JUDGMENT

A.P. Srivastava, J. - These are two connected appeals arising out of the same case and can therefore be conveniently disposed of together.

2. Chhotey Lal, Hoti son of Jhandi, Bhisham and Khushi Ram are the appellants in appeal No. 651 and Shri Prasad is the only appellant in appeal No. 737 of 1956. All these five appellant have been convicted by the Sessions Judge of Mathura under Sec. 896, I. P. C. and each of them has been sentenced to imprisonment for life and also to pay a fine of Rs. 100/- or in default to undergo rigorous imprisonment for one year.

3. It appears that a dacoity was committed in the night between the 14th and 15th of October 1954 at about 10.30 a.m. at the shop of Prem Raj in village Mangarhi, Police Station Naujhil, District Mathura. About 20 or 22 dacoits are alleged to have forcibly entered the shop of Prem Raj. They began to beat Prem Raj with lathis. He started crying and raised an alarm. The dacoits, however, managed to remove cloth and other properties which were there in the shop. The dacoity continued for an hour. Prem Raj was there in the shop along with his mother, daughter and two sons Kishan and Bilhambhar. The dacoits were armed with fire-arms and some of them went to the roof of the shop and threatened the villagers not to come near. They said that in case they did, they would be fired upon. On hearing the alarm many of the village people collected near the shop of Sundari Bania. Some collected near the shop of Khazan Jat. They were, however, not allowed to go near the shop of Prem Raj. After the dacoits had looted the shop to their satisfaction they decamped from the place. As soon as they started going away the villagers gathered courage and led by the sons of Prem Raj they began chasing the dacoits. The dacoits fired two shots at the villagers near the field of Budhi Jat and directed them to go back. The shots hit Kishan, Girdhari, Matoli and Lachhi Ram. Lachhi Ram succumbed to the injuries which he received. The villagers who were chasing the dacoits, however, overtook and hit them with lathis. One Bikram snatched a potli of clothes which one of the dacoits was carrying. Another person Har Lal caught one of the dacoits from behind. That dacoit was carrying a pistol which happened at that time to be unloaded. With that pistol he hit Har Lal and caused a simple injury. The pistol was, however, snatched from him and that dacoit was not allowed to run away. He is alleged to be Chhotey Lal appellant. A report about the dacoity was lodged at 4 a.m. the next day by Jhamman Lal, brother of Prem Raj. Investigation was started and as a result of enquiry the five appellants were committed to the Court of Session to stand their trial under Sec. 396, I.P.C. The learned Sessions Judge acquitted nine of the accused persons and we are therefore not concerned with the cases of those persons. He found that the five appellants had taken part in the dacoity and therefore convicting them under Sec. 396, I.P.C. sentenced them as mentioned above.

4. The factum of the dacoity has not been questioned before us, and it is therefore unnecessary to discuss the evidence which had been led by the prosecution to show that a dacoity was actually committed. It is also not disputed that in that dacoity several persons received injuries. Thus Girdhari Lal, Kishni and Matoli had gunshot wounds. Har Lal who had been hit with the pistol had a contused wound. Prem Raj had seven contusions and a scratch. Lachhi Ram had several gunshot wounds and died as a result of the injuries which he had received. The dacoits thus used firearms and lathis in course of the dacoity and as Lachhi Ram was shot dead the persons who are found to have taken part in the dacoity must be convicted under Sec. 396, I.P.C. The main question which we have before us in these appeals is whether the appellants or any of them really took part in the dacoity as alleged by the prosecution.

5. So far as the appellant Chhotey is concerned, he is said to