The appellate court found the prosecution failed to prove the guilt of the accused beyond reasonable doubt due to material inconsistencies in witness testimonies regarding the alleged dacoity.

JUDGMENT :

AVNISH SAXENA, J.

1. Heard Sri Brij Raj and Sri Sanjive Kumar Gupta, learned counsel for the appellants and Sri Chandra Badan, learned A.G.A. for the State. Perused the record.

2. The oldest criminal appeal has been preferred by seven accused- appellants in the year 1983 under Section 374(2) CrPC from District Badaun, on being aggrieved by the judgment of conviction and sentence passed by the court of Special Sessions Judge, Badaun on 29.08.1983 in Special Sessions Trial No.157 of 1982, arising out of Case Crime No.321 reported on 27.07.1982 at 6:30 a.m. at Police Station Ujhani, District Badaun for offence under Section 395 (punishment for dacoity) and 397 (dacoity with attempt to cause death or grievous hurt), whereby the trial court has convicted accused-appellants 1 to 3, Ali Hasan, Narain and Nandey, respectively for offence under Section 395 I.P.C. and accused-appellants 4 to 7 Omkar, Harpal, Latoori, Mehndi, respectively for offence under Sections 395 I.P.C. read with Section 397 I.P.C. Therefore, appellants Omkar, Harpal, Latoori and Mehndi were punished for imprisonment of 7 years rigorous imprisonment, whereas accused Ali Hasan, Narain and Nandey were punished with 5 years rigorous imprisonment.

3. During the pendency of appeal, four appellants, Narain s/o Gindu, Nandey s/o Jhammn, Omkar s/o Dhoom Singh and Mehndi s/o Chunni have passed away and by order dated 21.02.2019, the appeal was abated for appellant no.2, Narain, appellant no.3 Nande, appellant no.4 Omkar and appellant no.7 Mehndi.

4. The prosecution case has its genesis from the written information given by Dhanpal (P.W.-1), scribed by Jagdish s/o Bhole Nath disclosing therein that in the intervening night of 26/27.07.1982 at about 1:00 a.m. while he and his brother, Ishwari, were sleeping in the cattle shed near the house, they heard the shrieks of his mother and sisters. His brother Ishwari and he ran towards the house accompanied by Nanhey Singh, Ram Lal, Prakash and other villagers with lighted torch in their hands and found that the miscreants were beating their mother and sisters and looting the valuables. The informant and other villagers including his brother have challenged the miscreants, on which, the miscreants came out from the house, who have been identified in the light of torch.

Mehndi was carrying gun, Harpal, Omkar and Latoori had country-made pistols and other accused were carrying lathi in their hands. While exiting the accused made two fires and threatened the informant and other villagers, not to chase them. In exchange Ganga Ram has also shot three fires from his licensed gun. The accused then sprinted away towards South. In the dacoity, the mother and sisters of informant were badly injured. It is further revealed from the F.I.R. that the informant was having cash of Rs 6,000/- at his residence. Rs.3,000/- was the proceeds from onion sale and Rs.3,000/- was the advance money for selling his land. The accused had looted Rs.3,000/-, but could not found other Rs.3,000/-, which was kept hidden. The accused have also looted nine items. One Hasali of silver (2.450 gm); one Hasli silver (2.400 gm); one phool for nose; one pair bara silver; 16 pair of lachche silver for toes; one pair pahunchi of silver; one shirt taricoat yellow colour with lines; one Tehmad of Khadi white colour 2.25 meters; and one Baniyan with sleeves of white colour. The F.I.R. further reveals that the accused had left at the place of incident one lathi, one aguncha, one pair of shoes, one cheni and one summi. The informant was accompa