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 days staying when on leave. On being involved in the case, he absconded and joined the gang of Girand Singh who was a notorious dacoit. He remained in his gang for a month or two and one day got an opportunity to seize Girand Singhs rifle and shot him with it.

After shooting Girand Singh he ran away and gave information to the police that he had shot Girand Singh dead and deposited the rifle in the police malkhana. He expected thereby to be shown favour in the case of rioting and murder pending against him. Actually Girand Singh had not died; he had simply been wounded on a hand He took a vow to avenge himself upon Mahtab Singh. On the day of the occurrence Mahtab Singh accompanied by his wife, Mashal Singh and others went from Jojota to Samachipur. He had heard of Girand Singhs vow and was in constant fear. Girand Singh heard on the same day that Mahtab Singh had gone to Samachipur in order to fetch his wife; so he took a gang of about eleven men to Samachipur. In the evening two men dressed as police constables arrived in Samachipur and asked Kanhai Singh, brother of Mashal Singh, to point out the house of Harps Singh mukhia.

This Harpal Singh was the person against whom the riot was committed on 1-4-46. Kanhai Singh took the two men to the house of Harpal Singh where they had some talk with him. It is said that the appellant was one of them. At about 11 p.m. Girand Singh brought his gang at the house of Mashal Singh and started beating Mashal Singh, etc., who were lying outside. The gang was armed with guns, pistols, spears and lathis. Mahtab Singh was at that time reading in a kotha inside the house. Mashal Singh shouted from the door that Mahtab Singh should run away because Girand Singh had arrived to kill him. The dacoits shot dead Mashal Singh and others who were outside the house. Then Girand Singh accompanied by three or four men were into the kotha and shot at Mahtab Singh. Mahtab Singh was wounded, fell down and feigned to be dead.

Girand Singh, etc., then left him there and plundered the house and injured other persons. In the meantime Mahtab Singh got an opportunity to run away from the house. Girand Singh climbed up the roof of the house and shouted that he was Girand Singh and had come to kill Mahtab Singh and called upon him to surrender himself if he was a Kshatriya. Harpal Singh seeing the dacoity being committed in Mashal Singhs house, promptly went to the police station Nawabganj which is about three miles away and at 3 a.m. lodged the first information report. He had not seen the dacoits; so he did not name anybody. But he did mention the fact that one of them was proclaiming that he was Girand Singh, that those who had not seen him could see him and that Mahtab Singh should be caught and the house plundered. The dacoits left the