Hon’ble Bharat Bhushan, J.—Appellants, Murari, Jeevan, Hema and late Shyama were charged under Section 396 of Indian Penal Code (in short I.P.C.) on 31.5.1982 by the Court of Special Judge constituted under U.P. Dacoity Affected Area Act 1983 (in short Dacoity Act).

2. Appellant Shyama died during course of trial, therefore, his trial stood abated. Remaining three appellants, namely, Murari, Jeevan and Hema were convicted under Section 396 I.P.C. and sentenced to undergo imprisonment for life vide judgment and order dated 20.4.1983 passed in S.T. No. 22 of 1982 arising out of Crime No. 17 of 1982 (State v. Murari and others) Police Station(P.S.) Achnera, District Agra.

3. Brief facts giving rise to this appeal are, that between the night of 22/23.1.1982 around 11 pm. in village Nagar, P.S. Achnera, Bhoop Singh (P.W. 2) was having conversation with his brother Preetam Singh in the verandah of his house after coming back from their agriculture field. His son Bahadur Singh (P.W. 4) was sleeping inside the room. Suddenly, some 20-21 dacoits entered his house after breaking the door of his house. The dacoits picked up the double barrel gun of Bhoop Singh (P.W.2) and commenced the dacoity. Bahadur Singh (P.W.4) got awakened, picked up a lathi and assaulted one dacoit. The dacoit, who lost his riffle in this attack, got infuriated. The dacoits grabbed Bahadur Singh (P.W. 4), took him to gallery and hit him with lathies and butt of guns. The light of lantern was available in the verandah. Dacoits were using flashlights also. Miscreants were armed with various kinds of fire-arm weapons, though one or two dacoits were only using lathies. It is said that dacoits plundered the house of Bhoop Singh (P.W.2) and Preetam Singh for almost half an hour and thereafter ransacked the residence of Vijay Singh (P.W. 1). Virendra Singh son of Vijay Singh was busy in studies in his room but Vijay Singh’s nephew Ram Bhajan (P.W. 5) and his brother-in-law Nihal Singh got awakened after hearing the noise of fire-arm weapons. Deceased Virendra Singh son of P.W. 1 Vijay Singh fought with dacoits and allegedly shouted that he had recognized accused/appellant Hema. He is said to have grabbed the appellant Hema, whereupon another dacoit, namely, appellant Murari shot Virendra Singh from very close quarters and killed him.

4. Vijay Singh (P.W. 1) claims to have recognized accused appellants Hema, Murari, Jeevan, late Shyama his sons Kartar and Randheer. He also sighted other dacoits but could not recognize them. The dacoits pillaged the residence of Vijay Singh for almost forty five minutes and thereafter left.

5. Core of prosecution story is that the dacoity was committed at the residence of P.W. 1 Vijay Singh and P.W. 2 Bhoop Singh wherein Virendra Singh son of Vijay Singh was killed and Bahadur Singh (P.W. 4) son of P.W. 2 Bhoop Singh was severely wounded. The prosecution has claimed that Vijay Singh (P.W. 1) had recognized appellant Murari, Hema, Jeewan, late Shyama, his sons Kartar and Randheer while Bhoop Singh (P.W. 2) was also able to recognize appellants Murari, Jeevan, Hema and three others, namely, late Shyama, his sons Randheer and Kartar. A First Information Report (F.I.R.) (Exh. Ka-4) was lodged by one Hitler Singh (P.W. 3) resident of same village Nagar without naming any accused. This report was lodged in morning at 7 am. at P.S. Achnera, District Agra. The distance between the police station Achnera and village Nagar is said to be seven miles as per chick report (Exh. Ka-5). Subsequent to lodging of F.I.R., investigation was conducted by P.W. 7 H.K. Vashishtha, the then Station House Officer (S.H.O.), P.S. Achnera. He rushed to the place of occurrence, recorded the statements of various witnesses, prepared site plan, took samples of blood stained earth and simple earth and thereafter submitted charge-sheet (Exh.Ka-16) against the appellants Hema, Jeevan, Murari and late Shyama.

6. The trial Judge framed charges against appellants Murar