JUDGMENT

Nanavati, J.-The State has filed this appeal against the common judgment and order of acquittal passed by the Allahabad High Court in Criminal Appeal No. 905/83 and Reference No. 4/83. Both the respondents were convicted by the trial Court for the offence punishable under Section 396 read with Section 34 IPC and were sentenced to death.

2. The prosecution case was that the Bhoora and Vishram Singh, the two respondents herein, along with about 20 to 25 dacoits went to village Aimanpura on 23.11.78 at about 6.30 p.m. killed Raja Ram who was at his tube-well which was very close to the village, then went to the house of Om Prakash and started firing at the persons who were sitting under the Chhappar of his house and then looted property from the houses of Om Prakash and others. Om Prakash somehow managed to escape from that place. He first went to the tube-well of Raja Ram as he was having a licenced gun and who happened to be his brother-in-law but finding him dead went running to the Police Station which was about a mile away from his village. He informed P.I. Surinder Kumar Singh who was in-charge of the Police Station that about 20-25 dacoits including Bhoora and Vishram have come to his village, that have killed some persons and are still committing dacoity. Thereupon the police party consisting of Surinder Kumar Singh, one police sub-Inspector and 3 Constables accompanied Om Prakash to the village. They first went to the house of Data Ram. When they disclosed their identity and told him that they have come to the village to render help to the villagers, the dacoits who were in his house opened fire. The police also fired back and thereafter for some time there was an exchange of fire between the police and the dacoits. After some time the dacoits retreated. They were chased by the police upto a certain distance but because of darkness and the forest being dense had to give up the chase. When the police returned to village they found that Raja Ram, Jay Prakash, Mata Prasad and Ghundari were already dead as a result of the injuries received by them and Data Ram, Siya Ram and Sudama were seriously injured. Therefore, they made arrangements for sending the injured to a hospital for treatment. Thereafter the investigation started and chargesheet was filed against the two respondents and some others who were absconding. Both the respondents were then tried for committing the offence punishable under Section 396 read with Section 34 IPC.

3. In order to prove its case the prosecution had examined four eye witnesses: Om Prakash (PW1), Data Ram (PW2), Hardev (PW4) and Phoolan Singh (PW5). The trial Court found that about 5 to 6 years back, uncle of Om Prakash (PW1) had eloped with the mother of the respondents, and as the respondents are Ahirs and the person who had taken her away was a Brahman, they had taken it as an insult and since then they had a grudge against the Brahmans of village Aimanpura and, therefore, on the date of the incident they had gone to the village, killed some persons and committed dacoity. The trial Court believed the evidence of all the four witnesses as it found that there was enough light where the incident had taken place and that they had enough opportunity to see the faces of the respondents who were already known to them. The trial Court also believed the evidence of PW1 and PW2 that while running away from that village the two respondents had abused Om Prakash by uttering the following words:

"Sale tum aurato ko bhagate ho Aaj to tum apne mehman yani police ko bula laye ho, Aage dekhenge."

4. The trial Court, therefore, convicted both the respondents under Section 396 read with Section 34 IPC. Considering the gravity of the offence committed by the accused, the trial Court thought that the proper sentence to be imposed upon them was death. Therefore, it sentenced them to death.

5. As the accused were sentenced to death a reference was made to the High Court for confirmation of the sentence and an