N.S.GUPTA, J. - (1.) THE four accused ap­pellants named above were convicted by Sri J.P. Sharma, the then Ilnd Addl. Sessions Judge, Banda, vide his judgment and order dated 16-12-1980, under Section 396, I.P.C Lalta Prasad, Ram Jiyawan and Sukhlal were sentenced to undergo R.I. for a period of five years, Sohan Lal being a young lad of tender age was let off on the basis of the period already undergone. Aggrieved by the said judgment the accused appellants came up in appeal before the Court.
(2.) DURING the pendency of the appeal Lalta Prasad and Sukh Lal had died and the report of their death was confirmed by the C.J.M. Banda as per his report dated 14-6-97. Their appeal, therefore, has abated and this appeal proceeded as against Ram Jiyawan and Sohan Lai. According to the case of the prosecution, a dacoity was committed at the house of Sri Krishana Duit Agnihotri, P. W. 1 on the intervening night of 26/27-1-79 at about 1.00 a.m. about which a written report was promptly lodged at police station Mau, district Banda at about 4.00 ?.m. The police station being 16 Kms. from the village of occurrence. The prosecution claimed that the dacoits were 13-14 in numbers and they were armed with guns, country made pistols, Kulhari and iron rods. They looted cash, clothes and ornaments from the house of the complainant Sri Krishna Dutta Agnihotri. After committing dacoity they made good their escape. The prosecution maintained that a lantern was burning at the house of the complainant at the time of occurrence. The faces of the culprits were seen by the complainant in the light of the torch. The villagers who collected on spot after hearing noise also set fire. Sohan Lal, Lalta Prasad, Sukh Lal, Ram Jiyawan s/o Bandhari and two sons of Bandhari whose names were not known were named as the culprits in the F.I.R., besides 5-6 other un­known persons. At the trial the accused ap­pellants pleaded not guilty and maintained that they have been falsely implicated into this case due to enmity. After needful trial into the matter the learned trial Judge con­victed and sentenced the accused appellants as aforesaid. Hence the appeal.
(3.) I have heard Sri A.R.B. Kher, learned counsel for the accused appellant Ram Jiyawan and Sri I.M. Khan, brief holder of Sri M.B. Yadav, learned counsel for the accused appellant Sohan Lal and Sri Jitendra Singh A.G.A. for State, considered the facts and circumstances of the case.;