S.M.SIKRI, J.

(1) THE only question which arises in this appeal by special leave is whether the appellant, Sheo Nath, should be convicted under Section 396, I. P. G. or Section 411, Indian penal code, or Section 412, Indian penal code The facts as found by the High court are these : A dacoity was committed at the shop of Ram Murat in Dhaneja village by 15 to 20 persons on 19/08/1966, at about 11.30 p.m. One dacoit. Ram Shanker, was armed with a gun while others carried spears, Gandasas and Lathis. During the course of the dacoity Ram Murat was injured. One Pancham, who lived in a house not far from Ram Murats shop, and two others came running on hearing the noise. Pancham was shot down with the gun by dacoit Ram Shanker. The dacoits then escaped with clothes, ornaments, cash, etc. looted from Ram Murats shop. After the dacoits left Ram Murat dictated a report about the occurrence in which he named Ram Shankar Singh, Jaintri Prasad Singh, Nanhe Singh and Sulai accused as having been among the culprits and this report was sent to the Jalalpur Police Station, five miles away, where it was received and recorded at 6 a. m. next morning.

(2) ON 22/08/1966, i.e. three days a