JUDGMENT

Nanavati, J.-Both these appeals, one by the State and the other by the original informant Shambhu Dayal, are filed against the judgment and order passed by the Allahabad High Court in Criminal Appeal No. 731 of 1987. The High Court acquitted all the six respondents, who were convicted awnd sentenced to death by the court of sessions, Pratapgarh in Sessions Trial Case No. 91 of 1978 for the offence punishable under Section 396 IPC. Respondent Nos. 1, 2 and 4 were also convicted under Section 412 IPC and sentenced to suffer five years rigorous imprisonment.

2. Briefly stated the prosecution case was that during the night intervening 12/13.10.1977 the six respondents along with one Dinesh committed dacoity in the house of Dal Chand, and in order to commit dacoity caused injuries to Manohari Devi, Bimla Devi, Dayavanti, Pradeep, Sandeep, Anita, Dal Chand Darshani Devi and Surji Devi, out of whom as many as six injured, namely, Manohari Devi, Bimla Devi, Dayavanti, Pradeep, Sandeep and Anita lost their lives after some time. It is the prosecution case that during the investigation respondents Bhanu Pratap, Bhola, Ramesh, Virender and Govind were identified by some of the prosecution witnesses. It is also the prosecution case that respondent Subhash, Bhanu Pratap and Ramesh were found in possession of stolen articles, which were discovered at their instance.

3. In order to prove its case the prosecution examined five eye witnesses- P.W. 2 to P.W. 6-and also led evidence regarding recovery of stolen articles. The trial Court believed the prosecution evidence, except against accused Dinesh, and convicted the other accused.

4. All the convicted accused challenged their conviction by filing an appeal. As they were sentenced to death, a reference was also made to the High Court for conforming the death sentence. The High Court held that the evidence of the eye witnesses regarding identification of the accused was not believable and so also the evidence regarding recovery of stolen articles at the instance of accused Subhash, Bhanu Pratap and Ramesh. It, therefore, allowed the appeal filed by the accused and acquitted all of them. Aggrieved by their acquittal State has filed Criminal Appeal No. 177 of 1988 and the original informant Shambhu Dayal (P.W. 4) has filed Criminal Appeal No. 178 of 1988.

5. The fact that dacoity took place in the house of Dal Chand (P.W. 3) is not in dispute. It is also not in dispute that in order to commit the dacoity the dacoits had caused injuries to the aforesaid persons, out of whom six lost their lives because of the injuries received by them. What is now left to be considered is whether the evidence regarding identification of the accused and recoveries is so reliable that conviction of the accused ought to have been upheld by the High Court. It was contended by the learned counsel for the State that accused Subhash was known to the witnesses as he was of the same village and residing nearby and the other accused except Dinesh were identified by more than two witnesses in the identification parade held on 11.12.1977. P.Ws. 2 to 6 have stated in their evidence that in view of the frequent thefts that were taking place in the village 60 watt bulbs were kept burning in the three rooms in which they were sleeping and there was also a burning lamp in the court-yard and therefore they were able to properly see the accused. Dal Chand (P.W. 3) and Darshani Devi (P.W. 5) have further deposed that when accused Subhash tried to assault Dal Chand (P.W. 3) he was recognised by Dal Chand and he had also uttered the words Are Subhash Tum . The High Court disbelieved their evidence because P.W. 6 Krishan Chandra, who was an inmate of the house and had claimed to have seen all the dacoits in light of the electric bulb which was burning in the court-yard, has not named Subhash as one of the dacoits in the FIR. Other inmates of the house had also not named him in their police statements. The High Court has also obse