JUDGMENT

FAIZAN UDDIN, J.-

Since the two appeals as well as the special leave petition arise out of the common judgment they are being disposed of together. The three appellants, namely, Suraj Pal, Nathi and Puran along with the co-accused Radha Raman, Krishanbir and Pyare were charged and tried under Sections 395/396/397 and 412 of the Indian Penal Code by the Additional Sessions Judge, Gurgaon in Sessions Case No. 1 of 1979 (Sessions Trial No. 7 of 1981). The learned Additional Sessions Judge convicted the three appellants herein as well as the co-accused Radha Raman and Krishanbir under Sections 395/396 read with Section 397 of the IPC and sentenced them to undergo life imprisonment under Sections 396/397 and rigorous imprisonment for 10 years under Sections 395/397 of the Penal Code. They were further convicted under Section 412 of the Penal Code and each one of them was sentenced to undergo rigorous imprisonment for two years. The co-accused Pyare was acquitted for the offences under Sections 395/396/397 of th; Penal Code but he was convicted under Section 412 and as he was found to be a tuberculosis patient he was sentenced to undergo rigorous imprisonment for one year only. The three appellants herein as well as Radha Raman and Krishanbir preferred an appeal which was dismissed by the High Court of Punjab and Haryana, by judgment dated 5-5-1982 being Criminal Appeal No. 470-DB/81 against which these three appeals have been preferred by the appellants Suraj Pal, Nathi and Puran.

2. According to the prosecution nine persons including the three appellants herein committed dacoity in the house of one Puran Chand in the intervening night of 5-1-1976/6-1-1976 at about 2.00 a.m. in Village Kherla, Tehsil Nuh, District Gurgaon in which Puran Chand and his wife Ganga Devi were murdered and their son Gian Chand, PW 22, was seriously injured.

3. The prosecution case was that on the night of the occurrence the deceased Puran Chand along with his injured son Gian Chand, PW 22 were sleeping in the Baithak (room) on the ground floor of their house while deceased Ganga Devi, wife of Puran Chand and her daughter Usha Rani, PW 21, were sleeping in a room on the upper storey of the said house which is on the outer side and towards main gate of the compound of the house. Another daughter Gita and wife of Gian Chand were also sleeping in another room in the upper storey. When the three appellants along with six other co-accused raided the house of Puran Chand in order to commit dacoity, they pushed the door of the room in which Puran Chand and his son Gian Chand were sleeping. Puran Chand opened the door of his room and went out into the courtyard when three of the dacoits opened an assault on Puran Chand with lathies and pharsas and when his son Gian Chand, PW 22, came out to rescue his father he too was also assaulted by the other three dacoits. In the meanwhile Usha Rani, PW 21, and her mother deceased Ganga Devi also woke up and switched on the light of the room and tried to open the door of the room in which they were sleeping but found it to be bolted from outside. Ganga Devi then opened the door of the window which opens into the compound of the house and as soon as she opened the door of the window, one of the dacoits who was standing at the main gate on the ground floor fired the gun at her which hit Ganga Devi on her forehead and she fell down dead on the spot. Puran Chand and Gian Chand both raised an alarm which was heard by Tulsi, PW 8 and Sulekhan, PW 23. They rushed towards the house of the victims but on hearing the gunshots Tulsi, PW 8 took shelter against the wall of a house and saw the nine dacoits coming out from the gali towards the house of Puran, one of whom was carrying a gun and bandolier around his waist. Sulekhan, PW 23, however, reached in front of the house of deceased Puran when a gunshot was fired which hit him in his left thigh and, therefore, he returned back. Sulekhan again went to the house of Puran and found