MAHENDRA DAYAL,J. - (1.) BOTH the aforesaid appeals arise out of the judgment and order of conviction by Additional District and Session Judge IIIrd, Barabanki in S.T. No.366 of 1982, whereby the appellants have been sentenced to undergo rigorous imprisonment of ten years each under Section 396 IPC. They have been further imposed a fine of Rs.1,000/ - each and it is directed that in case of default in payment of fine, they shall further undergo rigorous imprisonment of two years.
(2.) SINCE the impugned judgment is common in both the appeals, hence, both the appeals are being taken up together and decided by a common judgment.
(3.) THE appellants Kesho Ram, Ram Sewak, Kanthey alias Rama Kant, Kesho Ram son of Jugun, Shamsher, Bishambhar, Ram Naresh, Ram Karan alias Kallu, Bahraichi and Ganeshi were charge -sheeted by the police under Section 396 IPC. The accused Bahraichi and Ganeshi were also charge -sheeted under Section 412 IPC for having dishonestly receiving and retaining the looted property. However, the learned trial court acquitted Bahraichi and Ganeshi all the charges and convicted eight persons under Section 396 IPC. During the pendency of the appeal, one of the appellant Ram Sewak died and the appeal stood abated as regards him. According to the prosecution case, the occurrence took place in the intervening night of 27/28.08.1981 in the house of Luxmi Narain Joshi. It is stated that when Luxmi Narain Joshi along with his wife Smt. Vidyawati and sons, was sleeping in the inner courtyard of his house at village Sadatganj, District Barabanki, four miscreants climbed down the house from the roof and on their opening the main door from inside, 10 -12 more miscreants entered into the house. As soon as they entered, they started looting the house hold articles including ornaments and cloths. It is stated in the FIR that during the course of occurrence Luxmi Narain Joshi caught hold of one of the miscreants Kesho Ram whereupon Ram Karan fired at him, which resulted into the death of Luxmi Narain Joshi on the spot. The miscreants also hurled country made bombs inside the house but unfortunately none of them exploded. On the alarm raised by Smt. Vidyawati and son Krishna Kumar, the villagers including Ram Harakh and Radhey Shyam came to the house of Luxmi Narain Joshi with torches and lathis. However, the miscreants succeeded in running away with looted articles. As per the written report lodged by Smt. Vidyawati, the miscreants were seen and recognized in the lantern and torch light. The FIR of this case was lodged on 28.08.1981 at 7.10 AM by Krishna Kumar son of the deceased. He also named six persons in the FIR. On the written report of the informant, the police registered a case and started investigation. The body of the deceased Luxmi Narain Joshi was sent for postmortem. During the investigation, Bahraichi, Tej Narain, Ganeshi and Ram Chandra Verma were arrested and put to test identification by the informant and other witnesses. Since there was recovery of looted articles from the possession of Bahraichi and Ganeshi, they were also charged under Section 412 IPC. Ram Chandra Verma died during the pendency of session trial, hence, the trial stood abated against him and the case of Tej Narain was separated because he was declared absconder.;