Judgment

SHELAT, J. :- This appeal, by special leave, is by Chander Singh, one of the five persons who were tried for the offence punishable under S. 396 of the Penal Code by the Civil and Sessions Judge, Hardoi. Of the five accused put up for trial before the Sessions Judge, two, Ganga Ram and Lal Singh, were acquitted, while the appellant and two others were found guilty and were convicted under S. 396 and sentenced to imprisonment for life. Their appeal before the High Court failed and was dismissed.

2. There was no dispute that on the midnight between 19th and 20th of January, 1966 a dacoity took place in the house of the deceased Munshi Lal in the village Bejha Basti Nagar, District Hardoi, in the course of which property belonging to Munshi Lal was looted and one of the culprits sprinkled kerosene on the person of Munshi Lal and set fire to his body. Munshi Lal died the next day as a result of severe burns while he was being removed to the District Hospital, Hardoi. The house was being used by Munshi Lal partly as a shop and partly as residence for himself and his wife Mst. Rani. While Munshi Lal was being assaulted by the culprits after they had made their forcible entry into the house for eliciting information from him as to the whereabouts of valuables in the house, Munshi Lal was said to have raised an alarm which brought his nephew, wit. Mewa Ram, his son Ram Kishan and a number of neighbours near the house. These persons, however, could not intervene, nor could enter the house for fear of being beaten up by the culprits. The result was that they had to remain silent spectators watching the crime being committed. They could, however, see the culprits with the aid of light thrown by torches which three of them had, as also the light from the torches which the decoits had and were using and by the light of dry sugarcane leaves heaped nearby which were set on fire by one of the witnesses.

3. The first information report was lodged by Mewa Ram at 9.40 a.m. on January 20, 1966 at Shahabad Police Station, three miles away from Bejha Basti Nagar. In that report Mewa Ram named two culprits, Lajja Ram and Ganga Ram, who were known to him as being responsible for the dacoity together with five or six other unknown dacoits. The report, however, stated that Mewa Ram and the witnesses had properly seen the culprits while the dacoity was being carried out with the light available from torches and the dry sugarcane leaves which had at that time been set on fire, and therefore, would be in a position to recognize them if shown to them, especially as the culprits were at the scene of the offence for nearly half an hour. Mewa Ram also gave the names of the neighbours who had come out as a result of the alarm raised by him and the deceased and seen the incident and its perpetrators. Two lists of property looted during the incident were furnished by Mewa Ram to the police, but none of the items taken away by the culprits was recovered. Ganga Ram and Lajja Ram, the culprits named by Mewa Ram, were arrested on January 25, 1966. The appellant was arrested on February 1, 1966 near the District Hospital at Hardoi. He was at once placed under a purda and was also warned to keep his face covered as he would be put up in an identification parade shortly. He was first taken to the Kotwali Police Station, from where he was shifted the next day to the District Jail, Hardoi.

4. The prosecution examined in all 17 witnesses, out of whom four, Mewa Ram (P.W. 3), his son Ram Kishan (P.W. 4), Satish Chandra (P.W. 5) and Ram Narain (P.W. 6) claimed to be eye-witnesses. At the identification parade held by Magistrate Anand Kumar (P.W. 1), the appellant was identified by six identifying witnesses P.Ws. 4, 5 and 6 and by Gorai, Ganga Ram and Kallu. The last three were, however, not examined as witnesses.

5. The defence of the appellant, as revealed by him first in his statement before the committing Magistrate was one of denial. He alleged that he had been fals