JUDGMENT :

Mehta, J.

1. Heard.

BACKGROUND OF THE CASE

2. The appellants herein,¹[Appellant-Accused No. 1 (Raj Kishore- Appellant in Criminal Appeal No. 237 of 2013); Appellant-Accused No. 2 (Hira Lal- Appellant in Criminal Appeal No. 238 of 2013); Appellant-Accused No. 3 (Raj Bux-Appellant in Criminal Appeal No. 236 of 2013); Appellant-Accused No. 5 (Deo Prasad- Appellant No. 1 in Criminal Appeal No. 239 of 2013); and Appellant-Accused No. 6 (Subedar- Appellant No. 2 in Criminal Appeal No. 239 of 2013). Collectively, they are being referred to as “accused-appellants”.] along with one Ram Dhani,²[Died during the pendency of appeal before the High Court.] were tried by the learned III Additional Sessions Judge, Gonda,³[Hereinafter, being referred to as ‘trial Court’.], in Sessions Trial No. 242 of 1978 for the offences punishable under Sections 147, 148 and 302 read with 149 of the Indian Penal Code, 1860.,⁴[For short, ‘IPC’.] Vide judgment of conviction and order of sentence dated 3rd June, 1981, the trial Court convicted the appellant-Accused Nos. 1, 2 and 3 for the offences punishable under Sections 148 and 302 read with 149 of IPC, and Ram Dhani, appellant-Accused Nos. 5 and 6 for the offences punishable under Sections 147 and 302 read with 149 of IPC and sentenced them in the terms indicated below: -

3. Being aggrieved, the accused-appellants preferred an appeal,⁵[Criminal Appeal No. 418 of 1981] to the High Court of Judicature at Allahabad, Lucknow Bench,⁶[Hereinafter, referred to as ‘High Court’.], for assailing their conviction and the sentences awarded to them. The learned Division Bench of the High Court, vide judgment and order dated 20th November, 2011, dismissed the appeal preferred by the accused-appellants and affirmed the judgment of conviction and order of sentence passed by the trial Court. However, the appeal in respect of co-accused, Ram Dhani stood abated, as he expired during the pendency of appeal before the High Court. The said judgment of the High Court is the subject matter of challenge in the present appeals by way of special leave.

4. At the outset, it may be noted that this Court granted bail to appellant-Accused Nos. 5 and 6 vide order dated 29th April, 2011 and to appellant-Accused Nos. 1 and 3 vide order dated 1st February, 2013. However, the prayer for suspension of sentence made on behalf of appellant-Accused Nos. 2 was rejected vide order dated 1st February, 2013, in view of the fact that the role attributed to him was graver.

5. It is also relevant to note that Raj Kishore (appellant-Accused No. 1) and Deo Prasad (appellant-Accused No. 5) passed away during the pendency of the present appeals before this Court. In view thereof, Criminal Appeal No. 237 of 2013, preferred on behalf of Raj Kishore (appellant-Accused No. 1), and Criminal Appeal No. 239 of 2013, insofar as it pertains to Deo Prasad (appellant-Accused No. 5), stand abated.

FACTUAL MATRIX

6. Succinctly, the story of the prosecution as adumbrated in the First Information Report,⁷[FIR No. 157 of 1977.] is that in the intervening night of 27th/28th June, 1977, a man intending to commit theft was apprehended at the house of the complainant, Raghav Ram (PW-1),⁸[Hereinafter, being referred to as ‘complainant (PW-1)’], situated in village Lalemau Pure Pundit, Police Station Colonelganj, District Gonda. The complainant (PW-1) along with the apprehended suspect proceeded to the police station in the company of Ram Nath (PW-2), Badri Prasad, Ishwar Saran and Baksha Ram (the village chowkidar). After lodgin