B. MUKERJI, J. ( 1 ) APPEAL No. 9 of 1959 is by Pearey against his conviction under Section 396 I. P. C. and a sentence of imprisonment for life awarded to him by the First Additional Sessions Judge of shahjahanpur. Appeal No. 148 of 1959 is by Khanzadey Singh against his conviction by the same learned Judge at the same trial at which Pearey was convicted, under Section 396 I. P. C. and a sentence of death. There is the usual reference by the learned Judge for the confirmation of the sentence of death awarded by him to Khanzadey Singh.

( 2 ) THE facts giving rise to the aforementioned two appeals lie within a short compass and may briefly be stated as follows:-

( 3 ) ON the night between the 10th and the llth of April, 1958, a band of 20 or 25 men broke into the house of one Balbir Sahai, while they were arm-ed with firearms and other weapons, and thereby the use of a firearm caused the death of Ram Bharosey, brother of Ballbir Sahai, Dwarka pasad, his uncle, Kumari Urmila Devi, his daughter, and Shyam Lal, a neighbour of his. Some of the other inmates of the house of Balbir Sahai were also injured. These were Srimati Girja Devi, the wife of Ram Bharosey, Srimati Sita Pyari, the wife of Madan Lal, and Dharam Vir. At the time when the dacoits obtained access to the house of Balbir Sahai, Balbir Sahai was sleeping in the courtyard with his little daughter Urmila. In the same courtyard slept his brother ram Bharosey, his uncle Dwarka Prasad, and the sister-in-law Girja Devi. Srimati Sita Pyari, another inmate of the house slept in a verandah adjoining the courtyard. On the outside slept madan Lal and Dharam Vir. They slept near the flour mill and the crusher which had been fixed in the house and belonged to Balbir Sahai.

( 4 ) THE aforementioned people received injuries.

( 5 ) THE first knowledge that the house had been raided by dacoits was when Balbir Sahai was fired at from the roof by one of the dacoits. This shot caused injury to Balbir Sahai and some others that slept in the courtyard and also brought about the death of the little infant Urmila. Soon after the firing of the first shot two dacoits jumped info the courtyard with lathis. One of the dacoits while jumping stumbled, fell and sustained some injury. When the dacoits had jumped into the courtyard, Balbir Sahai and Ram Bharosey made an attempt to tackle them with the result that the other daroits who were on the roof jumped into the courtyard to the assistance of their two companions who had jumped into the courtyard earlier. In all some 10 or 12 dacoits got into the courtyard of Balbir Sahai. Dwarka Prasad and Ram bharosey were shot and killed by the dacoits because they attempted to grapple with some of the dacoits in the courtyard. After causing injuries and killing people the dacoits thought of leaving the house for, apparently, they found that they had raised the entire village and that villagers in large numbers were collecting outside. Shyam Lal, one of the neighbours, set a thatch hut on fire in order to obtain a brilliant source of light which could illuminate the entire area and thereby make recognition easy and apprehension of the miscreants, possible. The dacoits, when they found Shyam Lal sptting fire to the thatch hut and declaring that he had recognised people, shot at Shyam Lal and killed him. The dacoits left without taking any property from the house. The sources of light inside the courtyard were a lantern which was burning there, the reflected light from the flashing of torches which the dacoits themselves indulged in and later on the light which emanated from the burning thatch hut just outside the courtyard.

( 6 ) THE dacoits had been seen by witnesses of both kinds, namely, those that were the inmates of the house and those that collected from outside. None of the dacoits seems to have been recognised, for they were unknown to the witnesses. In evidence, however, it has appeared that shyam Lal was shot and killed when he shouted out that he had

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