( 1 ) THE appellants have been convicted under Section 396, Penal Code, and while the appellants 1 and 2 have been sentenced to death the other appellants have been sentenced to transportation for life.

( 2 ) ON the night between 28 and 29-12-1949, a number of dacoits visited village Kadhla and went into the house of one Piru Teli. The villagers, however, on hearing the alarm that dacoits had come to the house of Piru Teli, surrounded the house and there was a free fight between the dacoits and the villagers. As a result one villager Azimullah died and four of the villagers basanta, Mahfuz Khan, Ibrahim and Manohra received injuries. Two of the dacoits Sirajuddin and Abbu were caught on the spot.

( 3 ) THE first information report was lodged at the thana, which is at a distance of seven miles from the village, by the village chaukidar at about 12-15 A. M. In it, however, it is not mentioned that any of the dacoits were known to the village people from before nor are the names of witnesses given. All that is said is that the village people had collected and offered resistance and had caught two of the dacoits. The police started investigation. Sirajuddin on 1-1-1950, made a confession to a Magistrate which, however, he subsequently retracted. The fact that Sirajuddin and Abbu were caught in the village at the time of the dacoity cannot be disputed. The story given by Abbu was that he was not caught at night but in the morning in front of Pirus house and he had gone there to have his cow recovered but the cow had strayed into the sugarcane field. One pair of new shoes and a cap which had been recovered by the police, he admitted, were his. The other accused, Sirajuddin, admitted that he was caught in village Kadhla. According to him he left his own village Kawal at 10 oclock in the morning and was going to his wifes sisters house at Rasulpur when he was suspected of being a dacoit, was beaten and later arrested on the night between 28th and 29th of February. No evidence was given that Sirajuddins wifes sister was at Rasulpur and it is very unlikely that he would be travelling at night in December if he was merely on a visit to the house of his sister-in-law. The story given by the two appellants for their presence in the village at that time of the night is not at all satisfactory. The suggestion, therefore, that the two might have been arrested merely on suspicion cannot be believed especially as specific parts were assigned by the witnesses to these two accused. The fact that they were arrested in the village is not denied. There is no reason why the witnesses for the prosecution should implicate them falsely and we agree with the reasons given by the lower court for believing the evidence against the two appellants and for holding them guilty.

( 4 ) WE may mention that though some reliance was placed in the lower Court on the fact that sirajuddin had a razai, Sri R. Mitra, learned counsel appearing for Sirajuddin in this Court, did not even mention that fact in his argument. The razai has not been sent up to this Court and, as no reference was made of it in the argument of learned counsel, we did not think it necessary to send for the same. The learned Sessions Judge has considered the point, and he was of the opinion that the fact that Sirajuddin was carrying a razai was not incompatible with his having taken part in the dacoity. We have no reason to disagree with that conclusion.

( 5 ) THE chief point urged by Sri Mitra on behalf of these two appellants was that they should not be convicted under Section 396 but under Section 398, Penal Code. He has relied on a decision of this Court in Emperor v. Chandar, 1906 ALL. W. N. 47. In that case the dacoits had failed to remove any goods from the house. The villagers had put up a bold front and they had, therefore, to beat a retreat. While they were running away empty-banded, and the villagers were attempting to catch them, one of the villagers was killed by a dacoit. T