JUDGMENT

H.C. P. Tripathi, J. - These ten appellants have filed this appeal against their convictions recorded by the learned Assistant Sessions Judge of Azamgarh in a ease under Section 3951397, I.P.C. Appellants 1 to 9 have been convicted under Section 395/397 I.P.C. and sentenced to eight vears rigorous imprisonment. Appellant No. 10 Dulare has been convicted under Section 412 I.P.C. and sentenced to five years rigorous imprisonment.

2. The prosecution story, in brief, is as follows :-

In the afternoon of July 11, 1962 the male members of the complainants family except himself had gone to Bilariaganj in the marriage party of his brother Bindhyachal. During the night a lantern was burning inside the house and the ladies of the family had been singing marriage songs till after midnight. Then they were going to retire, their cries was heard by the complainant who was sleeping outside that Chaudhari, Kalpu, Moti and Badri of Durgapur were looting them. The complainant and his neighbour Pheku were awakened by this alarm and in the light of the torch they saw some dacoits armed with spear and torches standing at the door of the outer courtyard. They thereupon raised an alarm which attracted the prosecution witnesses and villagers on the scene. The villagers began pelting brick-bats on the dacoits. Some of them flashed their torches towards the dacoits and the complainant himself put on fire a heap of dried sugarcane leaves which were stored about 50 paces away from the door of the complainant which produced considerable light illumining the whole scene. The dacoits were seen and recognised by the villagers in the light of the lantern, torches and the burning fire. The dacoits fired once or twice to scare away the villagers and after ransacking the movable of the house and depriving the ladies of their ornaments, they bolted away with the captured booty. The witnesses chased them for some distance but ultimately retired on ; account of the fear of the dacoits.

3. A written report of the incident was lodged by the complainant at police station Kandharapur on July 12, 1962 at 9.4 a.m. when the Station Officer Sukhnandan Singh reached the village at 12.30 p.m. he was handed over a list Ex. Ka-2 of the stolen articles.

4. Mahesh, Abdul Rauf, Smt. Chandrawati, Kalapnath, Saiful, Kalika, Algu, Parsadi and Smt. Mewati who had received injuries at the hands of the, miscreants were medically examined by Dr. S.S. Srivastava (P.W. 2) at Sadar Hospital Azamgarh on July 12, 1962 between 4 to 6 p.m. and all of them were found to have received injuries. In the opinion of the Doctor, Abdul Rauf, Kalika, Algu and Parsadi had gunshot injuries while others had received injuries either from a blunt object or from friction. The duration of the injuries almost synchronised with the time of the occurrence.

5. Dukharan and Bhandari were arrested by Sub-Inspector Ram Kinker Singh on August 3, 1963 and were brought under cover to the police station Kotwali. From there they were escorted in the same condition by constable Ram Sumer (P.W. 21) to the District Jail Azamgarh. Both these witnesses have stated that so long as these accused were in their custody or at the police station, none had an opportunity to see their faces. Constable Ramdutt Singh (P.W. 14) arrested Gulai on August 16, 1962 at 5.30 p.m. in village Khojapur and from there brought him to the police station Kandharapur. Gulai was subsequently taken to the District Jail Azamgarh on the next date in the same condition by the same constable who had stated that no opportunity was allowed to any witness to see any accused.

6. Sub-Inspector Ram Sunder Tewari of Kotwali police arrested Ganpat on August 16, 1962 and brought him under cover to police station Kandharapur on the same date. Ganpat was taken to the District Jail on August 16, 1962 by constable Jaleshwar Upadhya (P. W. 16) under cover. Their evidence is that so long as Ganpat was in their custody or at the police station none had the opportun