VIJAY KUMAR VERMA, J. - (1.) HEARD amicus curiae Ms. Seema Pandey, Advocate, appearing for the appellants and AGA for the State.
(2.) THIS appeal has been preferred against the judgment and order dated 8.4.1978 passed by the 1st Additional Ses­sions Judge, Bareilly, in S.T. No. 100 of 1977 (State v. Nathoo and others), whereby the appellants Nathoo lal and Ram Prasad have been convicted and sentenced to un­dergo rigorous imprisonment for seven years under section 395, IPC. Lower Court record has been burnt in the fire which broke out in Bareilly judgeship in the year 1979 Hence the facts of the. case are being mentioned from the certified copy of the impugned judgment, which has been filed in this appeal.
(3.) THE . case of the prosecution as mentioned in the impugned judgment is that in the night between 24th and 25th May 1976 Dhani Ram was sleeping in the Khaprail of his house along with his chil­dren and wife Smt. Hema P.W. 5. His mother Smt. Champa, P.W. 4 was sleeping at the door of the khaprail. Sukhlal, father of the complainant, was sleeping outside and his uncle Kandhai lal was also sleeping outside, below the Neem tree. One Chunni lal Samdhi of Kandhai lal, who was also staying with them and he too was sleeping below the Neem tree. A lantern was burning inside the court-yard. At about midnight, on feeling the presence of some miscreants, Dhaniram got up and saw about 9 dacoits, who held him and took him out from the Khaprail and assaulted him. Two of the da­coits had covered their faces with dhatas, while the rest had not covered their faces. The dacoits also assaulted his father and mother. On hearing the alarm of the com­plainant, villagers collected outside- and set fire to two heap of phoons, as a result of which the whole area was profusely illu­minated. The dacoits were armed with fire­arms and they had also fired shots. When Nathop P.W. 8 the licence holder of the village also resorted to gun fire, the dacoits left with the booty. As a result of gun fire by Nathoo lal (P.W.8) the dacoits were injured and they left trail of blood and blood stained pair of shoes and chappals in the way. Among the dacoits accused Nathoo and Dhannoo, both sons of Dil-sukh, by caste Teli, were recognized and were named in Ext. Ka 6, the FIR of the oc­currence, which was lodged at P.S. Qila, at a distance of 5-1/2 kms. at 5.45 a.m. on the basis of which case was registered.;