(Delivered by Hon'ble Aniruddha Singh, J.)

1. Heard Mr. Deepak Kumar Pandey, learned counsel for the appellants and Sri I.P. Srivastava, learned A.G.A. for the State. Learned counsel for the complainant is not present though the matter has been revised.

2. Both the appeals have arisen out of the same judgment and order, hence they were heard together and are being decided by common judgment.

3. Appellants Nahar Singh and Nihal Singh filed Criminal Appeal No. 7946 of 2008 and Pappu @ Ram Prakash, Sukh Ram and Netra Pal filed Criminal Appeal No. 7988 of 2008 against impugned judgment and order dated 15.11.2008 passed by Special Judge (D.A.A. Act)/Additional Sessions Judge, Court No.7, Agra in Session Trial No. 01 of 1997, Case Crime No. No. 350 of 1996, Police Station Khandauli, District Agra convicting appellants under Section 396 IPC and sentencing them to imprisonment for life with fine of Rs. 5,000/- each, in default of payment of fine, five months' additional simple imprisonment.

4. The case of prosecution in short is that on 17.10.1996 at 11:30 P.M. 10-12 miscreants armed with gun, pistol, knife and danda scaled the boundary and entered into the house of informant Saheb Singh in village Nagla Neem, Mauja Semra, Police Station Khadauli, District Agra and they started assaulting the informant and his family members with the intention to commit dacoity. The informant went out from the house and started screaming. On hearing the alarm villagers Roshan Lal, Het Ram, Nawab Singh and others reached the spot with torch and identified the accused Nahar Singh, Nihal Singh, Pappu @ Ram Prakash, Sukh Ram and Netra Pal in the torch light and 'Argan'. One Smt. Mano Kumari @ Manwati died in the incident after sustaining gunshot injury and Raje Singh, Bani Singh, wife of Bani Singh and few villagers got injured and received pellet injuries. The assailants looted clothes and jewellery and fled away.

5. On the basis of written report Ex. Ka-1, the FIR(Ext. Ka-15) was lodged and chik report was prepared on 18.10.1996 at 2:05 a.m. Six empty cartridges of 12 bore and three empty cartridges of 315 bore were recovered from the place of incident and recovery memo of the same was prepared as Ext. K-2. The recovery memo of simple soil and bloodstained soil (Ext. Ka-3) was prepared. Post mortem report of Smt. Manwati(EXt.-4) and injury reports of Smt. Sone Devi(Ext. Ka-5), Bani Singh (Ext. Ka-6), Rajendra Singh (Ext. Ka-7) and Padam Singh (Ext. ka-8) are on record. Panchnama (Ext.Ka-9), Form 33 (Ext.Ka-10), Photolash (Ext. Ka-11) and Site plan with index(Form 13) were prepared. Police submitted charge sheet against Nahar Singh, Nihal Singh, Pappu @ Ram Prakash, Sukhram Singh and Netrapal under Sections 396/376 IPC and case was committed to the Court of Session for trial and it was transferred to Court concerned.

6. Charges have been framed under section 396 IPC by the Special Judge(D.A.A.), Room No. 7, Agra on 12.2.2004 against Nahar Singh, Nihal Singh, Pappu @ Ram Prakash, Sukh Ram and Netrapal. Accused denied charges and prayed for trial.

7. The prosecution in support of its case examined Charan Singh(P.W.-1), Sahab Singh(P.W.-2), Basanti Devi(P.W.-3), Smt. Sone Devi(P.W.-4), Bani Singh(P.W.-5), Rajendra Singh(P.W.6), K.N. Pandey (P.W.-7), Dr. P.C. Chaturvedi(P.W.-8) and Dr. V.K. Singh(P.W.-9).

8. After closing evidence of prosecution, statements of accused have been recorded under Section 313 Cr.P.C. They have denied charges and specifically stated that witnesses are interested and family members of the informant and the witnesses deposed falsely against them due to enmity. Earlier, a false FIR was lodged by the informant against the accused appellants under Section 307 IPC in which they have been acquitted. This FIR has also been falsely lodged. They examined one witness Mohan Singh as DW-1 in their defence.

9. The trial Court after hearing both sides on merit of the case and after apprising facts and evaluating the testimony on record, recorde