- (1.) This appeal has been directed against the judgment and order dated 17-2-1981, passed by Sri D.C. Srivastava, the then Addl. Sessions Judge, Gyanpur, district Varanasi in S.T. No.9 of 1980, convicting the appellant under section 396 IPC and sentencing him to undergo R.I. for a period of seven years and to pay a fine of Rs. 500.00. In default of payment of fine he was further sentenced to undergo one year 's R.I.
(2.) The prosecution story, briefly stated, was as under :- Raj Narain (PW4) had his house at village Pandeypur, P.S. Suriyawa, district Varanasi. Ram Adhar deceased was uncle of Raj Narain (PW4). On the night of 16-10-1979, Raj Narain was sleeping in his verandah of Dalan. Ram Adhar, deceased was sleeping outside the house under a Neem tree. Ladies of his house were sleeping inside the house. At about 10-11 p.m. 10-11 dacoits armed with country made pistols, lathis and torches came to the house of Raj Narain, (PW4). The dacoits caused injuries to Raj Narain (PW4). On his alarm Ram Adhar, deceased woke up and tried to save him. One of the dacoits caused lathi injury on him and other one fired country made pistol. Thereafter the dacoits broke open the main door of the house and by entering into the house started looting the household prop-erties including the ornaments of the ladies and clothes. Hearing the alarm Jagdamba (PW1), Ram Singar (PW3) and others came to the spot, flashing their torches. One Harihar set fire in the nearby hut, which emitted sufficient light. The inmates of the house and the witnesses recognised the faces of the dacoits in the light of the torches and flames of burning hut. When the accused left the spot. Raj Narain (PW4) came to Ram Adhar and found him dead.
(3.) Raj Narain (PW4) prepared report Ext. Ka-1 of the occurrence and came to the police station Suriyawa in the same night at 4.00 a.m. and lodged the report. Chick F.I.R. Ext. Ka-10 was prepared by constable Shri Nath, who made an endorsement of the same at GD report, Ext. Ka-11 and registered a case under section 396 IPC against unknown persons.;