JUDGEMENT A.K. SINHA and B.K. JHA, JJ.:- Bath these appeals have been taken up together as they arise out of the same judgment and are being disposed of by this common judgment. 2. All the appellants have been convicted under section 396 of the Indian Penal Code and sentenced to undergo rigorous imprisonment far life. 3. Fardbeyan of the informant, namely, Kapileshwar Mandal was recorded by S.I. B.K. Paswan (I.O.) on 28.04.92 at 5.30 a.m. at the house of the informant. The prosecution story, as unfolded in the fardbeyan, is that on 27.04.92 while the informant was sleeping in his house and his son Arun Kumar Mandal was sleeping in Baithaka, the informant woke up on hearing the sound of some altercation. He saw in the flash of torch light that 10-12 criminals were assaulting his son Arun Kumar Mandal. The criminals were also flashing torch light in which the informant saw that they were armed with pistol (.303), bows, arrows and lathis and all of them belonged to village Veer Nagar and belonged to Mohammedam community. The informant identified these appellants whom he recognised by names. It is alleged that three dacoits caught hold of the informant and tied him after assaulting and asked him to disclose the place where the sum of Rs. 9,000/- sent by his son, has been kept. The informant disclosed the place out of fear and the dacoits took away the money besides utensils and clothes etc. and they also carried away Avon cycle. In the meantime, informant's wife Ratan Devi raised alarm but the appellant Muswa Mian pointed out pistol (.303) upon her. When the dacoits were leaving the house of the informant, his son Arun Kumar Mandal gave out that he has identified them and they will be taken to task on the next day. Hearing these words, the miscreants fired upon Arun Kumar Mandal, who succumbed to the injuries. According to the informant, criminals were in the age group of 25-30 years and were wearing shirt and loongi. The informant has given the details of articles taken away by the dacoits. On the basis of the fardbeyan a case under section 396 of the Indian Penal Code was instituted against the appellants and two others, namely. Shafique Mian and Bashir Mian. The informant has given the details of articles taken away by the dacoits. On the basis of the fardbeyan a case under section 396 of the Indian Penal Code was instituted against the appellants and two others, namely. Shafique Mian and Bashir Mian. The police investigated the case and submitted charge-sheet against the above named accused on the basis of which cognizance was taken and the case was committed to the Court of Sessions. 4. The appellants were charged under section 396 of the Indian Penal Code to Which they pleaded not guilty and their defence is that they have been falsely implicated n the case due to previous enmity. 5. In order to prove the charges the prosecution has examined altogether ten witnesses out of whom P.W.7 (Kavita Devi) has been tendered and P.W.3 (Sadanand Mandal), P.W4 (Gulab Mandal) were declared hostile. But, both of them have testified about commission of the alleged occurrence and were declared hostile because they did not support the prosecution on the point of identification of the accused persons. 6. So far the occurrence is concerned, we find that besides the informant (Kapileshwar Mandal), P.W.1 to 6 have fully supported the prosecution story as regards the commission of the alleged dacoity in the house of the informant and the murder of Arun Kumar Mandal committed by the dacoits in course of commission of the said dacoity. Therefore, the occurrence has been proved by the prosecution witnesses beyond all reasonable doubts and the learned counsel appearing for the appellants did not dispute the factum regarding the commission of alleged dacoity and murder in the house of the informant in the manner alleged in the F.I.R. 7. Having reached to the conclusion that the occurrence as alleged in the F.I.R. is true, the crucial question which crops up for our consideration in these appeals is that whether the appellants had participated in the occurrence or not. In order to determine the participation of the appellants in the alleged occurrence, the question of identification of the appellants becomes paramount and we will hereinafter discuss the evidence of the witnesses on that point. 8. On the point of identification, the prosecution has examined P.W.2 (Chhedi Mandal), P.W.5 (Dinesh Mandal), P.W.6 (Ratan Devi), and P.W.9 (Kapileshwar Mandal). So far P.W.5 (Dinesh Mandal) is concerned, he claimed to identify the appellants besides Safique Mian. 8. On the point of identification, the prosecution has examined P.W.2 (Chhedi Mandal), P.W.5 (Dinesh Mandal), P.W.6 (Ratan Devi), and P.W.9 (Kapileshwar Mandal). So far P.W.5 (Dinesh Mandal) is concerned, he claimed to identify the appellants besides Safique Mian. P.W.5 is the father of the informant. The learned trial Court made threadbare discussion of the evidence of P.W.5 and it seems that he rightly came to the conclusion that the evidence of P.W.5 on the point of identification of the accused his highly doubtful. 9. P.W6 (Ratan Devi) is the wife of the informant who has supported the occurrence and has deposed that in the flash of torch light she had identified Bhedia, Muswa, Salauddin, Bashir and Safique and has stated that her husband had also identified the above named five dacoits. She has emphatically denied that the dacoits had covered their faces with Galmocha and has stated that in the flash of torch light and in the light of Dibiya burning in the court yard she had identified the above named accused. Learned trial Court has disbelieved the evidence of P.W.6 so far the identification of Safique and Bashir is concerned. The attention of the I.O. was drawn and P.W. 10 (B.K. Pawan), who is the I.O. of this case has stated that P.W.6 had disclosed the name of appellant Bhedia only before him and she had not stated that her husband had disclosed the names of all the five dacoits but he had disclosed the name of Muswa and the son of Nurul Mian, namely, Salauddin. Learned counsel appearing for the appellants strongly argued that P.W.6 made exaggerated statement that she identified five decoits including these appellants but the evidence of the I.O. discloses that she had only identified Bhedia Mian and the name of Muswa and Salauddin had been disclosed to her by the informant. In any case, evidence of P.W.6 regarding the identification of the appellant Bhedia is well established. It also appears that names of Muswa and Salauddin had been disclosed to her by the informant at the time of the alleged occurrence. No other contradictions could be elicited in her evidence by the defence. 10. P.W.9 Kapileshwar Mandal who is the informant of this case has clearly stated that he had identified these appellants besides Bashir and Safique in the flash of torch light. He was also assaulted by three dacoits by lathi. No other contradictions could be elicited in her evidence by the defence. 10. P.W.9 Kapileshwar Mandal who is the informant of this case has clearly stated that he had identified these appellants besides Bashir and Safique in the flash of torch light. He was also assaulted by three dacoits by lathi. He has specifically stated that appellant Salauddin had assaulted him and asked him to disclose the place where the money sent by his son from Punjab was kept by him and out of fear he disclosed everything. Thereafter Salauddin, Bhedia and Muswa entered in the room and took away the sum of Rs. nine thousand besides clothes, ornaments, utensils and cycle etc. He further stated that when his wife raised alarm the appellant Muswa pointed out pistol (.303) at her and also gave a lathi blow to her and has stated that when his son Arun disclosed that he has identified the dacoits he was shot at by them on account of which he succumbed to the injuries. P.W.9 has stated that the police came in the morning and he gave his fard beyan (Exhibit-2) to the police and he along with his wife were sent to the hospital by the police. P.W9 identified the appellants in Court besides accused Bashir, who was also facing trial P.W9 has also deposed that he had filed a protest petition in the Court of the Chief Judicial Magistrate against the I.O. and has denied to have stated before the police that the dacoits had covered their faces with Galmocha at the time of the alleged occurrence. The learned trial Court after making threadbare discussion of his evidence disbelieved his evidence on the point of identification of accused Bashir and Safique and we see no reason to differ with his views. On the point of identification of the appellants made by him, the learned trial Court believed the evidence of P.W.9. So far the evidence of P.W.9 that he had identified the appellants in the flash of torch light, we find that P.W.9 has remained quite unshaken and no contradiction could be elicited by drawing the attention of the I.O. in this regard. So far the evidence of P.W.9 that he had identified the appellants in the flash of torch light, we find that P.W.9 has remained quite unshaken and no contradiction could be elicited by drawing the attention of the I.O. in this regard. The attention of the I.O. was drawn regarding the statement made by P.W.9 to the effect that he had stated before him that the dacoits had put Galmocha on their faces and the I.O. has answered that question in affirmative but the learned trial Court has found that the possibility of making interpolation by the I.O., who wrote that the dacoits had put a Galmocha cannot be ruled out. We also find that where the words "Galmocha Bandhe the" has been written in the fard beyan, it is not in the natural sequence and appears to have been inserted later on. In view of the specific evidence of P.W.9 and other witnesses who claimed to identify the appellants in the flash of torch light, their evidence looks more trustworthy and the conduct of the I.O. does not appear to be fair and due to this reason the informant had filed a protest petition against the conduct of the I.O. at the very initial stage of the investigation. In his cross-examination, P.W.9 has stated that Bhedia and Muswa used to work as labourers and he denied that the appellant Salauddin had paid a sum of Rs. one hundred as advance for irrigating his land which he refused to return back. The learned trial Court has also disbelieved the defence plea taken on behalf of the appellant Salaudin. We, therefore, find that the evidence of P.W. 9 on the point of identification of the appellants has remained intact and there appears no reason to his evidence, inasmuch, as nothing concrete has been brought on the record which may show that he had any enmity or dispute with the appellants on account of which they have been falsely implicated in the case. 11. The evidence of the informant has been further corroborated by the evidence of P.W.1 Birendra Kumar Srivastava, who is an independent witness. P.W.1 came out of the house on hearing alarm and had chased the dacoits who fled away resorting fire upon the chasers. He has stated that the informant had disclosed to him the name of these appellants immediately after the occurrence. P.W.1 came out of the house on hearing alarm and had chased the dacoits who fled away resorting fire upon the chasers. He has stated that the informant had disclosed to him the name of these appellants immediately after the occurrence. The evidence of this witness is relevant under section 6 of the Evidence Act. 12. P.W.2 Chhedi Mandal is another independent witness of the village who also participated in chasing the dacoits and has deposed that in the flash of the torch light he had identified Bhedia Mian and Muswa Mian. He has also stated that on enquiry made by him the informant had disclosed to him the name of all the three appellants. This witness had identified Bhedia and Muswa by their voice. The defence could not elicit any contradiction in the evidence of P.W.2 by drawing the attention of the I.O. regarding the statement made before him. As such, the evidence of P.W.2 regarding the identification of Bhedia and Muswa has virtually remained unchallenged and his evidence to the effect that soon after the occurrence the informant had disclosed to him the name of all the three appellants has also remained in tact which is relevant under section 6 of the Evidence Act. 13. PW.8 Sushil Kumar Singh had conducted autopsy on the dead body of the deceased, namely, Arun Kumar Mandal and has proved post mortem report (Exhibit-1). From his evidence it is manifest that Arun Kuimar Mandal had died due to fire arm injury sustained by him, the details whereof have been stated by him. 14. On the basis of the above analysis of the evidence, we find that all the three appellants were identified by the informant himself, whereas, accused Bhedia and Muswa were identified by P.W.2 and P.W.6 had clearly identified appellant Bhedia. We also find that immediately after the occurrence the name of all the three appellants were disclosed to P.Ws. 1 and 2, who are the independent witnesses of the village. 15. Learned counsel appearing for the appellants, namely, Bhedia and Muswa contended that the informant and his wife are said to have been assaulted in the alleged occurrence but there is no injury report nor any evidence to show that they had sustained any injury which throws doubt on the prosecution version. 15. Learned counsel appearing for the appellants, namely, Bhedia and Muswa contended that the informant and his wife are said to have been assaulted in the alleged occurrence but there is no injury report nor any evidence to show that they had sustained any injury which throws doubt on the prosecution version. It is true that the informant himself has admitted that the dacoits had assaulted him and his wife by lathi and the prosecution has not examined any doctor nor there is any injury report on record to substantiate that fact but such omission on the part of the prosecution is immaterial and does not go to the root of the prosecution case and no doubt can be entertained regarding the prosecution version on this score. It was further submitted that the appellants have been implicated in this case due to enmity but as already stated above the defence has failed to bring on record any cogent evidence which may show that there was any enmity or land dispute between the informant and these appellants. So, there does not appear any force in such defence. It was also submitted that according to the fard beyan there are contradictions in the evidence of the witnesses which have been elicited from the evidence of the I.O. We have discussed the evidence of the I.O. So far the evidence of P.W.6 and P.W.9 who are identifying witnesses are concerned, we do not find any such contradiction which may discredit their entire evidence. We have, however, rejected part of their evidence which was not worth placing credence. 16. Having considered all the facts and circumstances of the case and the materials available on the record. We are of the firm view that the prosecution had proved the charges against the appellants beyond all reasonable doubts and the learned court below was justified in convicting them. Accordingly, we affirm the judgment of the Court below on the point of conviction of the appellants. 17. On the point of sentence, learned counsel appearing for the appellants submitted that the appellant Bhedia Mian is in jail custody since 14.5.92, Muswa Mian is in custody since 4.10.93 and appellant Salauddin was in jail for more than a period of six years. So their sentences may be reduced to the period undergone by them in custody and that will meet the ends of justice. So their sentences may be reduced to the period undergone by them in custody and that will meet the ends of justice. It was also pointed out that the appellants have got no criminal antecedents and there is nothing specific that from whose shot the deceased died. 18 Having considered all the facts and circumstances of the case and the submission aforesaid, we feel that it will meet the ends of justice if the sentences awarded to the appellants are modified to ten years rigorous imprisonment. Accordingly, the appellants are sentenced to undergo rigorous imprisonment for ten years. 19. In the result, these appeals are dismissed with the above modification in the sentences. The appellant Salauddin, who is on bail is directed to surrender before the court below to serve out the remaining part of the sentence. His bail bond is hereby cancelled. The court below should also take immediate steps for the arrest of the appellant Sallaudin. The appellants, namely, Bhedisa Mian and Muswa Mian shall serve out the remaining part of sentence, if any.