Vinod Prasad, J.;- Appellants who are seven in number namely Ram Kumar( A1), Kadhera( A2), Horam( A3), Mahavir( A4) Param Singh( A5) and Kahar Singh( A6) have come up to this Court challenging their conviction recorded by IIIrd Additional Session's Judge, Bijnor in S.T. No. 64 of 1979, State versus Ram Kumar and others, convicting and sentencing them u/s 395/412 I.P.C. and sentencing them to 7 years and 3 years RI respectively, vide impugned judgment and order dated 21.6.82.Seventh appellant Ram Chandra @ Chandru ( A7) has been convicted only u/s412 I.P.C. and imposed with sentence of 3 years RI, by the same impugned judgement and order. Pending final decision in their appeals, five appellants, Ram Kumar( A1), Horam( A3), Mahavir Singh( A4) and Param Singh( A5) and Kehar( A6) expired and, therefore, vide order dated 8.12.2011, appels of four of them,( A1),( A3),( A4), and( A5) were abated.In respect of Kehar Singh( A6), report regarding his demise was received later on as Flag F, which is perceptibly clear from the order sheet dated 5.1.2012 and, therefore, appeal of said appellant Kehar Singh( A6) is abated today. This has left this Court to consider appeals of only two appellants Kadhera( A2) and Ram Chandra @ Chandroo( A7). Unfolded prosecution allegations, as is contained in the oral FIR,Ext.Ka-4,were that on the intervening night between3/4.11.78 at 2 A.M., dacoity was committed in the house of Virendra Singh s/o of Tapraj Singh ( P.W.5), in village Baldia,PS Haldaur, district Bijnor, when the house inmates were in deep slumber inside their rooms. Two electric bulbs were illuminating on the main entrance door and in the enclosed courtyard( Agan). Hearing cluttering of fallen buckets, mother of Virendra Singh woke up and under the impression, that the cattle( Buffalo) in their shed had untied themselves that she opened the door and saw seventeen or eighteen dacoits standing inside the enclosed courtyard. Three amongst them climb on the roof and three of four had blocked the main door. Mother raised hue and cry and house inmates woke up. P.W. 5 and his father Tapraj Singh( P.W.1), after unlocking main door, ran outside and raised alarm, which attracted co-villagers Rajendra Singh, Balram Singh, Mahavir Singh, Karan Singh, Om Prakash, Har Pal and many others, who rushed towards the incident house, armed with blunt object and torches. Mother raised hue and cry and house inmates woke up. P.W. 5 and his father Tapraj Singh( P.W.1), after unlocking main door, ran outside and raised alarm, which attracted co-villagers Rajendra Singh, Balram Singh, Mahavir Singh, Karan Singh, Om Prakash, Har Pal and many others, who rushed towards the incident house, armed with blunt object and torches. Collected villagers challenged the dacoits on which from the roof dacoits resorted to firing, as a result of which, Rajendra Singh @ Bhola sustained gun shot injuries. Peetambar Singh, informant's brother set ablaze the fodder, which was kept in the house of Girvar Singh. Next door neighbour Budh Singh also set the fodder to fire and, therefore, entire place of incident was illuminated with sufficient glow of identifiable lights. Dacoits, who were moving to and fro were identified in those lights of electric bulb, flickering of burnt fodder flames and torches. Meanwhile, two co-villagers Mahendra Singh and Shai Nath Singh arrived at the scene, armed with guns and resorted to retaliatory firing. Seeing the villagers making retaliatory fire, the dacoits retreated, from the place of the incident towards west with looted bounty of ornaments, drapers, transistor, wrist watch and cash money. Villagers chased them but because of covering gun fire, kept themselves at bay. Virendra Singh, P.W.5, went to the police station Haldaur, at a distance of one mile, along with Rajendra Singh and dictated oral FIR, Ext.Ka-4, at 3.10 A.M. which was registered as crime no. 235 under sections 395, 397 I.P.C. After registration of FIR, injured Rajendra Singh aged about 23 years, was sent for medical examination, which was conducted on 4.11.1978 at 1p.m. vide Ext. Ka-12, by Medical Officer, District Hospital, Bijnor and his injuries as is noted in his medical report are reproduced below:- Injuries: ( 1). Circular lacerated wound 3/10 cm x 3/10 cm x 1/2 on medial end of left eye brow. Clotted Blood seen. Injury is caused by discharge of pellet through firearm. Adv. X-ray skull. Duration about 1/2 day about." Investigation into the crime was commenced by S.O. P.S. Ahlawat, P.W.13 in whose presence FIR was registered. I.O. interrogated the informant and thereafter accompanying S.I. Jai Pal Singh and other police constables went to railway station Haldaur for apprehending the accused, sensing that they may escape from the train but with no success and, therefore, from the railway station, he proceeded towards the incident spot. I.O. interrogated the informant and thereafter accompanying S.I. Jai Pal Singh and other police constables went to railway station Haldaur for apprehending the accused, sensing that they may escape from the train but with no success and, therefore, from the railway station, he proceeded towards the incident spot. In the way, while I.O., P.W.13, was passing through Bal Kishanpur crossing, he spotted six persons proceeding from Bijnor to Noor Pur. P.W.13 challenged them on which they sprinted towards Noorpur but after some chase were apprehended at the spot and they confessed their involvement in the dacoity and disclosed their names as Ram Kumar ( A1), Param Singh( A5), Mahavir Singh ( A4), Kehar Singh ( A6) and Kadhera ( A2). These arrested dacoits were searched and from their possession looted articles were recovered, therefore they were put under veils. Seizure memo Ext. Ka-5 to Ka-10, for recoveries were penned down at the spot and recovered articles were sealed. Besides looted articles, from the possession of Ram Kumar ( A1), his licensee gun having an empty cartridge loaded in the barrel, from which gun powder smell was emanating, besides five live cartridges were also recovered. Site plan of the place of arrest, Ext. Ka-16 was prepared by the I.O. Thereafter, I.O., came to the incident village, conducted spot inspection and prepared site plan Ext. Ka-17. From the spot, I.O. recovered empty cartridges, two wads and some pellets and seized it vide seizure memo Ext. Ka-18.He also collected ashes of burn thatch and sealed it by preparing seizure memo Ext. Ka-19. Electric bulbs were also seized by the I.O. after preparing seizure memo Ext. Ka-20.Torches of Rajendra Singh, Balram Singh, Mahavir Singh, Karan Singh, Om Prakash and Harpal Singh were checked and seized by preparing seizure memo Ext. Ka-21, but later on it were returned to it's owners. Witnesses of the incident were interrogated and their statements were recorded. Proceeding from incident village I.O. came to village Gulria and searched the houses of accused Karan Singh, Lallu Singh and Balbir but could not find any incriminating article nor I.O. could apprehend these accused. Subsequently, I.O. came to Allehdadpur and arrested appellant Ram Chandra @ Chandroo and from him a looted transistor, material Ext. Ka-1 was recovered vide seizure memo Ext. Ka-11. Site plan of the place of arrest of Ram Chandra @ Chandroo was also sketched as Ext. Ka-22. Subsequently, I.O. came to Allehdadpur and arrested appellant Ram Chandra @ Chandroo and from him a looted transistor, material Ext. Ka-1 was recovered vide seizure memo Ext. Ka-11. Site plan of the place of arrest of Ram Chandra @ Chandroo was also sketched as Ext. Ka-22. Ram Chandra @ Chandroo was put under veil and brought to police station Naugawan and was lodged there. Identification of the six apprehended accused was conducted on 25.12.78 in district jail, Meerut. On 27.1.79, identification of rest of the three of the accused Balbir, Lallu Singh and Karan Singh was also conducted. Recovered looted properties were also subjected to identification. Identification memos of dacoits are Ext. Ka-1 to Ka-2 while identification memo of the articles is Ext. Ka-3. Concluding investigation, P.W. 13, the first I.O., P.S. Ahlawat, charge sheeted apprehended accused vide Ext. Ka-23 on 31.12.78. Subsequently, charge sheet was also submitted against Ram Chandra @ Chandroo vide Ext. Ka-24. Charge sheeting of the accused resulted in their summoning and finding their case triable by Court of Session's, Judicial Magistrate, Bijnor committed it to the Session's Court in two lots, where it were registered as S.T. No. 64 of 1979, State Vs. Ram Kumar and others and S.T. No. 112 of 1979, State Vs. Balvir Singh and others. All the accused persons, except Ram Chandra @ Chandroo, were charged under sections 395/397 I.P.C. by the trial Judge, to which charges they pleaded not guilty and claimed to be tried. Ram Chandra @ Chandroo accused was charged only u/s 412 I.P.C. only.Since both the trials emanated from the same incident therefore, for the sake of convenience, they were clubbed together and were decided by common impugned order. During trial prosecution examined in all ten witnesses, out of whom Tapraj Singh P.W. 1, Rajendra Singh P.W. 2, Om Prakash P.W. 4 and Virendra Singh P.W. 5 were the fact witnesses. Formal witnesses included M.S. Solanki P.W. 3, Liyaquat Ali P.W. 6, Gariba P.W.7, S.I. Jaipal Singh P.W.8, SI Baran Singh PW11,( he had arrested three accused on 24.1.79 and had lodged them in police lockup), Constable Dhanpal Singh, PW12 and S.O. P.S. Ahlawat P.W.13. Witnesses Om Prakash P.W. 9 and Satyadev Tyagi P.W. 10 had tendered their affidavits. In their statements under section 313 Cr.P.C., accused persons denied the incriminating circumstance appearing against them in the prosecution evidences and took the defence of their false implication. Witnesses Om Prakash P.W. 9 and Satyadev Tyagi P.W. 10 had tendered their affidavits. In their statements under section 313 Cr.P.C., accused persons denied the incriminating circumstance appearing against them in the prosecution evidences and took the defence of their false implication. Ram Chandra @ Chandroo pleaded that he was arrested from his house and was falsely implicated, whereas Kadhera's defence was that he was arrested from Haldaur railway station when he was returning to his house after alighting from the train and was falsely implicated in the present case. 3rd Additional Session's Judge, Bijnor believed prosecution witnessed and it's evidences only against accused Ram Kumar, Kadhera, Horam, Mahavir Singh, Param Singh and Kehar Singh regarding their involvement in the dacoity and, therefore, convicted them under sections 395/412 I.P.C. It however, arrived at the conclusion that appellant Ram Chandra @ Chandroo was not involved in the dacoity and, therefore, acquitted him for the charge under section 395 I.P.C. but convicted him only under section 412 I.P.C. for the recovery of transistor. In respect of three other accused Karan Singh, Lallu Singh and Balbir, trial Judge opined that prosecution had not been able to substantiate their charges and, therefore, acquitted them. Trial Judge also disbelieved prosecution version in respect of charge under section 397 I.P.C. against all the accused and, therefore, acquitted each one of them of that charge. Hence present appeal was preferred by the convicted seven accused. As stated above pendente lite their appeals in this Court, five of the appellants Ram Kumar, Horam, Mahavir Singh, Param Singh and Kehar Singh left for their heavenly abode and consequently, vide order dated 8.12.2011 and today's order dated 9.1.2012, their appeals were abated. Now only the appeals of two appellants Kadhera( A2) and Ram Chandra @ Chandroo( A7) are to be considered. In the background of preceding facts, when the appeal was called out for final hearing, after a gap of three decades, nobody appeared to argue the appeal and hence Dr. Abida Syed was appointed as amicus curiae to assist the Court and she has been heard for the two appellants and Sri Sangam Lal Kesharwani, learned AGA for the prosecutor State. Facts as are discernible from FIR, Ext. Abida Syed was appointed as amicus curiae to assist the Court and she has been heard for the two appellants and Sri Sangam Lal Kesharwani, learned AGA for the prosecutor State. Facts as are discernible from FIR, Ext. Ka-4, and depositions of all the fact witnesses indicate that a dacoity was committed at the house of the informant on the intervening night between 3/4.11.1978.Defence had not challenged factum of commission of dacoity and, therefore, so far as happening of the incident is concerned, it is established beyond any shadow of doubt. FIR about the said incident was recorded without any delay, only after one hour and ten minutes, at a distance of one mile, on the oral dictation of P.W. 5 and, therefore, inspires confidence and it does not suffer from vices of embellishment and concoction. Time of lodging of FIR has not been questioned by the accused nor there is any damaging evidence in that respect. Hence, what can be concluded safely is that it contains actual narration of the incident. Question now remains to be adjudged is as to whether the two surviving appellants participated in the incident or not? Since cases of these surviving appellants stands on different footings and, therefore, are dealt separately herein under. So far as appellant Kadhera, is concerned, he was identified by Tapraj Singh P.W. 1 and Om Prakash P.W. 4. These two witnesses had committed no error in identifying him and, therefore, it is difficult to hold that the said appellant was not involved in the dacoity. Against him there is credible evidencew of his involvement in the incident. Defence has not been able to fathom out any plausible reason for his false implication nor it has succeeded in bringing forth circumstances negating his participation. There was no reason for the prosecution witnesses to falsely implicate him as they had no axe to grind against him. Kadhera is a resident of a different district. In such a view, identification of the said appellant by two witnesses, who had not faultered in test identification parade in pointing out their fingers at him is confidence inspiring and creditworthy. This accused was arrested soon after the crime on the date of the incident itself, just after a few hours, and from him, looted articles were also recovered. In such a view, identification of the said appellant by two witnesses, who had not faultered in test identification parade in pointing out their fingers at him is confidence inspiring and creditworthy. This accused was arrested soon after the crime on the date of the incident itself, just after a few hours, and from him, looted articles were also recovered. In such a view, presumption under section 114 of the Evidence Act can also be aptly drawn against him. Under illustration ( a),of the said section, it can be convincingly concluded that the said appellant was amongst the dacoits, who had committed dacoity in informant's house. Participation of Kadhera into the crime is further established by identification of looted articles by house inmates, which lends assurance to the prosecution charge. On an overall analysis conviction of said appellant Kadhera u/s 395/412 I.P.C. is well merited which does not call for any interference by this court. Turning towards case of another appellant Ram Chandra @ Chandroo, he has been acquitted for the charge under section 395 I.P.C. and has been convicted only for the charge under section 412 I.P.C. on the strength of a recovery of a transistor only. Trial Judge disbelieve prosecution version regarding his involvement in the crime as it opined that Ram Chandra @ Chandroo was shown to the witness while he was being transferred from police station to district jail. In his statement under section 313 Cr.P.C., this appellant has not been able to successfully dislodge recovery made from him nor he had furnished any explanation for possessing transistor, which was a looted property. Hence his conviction under section 412 I.P.C. is also infallible not requiring any alteration. On the merits, conviction of this appellant is also well merited. Now turning towards the sentence, I find that the incident had occurred in 1978 more than thirty three years ago. Maximum sentence which was implanted on appellant Kadhera was 7 years RI under section 395 I.P.C. and 3 years RI under section 412 I.P.C. Both sentences were directed to run concurrently. Appellant Ram Chandra @ Chandroo was convicted for 3 years RI under section 412 I.P.C. Only a transistor is alleged to have been recovered from his possession.In his statement under section 313 Cr.P.C. appellant Kadhera had disclosed his age to be 53 years. Appellant Ram Chandra @ Chandroo was convicted for 3 years RI under section 412 I.P.C. Only a transistor is alleged to have been recovered from his possession.In his statement under section 313 Cr.P.C. appellant Kadhera had disclosed his age to be 53 years. Adding the period passed by, interregnum, he must be of about 90 years of age. At this belated stage, without having any criminal background as none was brought on the record by the prosecution, in my humble opinion, sending him back to jail to serve out the imprisonment will not be in the interest of justice. No doubt the crime committed by him was grave but the providence, in matter of sentence, is in his favour. In view of above, while I uphold the conviction of these appellants, I reduce their sentence of imprisonment on all the counts to the period of jail term already undergone by them. These appellants are on bail, they need not surrender, their bail bonds and surety bonds are hereby discharged. The appeal is allowed in part as above. Let a copy of the judgment be certified to the trial court for its intimation.