Judgment

DUA, J.:- Subedar, appellant, has come up on appeal by special leave from his conviction under Section 396 read with Sec. 109, I. P. C. and sentence of life imprisonment imposed by the temporary Civil and Sessions Judge, Hardoi and affirmed on appeal by the Allahabad High Court according to which the appellant s case is covered by the second and third clauses of Sec. 107, I. P. C. read with Explanation 2.

2. Seven persons, including the appellant, were tried, five under S. 396, I. P. C. and Subedar, appellant, and Tota under Sec. 396 read with Section 109, I. P. C. The trial court convicted six and acquitted one. The appeal of the convicted persons to the High Court failed. In this Court only Subedar has appealed.

3. According to the courts below Subedar and Tota were not amongst the dacoits. They are, however, stated to have assembled at the tune of the dacoity which was committed on the night between the 21st and 22nd March, 1963. Subedar, it is not disputed, is a first cousin of the victims of the dacoity (Gajodhar and Chhotey Lal) and is a resident of village Zafarpur where the dacoity was committed Gajodhar, it may be stated, was killed during the course of the dacoity.