[1] This judgment shall also govern the disposal of criminal revisions Nos. 544 and 545 of 1953.

[2] This appeal and the two revisions arise out of the judgment of the Sessions Judge, Nimar, delivered on 31-7-1953. The facts relevant for purposes of this appeal and the revisions are as under : Prosecution case is that on 28-7-1951 Krishna-deo as guard and brakesman Gorelal started by the down goods train 565 at 19. 00 hours from Bhusawal to Khandwa. On the engine of the same train, driver D. V. Duncan was on duty with, his staff of Trimbak 'agwala' and fireman George Rommen. Accused Gerald Manning also got un-authorizedly on the engine of the same train and came to Burhanpur. The train remained at Burhanpur railway station from 20. 15 hours to 02. 30 hours. During this interval, all the accused persons collected at Burhanpur railway station and held a common consultation and broke the seal and the revetting of the wagon No. GIP 5018 in Burhanpur yard and even before the train started accused Manning, Sheman (absconding) and Chhotelal got in that wagon and at mile No. 313, between posts Nos. 4 to 9, dropped five bales of cotton cloth. Accused Duncan, the driver, slowed down the train during this interval in order to enable them to commit the crime. Afterwards, accused Manning came to the city and recovered Rs. 400 from Mangilal. Later on, accused persons Chhotelal and Heerachand hid the stolen property in the bushes near the rivulet in the jungle. During the course of investigation these two accused persons admitted the offence as per memorandum of admission and got the stolen property duly recovered in hidden condition as per seizure memo in the presence of the witnesses. On full investigation an offence Under Section 379, Penal Code, is proved against the accused persons.

[3] In the trial Court accused Duncan, Manning, Chhotelal, Heerachand and Mangilal were challanged. It was stated that accused Sheman was absconding. Accused Mangilal was discharged. Charges Under Section 379, Penal Code, were framed against all the four accused. They pleaded not guilty. The trial Court held that accused Manning, Chhotelal and Ileerachand were guilty of an offence Under Section 379, Penal Code, and accused Duncan was guilty of abetting an offence of theft Under Section 379/109, Penal Code. All the four accused persons were sentenced to suffer rigorous imprisonment for a period of two years each. All of them filed an appeal before the Sessions Judge, Nimar.

[4] Accused Chhotelal and Heerachand filed n appeal separately which was appeal No. 38 of 1953. Manning filed a separate appeal which, was appeal No. 39 of 1953. Duncan's appeal was appeal No. 40 of 1953. All the three appeals were heard together by the Sessions Judge. The learn eci Sessions Judge maintained the conviction and sentences of accused Duncan and Manning, but acquitted Chhotelal and Heerachand The State Government has filed an appeal against the acquittal of Chhotelal and Heerachand which is criminal appeal No. 27 of 1954. Accused Duncan and Maiming have filed criminal revisions Nos. 544 and 545 of 1953 respectively against the judgment of the Sessions Judge.

[5] We will take up the State Government's appeal against Chhotelal and Heerachand first. The fact that five bales were stolen from this train is not in dispute in this case. The only question is whether the respondents were in any way concerned with the alleged theft. In this connection the only piece of evidence, which according to the appellant is against them, is the discovery made by them of these five bales. The appellant is relying on the following evidence:

(i) Exhibits P. 25 and P. 20 are the statements alleged to have been made by respondents Chhotelal and Heerachand respectively which have led to the discovery, (ii) Exhibits P-9 and P-10 are the seizure memos of the two bales alleged to have been discovered by Heerachand and Exhibit P-ll is the seizure memo of three bales alleged to have been discovered by