JUDGMENT

Vinod Prasad, J.—Challenge in these two connected appeals by the seven appellants Rafiq, Abbas, Akhtar, Asgar Ali alias Tunta, Afsar Ali, Kalian and Buddha are to the judgment of their conviction for offences u/s 399/ 402, I.P.C. and imposed sentence of five years R.I. respectively for each of those offences. Four of the appellants Asagar Ali alias Tunta, Afsar Ali, Kalian and Buddha have further challenged their conviction u/s 25 of the Arms Act and imposed sentence of one year R.I. therefor, vide impugned judgment and order dated 20.1.1981, recorded by IInd Additional Sessions Judge. Rampur in Session Trial No. 229/1980 connected with S.T. Nos. 230/80, 231/80, 232/80, 233/80, 300/80 and 356/80 State of U.P. v. Asagar Ali alias Tunta and others. All the sentences were directed to run concurrently. Before proceeding further, it is noted that when Criminal Appeal No. 400 of 1981, Asagar Ali alias Tunta and others v. State of U.P., was called out, nobody appeared to argue it for the appellants and hence Sri Vinay Saran advocate was appointed as amicus curiae to argue the appeal. Learned amicus curiae after perusal of the record informed the Court that in the aforesaid appeal three of the appellants Asgar Ali alias Tunta, Afsar Ali and Kalian had expired and in that respect, there exist on the record a detailed report from C.J.M., Rampur. dated 28.10.2009. Sri Vinay Saran further pointed out that so far as fourth accused Buddha is concerned, he had already served out entire period of his sentence and after serving out the same has been released from Jail on 27.3.1984 and in that respect there is a fax communication on the record of the connected appeal, sent by the C.J.M., Rampur dated 6.9.2007. Perusal of page Nos. 2 and 3 of the aforesaid report supports the said fact. Learned amicus curiae, therefore, submitted that so far as Criminal Appeal No. 400 of 1981, Asgar Ali alias Tunta and others v. State of U.P. is concerned, now there remains nothing in the appeal to be decided.

I have perused the record which revealed that the aforesaid fact stated by learned amicus curiae was correct. Learned A.G.A. also supported above factual aspects and submitted that so far as Appeal No. 400/81 is concerned the same be decided keeping above facts into consideration.

In view of above appeal of the three appellants Asgar Ali alias Tunta, Afsar Ali and Kalian are abated. Appeal of Buddha has become infructuous and hence it is dismissed as such.

Criminal Appeal No. 400 of 1981 is therefore decided in the above terms.

2. This left this Court to consider the appeal of rest of the three appellants Rafiq, Abbas and Akhtar in Criminal Appeal No. 212/81. Perusal of record of said criminal appeal revealed that for appellant No. 1 Rafiq it has already stands abated vide order dated 1.9.2009. Consequently now only appeals of two appellants Abbas and Akhtar remains to be considered.

3. Turning towards factual aspect, prosecution case against the appellants were that an informer tipped off Station Officer Surat Singh, P.S. Ganj, district Rampur on 11.6.1980 at about 9 a.m. that the dacoits who had committed dacoity in village in Kashipur are assembling near water wheel (Rahat) of Kallu Bagwan in village Ajaypur at 9.30 p.m. to plan and orchestrate dacoity at the abode of Jhunda Pradhan of village Agaypur. On such information Station Officer, Surat Singh, who was accompanied with various Sub-Inspectors and police constables, organised two police parties, one consisting of himself, S.I. Hem Chandra, H.C.P., Ram Saran, S.C. Chandra Pal Singh, C.O. Niranjan Lal, Jagat Singh and Suresh Pal Singh and other consisting of S.I. Praveen Singh, Prahlad Singh. Sahveer Singh and constables Satya Pal. Sartaj Ali Khan and Yash Pal Singh. Both the parties thereafter laid in trap near water wheel to apprehend dacoits. At 9.15 p.m., from the direction indicated by the informer four of the dacoits armed with guns gathered at the water wheel and soon they were joined by ot