JUDGMENT :

Dinesh Pathak, J.

1. Heard learned Counsel for the appellants and learned A.G.A. for State-respondent.

2. Instant criminal appeal has been preferred challenging the judgment and order dated 26.3.1982 passed by 3rd Additional Sessions Judge, Ballia in Sessions Trial No. 245 of 1980 convicting the appellants under section 395, IPC and sentencing them to undergo five years rigorous imprisonment.

3. Vide impugned judgment and order dated 26.3.1982, eight accused persons had been convicted, out of them six had filed instant appeal.

4. As per FIR version, in the intervening night of 14/15 March, 1980 while first informant Ram Nagina Mishra (PW-2) was sleeping in his room situated towards north of the outer verandah of his house, a gang of 14-15 dacoits raided at his house and barged into the house after breaking the outer door. On strong resistance by the villagers, many of the dacoits managed to escape from the place of occurrence, but out of them five dacoits namely Udai Narayan, Ram Vachan, Jagdish, Mani Ram and Babban were caught by the villagers. Apart from that, two others namely Ghura and Dukhu were recognized by the villagers. During course of investigation police suspected one more accused namely Moti. In this view of the matter, total eight persons were blamed to be involved in commission of crime (i.e. dacoity). Informant Ram Nagina Mishra (PW-2) has moved written report dated 15.3.1980 (Exhibit Ka-1)'with respect to incident in question on the basis of which Chik FIR (Exhibit Ka-5) has been registered under section 395/397, IPC and same was scribed in the General Diary. Copy of which was exhibited as Exhibit Ka-6. After due investigation, the Investigating Officer has submitted charge-sheet under sections 395/397, IPC and case was registered in the Court of Judicial Magistrate-L Ballia. Thereafter, case was committed to the Court of Sessions for trial.

5. In order to substantiate the charges levelled against the accused, prosecution has produced as many as ten witnesses. On the other side, defence has examined four witnesses. After considering the facts and circumstances and documents available on record, Trial Court has passed the impugned judgment and order convicting the accused persons as mentioned above.

6. Against aforesaid judgment and order dated 26.3.1982, two criminal appeals were preferred which are registered as (i) Criminal Appeal No. 1131 of 1982 (Ram Vachan and another v. State of U.P.) and (ii) Criminal Appeal No. 1132 of 1982 (Udai Narayan and five others v. State of U.P.).

(i) So far as Criminal Appeal No. 1131 of 1982 is concerned, it was preferred by two accused namely Ram Vachan (appellant No. 1) and Mani Ram (appellant No. 2). Aforesaid appeal was ordered to be dismissed as infructuous vide order dated 6.5.2013 passed by this Court on the ground that appellant No. 1 Ram Vachan had already served out the sentence and has already been released from the jail. So far as appellant No. 2 Mani Ram is concerned, he expired and appeal was already abated against him.

(ii) In the present criminal appeal i.e. Criminal Appeal No. 1132 of 1982, which has been filed on behalf of six appellants/accused, out of them four had already died and vide order dated 12.3.2013, present appeal was ordered to be dismissed as abated against appellant Nos. 1, 2, 4 and 5. Now it survives only against appellant No. 3 Babban Nonia and appellant No. 6 Moti Ram.

7. Vide order dated 4.5.1982, instant appeal was admitted and notice was ordered to be issued to the State and appellants were enlarged on bail during pendency of appeal. With respect to the record of Court below, District Judge, Ballia had submitted report dated 18.2.2003 informing that record of Criminal Appeal No. 1131 of 1982 relating to Sessions Trial No. 245 of 1980 had already been weeded out by the concerned Record Keeper on 3.6.1992. After considering aforesaid report, this Court had passed order dated 29.1.2004 directing District Judge, Ballia for reconstruction of