Judgment I.P.Singh, J. 1. The sole appellant has been convicted under Section 396 of the Indian Penal Code and was sentenced to undergo for life imprisonment. 2. The facts of the case, in short, is that on 1.9.1989 at 8.30 p.m. 4 Gulab Singh gave his fardbeyan to SI, A. Singh of Chainpur Police Station, stating therein, inter alia, that on the date of the occurrence, i.e., 1.9.1989 at about 5 p.m. he along with PW 1, Krishna Kant Singh @ Krishna Singh were taking refreshment in their house after returning back from Bhabua. In the meantime, they heard the sound of firing upon which he and PW 1, Krishna Kant Singh @ Krishna Singh, came out of their house and reached on the gate and proceeded ahead. After that they saw that some dacoits were coming towards them. It has also been stated that his nephew, Madan Singh, also came out of his Baithaka and went south of Mahavir Sthan. In the meantime, Gulab Sain fired at his nephew, Madan Singh, and he received firearm injuries on his leg and Munni Singh also fired at the chest of Madan Singh as a result of which he died instantaneously. Thereafter, the dacoits, Muni Singh, Gulab Sai, Jahadar Sai and other dacoits moved ahead shouting that their ambition was fulfilled and they would now commit loot in the house of the informant. It had also been stated that the dacoits went in the front of the house of one Preetam Singh where his employed Hasim Khan was standing. It has also been alleged that Jahadar Sain fired from his gun at Hasim Khan as a result of which he received injury on his chest and he also died at the spot. Seeing the aforesaid situation, the informant (PW 4) and Krishna Kant Singh @ Krishna Singh (PW 1) with a view to save their life fled to their house. The dacoits entered into the house through the main gate and they started enquiry from the female members present there as to who was the wife of Madan Singh and also asked them as to whereabouts of the persons who had returned from the market on the Tractor. The dacoits entered into the house through the main gate and they started enquiry from the female members present there as to who was the wife of Madan Singh and also asked them as to whereabouts of the persons who had returned from the market on the Tractor. Female inmates did not inform correctly and told that they were not available upon which some of the dacoits assaulted some of the ladies and thereafter they procured the keys of the house and bag the inmates and ransacked the room and removed the valuables, it has also been stated that they snatched ornaments from the ladies present there. They also took the keys of the safe (Tijori) as well as gun. They also assaulted the ladies. Thereafter they also went to the roof of the house where the informant and Krishna Kant Singh had gone having seen the dacoits. The dacoits committed the dacoity for about one to one and half hours. The dacoits were identified by the informant and other family members of the informant. After committing dacoity, all the dacoits decamped along with booty. It has also been stated that during the course of dacoity one Butan Singh had become injured. The reason behind the alleged occurrence, as allege in the fardbeyan, is previous enmity. 3. On the basis of the fardbeyan of the informant, Chainpur PS Case No. 69/89 was registered and on the same day at 9.30 p.m. a formal FIR was drawn up against this accused and also other FIR named accused persons. The police after completion of the investigation submitted charge-sheet and accordingly cognizance was taken and the case was committed to the Court of Sessions. The trial Court concluded the trial and on conclusion of the trial convicted the appellant as indicated above. 4. It appears that altogether 19 accused persons were charge-sheeted. Out of the aforesaid 19 accused persons 18 accused persons faced trial in Sessions Trial No. 7 of 1991 but at that time this appellant, Durga Singh, was absconding on account of which his case was separated from Sessions Trial No. 7 of 1991 vide order dated 6.5.1991 and this split up record, i.e., Sessions Trial No. 7(A) of 1991 was prepared. When the appellant, Durga Singh, was apprehended and remanded on 13.2.1996 and thereafter he was put on trial. When the appellant, Durga Singh, was apprehended and remanded on 13.2.1996 and thereafter he was put on trial. On 17.7.1996 this appellant, Durga Singh, was charged for the offence punishable under Section 396 of the Indian Penal Code. 5. The defence of the appellant is that he is quite innocent and he has been falsely implicated in this case due to previous enmity. 6. At trial, the prosecution examined altogether seven witnesses in support of the case, PW 1 is Krishna Kant Singh @ Krishna Singh, PW 2 is Kamlesh Kuer. PW 3 is Savitri Devi, PW 4 is Gulab Singh who is the informant of this case. All they are said to be the eye-witnesses. PW 5, Ambika Singh, is the investigating Officer. PW 6 is Dr. Satyendra Kumar who has conducted post-mortem examination on the dead body of the deceased, Madan Singh, PW 7, Choudhary Prakash Narain is a formal witness who has. proved true copy of former FIR as Ext. 2/1 and true copy of Fardbeyan of Gulab Singh as Ext. 4. According to him he prepared Ext. 2/1 after comparing the same from carbon copy of the FIR and similarly he had prepared the true copy of the Fardbeyan of the informant after comparing the same from the carbon copy of the fardbeyan. 7. The informant has supported fully the prosecution case as he narrated in his fardbeyan. According to him the alleged occurrence took place in the evening of 1.9.1989. At that time he was taking breakfast in his house after returning from Bhabua where he had gone to purchase fertilizer. He has further stated that Krishna Kant Singh @ Krishna Singh, PW 1, was also with him. According to him he heard gun shot firing and he along with Krishna Singh came out of the house and proceeded 5 to 6 steps ahead from their door and thereafter they saw 20 to 25 dacoits coming from the south side. They also saw that Madan Singh going towards south of the Mahabir temple after coming out of the Baithaka. They also saw that Madan Singh going towards south of the Mahabir temple after coming out of the Baithaka. He has stated that in the meantime, accused Gulab Sai and Munni Singh fired from their guns resulting into the death of his nephew, Madan Singh and accused Jahadar Sai fired at Hasim Khan who was standing at the door of the baithaka of one Preetam Singh, Hasim Khan also died at the spot alter receiving the gun shot injury. Having seen the situation he and Krishna Singh tried to save their lives and went away towards their house and went on the roof of the house raising alarm that the dacoits had killed Madan Singh and Hasim Khan. He had also stated that he saw accused Durga Singh, Munni Singh, Brahma Singh, Gulab Sai, Jahadar Sai, Kera Bind, Jhakari Bind and others in his court yard who were assaulting Savitri Devi and Kamlesh Devi. They were also asking from the inmate ladies about him and Krishna Singh. He further stated that he jumped over the roof of Ramjee Singh and from there he fled away in the lane. According to him the dacoits looted the articles from his house for about one hour. He has stated that the dacoits took away one gun, two rifles, one revolver and several cartridges worth Rs. 2. 1/2 to 3 lacs. According to him after committing dacoity the dacoits left the place of occurrence. Thereafter he along with Krishna Singh went near the dead body of Madan Singh and Hasim Khan. He claimed to have identified all the dacoits. He also stated that the alleged occurrence took place owing to long enmity. According to him after the alleged occurrence the police came in his village and recorded his statement. According to him he also put his signature over it. PW 1, Krishna Kant Singh alias Krishna Singh, has also supported the version of the informant. 8. PW 2, Kamlesha Kuer, the wife of the deceased Mandan Singh, had also supported the case of the prosecution and claimed to be an eye-witness of the alleged occurrence. According to her on the date of the occurrence at about 5 p.m. she was engaged in cooking. 8. PW 2, Kamlesha Kuer, the wife of the deceased Mandan Singh, had also supported the case of the prosecution and claimed to be an eye-witness of the alleged occurrence. According to her on the date of the occurrence at about 5 p.m. she was engaged in cooking. At that time her mother-in-law, Kaushalya Devi, younger mother-in-law Savitri Devi, her sister-in-law, Pushpa Devi, her younger father-in-law, Gulab Singh and her brother-in-law, Krishna Singh were in the varandah of the house and they were taking breakfast. She further stated that at the same time she heard two to three sounds of firing and having heard the aforesaid firing. Gulab Singh and Krishna Singh came out of house and thereafter, she again heard three guns shot firing. She further stated that Gulab Singh and Krishna Singh again came in the house raising alarm that the dacoits have come and thereafter both persons went on the roof of the house. According to her the dacoits entered in her house and surrounded her. She has also stated that the dacoits were armed with rifles and guns. She claimed that she identified accused, Durga Singh, Munni Singh, Gulab Singh, Jahadar Sai, Jhakhari Bind, Kera Bind, Sheo Murat Bind and Ram Briksh Bind amongst the dacoits. According to her the dacoits were also asking her about the ornaments, rifles and guns and thereafter she gave her key to the dacoits. The dacoits entered into the rooms and after breaking the locks they took away two rifles, one revolver and one gun, cash, clothes, ornaments and other articles. The dacoits also stayed there for about 1 to 1 and 1/2 hours. She further stated that when the dacoits left the place of occurrence, she saw the dead body of her husband, Madan Singh. She also stated that prior to the alleged occurrence, accused Durga Singh and co-accused Munni Singh had snatched cash from her husband for which he had lodged a case. She further stated that the accused Munni Singh and Durga Singh used to visit her house in connection with compromise of the said case. 9. PW 3, Savitri Devi is the wife of Gulab Singh. She further stated that the accused Munni Singh and Durga Singh used to visit her house in connection with compromise of the said case. 9. PW 3, Savitri Devi is the wife of Gulab Singh. She also claimed to be an eye-witness and has stated that the occurrence took place at 5 p.m. According to her at the time of the alleged occurrence she was in her house along with Pushpa Devi, Gulab Singh and Krishna Singh. According to her having heard the sound of gun shot firing Gulab Singh and Krishna Singh came out of the house and after some time they again came in the house and told that the dacoits have come and they have killed Hasim Khan and Madan Singh. According to her the dacoits entered into her house and assaulted her and PW 2, Kamlesha Kuer and after putting guns at her chest the dacoits asked about the gun, cartridges, ornaments and other articles upon which Kamlesha Devi threw the key towards the dacoits and they after breaking the lock of the rooms topk away gun, rifles, revolver, ornaments, cloths etc. She also identified this appellant, Durga Singh and co-accused. 10. PW 6 is Dr. Satyyeandra Kumar. According to him on 2.9.1989 he was posted at Sub-divisional Hospital as pathologist. On the same day he did postmortem examination on the dead body of the deceased, Madan Singh. He found the following injuries on the persons of the deceased, Madan Singh : 1. One lacerated would 4" x 1" x muscle deep on the medical side of left knee with margin tatooed. 2. One lacerated wound 1/1/2" x 1/2" x muscle deep with margin inverted and tatooed on lateral surface on left thigh. 3. One lacerated wound 2" x 2" x abdominal cavity deep with a margin inverted and tatooed but the left side of abdomen with portion of omentum coming out of this injury." According to the doctor the death was due to haemorrhage and shock. 11 PW 5, Ambika Singh, is the IO of this case. According to this witness he investigated the case on 1.9.1989 and posted as Officer-in-Charge of Chainpur Police Station. 11 PW 5, Ambika Singh, is the IO of this case. According to this witness he investigated the case on 1.9.1989 and posted as Officer-in-Charge of Chainpur Police Station. He has stated that on the aforesaid date at about 8 p.m. he received confidential information that a dacoity was committed in the village - Fakrabad and having received the confidential information, he entered the said information as Sanha and along with S.J., Bahau Uraon, ASI, R.B. Bhagat and other armed forces proceeded towards village Fakarabad where he reached at 8.30 p.m. and met with the informant Gulab Singh and other witnesses and thereafter he recorded the fardbeyan of the informant at the spot. He also inspected the place of occurrence and had given full description of the place of occurrence. He found copious blood over the place of occurrence. He also seized blood stained earth from the place of occurrence. He prepared seizure list. He further stated that he recorded the statements of PW 2 Kamlesh Devi, PW 3 Savitri Devi and other witnesses and also received post-mortem reports and had submitted charge-sheet against the accused. 12. Learned counsel for the appellant. Mrs. Anjana Prakash has stated that in this case the fardbeyan was recorded on 1.9.1989 and was despatched on the same day but the same was received after two days by the Magistrate. It has also been stated that the factum of the dacoity was proved by PW 5 but nothing was taken away by them. No seizure of article was prepared. The IO who visited the place of occurrence did not find 20 bags of fertilizer and also the tractor. As such there was no objective finding by the IO. Further statement of the learned counsel is that the dacoits entered into the house and assaulted the female inmates of the house and also went on the roof of the house. 13. The main point of the learned counsel for the appellant is that it is not a case of Section 396 of the IPC because of the killing of the two deceased persons was not done in the process of commission of the dacoity rather the prosecution case is that first Madan Singh was killed thereafter Hasim Khan was also killed in the house of one Pritam Singh. As such the appellant should not be convicted under Section 396 and the appellant should have been convicted under Sections 302 and 395 of the IPC. 14. On this point she also relied upon the decision in a case of Shyam Bihari V/s. state of U.P., AIR 1957 SC 320 . But the facts of the present case is different from the facts of the aforesaid decision. In the aforesaid decision the murder was committed after commission of the dacoity when one of the fleeing away dacoits was apprehended by the villagers and in that course the murder was committed. 15. Learned counsel for the appellant has further relied upon a decision on this point in the case of Surya Nath Upadhya V/s. State of Bihar, reported in 2002 (4) PLJR 719 in which it was held that in the facts and circumstances of the case that the murder of the deceased and dacoity were not committed as such Section 396 was converted into Section 302 and also Section 395 of the IPC. However, in that case from the story of the prosecution appears that their Lordships concluded that the intention of the miscreants was to kill the deceased and not to commit dacoity. It was also concluded that to give different look of the occurrence they managed drama to show of the dacoits. However, in this present case there was no intention to kill Madan Singh rather they were searching two persons, the informant, PW 4, Gulab Singh, and PW 1 Krishna Singh and it is clear that in any way they had enmity with the deceased, Hasim Khan and he was also killed by them. Thereafter the dacoits committed dacoity after entry in the house and also assaulted the lady inmates took away the belonging of the house. As such the killing has terrorised the inmates of the house and villagers to show that they may not obstruct them in committing dacoity. As such the killing was in transaction of the commission of the dacoity. 16. The submission of the learned counsel is that the FIR was received by the Magistrate after two days of the occurrence. It is relevant to note here that the fardbeyan was recorded on 1.9.1989 at 8.30 p.m. soon after the occurrence, so, there was little chance of manipulation. 16. The submission of the learned counsel is that the FIR was received by the Magistrate after two days of the occurrence. It is relevant to note here that the fardbeyan was recorded on 1.9.1989 at 8.30 p.m. soon after the occurrence, so, there was little chance of manipulation. It is also clear that as shown in the FIR, it was sent to the Head quarter by special messenger on the date it was recorded. On this point there are several decisions in which it was held that the FIR had been lodged after two days from the date of the occurrence on account of which the prosecution cannot be demolished merely on account of that the FIR reached before the Magistrate after some days of lodging of the FIR. 17. On the other hand, the learned counsel appearing on behalf of the State. Mr. Ashwini Kumar Sinha, has drawn our attention towards the decision of this Hon ble Court reported in 1999 (2) East Cr C 192 (Pat) : 1999(1) PCCR 53, Gulab Sain and others V/s. State of Bihar. From the contents of this decision it appears that this decision is against the appeal filed by the co-accused of the same occurrence whose trial was being conducted separately when this appellant. Durga Singh was absconding. In this decision the Lordships have settled the issues raised by the learned counsel where it was an offence punishable under Section 396 of the IPC or it was an offence punishable under Sections 302 and 395 of the Indian Penal Code, but in this decision it appears that the appellants were convicted under Section 396 of the IPC and the judgment and order passed by the Court below was confirmed. 18. Learned counsel has also submitted that on the same fact in the aforesaid decision the points which have been raised by the learned counsel have already been decided. 19. Considering the facts and circumstances of the case and also the testimony of the witnesses the learned Court below has rightly convicted the appellant under Section 396 of the IPC. We do not want to interfere with the order and judgment under challenge. Accordingly the conviction of the appellant by the Court below is hereby confirmed and this appeal is dismissed. B.K.Jha, J. 20 I agree.