JUDGMENT

Thomas, J.-For Bhulani Devi the night on the 1st of August, 1978 turned out to be the most dreadful in her life, for, it was on that night her husband, her father-in-law, his brother and two other neighbours were gunned down within her sight inside her nuptial home by armed dacoits. Police, after investigation challaned the appellants as three out of a gang of dacoits, as the others could not be identified thus far. Though the three appellants secured acquittal from the trial Court they fell into the dragnet of conviction when a Division Bench of the High Court found them guilty of the offence, on the appeal preferred by the State. All the appellants were thereupon convicted under Section 396 of the Indian Penal Code and each was sentenced to undergo imprisonment for life.

2. Thus the appellants filed this appeal as of right under Section 379 of the Code of Criminal Procedure and Section 2 of the Supreme Court (Enlargement of Criminal Appellate Jurisdiction) Act, 1970. We heard detailed arguments advanced by Shri U.R. Lalit, senior counsel for the appellants and Shri Vishwajit Singh, counsel for the State of U.P.

3. Facts lie in a narrow compass. The incident happened in Rudauli Village (Mirzapur District). Bhulani Devi s husband Rama Shankar Yadav was the Pradhan of that village. His residential building must have been a twin house wherein the entire family of his father would have been living. On the fateful night he and his wife Bhulani Devi along with their children were sleeping on the roof of one segment of the building. His father Chaman Yadav was sleeping on the verandah of the next segment along with his brother Sombhar Yadav. It appears that the family was in reasonably affluent circumstances and they had a number of valuables which were kept in the house. It was around midnight that the dacoits arrived consisting of a gang of 14 or 15. They tried to break open the door of the house. On hearing the sound of gate-crashing Bhulani Devi woke up and saw the dacoits in the light of torchlights flashed by them. They were armed with guns, chopper and lathis. One of the inmates of the house - Ram Lakhan Yadav - presumably to alert the villagers, set ablaze a haystack in the courtyard. The flames provided enough alert to the neighbours who started trickling in. The dacoits first attacked Ram Lakhan Yadav and vanquished him. Some of the neighbours who arrived there gathered courage and attacked the marauders with bricks and pebbles.

4. Dacoits turned against Chaman Yadav who entreated to them to spare their lives and allowed them to take away whatever wealth they required. On realising that Chaman Yadav had discovered the identity of the attackers some of them fired at him and also at his brother Sombhar Yadav, and consequently both of them fell down. Rama Shankar Yadav became forceful and told the dacoits that he would take revenge for the killing of his father. Instinctively he picked up bricks and pelted such handy weapons at the killers. Then some of the dacoits turned against him, broke up his part of the house, climbed up to the roof and shot him dead. Thereafter the dacoits tried to run away with the booty.

5. While running away some of the local people chased them. So the dacoits turned and fired at them also. Lalchand and Kalika Yadav sustained fatal bullet injuries and later they succumbed to those injuries. The marauders succeeded in escaping with the booty.

6. The first information was actually conveyed to a Police Outpost where PW-10 Head Constable was present. He told the informant to report the matter to the police station. So a written complaint was presented at the police station which was made the basis for the FIR. Names of three of the dacoits were mentioned in the said written complaint.

7. None of the appellants, nor any of the remaining dacoits could be arrested by the police. However on 16.8.1978, first and third appellants surrendered before the magistrate court while the second appellant surrendered