JUDGMENT - SHARAD MANOHAR, J.:---This is an appeal by the original Accused Nos. 1 to 5 who have been convicted by the learned Sessions Judge, Parbhani of the offence under section 395 of the Indian Penal Code, Since I am allowing the appeal, it is not necessary to State the sentence imposed on each of the accused.

2. The prosecution case was as follows :---

Baburao Ganpatrao Gaikwad, P.W. 1, is the resident of the village Walur where weekly bazar is held. He claims to be quite affluent person. He has a Joint Hindu Family and lives with his brother. Both the brothers are married. Paternal aunt of the said P.W. 1 is also residing with him.

On the night of 17th December, 1976, at about 1.00 a.m. about 15 to 16 unknown persons committed dacoity in the house of P.W. 1. They broke open the house and smashed the electric bulbs. Upon the noise P.W. 1 and his brother rushed out from the upper floor where he was sleeping. He was mercliessly beaten by the dacoits, and, likewise, other members in the family were also beaten. The dacoites looted the house by helping themselves with various articles such as utensiles, jewellery etc., and cash of Rs. 3500/-. After the dacoits took to their heels,

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