JUDGMENT : Sanjay Kumar Medhi, J. 1. This appeal is preferred from Jail against a judgment dated 20.01.2018, passed by the learned Sessions Judge, Diphu, Karbi Anglong District in Sessions Case No. 02/1993(Old)/353/2017 (New). By the impugned judgment, the accused appellant has been convicted under Section 396 of the Indian Penal Code and is sentenced to undergo Rigorous Imprisonment for life and to pay a fine of Rs. 2,000/- (Rupees two thousand) only, in default, Simple Imprisonment for 6 (six) months. 2. We have heard Ms. S. Bhuyan, learned Amicus Curiae appearing on behalf of the appellant and Ms. S. Jahan, learned Additional Public Prosecutor, representing the State of Assam. 3. The background facts of the case may be stated in brief as follows. 4. An Ejahar was lodged in the Bokoliyaghat Police Out Post, in the District of Karbi Anglong on 02.10.1989 by one Shri Ram Asish Chouhan (P.W. 3), alleging, inter alia, that on the previous night, a group of about 10/11 dacoits, armed with weapons, had assaulted him, his father and other members of the family, causing grievous injuries. Thereafter, the said dacoits had shot dead his father Shri Sumer Chouhan with a gun. The dacoits, after entering the house by breaking open the door of the house, looted many items and the informant could recognise 3 (three) of the dacoits including the present appellant Shri Dharmeswar Bora (Bhaity). The Ejahar was forward to the Howraghat Police Station and accordingly, the HGT P.S. Case No. 212/89, dated 02.10.1989 under Sections 396/397 of the IPC was registered. After investigation, the Charge-Sheet was submitted and the offence in question being Sessions triable, the case was committed to the Court of learned Sessions Judge, Diphu, Karbi Anglong District. 5. To bring home the accusation, the prosecution had examined as many as 12 (twelve) numbers of Prosecution Witnesses. At the time of commission of offence, the Judiciary in the District of Karbi Anglong was not separated and it was the Deputy Commissioner who acted as a District Judge. However, in the meantime, there was separation of Judiciary and the impugned judgment has been rendered by the learned Sessions Judge, Diphu, Karbi Anglong District. 6. It has been mentioned that during the course of investigation, a Confessional Statement of the accused appellant was recorded. The statements under Section 164 Cr.P.C. of Radhika Chouhan, Prabhawati Chouhan and Ramashis Chouhan, were also recorded. 7. 6. It has been mentioned that during the course of investigation, a Confessional Statement of the accused appellant was recorded. The statements under Section 164 Cr.P.C. of Radhika Chouhan, Prabhawati Chouhan and Ramashis Chouhan, were also recorded. 7. P.W. 1, Kewla Devi, is an eye witness to the occurrence. As per her deposition, while she was sleeping inside the house and her husband, father-in-law and mother-in-law were sleeping outside, there was a 'Hulla', for which, she had come out and saw that about 10 (ten) persons had surrounded her father-in-law. When she has pleaded them not to beat him, they hit her 5 (five) times with a 'Lathi'. As the P.W. 1 was carrying a baby, she fled away from the scene. Subsequently, the dacoits had shot dead her father-in-law and amongst the dacoits, she could identify the present appellant, who was in the Court. She had elaborately stated that she could identify the present appellant as the dacoits were carrying and flashing the torch light and she had seen the present appellant in the village on earlier occasions. The dacoits had looted Cash and some other items including a Necklace. Though the said P.W. 1 was cross-examined, she stuck to her assertion that on the reflection of torch light, she could see the present appellant as he was carrying and flashing the torch light and had beaten her. 8. P.W. 2 is one Aanti Devi, who claims to be present at the time when the dacoits came and had also raised an alarm. The dacoits had hit her also, for which, she had fled away to call the other villagers. She heard a gunshot and saw that her husband was lying on the ground and that her sons were also beaten up. She however deposed that she could not identify any of the dacoits. 9. P.W. 3, Ram Ashish Chouhan, is the informant in this case. He deposed that about 10-11 dacoits had come to their house and had also hit him with a 'Lathi' and chased him away from the house. He saw that one of the dacoits had shot on the chest of his father with a gun, for which, his father died instantaneously. His brother was also hit with a 'Dao' on the hand and the dacoits had looted certain articles. 10. He saw that one of the dacoits had shot on the chest of his father with a gun, for which, his father died instantaneously. His brother was also hit with a 'Dao' on the hand and the dacoits had looted certain articles. 10. P.W. 3 had clearly deposed of identifying the present appellant, namely Dharmeshwar Bora; and one Pabitra Bora amongst the dacoits. The said P.W. 3 is also a witness to the Inquest Report and Seizure List. In cross-examination, he admits that it was dark and there were no light/bulb outside. However, he had clearly deposed of identifying the present appellant in the torch light when one of the dacoits were shooting his father out of which 2-3 of the dacoits were wearing masks. The present appellant was stated to be residing in a nearby area and was known to them. 11. P.W. 4, Smt. Radhika Chouhan, is also an eye witness who had not only witnessed the incident but was also assaulted in the same. She states that there were about 5-6 persons when her elder sister Prabhavati was also there and the dacoits had a torch in their hands. Her elder sister had come while the dacoits were beating her and she was also beaten up. Thereafter, the accused appellant had asked him where the owner of the house was and then only at that time, the accused appellant was identified by this witness. The P.W. 4 also claims to have hit one of the dacoits by a vegetable cutting knife and thereafter, they retaliated. This witness could also identify another member of the group Md. Faizlur Rehman, who use to come to their house frequently to sell bangles and commonly known as Churiwala. The dacoits had also assaulted her younger brother Ramayan Chouhan. She had deposed that after her father fell on the ground, the dacoits including the present appellant had beaten him with a Spade. Thereafter, Ram Ashish and some villager took the body of her father to the Bokolia Out Post. However, in cross-examination, she admits that the night in question was a dark one and the dacoits were in black dress with their faces masked. 12. P.W. 5, Shew Moni Singh, is an inhabitant of the said village. Thereafter, Ram Ashish and some villager took the body of her father to the Bokolia Out Post. However, in cross-examination, she admits that the night in question was a dark one and the dacoits were in black dress with their faces masked. 12. P.W. 5, Shew Moni Singh, is an inhabitant of the said village. He stated that the dacoity had taken place in the house of the deceased and on which date, he was already asleep in his house when Shri Ram Ashish (P.W. 3) had woke him up saying that a dacoity had taken place at his house. By the time when he reached the place of occurrence, the dacoits had fled away and he could see the dead body of Sumer Chouhan, the deceased with blood at his chest. The said witness was present when the Inquest was done and the body was sent for Post-Mortem. 13. P.W. 6 is the Doctor who had conducted Post-Mortem on the deceased. As per the opinion rendered by the said P.W. 6, the death was due to massive haemothorax, respiratory failure and all types of shock and cerebral compression due to subdural haematoma caused by multiple pellets from short gun and blunt heavy Lathi like weapon. 14. P.W. 7 is the Doctor who had examined the injured persons of the family of the deceased. The said P.W. 7, while examining the injuries suffered by the P.W. 9 (Ramayan Chouhan), P.W. 2 (Aanti Chouhan), Prabhavati Chouhan, Smt. P.W. 4 (Radhika Chouhan) and P.W. 1 (Kewla Devi), had deposed that except Kewla Devi, who did not bear any sign of external or internal injury, the rests have suffered injuries, which has been mentioned in the said deposition. 15. P.W. 8 is one Chadrama Singh, who appears to be a neighbor. He came to the place of occurrence on hearing a 'Halla' and had seen the deceased lying on the ground sustaining injuries. He is also a witness to the Inquest Report. However, so far as connecting the present appellant to the offence, this witness had stated that though the names of some persons were told to him, he could not remember the same. 16. P.W. 9 is Ramayan Chouhan, son of the deceased. He deposed that on the fateful night while he was sleeping at the Veranda, the deceased was sleeping at the courtyard. 16. P.W. 9 is Ramayan Chouhan, son of the deceased. He deposed that on the fateful night while he was sleeping at the Veranda, the deceased was sleeping at the courtyard. After midnight, some unknown miscreants had come and hit him on his head making him senseless. He was later taken to the hospital by the local people where he got sense. The narration of the incident by this witness is on the basis of hearsay as this witness was in hospital. 17. P.W. 10, Mukhlal Yadav, another neighbor who is a witness to the Seizure Report. 18. P.W. 11, Longki Kathar, who was the VDP Secretary at the time of incident and scripted the Ejahar and also had signed the same as a witness. 19. P.W. 12 is the learned Magistrate, Diphu Court, before whom the confession was made by the accused appellant. As per the said P.W. 12, who was holding the post of Magistrate, sufficient time for reflection was given to the accused appellant and all conditions and consequences were carefully explained to the accused appellant. It was thereafter that the accused appellant had made a confessional statement which has been exhibited as Ext.-5. The said witness had also deposed that she had recorded statements under Section 164 of the Cr.P.C. of 3 (three) more persons including 2 (two) P.Ws. The confession of the accused was exhibited as Ext.-5, whereas, those from the side of the prosecution were exhibited as Exts.-A2, A6 & A9. 20. The circumstances against the appellant accused was put to him for his explanation under Section 313 of the Cr.P.C. It appears that after separation of Judiciary in the District of Karbi Anglong, when the matter had come before the learned Sessions Judge, observing that the earlier statement recorded under Section 313 of the Cr.P.C. was not strictly in conformity with law as all the circumstances and materials against the accused appellant was not put to him to seek his explanation, an order dated 07.12.2017 was passed, by which, another opportunity was directed to be given to the accused appellant strictly in accordance with the mandate of said Section. It appears that under those circumstances, the record discloses that two statements under Section 313 of the Cr.P.C. have been recorded. It may be mentioned that along with the accused appellant, another person, namely, Md. It appears that under those circumstances, the record discloses that two statements under Section 313 of the Cr.P.C. have been recorded. It may be mentioned that along with the accused appellant, another person, namely, Md. Faizur Rehman, was also tried and the rests were declared to be absconders. In such examination, the appellant accused had simply denied his involvement. It appears that explanation from the accused appellant was sought on two occasions, i.e. (i) January 2009; and (ii) December 2017. In the later occasion, specific question was put to the accused appellant regarding the confessional statement which he had answered that the same was given out of fear of the Police and further that sufficient time was not given to him for reflection. 21. For ready reference, the Question No. 9 along with the answer is quoted herein below. "Q. No. 9- Mrs. H. Milly who had recorded confessional statement stated-"On 04.10.1989 she was serving as Magistrate at Dhipu Court. On that day the case record was sent to her for recording your confessional statement under Section 164 CrPC. After giving you sufficient time for reflection and after carefully explaining to you about consequence of giving your confessional statement she recorded your confessional statement wherein you confessed that you along with the rest accused persons committed dacoity in the house of the informant and caused death of the deceased. Ext-5 is the confessional statement. Ext-5(1) to Ext-5(7) are his signatures. The contents of the confessional statement, duly read over to you. Ext-5(8) to Ext-5(10) are your signatures." What is your opinion? Ans- Out of fear of police, I gave confessional statement marked as Ext-5. Sufficient time was not given to him for reflection?" 22. It is pertinent to note that in this case, there is a confessional statement, which was exhibited as Exhibit 5, made by the accused appellant. In the statement so made, the accused appellant had confessed his involvement in the offence and had only come up with the defence that he was forced by the gang of the dacoits to be a part of it. For ready reference, the said statement is quoted herein below. "On the night of 2/10/89, the incident took place. On the same date, one Kala Mia came to my house at 7.....(illegible, page torn)...Kala Mia quite well. For ready reference, the said statement is quoted herein below. "On the night of 2/10/89, the incident took place. On the same date, one Kala Mia came to my house at 7.....(illegible, page torn)...Kala Mia quite well. Kala Mia told me on that day that puja is approaching and he had no money with him. He also inform me that one Sameer a local of Bokilia had five or six thousand rupees which he said he was planning to steal, and also asked me to accompany him and be his accomplice. When I replied that I had never robbed anyone, then, Kala Mia said that since I already knew of the plan, I was bound to accompany him. He threatened me with dire consequences if I did not go along with them. He also said that six other persons would be there from Samarali, which is a place about 10 KM from Bokolia. Later Kala Mia again came to me at 10.00 PM at night, along with six persons from Samarali, I never met them before. They called me, and when I showed reluctance, they said they would shoot me and kill me. Hence I went with them. They gave me a torch light to hold. They were armed with one hand made gun and lathis. As I flashed the torch, Kala Mia and his six accomplices jumped on Sameer the victim, and a few others who were sleeping, and tried to tie them up. However, before they could tie up the victim, a hue and cry was raised, and a fight took place, as the victim tried to struggle. In the commotion, a shot was fired, which killed Sameer, one of the six persons who came from Samarali fired the fatal shot. He had the gun with him, and I will be able to recognize his face even now. When they were sitting on the bench at my house, they were smoking "bidis" and I saw their faces very clearly in spite of the darkness, because of the lighter they used to light the "bidis", which enable me to see some of the faces. I may not recognize the others, but I remember the person who shot the victim. However, Kala will recognize them. After I was caught, Kala escaped. But his wife and children are at his place. I may not recognize the others, but I remember the person who shot the victim. However, Kala will recognize them. After I was caught, Kala escaped. But his wife and children are at his place. I was first taken to Bokolia O/P. I was brought to Diphu after one night, that is, the next day from there. I have nothing more to say. Sd/- Dharmasor Borah." 23. Ms. Bhuyan, learned Amicus Curiae, has submitted that the materials available on record are not sufficient to sustain the impugned judgment of conviction and sentence under Section 396 of the IPC. The basic requirement of Section 396 of the IPC is commission by a group of 5 (five) or more persons and according to the learned Amicus Curiae, the depositions are vague and it cannot be ascertain as to whether there were 5 (five) or more persons. It is further submitted that since the pre-condition of the Section 396 IPC are not met, the accused appellant could not have been convicted under the said Section. It is submitted that there are inherent inconsistencies in the depositions made by the witnesses. P.W. 1, P.W. 3 & P.W. 4 claims to be the eye witnesses, however, their versions do not match each other and the involvement of the accused appellant cannot be established by reading of their statements. By placing on record, the Calendar of the year 1989, which indicates the full moon and new moon and that the date of occurrence being in the intervening night of 1st & 2nd of October, 1989, which was just after the new moon, the learned Amicus Curiae submits that it was a dark night, which is also stated by the witnesses. The witnesses claimed to have identified the accused appellant from the flashing of a torch light which was carried by one of the persons of the gang. It is submitted that when the assault is committed by 5 (five) or more persons in the dark night, it would not be possible to identify any of them within a very short time as none of the witnesses has stated that there were all along present during the assault on the deceased which finally ended by firing a shot on the chest of the deceased causing instant death. The further submission of the learned Amicus Curiae is that there was no active role played by the appellant in the incident and she had only accompanied the gang out of fear. The version of the P.W. 1 that though she was also injured in the incident, yet it is not supported by the medical evidence and therefore, her version is not trustworthy. The said P.W. 1, in her deposition, had stated that on the reflection of the torch light, she could see the present appellant and the appellant had beat her. 24. Referring to the Confessional Statement of the appellant made on 04.10.1989, Ms. Bhuyan, learned Amicus Curiae, has submitted that in the statement made under Section 313 Cr.P.C., the appellant has retracted such confession. Alternatively, she argues that even ignoring the facts that the accused appellant has retracted the confession, the reading of the confessional statement would make it clear that no active part was taken by the accused appellant in the commission of the offence and he had accompanied the gang only out of fear. It is submitted that conviction cannot be based on a retracted confession and in absence of any corroborating materials, the impugned conviction is not sustainable in law. On the part of sentence, which is Rigorous Imprisonment for life, it is submitted that at the time of occurrence, the accused appellant was about 19 years of age without any criminal antecedence and therefore, the punishment is on the higher side. Referring to the provisions of Section 396 of the IPC, it is submitted that amongst the penalty prescribed, there is a scope to impose penalty of Rigorous Imprisonment for a term which may extend to 10 (ten) years. 25. In support of her submissions, Ms. Bhuyan, learned Amicus Curiae, relies upon the following decisions. (i) Balbir Singh Vs. State of Punjab, reported in AIR 1957 SC 216 . (ii) Aghnoo Nagesia Vs. State of Bihar, reported in (1966) 1 SCR 134 . (iii) Kanda Padayachi @ Kandaswamy Vs. State of Tamil Nadu, reported in (1971) 2 SCC 641 . (iv) Ram Lakhan Vs. State of U.P., reported in (1983) 2 SCC 65 . (v) Raghunath Vs. State of Haryana & Anr., reported in (2003) 1 SCC 398 . (vi) Iqbal & Anr. Vs. State of Uttar Pradesh, reported in (2015) 6 SCC 623 . 26. State of Tamil Nadu, reported in (1971) 2 SCC 641 . (iv) Ram Lakhan Vs. State of U.P., reported in (1983) 2 SCC 65 . (v) Raghunath Vs. State of Haryana & Anr., reported in (2003) 1 SCC 398 . (vi) Iqbal & Anr. Vs. State of Uttar Pradesh, reported in (2015) 6 SCC 623 . 26. She has also relied upon certain decisions of different High Courts, namely, Birbal & Ors. Vs. State of Rajasthan (Rajasthan High Court), Chandrai Pahariya & Ors. Vs. State of Bihar, Sahidulislam Vs. State of Assam (Gauhati High Court-Division Bench). 27. In the case of Balbir Singh (supra), the Hon'ble Supreme Court, in paragraph 16 of the judgment, has laid down as follows. "16. In this case, both the confessions were retracted subsequently, and the proper approach in a case of this nature is to consider each confession as a whole on its merits and use it against the maker thereof, provided the Court is in a position to come to an unhesitating conclusion that the confession was voluntary and true; and though a retracted confession, if believed to be true and voluntarily made, may form the basis of a conviction, the rule of practice and prudence requires that it should be corroborated by independent evidence. It is unnecessary to consider in this case if the evidence of an accomplice stands on a better, equal or worse footing than a retracted confession; nor need we consider the question of the nature and extent of corroboration necessary for the evidence of an accomplice. In this case, the main points for consideration were (a) whether the confession of the appellant was voluntary, (b) whether it was true, and (c) what independent corroboration was furnished by the other evidence on the record." 28. However, in the instant case, we find that no such retraction was done in the initial statement made under Section 313 of the Cr.P.C. by the appellant and it was after long 28 years when a fresh statement was recorded under Section 313 of the Cr.P.C., such retraction has been made. Therefore, the present case is clearly distinguishable. 29. In the case of Aghnoo Nagesia (supra), the Hon'ble Supreme Court on the point of confession has laid down as follows. "12. Shortly put, a confession may be defined as an admission of the offence by a person charged with the offence. Therefore, the present case is clearly distinguishable. 29. In the case of Aghnoo Nagesia (supra), the Hon'ble Supreme Court on the point of confession has laid down as follows. "12. Shortly put, a confession may be defined as an admission of the offence by a person charged with the offence. A statement which contains self-exculpatory matter cannot amount to a confession, if the exculpatory statement is of some fact which, if true, would negative the offence alleged to be confessed. If an admission of an accused is to be used against him, the whole of it should be tendered in evidence, and if part of the admission is exculpatory and part inculpatory, the prosecution is not at liberty to use in evidence the inculpatory part only. See Hanumant v. State of U.P. and Palvinder Kaur v. State of Punjab. The accused is entitled to insist that the entire admission including the exculpatory part must be tendered in evidence. But this principle is of no assistance to the accused where no part of his statement is self-exculpatory, and the prosecution intends to use the whole of the statement against the accused." 30. The case may not be helpful to the appellant inasmuch as the version of the witnesses corroborates the statement made by the appellant before the Magistrate and in fact establishes the complicity of the appellant as he had himself played an active role in the offence. 31. The case of Kanda Padayachi (supra) has been cited also on the point of confession, wherein, in paragraph 10, the following has been laid down. "10. The expression "confession" has not been defined in the Evidence Act. But Stephen in his Digest of the Law of Evidence denied it as an admission made at any time by a person charged with crime stating or suggesting the inference that he committed a crime. Straight, J. in R. v. Jagrup and Chandawarkar, J., in R v. Santya Bandhu however, did not accept such a wide definition and gave a narrower meaning to the expression "confession" holding that only a statement which was a direct acknowledgement of guilt would amount to confession and did not include merely inculpatory admission which falls short of being admission of guilt. The question as to the meaning of "confession" was ultimately settled in 1939 by the Privy Council in Pakala Narayanaswami v. King Emperor wherein at p. 81 Lord Atkin laid down that no statement containing self-exculpatory matter could amount to confession if the exculpatory statement was of some fact which if true would negative the offence alleged to be confessed. He observed: "Moreover, a confession must either admit in terms the offence, or at any rate substantially all the facts which constitute the office. An admission of a gravely incriminating fact, even a conclusively incriminating fact, is not of itself a confession e.g. an admission that the accused is the owner of and was in recent possession of the knife or revolver which caused death with no explanation of any other man's possession. Some confusion appears to have been caused by the definition of confession in Article 22 of Stephen's Digest of the Law of Evidence, which defines a confession as an admission made at any time by a person charged with crime stating or suggesting the inference that he committed that crime. If the surrounding articles are examined, it will be apparent that the learned author after dealing with admissions generally is applying himself to admissions in criminal cases, and for this purpose defines confessions so as to cover all such admissions, in order to have a general term for use in the three following articles : confession secured by inducement, made upon oath, made under a promise of secrecy. The definition is not contained in the Evidence Act, 1872; and in that Act it would not be consistent with the natural use of language to construe confession as a statement by an accused 'suggesting the inference that he committed' the crime." 32. The discussions relating to the application of the principles laid down in the case of Aghnoo Nagesia (supra) will also be applicable in this case. 33. The case of Ram Lakhan (supra) will not help the petitioner inasmuch as, the acquittal was granted by the Hon'ble Supreme as assembly of 5 (five) or more persons which is the sina qua non could not be proved, however, the evidence in the present case does not led us to assume that the number of persons were less than 5 (five) as the witnesses have consistently deposed that there were about 10 to 11 persons. 34. 34. The case of Raghunath (supra) has been cited to bring home the submission that in the case of availability of two views, the one in favour of the accused must be accepted. For ready reference, paragraph 33 of the judgment is quoted herein below. "33. In the facts and circumstances recited above, we are clearly of the view, that the prosecution has not come up with the true story. It has suppressed the facts. If that be the case, the whole prosecution story would stand on quicksand. The prosecution has failed to establish its case beyond reasonable doubts. It is now a well-settled principle of law that if two views are possible, the one in favour of the accused and the other adversely against it, the view favouring the accused must be accepted." 35. In the instant case, the conclusion arrived at by the learned Sessions Judge is the only view possible and therefore, the application of the aforesaid law will not come in. 36. The case of Iqbal (supra) has been cited to support the contention that the versions of the witnesses, who are in a state of panic, are to be accepted only after appropriate corroboration. For ready reference, paragraph 12 of the judgment is extracted herein below. "12. When the witnesses are in a panicky state and standing at a distance of three-and-a-half yards and five-six yards, it is doubtful whether the witnesses would have gained an enduring impression of the identity of the accused. In the commission of offence of dacoity, identification becomes susceptible to errors and miscarriage of justice." 37. However, in the instant case, the versions of the eye witnesses corroborates each other and when the eye witnesses were themselves assaulted and suffer injuries, their versions becomes more credible. 38. The Division Bench of this Hon'ble Court, in the case of Sahidulislam (supra), has laid down in paragraph 13 as follows. "(13). It is a settled position of law that the confessional statement has to be read into evidence as a whole. The test of discerning whether a statement recorded by a judicial Magistrate under Section 164 Cr.P.C. from an accused is confessional or non confessional is not by dissecting the statement into different sentences and then to pick out some as not inculpative. The test of discerning whether a statement recorded by a judicial Magistrate under Section 164 Cr.P.C. from an accused is confessional or non confessional is not by dissecting the statement into different sentences and then to pick out some as not inculpative. The statement must be read as a whole and then only the court should decide whether it contains admissions of his incriminatory involvement in the office. If the result of that test is positive them the statement is confessional statement, otherwise not. Lokeman Shah and Anr. Vs. State of W. B.; reported in (2001) 5 SCC 235 .)" 39. However, a reading of the confessional statement at hand along with the other materials on record would establish that the findings of the learned Sessions Judge are in accordance with law. 40. The cases of Chandrai Pahariya (supra) of the Bihar High Court as well as the case of Birbal (supra) of the Rajasthan High Court have been cited to support the contention that when the offence is committed in the dark night, identification by a light of a torch is difficult and in fact, paragraph 7 of the said judgment of Chandrai Pahariya (supra) has been pressed into service which is extracted herein below. "7. In the admitted facts when the witnesses had no chance to come in close proximity of the dacoits, they may not have any opportunity to identify them particularly in the dark night and in panicky condition when dacoits were assaulting and invading their house. We further find that the prosecution version regarding the appellants committing the dacoity without concealing their identity or face appears improbable. No dacoits would like to be identified. As such, we find and hold that the identification of the appellants by the prosecution witnesses is doubtful and cannot be relied upon in the particular facts of this case." Paragraph 13 of the Birbal (supra) is extracted herein below. "13. Another aspect is that the prosecution witnesses have stated that the miscreants had torches in their hands, and that they could identify them in that light also. This is also unbelievable that the dacoits who would come in the dark night for dacoity, would throw light on their own faces, so that the people might identify them. How could it be possible? This is also unbelievable that the dacoits who would come in the dark night for dacoity, would throw light on their own faces, so that the people might identify them. How could it be possible? Rather the possibility was that the dacoits would like to hide their faces by putting Dhoties etc., so that they might not be identified by any one. Bu, in the present case, the police led evidence to the effect that the dacoits had come in open faces and were throwing torch-light on their own faces, so that they could be identified. So, this is unbelievable. Thus, we are of the opinion that the story that the witnesses had identified the accused persons in the light of lantern and torches, is an unbelievable one." 41. However, in the instant case, the identification was done from close proximity and the witnesses have categorically stated that the appellant (Bhaity) and another accused (Churiwala) would be identified in the gang as these 2 (two) were from the same village. 42. For ready reference, Section 396 of the IPC is extracted herein below. "396. Dacoity with murder.- If any one of five or more persons, who are conjointly committing dacoity, commits murder in so committing dacoity, every one of those persons shall be punished with death, or [imprisonment for life], or rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine." 43. On the other hand, Ms. S. Jahan, learned Additional Public Prosecutor, Assam, submits that the judgment, which is impugned in this Appeal, is a justified one, based on materials and not liable for any interference by this Court. It is submitted that the learned Sessions Judge took into consideration all the relevant materials which include the depositions of 3 (three) numbers of eye witnesses, the confessional statement and seized materials amongst others. Referring to the deposition, the learned Additional Public Prosecutor, Assam, submits that in the instant case, the P.W. 1, P.W. 3 & P.W. 4 are eye witnesses who were present at the time of occurrence and when the assault was made. Referring to the deposition, the learned Additional Public Prosecutor, Assam, submits that in the instant case, the P.W. 1, P.W. 3 & P.W. 4 are eye witnesses who were present at the time of occurrence and when the assault was made. Refuting the argument that the basic pre-condition of the gang consisting of less than 5 (five) persons, as projected by the learned Amicus Curiae, it is submitted that such projection is absolutely without any basis inasmuch as, it is the consistent case of the appellant that around 10-11 persons were in the gang. Out of them only one PW namely the P.W. 4 had stated that there were about 5 or 6 persons, which also meets the pre-requirement of invoking Section 396 of the IPC. In view of such clear materials on record, it is submitted that the argument of the learned Amicus Curiae is factually incorrect and not liable for any consideration. Regarding inconsistencies in the depositions of the prosecution witnesses, as projected by the learned Amicus Curiae, it is submitted that inconsistencies, if any, are absolutely minor and in fact, it shows that the witnesses were neutral and not tutored. It is further submitted that in the gang, only 2 (two) persons were from the village, namely, the appellant Dharmeswar Bora @ Bhaity and one Md. Faizlur Rehman @ Churiwala, and in the reflection of the torch, admittedly carried by the gang, they could be identified. Therefore, the presence of the appellant as a member of the gang is fully established. Meeting the argument that no overt act has been played by the appellant in the commission of the offence, Ms. Jahan, learned Additional Public Prosecutor, Assam, submits that the Section 396 of the IPC does not envisage that the offence to be committed by each of the member and being a part of the gang is itself enough to prove him guilty under the provision of Section 396 IPC. Even otherwise, the depositions before the Court would show that the role of the appellant was not confined to identify the residence of the deceased but also taking an active part in the commission of the offence which goes up to causing hurt by beating the P.W. Nos. 1, 2, 3 & 4. Even otherwise, the depositions before the Court would show that the role of the appellant was not confined to identify the residence of the deceased but also taking an active part in the commission of the offence which goes up to causing hurt by beating the P.W. Nos. 1, 2, 3 & 4. The aforesaid materials are enough to show that even though there is no requirement of taking any active part to come within the ambit of Section 396 of the IPC, in the instant case, the appellant has indeed taken an active part in the commission of the offence. 44. On the confessional statement made by the appellant accused, the learned Additional Public Prosecutor, Assam, submits that though the same has been sought to be projected as a retracted statement, such retraction was not done when the statement under Section 313 Cr.P.C. was recorded for the first time and taking advantage of the order dated 07.12.2017, when the further statement was directed to be recorded under Section 313 of the Cr.P.C., such retraction was made. In view of such retraction, it becomes obligatory to the Court to examine the corroborating materials including the depositions of the learned Magistrate before whom the confessional statement was made. The learned Magistrate, who was examined as P.W. 12, had clearly deposed that all precautions were taken and warnings given to the appellant accused before making the confessional statement. The depositions of the P.W. 12 along with the confessional statement, which has been exhibited as Ext.-5, would come to show that reflection time of 24 hours was given to the accused appellant and the confession was not made in the presence of any Police Personnel. In view of such available materials, the retraction which is made after about 28 years appears to be an afterthought. The records also do not reflect that the Investigating Officer of the case was produced as a witness. The learned Amicus Curiae as well as learned Additional Public Prosecutor, Assam, while dealing with that aspect of the matter, has referred to paragraph 19 of the judgment dated 20.01.2018, wherein, it has been recorded that during the trial, the Investigating Officer had expired and therefore, he could not be examined. The learned Amicus Curiae as well as learned Additional Public Prosecutor, Assam, while dealing with that aspect of the matter, has referred to paragraph 19 of the judgment dated 20.01.2018, wherein, it has been recorded that during the trial, the Investigating Officer had expired and therefore, he could not be examined. Though the death of the Investigating Officer, per se, may not be a reason not to examine any competent officer acquainted with the investigation, the learned Amicus Curiae has submitted that non-examination of the Investigation Officer in a trial would not be fatal unless prejudice can be shown. In this connection, we may refer to Division Bench judgment of the Hon'ble High Court of Patna reported in 1985 Cri.L.J 1406 (Basant Singh and Others Vs. State of Bihar) wherein, it has been laid down that non examination of the I.O. itself could not materially affect the prosecution case unless any prejudice is shown by the defence. In the instant case, apparently, no material differences or variations have been found in the deposition of the witnesses compared with the statement made under Section 161 of the Cr.P.C. 45. We have examined the records including the statements recorded by the Investigating Officer under Section 161 of the Cr.P.C. and compared the same with the depositions made by the said witnesses as Prosecution Witnesses including the statements made by 2 (two) witnesses along with another recorded under Section 164 of the Cr.P.C. We do not find that there were any material inconsistencies in the evidence by the said witnesses in the case and therefore, the question of suffering any prejudice can be safely ruled out. Thus, by following the law laid down by the Hon'ble Supreme Court, in this case, non-examination of the Investigating Officer, the fact which has also been taken in consideration by the learned Court below, would not vitiate the proceedings. 46. After careful consideration of the materials on record and the submissions made by the learned counsels, we are of the view that the impugned judgment of conviction and sentence does not call for any interference by us. 46. After careful consideration of the materials on record and the submissions made by the learned counsels, we are of the view that the impugned judgment of conviction and sentence does not call for any interference by us. At the stage, the learned Amicus Curiae has reiterated her submission that taking in consideration the antecedents of the accused appellant and the age, the sentence can be modified as the Section itself prescribes imposition of a punishment which may extend to ten years and shall also be liable to fine. We have considered the submission and have also examined the records of the case. The records do not indicate that the appellant accused had any criminal antecedents and at the time of the commission of offence he was about 19 years of age. The records further disclose that the order of the Trial, the accused appellant did not misuse the liberty granted to him by way of bail. Taking into consideration of the aforesaid factors, while sustaining the conviction, we deem it fit that the sentence which was Rigorous Imprisonment for life along with fine of Rs. 2,000/- (Rupees two thousand) only and in default, Simple Imprisonment for 6 (six) months be reduced by modifying the Rigorous Imprisonment for 7 (seven) years without interfering with that of the fine of Rs. 2,000/- (Rupees two thousand) only and in default, Simple Imprisonment for 6 (six) months. It is needless to say that the period which had already been undergone by the accused appellant during the trial would be set-off while computing the period of 7 (seven) years. 47. The appeal is accordingly disposed of in the manner indicated above. 48. Before parting, we would like to place on record an appreciation for the learned Amicus Curiae and for her valuable assistance. The learned Amicus Curiae would be entitled to an honorarium of Rs. 7,500/- (Rupees Seven Thousand Five Hundred) only to be paid by the State Legal Services Authority, Assam. We also appreciate the assistance rendered by the learned Additional Public Prosecutor, Assam, Ms. S. Jahan. 49. The records of the case may be sent down forthwith along with the copy of the judgment to the Superintendent, District Jail, Diphu, for onward communication to the accused appellant.