Judgment

SHELAT, J. :- This appeal, by special leave, is directed against the judgment of the High Court of Patna by which the appellant s appeal against the judgment and order of conviction and sentence passed by the District & Sessions Judge, Monghyr under S. 395 of the Penal Code was dismissed.

2. On March 31, 1962, at about 1 a.m., certain persons forced their way into the house of Sitaram Singh (P.W. 7) in village Pipraul, about 12 miles away from Teghra Police Station, District Monghyr, assaulted him and his family members with lathis, causing each of them injuries, and took away therefrom cash, ornaments and other properties. Immediately thereafter, Sitaram disclosed the names of five of the miscreants, including that of the appellant to two village chaukidars (P.Ws. 1 and 2) and the Dafadar (P.W. 3) of the village. The two chaukidars went in search of the miscreants and found the appellant and accused Kirandeo fleeing at some distance from the village. A scuffle took place between the chaukidars and the appellant and accused Kirandeo, and probably, as a result of that scuffle the appellant received two minor injuries. The chaukidars arrested the appellant and Kirandeo, brought them back to the village and kept them in detention at the house of Sitaram. Sitaram had by then already left for the Barauni Police Station and given his report Ex. 1 about the incident to the Police Officer, in consequence of which that Police Officer came to Sitaram s house and took into his custody the appellant and the said Kirandeo. He thereafter inspected Sitaram s house and found, apart from the injuries on the persons of the inmates of the house, ample evidence in the shape of a broken door, boxes forced open etc. to satisfy him that a dacoity had been committed in the house and property taken away. Those who had received injuries during the incident were Sitaram (P.W. 7), his mother Ram Sundari Devi (P.W. 8), his brother Moti Singh (P.W. 4) and Saheo Singh (P.W. 5), a next door neighbour and a cousin of Sitaram, who had gone there on hearing the cries of the inmates of the house. P.W. 13 Ramshila, the daughter of Sitaram, who also was in the house at the time, identified some of the miscreants, but bot the appellant.

3. Accused Ramnandan and Ram Asrey (accused 2 and 5 in the trial court) are the brothers-in-law of the appellant; accused Kirandeo (accused 4 in the trial court) is the uncle-in-law of the appellant s brother and Laxmi Sahao is the brother of the appellant s servant. There was ample evidence of enmity between the appellant on the one hand and Sitaram (P.W. 7) on the other, although they were living almost opposite each other in the village. The enmity had arisen principally from the recent election to the office of the village Mukhiya, wherein the appellant had succeeded against Sitaram. Sitaram had first challenged the validity of the nomination paper of the appellant, which challenged was dismissed and later on had filed, after the election, an election petition against the appellant which was pending at the time of the incident. There was also enmity between the appellant and one Jagat Babu, an Advocate in the village in connection with a murder case wherein the appellant had figured as a prosecution witness. Jagat Babu was the person who was said to be instrumental in having the appellant falsely implicated in the present case.

4. The prosecution relied chiefly on the evidence of the inmates of the house, Sitaram, his mother, his daughter, his brother Moti Singh and his cousin (P.W. 5), who as aforesaid had rushed to the house on hearing the alarm. All these persons except the daughter had received injuries. The daughter (P.W. 13), it was said, did not receive any injury as she concealed herself behind a pillar, from where, however, she could witness the happenings which were taking place in that part of the house, viz., the courtyard.

5. There was not and could not be any doubt about the fact that the house was raided and p