Hon’ble Umesh Chandra Tripathi, J.—This appeal is directed against the judgment and order dated 6.5.2009 passed by Additional Sessions Judge/F.T.C. Court No. 20, Allahabad in Session Trial No. 473 of 2000 (State v. Sanjay Kumar Mehtar and others) whereby appellant Harish Kahar and co-accused Sanjay Kumar Mehtar were convicted under Section 412 of Indian Penal Code (hereinafter referred to as ‘IPC’) and both of them were sentenced to rigorous imprisonment for a period of seven years and to pay fine of Rs. 10,000/- and in default of payment of fine, rigorous imprisonment for another six months.

2. The brief facts of prosecution case are that on 25.11.1999 at about 08.00 p.m., six unknown person armed with country-made pistol (katta) and knife entered into the house of complainant/informant Ajay Kumar Srivastava and on point of ‘katta’ looted one gold chain, two gold earrings (baali), two gold ‘tapas’, one silver plate, five silver ‘paan’, five silver ‘supaadi’ and Rs. 3,000/- cash.

3. On the information of informant Ajay Kumar Srivastava, an F.I.R. under Section 395 IPC was lodged at Police Station- Colonelganj at Case Crime No. 1208 of 1999.

4. Accused Lal Bahadur @ Kancha Pahadi, Anant Kumar, Mohan Bahadur @ Raju Pahadi and Rajesh Chaudhari were arrested by police in Crime No. 78 of 2000 under Section 307 IPC on 5.3.2000. Accused Lal Bahadur and Mohan Bahadur confessed before the police to have committed the dacoity. On their information and on pointing of accused Sanjay Kumar Mehtar, a bag having stolen articles-one gold chain, two gold ‘tapas ‘, two earrrings and one silver plate and ‘supaadi’ were recovered from his house on the same day i.e. 5.3.2000 at about 10.30 p.m.

5. Accused Lal Bahadur and Mohan Bahadur also confessed before police that with them, accused Sanjay Kumar Mahtar, Rajesh and Harish Kahar also participated in the alleged dacoity.

6. After investigation, the police submitted charge-sheet against accused Lal Bahadur, Mohan Bahadur, Sanjay Kumar Mehtar, Rajesh and appellant Harish Kahar under Sections 395, 412 IPC.

7. Consequent thereupon, committal proceedings took place and the case was committed to the Court of Sessions. Thereafter, it was made over for trial and disposal to the Court of Additional Sessions Judge/F.T.C. Court No. 20, Allahabad. Accused were heard on point of charge and the trial Court was prima facie satisfied with the case against them. Therefore, it framed charges against them under Section 395, 412 IPC. Charges were read over and explained to the accused, who pleaded not guilty and claimed to be tried.

8. The prosecution in order to prove the guilt of the accused examined as many as nine prosecution witnesses, out of whom Himanshu Srivastava (P.W.1), Ajay Kumar Srivastava (P.W.2), Smt. Malti Srivastava (P.W.3) and Smt. Sarita Srivastava (P.W.4) were examined as witnesses of fact, whereas S.I. D.D. Shukla (P.W.5), H.C.P. Ram Lal Kaithal (P.W.6), S.I. Pandh Bahadur Singh (P.W.7), D.K. Singh (P.W.8) and Govind Mishra (P.W.9) were examined as formal witnesses.

9. Except as above, no other witness was adduced, therefore, evidence for the prosecution was closed and statement of the accused-appellant was recorded under Section 313 of The Code of Criminal Procedure (hereinafter referred to as ‘Cr.P.C.’), wherein, he claimed to have been falsely implicated in the case due to enmity.

10. The defence did not lead any evidence, whatsoever.

11. Learned trial Judge after considering the case on its merit passed aforesaid finding of conviction and passed the impugned judgment and order.

12. Hence, this appeal.

13. Heard Sri Ved Prakash Pandey, learned Amicus Curiae on behalf of the appellant and Sri L.D. Rajbhar, learned Additional Government Advocate for the State of Uttar Pradesh.

14. Learned counsel for the appellant contended that no offence against the applicant is made out and wit