G.S.N. Tripathi, J. - (1.) This appeal filed under Section 378(3) Cr. P.C. by the complainant is directed against the judgment and order dated 11.4.1979 passed by the Sessions judge, Ballia in Criminal Appeal No. 26 of 1979, whereby the learned Sessions Judge set aside the order of conviction and sentence passed by the I Additional Munsif Magistrate, Ballia on 8.1.1979 in Criminal Case No. 213 of 1978 Brij Nath Singh v. Ram Chhahila and others.
(2.) Brij Nath Singh filed a criminal complaint on 9.11.1977 before the learned Magistrate alleging that in the night between 31.10.1977 and 1.11.1977 at about 11 P.M. while the servants of the complainant were sleeping in the out cottage, where the cattle heads were tethered, about 10 or 12 persons armed with lathies and spears arrived there and started untying the cattle in order to remove them from the possession of the complainant and commit theft. Amongst the accused Ram Kishun, Palakdhari, Kedar son of Jangi and Dharam Deo with spears and the others with lathies, entered the cottage. When the servants got up they started shouting. Thereupon the accused threatened them to keep quite. They also started removing the cattle and other house hold goods stored there. The servants raised alarm, hearing which the witnesses of nearby locality arrived there. They shouted and flashed their torches. They did not chase them as they were armed with their weapons and threatened to assault them as well. In the morning the complainant went to the police station to lodge the FIR but the FIR was not registered. Then his brother Jagannath sent a letter to the Superintendent of Police, Ballia on 4.11.1977, even then no action was taken. Then a complaint was filed on 3.11.1977.
(3.) The complainant examined Brij Nath Singh as P.W. 1 and himself as P.W. 2. Both of them are related and are brothers. Other witnesses were not examined. P.W. 3 Doodh Nath and other witnesses supported the prosecution case.;