B.K.Sharma, J. - (1.) THIS is an appeal against the judgment and order dated 25/30.5.1979 passed by Sri O.P. Jain, the then 4th Additional Sessions Judge, Ballia in S.T. No. 191 of 1976, State v. Manji and Ors. and S.T. 178 of 1976, State v. Deo Mohan, whereby he convicted the present accused -Appellants Manji, Jogendra and Raj Kishore of the offence under Section 395, I.P.C. and sentenced each one of them to undergo R.I. for a period of 5 years.
(2.) OUT of the accused -Appellants, Jogendra Singh accused -Appellant has died and the appeal has consequently abated as to him and there now remains the case against Manji and Raj Kishore accused -Appellants to be considered. Sita Ram informant P.W. 2 and Bal Bachan P.W. 3 were real brOrs. inter se. Sita Ram informant P.W. 2 and Bal Bachan P.W. 3 were residing in village Sahatwar P.S. Sahatwar. district Ballia. In this house, there was a Central Sahan and at the North East of the Sahan, there was a Kotha in which Smt. Samarthi wife of Bal Bachan lived. This Kotha opened towards west. To the west of this Kotha, there was one Kotha south faced and then to its west there was yet Anr. Kotha which was north faced. In this north faced Kotha, Sita Ram informant P.W. 2 lived. To the north of this Kotha, there was open land in the house across which there was a Palani which was west faced. In this Palani Bal Bachan P.W. 3 used to live. In the west of the Palani, there was two Madhai south faced which belonged to Sita Ram informant.
(3.) THE prosecution story was that a dacoity took place in village Sahatwar, P.S. Sahatwar. district Ballia at the house of Sita Ram and Bal Bachan P.Ws. 2 and 3 at about 1.30 a.m. in the night between 7/8.12.1975. The dacoits were carrying lathis and torches with them. In the dacoity, the dacoits beat Bal Bachan P.W. 3 and Sita Ram P.W. 2 and broke open the door of the kothari in which Smt. Samarthi Devi was sleeping in the night of occurrence and beat her also and they looted the properties from the house. At that time, Sita Ram informant was sleeping in the north faced Kotha and Bal Bachan P.W. 3 was sleeping infront of the Palani in which he lived. An alarm had been raised by Sita Ram informant and Bal Bachan P.Ws. 2 and 3 on seeing the dacoits and on it Sukhari, Laxmi and Ram Dutt witnesses had collected carrying torches which they were flashing. Sita Ram informant and Bal Bachan P.W. 3 were also having torches with them which they flashed. The dacoits were also flashing the torches which they had. Out of the dacoits Manji, Jogendra Singh and Raj Kishore present accused - Appellants and Bachcha Pandey co - accused were identified by the witnesses. They were known from before and so nominated in the F.I.R. lodged by Sita Ram informant P.W. 2 at Police Station Sahatwar on 8.12.1975 at 6.10 a.m., The distance of the police station being 3 kms. away from the village of dacoity.;