JUDGMENT Hon’ble Vinod Prasad, J.—This appeal has been preferred by the three appellants Rajjan, Kodauwa, and Sukhbir Singh against their conviction under Section 395 I.P.C. and imposed sentence of 5 years R.I. recorded by 1st Additional Session’s Judge, Banda in S.T. No. 57 of 1979, State v. Gyanendra Prasad connected with S.T. No. 291 of 1979, State v. Sukhbir vide impugned judgment and order dated 22.5.1981. Pending their appeal, two of the appellants Rajjan and Kodauwa Ahir expired and, therefore, their appeals were abated vide order dated 4.5.2007. 2. Encapsulated facts and prosecution allegations against the appellants were that 14 to 15 dacoits committed dacoity on 14.2.1976 at 12.30 p.m. at the house of informant Raja Ram while he was sleeping. During the incident, Raja Ram and mother were assaulted. Incident was witnessed by them in the light of lantern, torch and the moon light. Dacoits, had entered in the room of the informant after breaking the main entrance door with the help of an axe. One of the dacoit was armed with a gun and rest were armed with blunt object and axe. List of looted articles was appended alongwith F.I.R. vide Ext. Ka.1, which was scribed by Bhagat Singh Yadav. The F.I.R. was registered at the Police station as Crime No. 22 of 1976 under Section 395, 397 I.P.C. Usual investigation ensued and ultimately the accused were charge-sheeted. Finding their case triable by Session’s Court, it was committed to the Session’s Court. Learned trial Judge charged the appellants under Sections 395 and 397 I.P.C. which charges were denied by accused, who claim to be tried. 3. Prosecution in an effort to anoint appellants’ guilt examined in all 13 witnesses, out of whom informant Raja Ram (P.W.1), his brother Mahraj (P.W.2), Ram Kali (P.W.3), Keshav Prasad (P.W.4), Roop Rani (P.W.7) were fact witnesses. Rest of the formal witnesses included P.D. Srivastava (P.W.5) Executive Magistrate, (who had got conducted the identification parade of the accused) Dr. P.N. Dwivedi (P.W. 6), who had medically examined Smt. Yasudha and Raja Ram (P.W.1) on 15.9.1976 at 12.15 P.M. vide their medical examination reports Ext. Ka 5 and Ka.6. Krishna Kumar Verma (P.W.9) radiologist, who had X-rayed Smt. Yasudha and had prepared her X-ray plate Ext. Ka.11 and had given the report Ext. Ka.8, S.O. Inayat Ali (P.W.10) first I.O. Who had taken the sources light into custody and had prepared Ext. Ka 5 and Ka.6. Krishna Kumar Verma (P.W.9) radiologist, who had X-rayed Smt. Yasudha and had prepared her X-ray plate Ext. Ka.11 and had given the report Ext. Ka.8, S.O. Inayat Ali (P.W.10) first I.O. Who had taken the sources light into custody and had prepared Ext. Ka.2, seizure memo. I.O. had also taken the broken box etc. and had prepared its recovery memo Ext. Ka.3. Torch of Bhagat Singh and Ram Sajiwan were seized vide Ext. Ka. 9. Spot Inspection note was also prepared vide Ext. Ka.10. Subsequent, investigation was conducted by D.S. Chauhan, who concluding it, had charge-sheeted the accused vide Ext. Ka-11, Ka.12, Ka-13 and Ka-14. 4. In their statements under Section 313 Cr.P.C., all the accused had denied incriminating circumstances appearing against them in the prosecution evidence and pleaded a common defence of their false implication. 5. Learned Trial Judge/1st Additional Session’s Judge, Banda vide impugned judgment and order held that the appellants guilty for the charge under Section 395 I.P.C. and, therefore, convicted and sentenced them to 5 years R.I. for the aforesaid crime vide impugned judgment and order. Learned trial Judge, however had acquitted Gyanendra from the charge under Section 412 I.P.C. by the same judgment. Challenge in this appeal by the appellants is to the aforesaid conviction and sentence. 6. At the time when the appeal was called out for final hearing, nobody is appeared to argue it on behalf of the appellants and, therefore, Sri Jag Narayan, learned advocate was appointed as amicus curiae to assist the Court. Sri Raghuraj Mishra, Learned AGA has been heard in opposition. I have also gone through the material on record including oral and documentary evidences. Learned amicus curaie assailing the judgment contended that appellant Sukhbir, was named in the F.I.R. and he has been falsely implicated due to village rivalry. No specific role has been assigned to him and he was identified only by the informant. He is alleged to have been armed with lathi but none of the inmates of the house had alleged that he ever wielded it. Basically on the aforesaid submission it was submitted that conviction of the appellant is unsustainable and which must be set aside and he be set at liberty and be acquitted. 7. He is alleged to have been armed with lathi but none of the inmates of the house had alleged that he ever wielded it. Basically on the aforesaid submission it was submitted that conviction of the appellant is unsustainable and which must be set aside and he be set at liberty and be acquitted. 7. Learned AGA argued to the contrary and submitted that there is no reason for appellant’s false implication and in absence of any enmity, prosecution witnesses will not create a hokum and will state a fib against the said appellant. It was submitted that the prosecution witnesses are reliable, they had given consistent, cogent and confidence inspiring testimonies and, therefore, conviction of the appellant is well merited and does not call for any interference by this Court and the appeal may be dismissed. 8. I have considered the arguments raised by both the sides. After going through the evidence of the witnesses alongwith other material on record, it seems that the argument by learned AGA is well merited. Sukhbir is named in the First Information Report, which was lodged on the following day morning at 10.30 a.m. after covering a distance of 4 miles. Incident is of preceding night at 12.30 p.m. Acceptable explanation has been offered by the informant of not lodging the F.I.R. earlier, as he has categorically stated before the Court that because of fear of the dacoit, he could not muster the courage to proceed for the Police Station to lodge the F.I.R. Appellant Sukbhir is a co-villager. There is no reason for the informant to implicate him in a false case, had he not been one of the dacoits involved in the incident. The informant did not hide the fact that Sukhbir was not concealing his identity under veil and was bare faced. He had not wielded the lathi during the incident. He was roaming alongwith other dacoits too and fro and was identified. The statement by the informant and another fact witnesses do not suffer from any infirmity or embellishment, which is true narration of fact and it seems that none of the fact witnesses have even ventured to frame a story against accused nor had stated false active participation. He was roaming alongwith other dacoits too and fro and was identified. The statement by the informant and another fact witnesses do not suffer from any infirmity or embellishment, which is true narration of fact and it seems that none of the fact witnesses have even ventured to frame a story against accused nor had stated false active participation. In such a view, I do not find any reason to differ from the learned trial Judge in coming to a conclusion that so far as participation of the surviving appellant Sukhbir is concerned, it is established beyond all reasonable doubt. Conviction of the appellant therefore, is well merited. 9. Coming to the sentence part, incident had occurred in 1976. 34 years have gone by during intervening period. On the date of the incident, appellant was 28 years of age. Adding thee decades undergone interregnum, he must be above 60 years as of now. Appellant does not have any criminal proclivity nor was involved in any case and even during pendency of this appeal in this Court, he has not associated himself with any criminal activity and, therefore, on the question of sentence, he deserves a sympathetic consideration. In my humble opinion, looking to the facts and circumstances, the role played by the appellant and his age and the time passed by during intervening period, sentence of one year RI for the offence under Section 395 I.P.C. should serve ends of justice. Appeal is allowed in part. Conviction of the appellant under Section 395 IPC is upheld but his sentence of imprisonment is reduced from five years to one year RI. Appellant is on bail, he is directed to surrender forthwith to his surety and personal bonds before the learned trial Judge, who is directed to take him into custody and send him into jail to serve out remaining part of sentence. Appellant shall be given benefit of Section 427 Cr.P.C. as is available to him. Let a copy of the judgment be certified to the learned trial Judge for further action by the office of this Court. ———————