- (1.) THIS appeal has been preferred against the judgment and order dated 24 -04 -1985 and 6 -05 -1985 passed by learned II Additional Sessions Judge, Nainital whereby the learned II Addi tional Sessions Judge has acquitted the accused Swarn Singh, Ganeshi, and Chhinder Singh u/s 395, 397 I. PC. ; ac cused Lakhvinder Singh was acquitted u/ s 395, 397 and 412 I. FC. and the ap pellants Narendra Singh, Sukhvender Singh, Deshraj and Mahender Kaur were convicted u/s 412i. PC. and sentenced for 5 years R. I. to each of them. Ap pellant Narender Singh was also con victed u/s 25 Arms Act and sentenced to one year R. I. Both the sentences were directed to run concurrently. However, the appellant Narender Singh was ac quitted from the offence punishable u/s 395 and 397. I. P. C. The order of the sentence was passed against Narender Singh and Mahendra Kaur on 6 -05 -1985, as they were not present in the court on 24 - 04 -1985.
(2.) BOTH these appeals have been preferred against the same judgment and order and against the same incident. Hence, both these appeals are being de cided by this common judgment and or der.
(3.) IN appeal No. 239/01 (Old appeal no. 1269/1985), the appellants Narendra Singh and Smt. Mahender Kaur, had died. As per the report of C. J. M. Udham Singh Nagar dated 24 -04 -2007, it is reported that appellant Narendra Singh had died in the year 2005. As per the report of Chief Judi cial Magistrate, Nainital, dated 30 -04 -2007, Smt. Mahendra Kaur had also died. As both the appellants in this ap peal have died, hence the appeal against the appellants Narendra Singh and Smt. Mahendra Kaur stands abated. In appeal No. 235/01 (Old No. 1144/ 1985) the appellant no. 1 Desh Raj had died. The Chief Judicial Magis trate, Udham Singh Nagar, has submit ted by his report on 7th May, 2002 that appellant Desh Raj had died 15 years back. Hence, the appeal against Desh Raj also stands abated. Now the only appellant is Sakhwinder Singh is alive and trial court has convicted the present appellant under Section 412 I. P. C. and awarded sentence of 5 years R. I. In brief the prosecution story is this that the complainant Jagmer Singh Verma was a Secretary in "mandi Samiti" Kashipur, and he was living at Mohalla Maheshpura Kashipur, in a rented house. In the night on 16 -10 -1979 at about 2 A. M. , five miscreants, four out of them were armed with guns and one was armed with the pistol and sabbal, entered into his room. He got him up after hearing the sound of mis creants. They all rounded up the com plainant and his other family members. The complainant saw that one of the miscreants was standing pointing his gun on his youngest small child. He de manded the key of the safe from the complainant and asked him to face con sequences, if he would raise alarm. Meanwhile, one of the miscreants snatched out the golden chain out of the neck of the wife of the complainant and removed the ear -rings (Kundal) from her ears. The miscreants took the complain ant to the adjacent room where the safe was lying along with the bunch of the keys. In that room Tripal Singh cousin brother -in -law of the complainant was sleeping. After hearing the noise/he got up. The miscreants got opened the safe from the complainant and looted orna ments, cash and clothes belonging to the complainant. They also looted one Transistor, one wristwatch and/rs. 600/ - out of the pocket of the pant of the Tripal Singh hanging in that room on a peg. The miscreants went back after bolting the doors of the house from out side. They also took the entire looted property with them. After that the com plainant gave a call to his neighbour Sri Prithvi Singh who opened the door of the house of the complainaht The com plainant told the entire incident to him. In the electric light, which was there in the house of the complainant, the com plainant and his other family members had seen the miscreants at the time of the alleged incident. The complainant then lodged the report at Police Station on 16 -10 -1979 at 3. 30 A. M.;