Hon’ble Naheed Ara Moonis, J.—The instant criminal appeal has been preferred against the judgment and order dated 26.2.1982 passed by the First Additional Sessions Judge, Bijnor in S.T. No. 467 of 1980 (State v. Abdul Aziz) whereby convicting the appellant under Section 459 I.P.C. with sentence of seven years rigorous imprisonment.

2. Heard Sri Vishal Mohan Gupta, learned Advocate as Amicus Curiae on behalf of the appellant and the learned A.G.A. Sri R.D. Yadav on behalf of the State and perused the record.

3. The prosecution case in short conspectus is that the First Information Report was lodged by Chhatra Pal Singh (P.W. 1) on 16.1.1980 at 11 a.m. in respect of the incident occurred at about 3/4 a.m. in the night that one person scaled in his house from the side of the lane after climbing upon his roof. He heard the cracking sound of opening the door, he woke up and had seen in the light of oil lamp (dibiya) that Abuld Aziz the appellant was there he at once caught him and started shouting. At his shouting Ram Pal Singh (P.W.2) Ishwari Singh (P.W.3) soon thereafter came at the spot. Ram Pal Singh was having torch in his hand. The appellant was assaulting with knife on hi