Under S.376, Criminal P.C., the High Court is entitled and bound to entertain the appeal, even in the case of an accused person who is convicted and sentenced to death under S.302, Penal Code, and also convicted and sentenced upon a smaller charge, on matters of facts as well as matters of law even in respect of his conviction upon a smaller charge.

Facts. - Both accused in the case were convicted under Ss.302 and 120B, Penal Code. One of them was also convicted for an offence under S.404 of the same Code and sentenced to six months E.I. For the offence under S.120b both were sentenced to seven years R.I. and for the offence under S.302, to death and the case was referred to High Court for confirmation of death sentence.

BAVDEKAR, J. :-(After setting out the facts land dealing with the evidence in the case his Lordship confirmed the convictions and the sentences passed on accused No.1 and proceeded:) That accused No.2 can be convicted of this offence (under S.411, Penal Code) without our going into the question of misdirections or non-directions in the learned Judges charge to the jury, is quite clear from S.376, Criminal P.C. Under that section, when once there is a conviction in respect of an accused person and reference for confirmation of the sentence of death passed upon him is made to us, the whole case is reopened before us and it is open to us to convict him either of the offence of which he has been convicted by the trial Court or any other offence of which the trial Court could have convicted him. It is true that under S.374, the record which is submitted to us is the record for the confirmation of the sentence of death. If there is no sentence of death, there is no confirmation necessary. But, all the same S.374 says that when the Court of Session passes a sentence of death, the proceedings shall be submitted to the High Court and S.376 uses the words "in any case submitted under S.374." In such a case, the High Court may annul the conviction or convict the accused of any offence of which the Sessions Court might have convicted him. The words "in any case" have to be interpreted. One argument is that the words mean only the case so far as the offence under S.302 or any offence for which the death penalty has been imposed is concerned. The other interpretation which can possibly be placed upon the words is, not only the case in regard to the offence for which the death sentence is imposed, but the whole case against the accused person in ease he was tried at the same trial for any other offence. In my view, that is the correct interpretation for the reason that, under S.418, sub-S.(2), Criminal P. C, when in the case of a trial by jury any person, is sentenced to death, any other person convicted in the same trial with the person so sentenced may appeal on a matter of fact as well as a matter of law. Section 418, sub-S.(2) is not confined to cases in which a co-accused is convicted of murder or of any other offence punishable with death. He may be convicted of any offence. We see no reason why the Legislature should have intended that a co-accused may be placed in regard to other offences on a better footing than the accused who is sentenced to death. In our view, therefore, the proper interpretation to be placed upon the opening words in S.376 is the whole case, i.e., in the case of the accused sentenced to death not only the case with regard to the offence under S.302 or any other offence punishable with death but also for any other offence of which he has been tried and convicted at the same, trial.

2. We, therefore, alter the conviction of accused No.2 under S.404 to that under S.411; and set aside his conviction under S.302, Penal Code. We maintain, however, the same sentence which has been passed upon accused No.2 for the offence under S.404, i.e., he will continue to undergo rigorous imprisonment for a period of six months for the offence under S.411. The conviction and the sentence passed upon accused 2 for the offence under S.120-b is also set aside.

3. Yyas J. - (His Lordship after stating the facts continued.) Then, as against the accused 2 who has been convicted and sentenced to death under S.302, Penal Code, there is also a charge under S.404, Penal Code, and it is to be noted that, in respect of that charge also, there is a conviction of this