DESAI, J.:- (On difference of opinion between Agarwala and Gurtu JJ.) This appeal and the connected matters have come to me for my opinion on a difference between my brethren Agarwala and Gurtu. The appeal is by Birey Singh alias Birey from his conviction under S.396, I.P.C., resulting in a sentence of death. There is also the reference by the Sessions Judge for confirmation of the death sentence. The connected Government appeal is from acquittal by the learned Sessions Judge of Birey Singh of thirteen other charges which were framed against him in addition to the charge under S.393, I.P.C

2. It is proved beyond any doubt, and is not disputed, that a very serious dacoity was committed on 22-7-1946, at about 11 p.m. in the house of Mashal Singh in village Samachipur by about twelve dacoits led by Girand Singh. The dacoits killed six persons including Mashal Singh and his wife and wounded others by shooting at them or striking them with lathis. Among the injured was Mahtab Singh, resident of village Jijota, son in-law of Mashal Singh and employed as a police constable. He was involved in case of rioting and murder was committed on 1-4-1946 in Samachipur where he was in those