IMPORTANT POINT
Testimony of an eye-witness that he identified some of the 25 to 30 armed dacoits by torch light fails to inspire confidence as against the formidable force of the dacoits the witness would have been so-non-plussed that he would not have dared to betray his presence by switching on & off his torch specially when he was unarmed & was not match to the might of dacoits.

JUDGMENT

M.M. Punchhi, J. - This appeal by special leave is against the judgment and order of the High Court at Patna dated August 26, 1980, passed in Criminal Appeal No. 15 of 1976.

2. The facts giving rise to this appeal are that a dacoity took place at about midnight on the night intervening 5th - 6th, April, 1970 in the house of Dhaniram Singh, P.W. 11, in village Awadhiya. According to the prosecution 25 to 30 persons armed with guns, lathis, bhalas and gharasa etc. committed the dacoity and apart from looting away belongings of Dhaniram Singh, his uncle Khobari Singh was shot dead and as many as 8 persons including Dhaniram Singh, P.W. 11, received injuries. The First Information Report was lodged by Dhaniram Singh, P.W. 11, at 6.30 a.m. on April 6, 1970 at police station, Bhabhua at a distance of about 7 miles from the place of the occurrence. In it he could name 7 persons specifically as being members of the gang of dacoits. The remaining dacoits were left unnamed. The investigating agency when set into motion took steps as necessary. But at this stage, it would be sufficient to mention that neither could the investigation recover the looted property valued by the concerned P.Ws. at about Rs. 8,000/- nor could it get the particulars of a large number of other participants in the dacoity. When the matter went to trial before the First Additional Sessions Judge, Arrah, against the 6 named persons and one other, the old Criminal Procedure of 1898 governed the trial and before-hand there were commitment proceedings before a Magistrate in which evidence was recorded. At the commitment stage, 10 persons were put to face the enquiry. One accused named Kanhiya Singh in the meantime died. Two other accused Sukhari Singh and Gulab Gosain also died. There remained 6 of the original accused named in the F.I.R. and one more, Ram Naresh Singh, not so named to face trial and bear the conviction. The Learned Additional Sessions Judge convicted all the 7 accused under Section 396 IPC and imposed on them a sentence of life imprisonment. On appeal to the High Court two of them namely Ram Naresh Singh, the one unnamed in the F.I.R. and Charittar Ahir, one of the so named, were acquitted but the convictions of Munni Singh, Fekoo Singh, Behari Singh, Dadan Singh and Guput Singh, the appellants herein, were maintained.

3. The appellants are residents of village Awadhiya where the occurrence took place. The victims of the crime and other prosecution witnesses are also from A wadhiya. The village appears to be a small one consisting only of 26-27 houses comprising of various castes like Brahmins, Rajputs, Kahars, Ahirs and KurM/s. This is what Hira Singh, P.W. 2 has deposed at the trial. The first informant suggested that there was a simmering discontent between his family and the family of Sukhari Singh accused. Munni Singh, appellant is the son of Sukhari Singh, Fekoo Singh and Behari singh, appellants are the nephews of Sukhari Singh and Guput Singh, appellant, is the brother of Sukhari Singh. Thus they are closely related. There was a pond measuring about 3 acres in the village, which Sukhari Singh claimed, had been bestowed on him by the east while Zamindar before the coming into force of the Zamindari Abolition Act. He had taken control of the Tank but some time before the occurrence had sown "singhara" in it and had prevented people to let their cattle come there to drink water from it. The Panchayat of the village when approached had taken note of it and had 3/4 days prior to the- occurrence suggested to Sukhari Singh that the should rather surrender the Tank in the name of the Shiva Temple. But, he had correspondingly suggested to the Panchayat that the place constituted and occupied by the complainant party Khobari Singh and others for tying their cattle at the bank of the pond, which was part of unsettled lands, should also be likewise given to the Shiva Temple. The Panchayat was not agreeable to the counter suggestion because the poss