N.S. Gupta, J. - (1.) The accused appellants, named above were convicted by Sri Daya Shankar, the then VIIth Additional Sessions Judge, Shahjahanpur, vide his judgment and order dated 6th August, 1990, under Section 396 I.P.C. and were sentenced to undergo R.I. for a period of 10 years each. Aggrieved of the said judgment, the appellants preferred this appeal. During the pendency of the appeal accused appellant Zakir was reported to have since been killed in an encounter. The appeal as against him is, therefore, abated and is being disposed of so far accused appellants Om Prakash, Chhutkai and Jhabbu are concerned.
(2.) The prosecution story briefly stated is as under: The complainant Ved Prakash, P.W. 1 was the son-in-law of Chhotey Lal (deceased) who used to live in the house of the deceased in village Somlepur, police station Powayan, district Shahjahanpur. The main door of the said house was towards the North. Suraj Pal Singh, P.W. 4 was the tubewell operator. He used to reside in the Baithak of the said house belonging to the deceased Chhotey Lal. On the intervening night of 15/16.1.78 at about 1.00 A.M. 9-10 bandits had entered into the house of deceased. A lantern was burning in the room. Two of those bandits had caught hold the deceased Chhotey Lal. They assaulted him and enquired about the valuables. The other bandits ransacked and looted away cash, clothes and ornaments valued at Rs. 2,310/-. The prosecution claimed that one of the bandits was armed with a gun. He remained standing on the main gate of the house. The bandits tied the hands of the deceased Chhotey Lal and enquired about the gold coins of the deceased. They sprinkled Kerosene oil the deceased and set him to fire. The bandits went to Suraj Pal Singh, Tubewell operator, PW-4 and looted away his wrist watch, torch, blanket and a sum of Rs. 90/- from his person. The deceased Chhotey Lal and Suraj Pal Singh came out of the house. They made noise. Hearing the noise Dori Lal, Ram Bilas, Manohar, Nandlal, Nathu, Sri Ram, Ram Bharose, PW-8, duly armed with lathies and torches came on spot. Bhagwan Das, PW-5, Radhey Shyam, PW-3, Raja Ram and others duly armed with taking and lighting torches also came on spot and challenged the bandits. Dori Lal united the hands of the deceased and subsided the fire with which he was burning. Ram Bharose, PW-8 set fire to his Chappar of Ram Bilas which provided sufficient light on the spot. The bandits, however, succeeded in making good their escape alongwith booty towards the North-west of the house of the complainant.
(3.) The prosecution claimed that one Zakir son of Chhotey was recognised on spot as one of the bandits. The other bandits who were armed with gun, country made pistol and lathies were seen by the complainant Ved Prakash and other villagers in the light of the lantern, torches and the light of the fire of Chappar. Complainant Ved Prakash (PW-1) took the deceased in bullock cart and started for police station for lodging report about this occurrence. Sri Chhotey Lal succumbed to his injuries while on way to the police station.;