JUDGMENT

1. Nageshwar Bari, 40, Bhikhari Khatik, 20; Raghubar Dayal Lonia, 35; Sita Ram Khatik, 34; Elahi Qasab, 45; and Shankar Khatik, 50: were tried at one trial along with sixteen other persons on a charge under Section 395 for dacoity. Nageshwar was sentenced to transportation for life, and the other five to ten years' rigorous imprisonment. The other sixteen were acquitted, but these six were convicted. Nageshwar Bari was further charged under Sections 396 and 302, Indian Penal Code, but he was acquitted on both these charges. There is also before us an application under Section 439, Criminal Procedure Code, on behalf of the Local Government, asking us to exercise our revisional powers in this way, to record a conviction under Section 396, Indian Penal Code, against all six "appellants, and to sentence Nageshwar to death, and the other five to transportation for life.

2. The dacoity took place in the village Sekharpur, police station Balrampur, district Gonda, in the house of Harihar Prasad. Harihar Prasad is a Brahman, fifteen or sixteen years old, but of weak intellect. The dacoits were said to have numbered fifty or more. They were armed with lathis and spears and there were two guns, one of which was captured from them. They began by beating five men who were sleeping at the door of the house. A sixth man, Chhotan Lal, who was also sleeping there, managed to get Out. He raised the village, and he set fire to a shed belonging to the house in order to give light. Among the people of the village who came to the rescue was Abdur Rahman Kabaria, who headed the party. A shot was fired, and Abdur Rahman was killed. Another shot was fired, and Ram Adhar, Brahman, was hit but not killed. A fight went on between the villagers and the dacoits, and the dacoits fled towards the north. Nageshwar Bari, Appellant No. 1, and Bhikhari, Appellant No. 2, were knocked down by lathi blows and were captured. Nageshwar Bari had a gun in his hand, which was captured with him. One iron box was broken open, but evidently the robbery was interrupted, and the dacoits were not able to ransack the house. We find no positive evidence of the value of the property stolen from the iron box, but the figure of Rs. 500 appears to have been mentioned in this connexion.

3. It is not necessary to go more minutely into the facts of the case. It is not disputed that a dacoity took place, or that Abdur Rahman was killed by a gunshot wound. Certain questions of law arise in the case of Nageshwar. It will be most convenient to consider these after disposing of the appeals of the other accused.

4. We take the appeal of Bhikhari: Bhikhari was captured on the spot. He made a confession in which he described how Pershadi induced him to join in the dacoity. He gave a large number of names of persons who had taken part in the dacoity, and he gave a very brief account of what happened on the spot. He said that Nageshwar Bari had one gun, and Bodhi or Pershadi the other, and that both guns were fired. He produced no defence. He has nothing to say in his appeal except that he did not commit the dacoity. His appeal is dismissed.

5. Raghubar Dayal: He was identified in Court by five witnesses. The same five persons had identified him in jail. His conviction must turn on the credibility of these witnesses. The Court of trial was in the best position to judge on this point. He had no defence. His appeal is dismissed.

6. Sita Ram: He has been identified in Court by six witnesses, three of whom, however, had failed to identify him in the jail. He was mentioned in the confessions of Nageshwar and Bhikhari. He had no defence. His appeal is dismissed.

7. Elahi: He was identified in Court by five witnesses, four of whom had also identified him in the jail. He had no defence. His appeal was presented separately by counsel from Gonda, who urged very strongly that the mistake made by the witnesses, who identified Elahi, in the way of identifying wrong people in the jail, ought to prev