Govinda Menon, J. - (1.) ON September 6, 1955, this court granted the appellants herein, special leave to appeal under art. 136(1) of the Constitution from the judgment and order dated August 4, 1955, of the Allahabad High Court, in Criminal Appeal No. 298 of 1955 (Reference No. 31 of 1955) connected with Criminal Appeals Nos. 299 and 307 of 1955, limited to the question whether the failure to comply with the rules relating to the submission of the police case diary, vitiates the entire trial and what the consequences of such failure are. It is in pursuance to the leave so granted, that Criminal Appeal No. 60 of 1956, has been preferred by accused Nos. 4, 7, 1, 3, 5 & 2 (Niranjan Singh, Tikam Singh, Kharak Singh, Harpal Singh, Sardar Singh and Satpal Singh) respectively in Sessions Trial No. 142 of 1954, in the court of Session at Meerut and Criminal Appeal No. 61 of 1956, is preferred by accused No. 6 (Udaibir Singh) in the same Sessions trial. Appellants 1 to 3 in Criminal Appeal No. 60 of 1956 (accused Nos. 4, 7 & 1, Niranjan Singh, Tikam Singh and Kharak Singh) have been sentenced to the extreme penalty of the law and the remaining appellants in that appeal sentenced to imprisonment for life. The appellant (accused No. 6) in Appeal No. 61 of 1956, has also been sentenced to death.
(2.) ON the night between February 28, and March 1, 1954, a dacoity took place in the house of Atal Singh in the village of Akheypur in which about twenty dacoits took part and considerable property was looted and taken away by the dacoits. During the course of this incident four members of the family of Atal Singh, including himself, were shot dead and another received gun -shot wounds as a result of which he died subsequently in the hospitals. Four other members of the family received gun -shot wounds and incised wounds at the hands of the dacoits but they survived as a result of treatment in the hospital. The prosecution case was that among the dacoits who took part were the seven appellants in these two appeals, as well as two others; and of them accused No. 1 (Kharak Singh), accused No. 4 (Niranjan Singh), accused No. 6 (Udaibir Singh) and accused No. 7 (Tikam Singh) were armed with guns and as such were responsible for the shooting and murders. The two others namely, Achhpal Singh and Deoki Saran alias Beg Saran, who figured as accused Nos. 8 & 9 respectively in the court of Sessions, were acquitted by the learned Sessions Judge, who, after an analysis of the large volume of evidence, found that all the appellants herein were guilty of an offence under S. 396 of the Indian Penal Code and sentenced accused Nos. 1, 4, 6 and 7 (Kharak Singh, Niranjan Singh, Udaibir Singh and Tikam Singh) to death and accused Nos. 2, 3 & 5 (Satpal Singh, Harpal Singh and Sardar Singh) to imprisonment for life as hereinbefore mentioned. On appeal to the High Court of Judicature at Allahabad, the learned Judges (Asthana and Roy JJ.) confirmed the convictions and sentences and dismissed the appeals. As stated already, leave to appeal to this court under art. 136 was granted restricted to the question outlined by us at the beginning.
(3.) THE prosecution case is that the village of Akheypur is a factious one in which one Narain Singh, the brother of the 4th accused, was the leader of one party and Atal Singh, one of the deceased, was the leader of the other. Consequently the dacoity and murders in the house of Atal Singh took place as a matter of revenge. Shortly stated, the case put forward on behalf of the prosecution is that the appellants and others, some of whom were armed with guns, raided the house of Atal Singh on the night in question. The inmates of the house and others were inflicted injuries and the dacoits after looting the house carried away valuable property. It is not suggested that if the facts spoken to by the prosecution witnesses, who are eye -witnesses, are true, then an offence under s. 396 of the Indian Penal Code has not been amply proved; but the only question in whether the appellants took part in the crime.;