Judgment B.N.P.Singh, J. 1. The appellants suffered conviction under Section 395 of the Indian Penal Code in Sessions Trial No. 190/26 of 1984/1988 on being tried by 6th Additional Sessions Judge, Nalanda at Biharsharif and were sentenced to suffer rigorous imprisonment for seven years on that count. 2. At dead of night when the house inmates were fast asleep on 10th June, 1983, abut 30 numbers of person holding weapons with them ransacked several houses including that of Sohrai Rabidas, Peyara Rabidas, Bindi Rabidas, Ramprit Rabidas, Badri Rabidas and Karu Rabidas and coercing house inmates, they did assault them and also removed house belongings which includes utensils, wearing apparels etc. While Sohrai Rabidas who set the police in motion claimed identification of Lagani Jamadar, Karu Jamadar and Tanik Jamadar, Peyare Rabidas was shown to have identified Ganesh Mallah, and on these narrations made by Sohrai Rabidas, first information report of the case was drawn up at Sumera police station and investigation commenced. During investigation the police officer recorded statement of the witnesses, referred the injured to doctor for their medical examin seized blood stained wearing clothes from the house, arranged test identification parade of suspects and laid charge-sheet before the court and the appellants along with others on being committed to the Court of Sessions, were put on trial. In the eventual trial, the prosecution examined altogether 17 witnesses including the police officer, the victims, eye-witnesses and also the doctors and the trial Court on appreciation of evidence, while acquitted Bhagirath Chauhan and Ramjatan Kewat, rendered verdict of guilt against Lagani Jamadar, Karu Jamadar, Tanik Jamadar and Ganesh Mallah under Section 395 of the Indian Penal Code and sentenced them to undergo rigorous imprisonment for seven years on that count. 3. Though the narrations made by the prosecution witnesses about ocular account of incident is quite lengthy and has become voluminous, they are discussed with brevity. Arbind Kumar PW 1 while narrating details of incident claimed identification of Ganesh Mallah, Ramjatan Kewat, Bishwanath Chauhan and Hare Krishna Chauhan in the flash of light of torch which was held by him. If he is to be believed, the miscreants hurled bombs by which a cattle also suffered injury. The miscreants were suggested to have removed house belongings, assaulted house inmates and also committed rape on female members. If he is to be believed, the miscreants hurled bombs by which a cattle also suffered injury. The miscreants were suggested to have removed house belongings, assaulted house inmates and also committed rape on female members. Siyawati Devi PW 2 while narrating woes which she suffered, claimed to have identified Ganesh Mallah in the flash of light of torch of the miscreants which they held with them and also stated to have been ravished by Ganesh Mallah. The miscreants removed house belongings, assaulted house inmates and escaped with the booties. PW 3 Peyare Rabidas was narrating the details of the removal of house belongings, assault on house inmates and he too claimed to have identified Karu Jamadar, Tanik Jamadar, Lagani Jamadar and Ganesh Mallah. The female members as was stated by him, were also raped by the miscreants. Malti Devi PW 4, Lalti Devi PW 5 and Sadan Rabidas PW 6, however, did not claim identification of any of the miscreants though they would render details about happenings in that night suggesting commission of dacoity in several houses. Koera Devi PW 7 and Ram Prit Das PW 8 were tendered by the prosecution and there is nothing in their evidences to merit consideration, so far complicity of the appellants was concerned. Dwarika Das PW 9 who happened to be Dalpati of Panchayat, stated about seizure of wearing apparels and broken bangles of female members by the Investigating Officer. Jai Prakash Das PW 10 was narrating before the Court that during patrolling duty in the night along with other villagers, he identified Ganesh Mallah among appellants who ransacked houses, assaulted house inmates, made plunder, committed rape on female members, hurled bombs and removed utensils etc. from the houses. Badri Das PW 11 stated to have identified among the appellants, Ganesh Mallah in the flash light of torch which was held by Arbind and Ramchandra who were his companions. While narrating the incident he would state that the house inmates were assaulted, female members were dragged from their houses, subjected to sexual assault and eventually house belongings including the wearing apparels, utensils, cash, ornaments were removed by them. Parwati Devi PW 12 would state that during commission of dacoity in her house, Tanik Jamadar dragged her in a room and committed sexual assault on her. Parwati Devi PW 12 would state that during commission of dacoity in her house, Tanik Jamadar dragged her in a room and committed sexual assault on her. If she is to be believed, successive sexual assaults were committed on her by three or four persons when her wearing clothes got smeared with blood. She further stated that ornaments which she had put on her person were also removed by the miscreants. Sudamiya Devi PW 13 though would support the factum of dacoity committed in her house, would not claim identification of miscreants. Sohrai Das PW 14 happens to be the person who set in motion and he would reiterate his version which he rendered before the police about miscreants assaulting house inmates and removing house belongings. He rendered statement before the court what he stated before the Police about the miscreants, committing rape on Siyawati Devi, Malti Devi, Parwati Devi and also on his wife. He claimed identification of Lagani Jamadar, Karu Jamadar and Tanik Jamadar. Dr. Nilima Rukharyar PW 15 stated to have medically examined Parwati Devi PW 12 when she noticed her hymen raptured. Dr. Surendra Prasad Sinha PW 16 stated to have examined Sohrai Rabidas, Badri Rabidas, Sudamia Devi, Manti Devi, Peyare Rabidas, Arbind Kumar, Lalti Devi, Sadan Das, Jai Prakash Das and Dehari Kumari. The doctor stated to have noticed lacerated wounds on persons of Sohrai Rabidas, Peyare Rabidas and Sadan Das and one of the injuries on Peyare Rabidas to be grievous. He stated to have noticed bruises on the persons of Badri Rabidas, Arbind Kumar, Jai Prakash Das and Dehari Kumari. Sudamiya Devi and Lalti Devi had however complained only about pains on their persons. Ekram Dubey PW 17 happens to be the Investigating Officer who stated to have recorded statement of the witnesses and also seized wearing apparels of the inmates which bore blood marks. He stated to have sent wearing apparels to Forensic Science Laboratory for Chemical analysis. 4. The defence too examined Jagdish Prasad Singh, one of the two Investigating Officers who conducted investigation of the case. He too stated to have recorded statements of the witnesses and made attempts for apprehension of the miscreants. He stated to have visited houses of Badri Rabidas and Ramprit Rabidas when he noticed marks of explosion of bomb near the house of Badri Rabidas and house belongings scattered. He too stated to have recorded statements of the witnesses and made attempts for apprehension of the miscreants. He stated to have visited houses of Badri Rabidas and Ramprit Rabidas when he noticed marks of explosion of bomb near the house of Badri Rabidas and house belongings scattered. The house belongings of all the houses of Rabidas which were shown to have been ransacked by the miscreants, were found scattered. Bindeshwari Paswan DW 2 happens to be the Chaukidar of the concerned Kalka who stated that while he visited Babubigha Tola, the disclosure of names of the miscreants were not made to him nor any female members of the house claimed to be the victim of rape by the miscreants. Ramcharitra Sineh DW 3, the erstwhile Deputy Superintendent of Police, stated to have supervised the case. This is all the evidence that has been brought on the record by the prosecution and the defence. 5. The finding recorded by the trial Court was sought to be assailed by the learned counsel for the appellant on various reasonings and it is sought to be urged that though witnesses claimed identification of some of the appellants. It is quite unusual to find that even when they visited police station along with Sohrai Rabidas while former had gone to register a police case they would not make disclosure of identification of miscreants to Sohrai Rabidas and their names would not transpire in the first information report. The second limb of argument pressed into service on behalf of the appellants was that though witnesses claimed identification of the appellants in the flash light of torch in darkened light, there was no evidence about seizure of the said sources of identification by the police or the house inmates having produced the same to the Investigating Officer, and in quick succession it is urged that considering such tutored version of the witnesses which were sought to be introduced at trial, the major part of the prosecution case about commission of rape on female members causing miscarriage, was disbelieved by the trial Court. Contentions were raised that belated recording of statement of the witnesses by the Investigating Officer would render witness unworthy of credence and reliance on this score was placed on a decision of this Court in the case of Babulal Mushar & others v. State of Bihar, reported in 1990 PLJR 488. Contentions were raised that belated recording of statement of the witnesses by the Investigating Officer would render witness unworthy of credence and reliance on this score was placed on a decision of this Court in the case of Babulal Mushar & others v. State of Bihar, reported in 1990 PLJR 488. In the case cited at Bar, since belated recovery of the booties were shown to have been effected, and also that the identifying witnesses were not examined at trial, the observations were made by the Hon ble Court that in such event the prosecution case was not worthy of credence. Learned counsel while buttressing her argument would place reliance on a decision of the Apex Court of the land, reported in AIR 1974 SC 1740 . The State of U.P. and others v. Hari Prasad and others. However, the facts of the instant case is quite distinguishable from the case cited at Bar inasmuch as that in that cases even though lantern was shown to have been burning by a pole near the site of occurrence, one miscreant was not claimed to have been identified and admittedly this is not the case in hand and lastly, it is urged that the identification of a particular appellant lacks corroboration from other witnesses and in that view of the matter also the prosecution case must be treated to be incredible and unworthy of reliance. While assailing bona fide of prosecution case, learned counsel would urge that whole prosecution case is shaky and doubtful because of inherent defect or improbability running through enure story. Learned counsel lastly urged that as the appellants have faced rigour of the prosecution for about 17 years, the ends of justice would require that the appellants may not be sent to custody. 6. Learned counsel lastly urged that as the appellants have faced rigour of the prosecution for about 17 years, the ends of justice would require that the appellants may not be sent to custody. 6. Theugh much of the details which are sought to be highlighted by the prosecution to suggest commission of dacoity in the house, may be wanting in the evidence of all the prosecution witnesses, there are good evidences about identification and complicity of some of the appellants, in the commission of dacoity shown to have been committed in Babubigha in the intervening nights of 10/11th of June, 1983, and while evaluating evidences of the witnesses and making analysis of them one would find that though Arbind Kumar PW 1 claimed identification of Ganesh Mallah, such evidence was conspicuously wanting both before the 1st Investigating Officer and second Investigating Officer. Siawati Devi PW 2 claimed identification of Ganesh Mallah but though such statement was wanting before the 1st Investigating Officer, there was no evidence that such statement about identification of Ganesh Mallah was not rendered by her before second Identification Officer Pevare Rabidas PW 3 claimed identification of Karu Jamadar, Tariik Jamadar, Lagani Jamadar and Ganesh Mallah but his statement about complicity of Ramlangan Jamadar, Karu Jamadar and Tanik Jamadar was wanting before the First Investigating Officer and if statement rendered by him before the second Investigating Officer was taken tp be true on its face value, his evidence about identification of Tanik Jamadar was wanting before the police. Jai Prakash Das PW 10 claimed identification of Ganesh Mallah and admittedly such statement was wanting before Investigating Officers. Badri Das PW 11 claimed identification of Ganesh Mallah and there was no good evidence to discredit him. Parwati Devi PW 12 claimed identification of Tanik Jamadar, but though similar statement was wanting before the First Investigating Officer, it was in positive terms, about identification of Tanik Jamadar before the second Investigating Officer. If the evidences of these witnesses are taken into consideration to determine complicity of the appellant, there are good evidences of identification of Ganesh Mallah by PWs 2, 3 and 11 while the evidence of identification in respect of Tanik was that of PWs 3, 12 and 14. 7. One cannot fail to notice some unusual features of the prosecution case to which my attention has also been drawn by the learned counsel for the appellants. 7. One cannot fail to notice some unusual features of the prosecution case to which my attention has also been drawn by the learned counsel for the appellants. It is unusual to find that the statement of witnesses were recorded twice by two Investigating Officers, as while statement of some of the witnesses were recorded by Ekram Dubey PW 17, statement of some set of witnesses happened to be recorded by another Investigating Officer namely Jagdish Pd. Singh DW 1. The learned counsel for the State has sought to justify recording of statements twice by two Investigating Officers on premises that as the 1st Investigating Officer was not recording statement of the witnesses properly, the statement of witnesses were recorded twice by another police officer and reliance is placed by him on a protest petition brought on the record by the defence which is Ext. A. Judicial notice can be taken of this fact that protest petition had been brought on the record by the witnesses who were aggrieved with the conduct of the Investigating Officer and rightly even some witnesses examined by the prosecution, had been rhaking similar statement before the Court. If evidence of Parwati Devi PW 12 was taken to be true on its face value, the Investigating Officer was reluctant to record her statement properly when she narrated about commission of rape on her, and even threatened her to send her to custody. Be that as it may, since the statement of witnesses were recorded twice by two Investigating Officers, I fail to persuade myself to discredit evidence of the witnesses recorded by second Investigating Officer, though admittedly it was recorded belatedly. Belated recording of statement of witnesses did not introduce infirmity in the prosecution case since there are no concomitant circumstances to suggest that the Investigating Officer was deliberately wasting time to decide shape to be given to prosecution case. 8. While considering complicity of the appellants statements of the witnesses both before the First Investigating Officer and second Investigating Officer has to be taken into consideration. Learned counsel would urge that since appellants were possessed of sufficient means it was not expected from them to commit dacoity in the house that too for petty and sundry articles like some utensils and old clothes. Learned counsel would urge that since appellants were possessed of sufficient means it was not expected from them to commit dacoity in the house that too for petty and sundry articles like some utensils and old clothes. Without giving much comment on this point which largely depend on habits and conduct of offender, in view of the evidence of witnesses, narrations about the woes suffered by them, has to be accepted. This fact cannot be lost sight of that Sohrai Rabidas, Peyare Rabidas and Sadan Das who were examined by the doctor were noticed to have suffered lacerated wounds on their persons and even one injury on Peyare Rabidas was found to be grievous. Similarly, there were bruises on the persons of Badri Rabidas, Arbind Kumar, Jai Prakash and Dehri Kumari, though Sudamiya Devi and Lalti Devi had only complained of pain on their persons. The event of commission of dacoity was writ large on facts of the victims. Presence of injuries on such large number of persons which were not caused friendly, was in tune with the prosecution version about the miscreants assaulting them in course of commission of dacoity. Though the doctor who examined Parwati Devi did not find evidence of commission of rape on her, found her hymen raptured and rightly evidence of commission of rape after lapse of six months, when she was examined, cannot be expected. It is not unlikely that victims of rape, apprehensive of social stigma, which such incidents usually carry with them are reluctant to take recourse to public authority. However, since this part of the incident about commission of rape on female members has been discarded by the trial Court, that would not deserve comment. Non-production of torch and there being no coherent statement of all witnesses about identification of all dacoits in flash light of torch as are not such matters to before the real issue and affect broad feature of prosecution case. 8-A. Taking into consideration evidences placed on the record, since there were not clinching evidence about complicity of Lagani Jamadar and Karu Jamadar, the finding recorded by the trial Court is set aside. However, considering evidence of witnesses about complicity of Ganesh Mallah and Tanik Jamadar, the conviction recorded by the trial Court in respect of them is maintained. 8-A. Taking into consideration evidences placed on the record, since there were not clinching evidence about complicity of Lagani Jamadar and Karu Jamadar, the finding recorded by the trial Court is set aside. However, considering evidence of witnesses about complicity of Ganesh Mallah and Tanik Jamadar, the conviction recorded by the trial Court in respect of them is maintained. True it is that they have suffered rigours of the prosecution about 17 years, however, considering the nature of accusation attributed to them which cannot be taken lightly I do not find myself persuaded to make any modification in the sentence in respect of them. 9. In the result, while appellants Lagani Jamadar and Karu Jamadar are acquitted of the charges brought against them, the appeal in respect of Ganesh Mallah land Tanuk Jamadar is dismissed. The trial Court shall take all coercive steps for their apprehension and to remand them to custody to serve out sentence.