( 1 ) RAJ Pal, Ali Mohammad, Sri Ram and Sahabu alias Shahabuddin appellants have filed this appeal against their conviction u/s. 396, IPC and sentence of imprisonment for life passed by IV Addl. Sessions Judge, Bulandshahr on 19-1-1979 in Sessions Trial No. 365 of 1975. ( 2 ) THE charge against the appellants was that they along with several other accused committed a dacoity in the night of 13/14-5-1976 at the house of Surendra Kumar in village Bhandoli, Police Station Kotwali, district Bulandshahr and during the course of which they committed the murder of Km. Archana and Anil Kumar, sister and brother of Surendra Kumar. ( 3 ) SRI Keshav Sahai and Sri S. P. S. Raghav, learned counsel appearing on behalf of the appellants and Sri Jagdish Tiwari, learned A. G. A. for the State of U. P. have been heard at length and the entire record has been perused. ( 4 ) ACCORDING to the prosecution case P. W. 1 Surendra Kumar was sleeping in a room inside the hall of his Bungalow. P. W. 2 Madan Lal, his son Anil Kumar and his daughters Km. Shashi and Km. Archana and his younger son were sleeping in the courtyard of the Bungalow where a petromax was burning. About 12 persons came inside the courtyard armed with lathis, sharp edged weapons and fire-arm and they caught hold of Madan Lal and started beating him. On his raising hue and cry the sons and the daughters woke up at which the miscreants fired upon them inflicting injuries. Hearing on this P. W. 1 Surendra Kumar also got up. About five or six miscreants had covered their faces with Dhatas (cloth pieces) which fell down during the struggle (Marpit ). All the appellants Rajpal, Ali Mohd. , Sri Ram and Shahabu and two others namely, Beeker and Aliya were recognized amongst the miscreants, Surendra Kumar fired from his fathers licensed gun. to save victims. The dacoits fired at Surendra Kumar injuring him. Because of all this trouble P. W. 3 Shafia sleeping in the adjoining house of Tulsi Ram and P. W. 6 Subhash son of Tulsi Ram also woke up and raised hue and cry and they along with several others started towards the Bungalow of Surendra Kumar carrying lathis and torches. The dacoits fired at Surendra Kumar injuring him. Because of all this trouble P. W. 3 Shafia sleeping in the adjoining house of Tulsi Ram and P. W. 6 Subhash son of Tulsi Ram also woke up and raised hue and cry and they along with several others started towards the Bungalow of Surendra Kumar carrying lathis and torches. Witnesses from various sides started coming to the house of Surendra Kumar with fire-arm lathis and torches and the light emanating from the torches and the petromax afforded enough opportunity to all the witnesses to recognize the named accused and also registered impression about unknown persons. Looking at the rushing in of large number of persons the miscreants sat on the two cars which they had parked near the grove of Munna Lal drove away after being at the house of Surendra Kumar for about an hour during which they looted money and several valuables. ( 5 ) P. W. 1 Surendra Kumar, P. W. 2 Madan Lal, Km. Archana and Anil had received injuries in the dacoity at the hands of the miscreants. Surendra Kumar carried the victims along with a written report Ext. Ka-1 and reached the police station at 5-50 a. m. and a case was registered in the general diary after making entries in the check report (Ext. Ka-22 and Ka-23 respectively ). The victims were sent to the hospital for medical examination. P. W. 9 P. S. Yadav, Sub Inspector, took up investigation and reached the district hospital and recorded the statements of Surendra Kumar, Madan Lal and Anil Kumar in the district hospital. Km. Archana died the same evening while Anil Kumar died on fourth day in the hospital, The Investigating Officer, however, had gone on the spot, recorded the statement of Km. Shashi, inspected the place of occurrence and prepared site plan Ext. Ka-12. He found five spent cartridges, nine pellets, and pieces of Jaali and bamboo at the place of occurrence. He also collected blood stained brick and plain brick. The memoranda have been marked Ext. Ka-12, Ka-13, Ka-14 and Ka-15 respectively. He arrested Sahabu accused on the same day, Sri Rams gun was taken into possession but he could not be arrested. Then on 15-5-1975 he recorded the statement of P. W. 2 Shafia and P. W. 3 Subhas and some others. The memoranda have been marked Ext. Ka-12, Ka-13, Ka-14 and Ka-15 respectively. He arrested Sahabu accused on the same day, Sri Rams gun was taken into possession but he could not be arrested. Then on 15-5-1975 he recorded the statement of P. W. 2 Shafia and P. W. 3 Subhas and some others. He also prepared a memo of petromax which was handed over to Tulsi Ram for safe custody. He arrested Rajpal accused on that day. He filed a charge-sheet Ext. Ka-18 against the accused. ( 6 ) OTHER accused against whom there was evidence of identification were also allegedly arrested by P. W. 15 A. K. Chaudhary, Sub Inspector about whom a report for holding a test identification parade was forwarded and after receiving the result of the parade they were charge-sheeted. It may be mentioned here that those persons against whom there was evidence of identification have been acquitted by learned trial Judge on the finding that the evidence of identification on the given facts and circumstances relating to each of those accused was not wholly reliable and sufficient. ( 7 ) THE appellants had denied their participation in the occurrence and attributed false implication due to enmity. The appellant Rajpal stated that he had lost two of his motors which he came to know to be in the house of Madan Lal for which a Panchayat was held. In the meantime the dacoity was committed and the appellants have thus been falsely implicated. Appellant Ali Mohd. says that he used to repair motors and had recognised those motors of Rajpal in the house of Madan Lal. For this reason he was implicated falsely. The appellant Rajpal has filed a copy of the FIR dated 17-10-74 lodged by him against Lehri Singh, Ramvir. Rajpal Singh, Birju and Jagvir Singh u/s. 379, IPC. He did not produce any other evidence. Ali Mohd. too did not produce any evidence in defence. Appellant Sri Ram says that he was on inimical terms with P. W. 2 Madan Lal since 1958. Sri Ram has filed documentary evidence to show that one Smt. S. D. Shah had filed Suit No. 339 of 1979 against P. W. 2 Madan Lal in which he had filed affidavit stating that Madan Lal was planning to sell the Tractor about the price of which the said suit was filed. Sri Ram has filed documentary evidence to show that one Smt. S. D. Shah had filed Suit No. 339 of 1979 against P. W. 2 Madan Lal in which he had filed affidavit stating that Madan Lal was planning to sell the Tractor about the price of which the said suit was filed. He has also produced certified copy of the judgment dated 30-10-1961 as also copy of his written statement showing that Sri Rams father Pyare Lal had also appeared as a witness. He has also filed a copy of the judgment dated 14-11-61 in Sessions Trial No. 90 of 1961 regarding the dacoity in the house of one Kirti for which the FIR was scribed by Tulsi Ram, brother of P. W. 2 Madan Lal. Sahabu appellant has said that he was employed by Madan Lal which he left causing annoyance to Madan Lal for which he implicated the appellant. He has also not produced any evidence in defence. It may be remembered that D. W. 1 B. N. Sharma, D. W. 2 Alauddin and D. W. 3 Raj Kumar Sharma have been produced by those accused against whom there was evidence of identification, hence there is no need to go into details of their statements. ( 8 ) THE case against the appellants rests on the eye-witnesses account furnished by P. W. 1 Surendra Kumar, P. W. 2 Madan Lal, P. W. 3, Shafia and P. W. Subhas. All of these witnesses have corroborated the prosecution case and nothing has been elicited in their cross-examination to discredit their testimony. It may be remembered that P. W. 2 Madan Lal was injured and had been examined by P. W. 6 Dr. R. P. Rastogi on 15-5-1975 who found the following injuries :" 1. Incised wound 4 cm x 2 cm x peritoneal cavity deep right side abdomen in right hypochondrium. 2. Incised wound 2 cm x 1 cm through and through in right pinna. 3. Multiple contusion on scalp. 4. Sub-conjunctural haemorrhage in right eye. " ( 9 ) HE operated upon Madan Lal the same day. His small intestine was found lacerated. It was stitched. He proved Ext. Ka-2, the bed head ticket containing the injuries of Madan Lal and the note prepared by him at the time of operation. 3. Multiple contusion on scalp. 4. Sub-conjunctural haemorrhage in right eye. " ( 9 ) HE operated upon Madan Lal the same day. His small intestine was found lacerated. It was stitched. He proved Ext. Ka-2, the bed head ticket containing the injuries of Madan Lal and the note prepared by him at the time of operation. ( 10 ) ON the same day at 6-30 a. m. he examined Anil Kumar and found the following injuries :"1. Incised wound 4 cm x 21/2 cm x peritoneal cavity deep in epigasterium. Omentive coming out from the wound. 2. Incised wound 3 cm x 2 cm x muscle deep on left side. Abdomen in sub-costar margin outer aspect. 3. Multiple gun shot wound in an area of 7 cm x 5 cm round left elbow back of forearm. " ( 11 ) THESE injuries were examined by him in the operation theatre where he was also operated upon. The injuries as well as the operation notes were taken down by him over the bedhead ticket Ext. Ka/3. He further gave out that on the same day at 8-25 a. m. Sri H. L. Birdi P. W. 7 who was posted as Executive Magistrate, Bulandshahr recorded the dying declaration of Anil Kumar. He gave out that he had given the certificate of fitness for recording the dying declaration. He proved this certificate Ext. Ka-4. On the same day the dying declaration of P. W. 2 Madan Lal was recorded at 8-36 a. m. by the same Magistrate. ( 12 ) HE also stated that Anil Kumar died on 17-5-1975 at 6-45 p. m. in District Hospital Bulandshahr. He conducted his post mortem examination on 18-5-1975 at 8-15 a. m. He prepared the post mortem examination report Ext. Ka-5. According to him death was caused as a result of the shock on account of the injuries found upon his person and pneumonia which was the result of the complications of operation. He also took out 19 pellets from the dead body placed them in a sealed envelop and handed it over to constable Mahendra Singh. According to him injury No. 1 was sufficient in the ordinary course to cause his death. ( 13 ) P. W. 7 is Sri H. L. Birdi, he proved the dying declaration Ext. He also took out 19 pellets from the dead body placed them in a sealed envelop and handed it over to constable Mahendra Singh. According to him injury No. 1 was sufficient in the ordinary course to cause his death. ( 13 ) P. W. 7 is Sri H. L. Birdi, he proved the dying declaration Ext. Ka-6 of Anil Kumar, recorded by him on 14-5-1975 at 8-25 a. m. ( 14 ) P. W. 8 S. 1. Mahendra Singh had prepared the inquest report and other formal papers Exts. Ka-7 to Ka-10 at District Hospital Bulandshahr on 17-5-75 after the death of Anil Kumar. ( 15 ) P. W. 9 Sri P. S. Yadav is the Investigating Officer. The part played by him has already been stated while narrating the prosecution story. ( 16 ) P. W. 10 is Dr. Jitendra Singh who had examined P. W. 1 Surendra Kumar on 14-5-75. He found the following injuries on his person :"1. Abrasion 41/2 cm x 11/2cm on the front and outer part of right deltoid region 61/2 cm below the tip of right scapula. Obliquely downward and forward. 2. Abrasion 11/2cm x - cm vertical just below the middle of injury No. 1. 3. Gun shot wound 1. 2 cm x 1. 2 cm on the back of left forearm 101/2 cm below the left elbow. 4. Multiple gun shot wounds of entrance 141/2 cm x 11 1/2 cm on the lateral part and back of left buttock, those on the lateral part of size 1/3 cm x 1/3 cm and on the back one 1 cm x 1/3 cm with pellet in three posterior and inner to the end of entrances. 5. Gun shot wound 1/2 cm x 1/3 cm on the left iliac fossa 81/2 cm to the 1 Oclock of umbilicus. "injury No. 1 was caused by some blunt weapon. Injury No. 2 was caused by friction. The remaining injuries were caused by fire arm. He also proved the injury report Ext. Ka-19. ( 17 ) P. W. 11 is Head constable Satyapal, P. W. 12 constable Pooran Lal, P. W. 15 S. I. A. K. Chaudhary, P. W. 18, S. I. R. K. Tyagi and P. W. 19 constable Ishwar Singh are the witnesses regarding the arrest and keeping baparda of accused Ramzani and Abdul Hafiz. Ka-19. ( 17 ) P. W. 11 is Head constable Satyapal, P. W. 12 constable Pooran Lal, P. W. 15 S. I. A. K. Chaudhary, P. W. 18, S. I. R. K. Tyagi and P. W. 19 constable Ishwar Singh are the witnesses regarding the arrest and keeping baparda of accused Ramzani and Abdul Hafiz. Their testimony would be discussed while taking up the case of these two accused. ( 18 ) P. W. 14 S. I. Brahm Dutt Sharma had prepared the inquest report Ext. K a-23 on 14-5-75 at 8-30 p. m. of Km. Archana in district Hospital Bulandshahr and other formal papers (Exts. Ka-25 and Ka-26 ). The dead body was sent for post mortem through constable Risal Singh P. W. 12 who deposed about it. ( 19 ) P. W. 17 is Dr. A. K. Agarwal who conducted the post mortem examination of Km. Archana on 14-5-1975 at 1-15 p. m. He prepared the post mortem examination report Ext. Ka-33. He found the following ante mortem injuries. "multiple gun shot wounds of entry in an area of 11" x 61/2" on right side front chest extending from anterior axillary line right sternal border and up to costar margins and upwards on right cheek of right side right of neck and chin right side size of each 1/4" x 1/4" x not probed. " ( 20 ) ACCORDING to him this injury was sufficient in the ordinary course to cause death. ( 21 ) LEARNED counsel for the appellants have raised two basic questions. Firstly, that the story of face-covers (Dhata) is absurd and, therefore, all the appellants who have been named should get the benefit of the said improbability. It was further argued that the light was insufficient so as to enable recognition of the accused. It was rightly said that it cannot be argued that there was no dacoity in the instant case. All the eye witnesses have consistently spoken at the burning of the petromax in the court yard. They have further clarified that the power supply used to be very inaccurate and, therefore, the bungalow being away from the main locality as a rule, the petromax used to be kept lighted every night. All the eye witnesses have consistently spoken at the burning of the petromax in the court yard. They have further clarified that the power supply used to be very inaccurate and, therefore, the bungalow being away from the main locality as a rule, the petromax used to be kept lighted every night. They have also deposed about flashing of the torches by the witnesses, under the circumstances there was enough light and all the witnesses were in a position to recognize the accused participating in the dacoity. ( 22 ) COMING to the next question it must be held that there is no improbability in the statement of the witnesses that face-covers (Dhata) had fallen down during the dacoity. It may be remembered that Anil Kumar has in his dying declaration, named four appellants and two other accused who are absconding as participants in the dacoity. There was no reason (Sic) to accept that Anil Kumar whose dying declaration was recorded by P. W. 7 B. L. Birdi, on 14-1-1975 at about 8-25 a. m. as noted above. There was no reason why Anil Kumar a young man of about 18 years would be deposing falsely against the appellants, had he not recognized them in the dacoity. It is very unlikely that a dying man would screen real offender. In spite of searching cross-examination nothing has been brought out in the statement of either P. W. 7 H. L. Birdi Magistrate or P. W. 6 Dr. R. P. Rastogi so as to diminish the value of the dying declaration in any way. ( 23 ) ONCE the dying declaration is believed it is not understandable what gain would the prosecution be making by projecting the theory of Dhata falling down unless it was a fact. There is a clear mention of this fact of dhata falling down, in the FIR lodged by P. W. 1 Surendra Kumar. It follows that if the prosecution was to come out with a concocted story they could have easily omitted this part and directly mentioned only the participation of the appellants. From any point of view, therefore the statement of the witnesses saying that the appellants were amongst the dacoits and were recognised because of heir Dhatas (face covers) having fallen down during the course of dacoity is fully accepts and believable. From any point of view, therefore the statement of the witnesses saying that the appellants were amongst the dacoits and were recognised because of heir Dhatas (face covers) having fallen down during the course of dacoity is fully accepts and believable. ( 24 ) THE view of the trial Judge in placing implicit reliance on the testimony of P. W. 1 Surendra Kumar and P. W. 2 Madan Lal and the deceased Anil Kumar as having full opportunity to see the faces of the miscreant is correct. Therefore, dying declaration of Anil Kumar and the testimony of Surendra Kumar and Madan Lal are more than sufficient to bring home the charge against the appellants. ( 25 ) AN additional argument relating to Sri Ram appellant was made that the litigation in suit No. 339 of 1959 referred to above might have been the basis for the false implication. It may be noted that about 15 years had elapsed between the day of the incident and the aforesaid litigation and nothing has been brought on record to suggest that Madan Lal or his family members were in any way maintaining strained relationship with Sri Ram appellant or that he was having any grudge. Moreover, such matter was too trivial to be made a basis for false implication after 15 years and that too even in the dying declaration of Anil Kumar, aged about 18 years. Obviously Anil Kumar was just a new born child when the said suit between Mst. S. D. Shah and Sri Ram appellant had proceeded. Therefore there is no reason to expect false naming of Sri Ram appellant along with other appellants in the dying declaration and by the witnesses in the instant case. ( 26 ) IN view of the aforesaid discussion there is no merit in this appeal which should fail. Consequently, the appeal is dismissed. The appellants are on bail. They will surrender to their bail bonds to serve out their sentences. Appeal dismissed. .