JUDGMENT D.S. Mathur, J. - This judgment shall govern criminal appeals Nos. 2136, 2186 and 2287 of 1962. Criminal Appeal No. 2136 of 1962 is by Sheo Nath Singh who has been awarded the sentence of death, while criminal appeal No. 2287 of 1962 is by the other convicted persons, except one, namely, Gyan Singh, Jadunath Singh, Chotey, Mithoo Singh and Baboo Singh who have been awarded the sentence of imprisonment for life. Pratap Singh the other convicted accused, has filed a separate appeal No. 2186 of 1962. He has been awarded the life sentence. All the Appellants were convicted u/s 396 IPC for committing dacoity in the houses of Soney Lal, Piarey Lal and Jagannath (P. Ws. 1, 2 and 3, respectively) on the right of 11th March, 1962, at 11P.M. Ramesh son of Soney Lal died at the hands of the dacoits. There is also a reference by the Addl. Sessions Judge for the confirmation of the sentence of death awarded to Sheo Nath Singh. 2. On the above night Sonoy Lal (P.W. 1), his son Ramesh, his uncle Raja Ram (P.W. 4), and two other relations were sleeping below the neem tree to the north of Soney Lal's house. The mother and wife of Soney Lal and also Soney Lal's brother's wife were sleeping inside their house. The houses of Piarey Lal and Jagannath lie to the west and Jagannath (P.W. 3) and his wife were sleeping outside their house while Piarey Lal (P.W. 2) and his wife outside theirs. These houses are situate in Jadeykapurwa, hamlet of village Ali Nagar, P.S. Saurik of distt. Farrukhabad. Soney Lal and others, who were sleeping below the neem tree woke up on hearing the shouts of the womenfolk. They then saw a dacoit standing at the main door of the house armed with a gun and another dacoit on the roof of the house. They on acconnt of fear ran away but raised an alarm in the village abadi and thereafter collected by the side of Gur Dayal Singh's house or behind the wall of Gur Dayal Vaish. Jagannath and Piarey Lal found an opportunity and left their houses and eventually assembled behind the wall of Gur Dayal Vaish's house. Other villagers had also assembled at the two places and also behind the cattle trough, of Piarey Lal and Jagannath. 3. Jagannath and Piarey Lal found an opportunity and left their houses and eventually assembled behind the wall of Gur Dayal Vaish's house. Other villagers had also assembled at the two places and also behind the cattle trough, of Piarey Lal and Jagannath. 3. Dacoity was committed for about 45 minutes whereafter the daco-its came out and tied the looted property outside Piarey Lal and Jagannath's houses, a place which was only few paces from where the villagers had taken position. Ramesh son of Soney Lal was a young lad of 13 years. He moved a little further and on recognising Sheo Nath Singh and Baboo Singh among the dacoits shouted threatening that he would report the matter to the Sub-Inspector in the morning. The prosecution case is that Sheo Nath Singh who was armed with a gun, fired at Ramesh and he was severely injured and eventually died. Thereafter the dacoits proceeded to the south and then to the east and thus fled away. Soney Lal had the report written giving therein details of his properties and also the properties of Jagannath and Piarey Lal which had been taken away by the dacoits. Soney Lal then along with his son Ramesh and a few other persons left for the police station, where he handed over the written report on the basis of which the formal F.I.R. was registered at 5.30 A.M. Ramesh was immediately sent to Chhibramau hospital where steps for the recording of his dying declaration were taken and the dying declaration (Ex. Ka 2) of Ramesh was recorded by Rajpati Tri-pathi, Tahsildar-Magistrate, at 8 A.M. Ramesh was later transferred to Fateh-garh hospital but he succumbed to the injuries soon thereafter. Autopsy on the dead body was conducted by Dr. K.N. Tandon, Civil Surgeon, who found two gun shot wounds-one inlet and the other exit, on the dead body. In his opinion, the death of Ramesh was due to shock and haemorrhage, resulting from gunshot injuries. 4. All the Appellants other than Mithoo Singh were named in the report as some ot the dacoits, who were 12 or 15 in number, and had committed the dacoity. It was said that the villagers had recognised them at the spot. These persons are Sheo Nath Singh, Gyan Singh, Baboo Singh, Chotey, Jadunath Singh and Pratap Singh. 4. All the Appellants other than Mithoo Singh were named in the report as some ot the dacoits, who were 12 or 15 in number, and had committed the dacoity. It was said that the villagers had recognised them at the spot. These persons are Sheo Nath Singh, Gyan Singh, Baboo Singh, Chotey, Jadunath Singh and Pratap Singh. The prosecution case is that Sheo Nath Singh, Pratap Singh and Jadunath Singh were armed with gun, Chhotey and Baboo Singh with pistols and the rest two, namely, Gyan Singh and Mithoo Singh, with lathis. 5. At the time the report was registered no Sub Inspector was present at the police station. S.I. Bhushan Singh, (P.W. 14), however, commenced the investigation on receipt of information. 6. Mithoo Singh was arrested during the investigation of the crime. After he was identified by numerous witnesses he was charge sheeted and has also been convicted by the Sessions Judge. 7. All the Appellants pleaded not guilty and alleged to have been falsely implicated in the case on account of enmity with Gyan Singh. The Appellants other then Pratap Singh, assert to be connected with Gyan Singh, being his relations or servant or to be cultivating his land or along with him. Pratap Singh pleaded enmity with the police and alleged that his name was added as a co-accused at the instance of the police. Mithoo Singh alleged that he was known to Soney Lal and others from before the dacoity and that the witnessess were making allegations against him on account of his dispossessing Soney Lal from the land of Munshi Singh. Pratap Singh himself appeared in defence and made a state-ment on oath. He is D.W. 2. Two other witnesses were examined in defence and they are Gur Dayal (D.W. 1) and Vishwanath Singh (D.W. 3). 8. The eye witnessess examined in the case are Soney Lal (D.W. 1), Piarey Lal (P.W. 2), Jagannath (P.W. 3), Raja Ram (P.W. 4), Hari Shanker (P.W. 6) and Kalka Prasad (P.W. 8). The first four are closely related to each other while Hari Shanker and Kalka Prasad are distant relations of Soney Lal. In other words, all the eye witnessess belong to the same family. The first four are closely related to each other while Hari Shanker and Kalka Prasad are distant relations of Soney Lal. In other words, all the eye witnessess belong to the same family. The learned advocate for the Appellants has strongly urged that non-examination of disinterested persons was a factor of great importance from which it should be interred that the prosecution case, as given, is not true. We are not inclined to attach any weight to this factor. From the identification memos on record it is apparent that many villagers had appeared in the test parades to identity the suspected persons. In case these witnesses were not won over, there is no reason why the prosecution would not have examined them. This finds corroboration from the conduct of Gur Dayal (D.W. 1). It is a matter of common knowledge that many persons do not come forward to give evidence in the case on account of fear of the accused and, others, on account of influence put upon them. Non-examination of unconnected witnesses can however be given importance if the evidence adduced by the prosecution otherwise appears to be doubtful and is not acceptable. 9. It had been suggested on behalf of the Appellants that no dacoity was committed in the houses of Soney Lal, Piarey Lal and Jagannath, and that, in fact, there was a quarrel when one Ram Bharosey came to the village to take back his wife and it was during this fight that Ramesh got gun-shot injuries and eventually died. This plea does not appear to be true. 10. Piarey Lal is married to the younger sister of Ram Bharosey's wife. It there was any quarrel on account ol Ram Bharosey's wife, a young boy like Ramesh would not have been injured. Ram Bharosey was likely to take revenge against Piarey Lal or against his wife, but not against an innocent boy like Ramesh. The investigating Sub Inspector had found the condition of the three houses as if a dacoity was committed there. Ram Bharosey was likely to take revenge against Piarey Lal or against his wife, but not against an innocent boy like Ramesh. The investigating Sub Inspector had found the condition of the three houses as if a dacoity was committed there. The fact that the report was lodged at the police station at 5.30 A.M. cannnot be doubted, as the diving declaration of Ramesh was recorded at Chhibramau at 8 A.M. and this would not have been possible unless Soney Lal reached the police station at 5.30 A.M. Soney Lal would have found it difficult to disturb the condition of all the three houses before leaving for the police station, all the more, when his son was in a precarious condition. 11. At this place it may also be observed that Soney Lal and Piarey Lal were cross examined with regard to Ram Bharosey and his wife and they have on the whole made a straight forward statement. In case Ramesh died when there was a jhagra between Ram Bharosey and Piarey Lal and even then Soney Lal and others connected a case of dacoity, their first impulse would have been not to make an admission that Ram Bharosey's wife had left her husband's place and later on stayed with Piarey Lal before leaving for her brother's house. The dying declaration of Ramesh also leads us to the same inference. We have, therefore, no hesitation in recording the finding that on the above night a dacoity was committed in the houses of Soney Lal Piarey Lal and Jagannath, and not that it was in a quarrel connected with Ram Bharosey's wife that Ramesh was accidentally injured as a result of a shot fired by Ram Bharosey. 12. Piarey Lal had no hesitation in admitting his past quarrels and litigation with Gyan Singh. The named accused are generally those with whom there had been disputes in the past. As already mentioned above, no villager present at the time of the dacoity other than those belonging to the family of Soney Lal, Piarey Lal and Jagannath have been examined. There are also a few contradictions in the evidence of the eyewitnesses though in different circumstances we may not have attached much importance to those discrepancies. There is, however, a salient feature of the case which has been deposed to not only by a solitary witness but by many. There are also a few contradictions in the evidence of the eyewitnesses though in different circumstances we may not have attached much importance to those discrepancies. There is, however, a salient feature of the case which has been deposed to not only by a solitary witness but by many. According to the witnesses no one except Ramesh, mentioned the names of dacoits recognised by them. This was, in our opinion, a somewhat unusual conduct. After Ramesh had taken the names of two dacoits it was not necessary for the villagers present there to repeat the names of those two. When other dacoits had also been recognised we would have expected one villager or the other to take the names of those dacoits also either by way of abuse or otherwise. The possibility of others being name on the basis of suspicion cannot, therefore, be excluded. The safe principle shall thus be to accept the testimony of the eye-witnesses only to the extent it is corroborated by other reliable evidence. 13. Reliable corroborative evidence is the dying declaration of Ramesh as 14. Our attention was also drawn to the fact that in the F.I.R. there was no reference to torches. It was consequently urged that the dying declaration did not necessarily contain true facts. It is true that the F.I.R. is silent on this point, but the eye witnesses did state on oath that the dacoits were carrying electric torches. Electric torches are handy and would have been required at the time of removal of properties We have no hesitation in believing the witnesses in that the dacoits had torches with them which they had flashed occasionally. The open area between the houses is not much and consequently the torches flashed by the dacoits would have illuminated the faces of some of the dacoits also. Known persons could easily be recognised in the light of torches, and, in the circumstances, Ramesh could say that in the light of torches he had recognised the two dacoits. The assertion that both the parties had torches, even if not true, cannot be given any undue importance. At the risk of repitation we would like to add here that there was also the light of the payal in which known dacoits could easily be recognised by Ramesh. The assertion that both the parties had torches, even if not true, cannot be given any undue importance. At the risk of repitation we would like to add here that there was also the light of the payal in which known dacoits could easily be recognised by Ramesh. In other words, the dying declaration makes it clear that it was a Sheo Nath Singh, son of Gyan Singh, Appellant, who had fired at Ramesh and caused his death. The dying declarat ion also makes it clear that one Baboo Singh known to Ramesh was the other dacoit. It is true that Ramesh did not know the father's name of Baboo Singh, but on this point the testimony of the eve witnesses can be utilized in determining the identity of that Baboo Singh. None of the witnesses had any direct enmity with Baboo Singh Appellant. Whatever enmity is alleged is through Gyan Singh. Consequently, the testimony of the eye witnesses when read, along with the dying declaration makes it clear beyond doubt that Baboo Singh referred to by Ramesh was none other than Baboo Singh, Appellant. 15. As Pratap Singh is being given the benefit of doubt, it is not necessary to make any comment upon his testimony, all the more when he could not say whether a dacoity was or was not committed in the houses of Soney Lal and others. Gur Dayal Singh (D.W. 1) is a person who was examined in the committing court as a prosecution eyewitness but he was declared hostile. When he appeared in defence he did not think of helping the Appellants to the extent that they would have liked him to. We agree with the learned Sessions Judge that Gur Dayal is unreliable witness and the best thing shall be to disregard his testimony. Vishwa Nath Singh (D.W. 3) is the sarpanch of the Panchayati Adalat, Bilandpur, but is a resident of village Nizampur where Gyan Singh, Appellant, resides. He has tried to prove the relationship between Jadunath Singh, Baboo Singh and Gyan Singh. He also says that Gyan Singh and Baboo Singh did not allow Piarey Lal and his companions to forcibly take away Ram Bharosey's wife from his house. We need not make any comment on these points, as even then Baboo Singh could think of committing dacoity along with Shoo Nath Singh son of Gyan Singh. He also says that Gyan Singh and Baboo Singh did not allow Piarey Lal and his companions to forcibly take away Ram Bharosey's wife from his house. We need not make any comment on these points, as even then Baboo Singh could think of committing dacoity along with Shoo Nath Singh son of Gyan Singh. On the other point, there is however the statement of Piarey Lal that Gyan Singh was taking interest from the side of Ram Bharosey. Vishwanath Singh (D.W. 3) also deposed that on hearing of the death of Soney Lal's son he went to Jadeykapurwa where he was told that the boy was killed when some persons came to the village to take away Ram Bharosey's wife. The statement is based on information received from others and is, therefore, inadmissible in evidence. 16 Mithoo Singh was identified by 11 out of 12 persons who appeared in the test parade to identify him. He was Soney Lal alone who could not identify him. The result of identification appeals to be too good to be true, keeping in mind that a known person like Pratap Singh could not be identified by an equal number of witnesses. It was not only the defence plea of Pratap Singh, but was admitted by so ne of the prosecution witnesses, that Pratap Singh had visited the village to make propoganda for his uncle, Pahad Singh, who was one of the candidates for election to the membership of the State Legislative Assembly. Pratap Singh could, therefore, be seen by witnesses at more than one occasion and even then four out of 12 could not correctly identify him. At this place it may also be observed that the payal lay between the place where some of the witnesses had taken position behind the wall of Gur Dayal Vaish and where the dacoits had assembled before leaving the village. It would have been difficult for all the villagers standing behind Gur Dayal Vaish's wall to see the dacoits clearly, all the more, when there was the strong light of payal in between. On consideration of all the circumstances the possibility of Mithoo Singh being known to the witnesses from before, the dacoity cannot be excluded. He shall deserve the benefit of doubt. 17. On consideration of all the circumstances the possibility of Mithoo Singh being known to the witnesses from before, the dacoity cannot be excluded. He shall deserve the benefit of doubt. 17. To sum up, a dacoity was committed in the houses of Soney Lal, Piarey Lal and Jagannath in which Sheo Nath Singh and Baboo Singh were recognised and it was Sheo Nath Singh who fired at Ramesh and caused his death after Ramesh was ill advised to shout that action would be taken against these two recognised persons in the morning. The present dacoity was committed by 14 or 15 persons, as alleged. In any case, less than 5 persons were not likely together courage to commit the dacoity. On the basis of the evidence on record we have no hesitation in recording the finding that more than 5 persons had committed the persent crime. We, therefore, find no difficulty in convicting Sheo Nath Singh and Baboo Singh u/s 396 IPC. Even if it were not possible to hold that the offence committed amounted to dacoity, Sheo Nath Singh could be convicted u/s 302 IPC and awarded the sentence of death. In addition, both Sheo Nath Singh and Baboo Singh could be convicted u/s 394 IPG and given the sentence of imprisonment for life. 18. Criminal Appeal No. 2136 of 1962 by Sheo Nath Singh is hereby dis-missed and his conviction u/s 396 IPC is maintained and the sentence of death awarded to him is confirmed. Criminal Reference is accepted. 19. Criminal Appeal No. 2287 of 1962 by Baboo Singh is dismissed and his conviction and sentence u/s 395 IPC are maintained. 20. Criminal Appeal No. 2186 of 1962 by Pratap Singh and Criminal Appeal No. 2287 of 1962 by the others are hereby allowed and their conviction and sentence are set aside. They are acquitted of the charge u/s 396 IPC. 21. Sheo Nath Singh and Baboo Singh are already confined in jail. Gyan Singh, Jadunath Singh, Chotey and Mithoo Singh are also confined in jail and they shall be released forthwith unless wanted in connection with some other case. Pratap Singh is on bail and his bonds are discharged.