For conviction under dacoity, the prosecution must prove beyond reasonable doubt with corroborative evidence; mere identity of accused is insufficient without direct involvement in the crime.

JUDGMENT :

Rajnish Kumar, J.

1. Heard Sri I. K. Mishra and Sri Sachidanand Mishra, learned counsel for the appellant nos. 1 and 3 respectively and Shri Rajesh Kumar Shukla, learned Additional Government Advocate (here-in-after referred as AGA).

2. This appeal has been filed by the appellants namely Devendra Singh, Sripal Singh, Suresh Singh, Dinesh Singh and Yogendra Singh. During pendency of this appeal, Shripal Singh, Dinesh Singh and Yogendra Singh have died, therefore, this appeal has abated on their behalf on different dates. Now this appeal survives only on behalf of the appellant no. 1-Devendra Singh son of Indrapal Singh and appellant no. 3-Suresh Singh son of Hari Bux Singh.

3. This Criminal Appeal under Section 374(2) of Code of CRIMINAL PROCEDURE CODE (here-in-after referred as CrPC) has been filed assailing the judgment and order dated 7/11-1-1993 passed in S.T. No. 387 of 1991; State Versus Devendra Singh and 4 Others, arising out of Case Crime No. 66/1990 under Sections 395 /397 of the INDIAN PENAL CODE (here-in-after referred as IPC), Police Station Behtagokul, District Hardoi by IV^th Additional Sessions Judge, Hardoi, by means of which the appellant nos. 1 and 5 namely, Devendra Singh and Yogendra Singh have been convicted under Section 395 IPC and sentenced each of them to 10 years rigorous imprisonment and a fine of Rs. 10,000, and in default of payment of fine, three years simple imprisonment and seven years rigorous imprisonment under Section 397 IPC and both the sentences have to run concurrently. The remaining appellant nos. 2, 3 and 4, namely Shripal Singh, Suresh Singh, and Dinesh Singh respectively have been convicted under Section 395 IPC and sentenced to 10 years rigorous imprisonment to each of them and a fine of 10,000 and in default of payment of fine, three years simple imprisonment.

4. Prosecution story, in brief, is that complainant-Ganga Bux Singh submitted written-report Ext.Ka.1 at Police Station Behta Gokul, District Hardoi, with the allegations that there is enmity between him and Sripal Singh, Suresh Singh, Dinesh Singh and Devendra Singh of his village in connection with the land since long and a case is also pending in the Tehsil and so many times hot words have been exchanged in this regard. About a year ago his sons were also beaten, in regard to which, he gave an application to police and a day before the occurrence at about 6 P.M. Devendra Singh threatened his son-Hari Nam Singh in the grove near the village situated in the north and threatened to see him. In the last night at about 1.30 A.M., while he was sleeping at his door along with his brother-in-law Ranvir Singh and his sons Harinam Singh, Hari Shanker Singh along with their wives Savitri and Shiv Kumari were sleeping inside the house, on noise, he woke up and saw that a person flashed torch on his face. He also after flashing his torch saw that Devendra Singh, Sripal Singh, Suresh, Dinesh, Yogendra Singh and four other persons, who can be identified, were standing near him, out of them Devendra Singh was armed with single barrel gun, Yogendra was armed with 'Tamancha' and remaining were armed with 'Lathi-Danda''. Devendra kept his gun on his chest and asked him "SALE UTH KER GHAR KA DARWAJA KHULWAO TUMHARE GUNDE LARKON KO JAAN SE KHATM KER DOONGA". Sripal Singh gave him 3-4 slaps. Suresh moved 'Danda'. Due to fear, he got opened the door of the house. It has further been alleged that inside the house a lantern was illuminating on the wall of kitchen. They, on being entered the house, began 'Maarpeet'. All of them used fists and kicks and beat his both the sons with 'Danda' also. Devendra Singh challenged and said "INKO ITNA MARO KI JHAGRA MITA DO". They had beaten his daughters-in-law also and Suresh, Dinesh and Yogendra tried to commit rape with them and tried to enter barrel of gun in their vagina. They also opened fire in the air. On the noise, Deva Singh, Om Prakash, Nand Kishore and several others reached on the spot. In the