CHHANGANI, J.—This is a joint appeal by Laliya, Jagannath, Jeewan, Chothia and Gheesa and is directed against the order and judgment of the Sessions Judge, Alwar, dated 27.11.1965, convicting the first three appellants for offence under sec. 396, I.P.G., and sentencing them to ten years rigorous imprisonment and a fine of Rs. 200/- ; in default, one years further rigorous imprisonment, and the remaining two appellants for an offence under sec. 411, I.P.C. and sentencing them to three years rigorous imprisonment.

2. The facts material and relevant for disposal of the appeal may be stated as follows—

It is alleged that on 7.8.1964 at about 4 or 5 Oclock seven persons including the five appellants, armed with guns and lathis, arrived in the Bazar of village Bamanwas and looted a few shops. After the commission of dacoity they left the village along with booty. A good number of villagers collected and immediately chased the offenders and over-took them at about a distance of four furlongs to one mile. The alleged dacoits finding them pursued by the villagers took their positions and there was an encounter between the dacoits and the villagers. There was exchange of fire between them. During the encounter the alleged dacoits and some of the villagers received injuries. One Bodia, a villager, died on the spot. Ultimately, the villagers overpowered the dacoits and captured four out of the seven offenders viz. the three appellants Laliya, Jeewan and Jagannath and one Prabhu, with some of the looted property. According to the prosecution, the remaining three offenders managed to escape with a part of the booty. It may be mentioned at this stage that when the loot in the village was going on Chiranjilal P.W. 2 informed one Om Prakash a Gram Sewak of village Bamanwas, who in his turn sent a written report to the police station, Thana Gazi, through Chiranjilal P.W. 2. The police left for the scene of occurrence. By the time the villagers took four offenders and a part of the looted property to the village the police had arrived in the village. The four dacoits and the looted property recovered at the place of the encounter were handed over to the police. The police along with four arrested offenders left for the police station. In the way Prabhu expired and the remaining three Laliya, Jeewan and Jagannath were formally arrested. During the investiga-tion the police learnt that the other persons concerned in the dacoity were Ramnath, Gheesa and Chothia. The prosecution story further is that Gheesa and Chothia surrendered themselves before the police on 19.8.1964 and at the time of their surrender Gheesa produced a pair of gold bangari Ex. 35 and Chothia produced one Kanakti Ex. 36, which were seized and sealed vide the seizure memos Ex. P. 4 and Ex. P. 3 respectively. Some more recoveries were effected at the instance of Gheesa and Ramnath. During investigation the articles recovered were not identified by the witnesses and the identification by the witnesses of the accused Ram Nath, Gheesa and Chothia was also arranged. The post mortem examinations on the dead bodies of Prabhusingh and Bodia were conducted and the injuries of the offenders as well as the villagers were also examined. After investigation the police put up a challan against six persons, that is, five appellants and one Ramnath for offences under secs. 396 and 397, I P.C., before the Munsif Magistrate, Thana Gazi, who after enquiry committed all the six accused to the court of session, Alwar. The accused pleaded not guilty and claimed to be tried.

The prosecution examined twenty witnesses. When examined under sec. 342, Criminal P. G. accused Laliya, Jeewan and Jagannath stated that on the date of the dacoity they were working in the field of one Shriram in the jungle of Baman was and were preparing a chhapar. They further stated that when they saw the villagers chasing the dacoits they also joined them in the pursuit. Some of the villagers, however, began beating them with the

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