6/1 i.e. a sale deed executed by Ashok Jha in favour of Ashrafi Jha. DW 4 Abdul Gaffar has proved exhibit-C which is a sale deed dated 24.9.71 executed by Ram Kripal Jha and Jagdish Jha. DW5 Ram Prit Das has proved exhibit-D i.e. notice issued by the Assistant Registrar, Cooperative Society. DW6 Uma Shankar Prasad has proved exhibit-6/1 i.e. a sale deed executed by Ashok Jha in favour of Ashrafi Jha. P.W.7 Sita Ram Prasad has produced a mortgaged deed which has been marked 'X' for identification. P.W.8 Surendra Lal has proved exhibit-E i.e. a petition of Ashok Jha. He has also proved another petition as exhibit-7 typed by Shankar Sahani. DW9 Prem Kumar Mishra has proved exhibit-G an informatory petition filed on behalf of Ashok Jha by his lawyer Suresh Prasad. 36. The aforesaid DWs 3 to 9 appear to be formal witnesses inasmuch as they have proved certain papers only. The aforesaid papers were brought on record by the defence to show litigation and enmity between the parties. It is submitted that due to enmity, accused-appellants have been falsely implicated in this case. Counsel for the appellants further submitted that there may be an occurrence of dacoity in which deceased Ram Kripal died. But only the aforesaid fact does not establish beyond all shadow of reasonable doubt that the accused-appellants committed the aforesaid dacoity or committed the murder of the deceased. Identification of the appellants as claimed by P.Ws. 2, 3 and 9 are doubtful. There is no other witness to support the aforesaid identification. In that view, learned counsel for the appellants submitted that the court below has committed error on record and came to a wrong finding regarding the identification of the appellants. 37. Learned counsel for the State has, however, disputed the aforesaid submission of the learned counsel for the appellants and submitted that the fact of the occurrence i.e. dacoity and murder have been established beyond all shadow of reasonable doubt by the prosecution. It is also clear from the evidence of the witnesses that electric supply was suddenly resumed during occurrence and in that light, P.Ws. 9, 2 and 3 clearly identified 3 appellants namely, Biju Jha, Mahadeo Jha and Ram Balak Das. 38. From the evidence of these witnesses, it is also clear that accused - appellants Ashok Jha and Ram Chandra Jha are well known to the witnesses. 9, 2 and 3 clearly identified 3 appellants namely, Biju Jha, Mahadeo Jha and Ram Balak Das. 38. From the evidence of these witnesses, it is also clear that accused - appellants Ashok Jha and Ram Chandra Jha are well known to the witnesses. Thus, they were fully identified by their voice by P.Ws.9, 2 and 3 who also heard the deceased uttering the names of these two accused-appellants before his death which amounts to an oral dying declaration of the deceased. 39. Learned counsel for the State submitted that the trial court fully discussed the evidence of both the prosecution and the defence and also other papers on record and came to a correct conclusion. It is an admitted fact that there was enmity between the parties due to different litigations. But enmity cuts both ways. There are sufficient motive for the alleged occurrence to loot/remove certain documents in possession of the deceased which may be important for these appellants. 40. The discussions above clearly show that the prosecution has been able to establish the fact beyond all shadow of reasonable doubt by reliable evidence that in the night of occurrence the accused-appellants alongwith others committed a dacoity in the house of the informant and in course of the same committed murder of Ram Kripal Jha (deceased) and thus committed an offence under section 396 IPC. I, therefore, find that the court below has fully appreciated the evidence on record and came to a correct conclusion. There is absolutely no irregularity or illegality in the order of the learned Addl. Sessions Judge for which an interference is called for. 41. In the result, this appeal is dismissed. Conviction and sentence passed against the appellants are confirmed. Accused-appellants Biju Jha, Mahadeo Jha and Ram Salak Das are in custody. Hence they are directed to serve their remaining part of sentences So far accused-appellants Ashok Jha and Ram Chandra Jha are concerned, they are on bail, their bail bonds are cancelled, they are directed to surrender before the court below forthwith to serve out their sentences, failing which the court below will take necessary steps for their apprehension/arrest for needful.