The prosecution must establish the guilt of the accused beyond a reasonable doubt, and any doubts or suspicions about the reliability of the prosecution evidence must be resolved in favor of the accused.

( 1 ) THIS is an appeal against the judgment and order dated 26-6-1981 passed by Sri N. C. Jain, the then IXth Additional Sessions Judge, Agra in S. T. No. 646 of 1980, whereby he convicted the accused-appellants Yasin and Shanker of the offences under Sections 399/402, I. P. C. and sentenced them to undergo R. I. for a period of 3 years each and further convicted each one of them of the offences under Section 4/25 of the Arms Act and sentenced each one of them to undergo R. I. for a period of 6 months and directed the sentences to run concurrently.

( 2 ) PRESENT accused-appellants Yasin and Shanker and co-accused Rajvir were tried together by the learned Addl. Sessions Judge in the said Sessions Trial. The present accused-appellants were convicted and sentenced as aforesaid the impugned judgment Rajvir co-accused also was convicted for the offences under Sections 399/402, IPC and awarded similar sentence of R. I. for a period of 3 years. His conviction was also made for the offence under Section 25 of the Arms Act and he was sentenced to undergo R. I. for a period of 9 months for this offence by the same judgment. The present appeal was preferred by Yasin and Shanker accused-appellants. The record of the appeal by Rajvir co-accused is not before this Court.

( 3 ) THE arguments of this learned counsel for the accused-appellants and the learned A. G. A were heard in this appeal. At that time it was not pointed out by the counsel for any of the parties that Criminal Appeal No. 2354 of 1981 was preferred by the third accused and that it was pending. Since the appeal is an old one and the arguments have been heard, I do not consider it necessary to defer the judgment and list this appeal again for arguments along with the criminal appeal of the co-accused.

( 4 ) THE prosecution story in this case is that on 2-7-1980 at about 8. 30 p. m. , Sri Ramesh Chandra Sharma, S. O. P. S. Ahahganj, District Agra received information at about 8 or 8. 30 p. m. from an informer that some bad characters would assemble in the Dharmshala of the Chabootra of Mall in Shivaji Nagar along with weapons, whereupon, the S. O. collected the force and proceeded for the scene of occurrence and reached to Chabootra of Mall, that an effort was made to take public witness but it failed, that the police force took mutual research to ensure that no one was having illicit items with him, that then two parties were made, one in the leadership of Ramesh Chandra S. O. and the other in the leadership V. L. Gautam, S. I. Some force was kept in the first party and the rest was kept in the second party. The first party was positioned on the East of the Dharamshala, while the second party was positioned on the West of the Dharamshala, after they had taken position, they saw that 5 persons were assembled in the Dharamshala and were smoking Biries and were conversing with each other, that one was saying that, "har PRASAD SHARMA KE PAS KAFI PAISA HAI, USKEY YAHAN DACOITY DALI JAVEY", that another person was saying "ab INTEJAR KARNA BEKAR HAI. HAMAREY PAS KAFI ASLAHA HAI. SAHAR MEN DACOITY ASANI SEY DALI JA SAKTI HAI. AB SAMAY NAST KARNA BEKAR HAI", that at the time, it was 11. 00 or 11. 15 p. m. , that after the aforesaid conversation, all the 5 bad characters got up and prepared to move whereupon, the police parties got assured that it is a gang of dacoits assembled and preparing to commit dacoity, that consequently, Ramesh Chandra Sharma S. O. challenged the bad characters, whereupon all of them started running towards south, but both the raiding parties surrounded them and arrested three of them at 11. 40 p. m. while two of their companions managed to escape towards East, that those companions were Mahavir, Yasin and Shanker, that on a search being taken by the S. O. , a D. B. B. L. gun, 25 topies, 25 pellets and 50 grams of gun-powder was recovered from the possession of Rajvir co-accused, a knife and Kulhari were recovered from Yasin accused-appellant an