JUDGMENT

Cuming, J. - This is an appeal by two persons Bikram Ali Pramanik and Kudrutulla Khan. These two persons together with one Samatulla were tried by the learned Additional Sessions Judge of Pabna and a jury on charges of dacoity and house breaking by night. The jury unanimously found all the three persons guilty u/s 457, I.P.C., and not guilty u/s 395, I.P.C. The appeal of Samatulla has been summarily dismissed and that of the other two appellants is now before us.

2. The case for the prosecution briefly was that these persons together with a number of other persons broke into the house of the complainant on the night of 27th May 1928. The defence briefly was a denial of the whole occurrence; and there was a suggestion in the case of Samatulla of enmity.

3. The first point raised by the learned vakil for the appellants is that the alternative charges under Sections 395 and 457, I.P.C., are bad in law. Why it is bad in law I am unable to understand. Offence u/s 457, I.P.C., is really in some cases a minor offence to offence u/s 395. There can be no reason why there should not be alternative charges of these two offences.

4. The next point raised is that the learned Judge has not