Wanchoo, C.J.—This is an appeal by the State against the acquittal of Motia, Gepla and Achalia of offences under secs. 302 and 318 of the Indian Penal Code. Motia and Gepla have been served, and the appeal is, therefore, being heard against them. Achalia has not been found yet, and the appeal against him will remain pending.

2. The prosecution story is briefly this :

Harka deceased, his wife Mst. Chakhu, also deceased, and his daughter Jamuna, also deceased, used to live in village Bakra. Siremal P.W. 8 is a neighbour of Harka, his house being 40 paces away. He heard the cries of Mst. Rambha, mother of Harka deceased on the morning of the 8th December 1948. Mst. Rambha is blind, and was told by a child in the morning that Harka was lying dead, and therefore raised an alarm. Siremal went to Harkas house accompanied by Kistoorchand, and saw the dead bodies of Harka, his wife Chakhu and his daughter Jamuna lying there in the Pol. They, therefore, sent information to the police at Jalore. Sub-Inspector Hukamsingh immediately left for Bakra, and started investigation there. He found the cash box open and empty, and the Ora broken into, and it also seemed that ornaments were taken away from Kothalias. No clue, however, seems to have been found till the 15th December, 1948, when Motia accused was arrested at Jaswantpura at the hotel of one Sama. Motia accused had gone to this hotel on the 15th December, 1948, and took his meals there. Thereafter, he asked Sama to keep his small box in safe custody. Sama found that the box was very heavy for its size and became suspicious, and asked Motia what the box contained. Motia told him that it contained money as he was going to Nimaj to buy a mare. One Jail Hawaldar and two constables were at the hotel at the time, and Sama related the incident to them and placed the box before them. Thereupon, the Jail Hawaldar brought Head Constable Ghafoor Khan, and these persons took Motia to the Police Station at Jaswantpura along with the box. The box was then opened by Sub-Inspector Umar Khan in the presence of two Motbirs, and was found to contain cash and ornaments of gold and silver. Motia accused was then taken in custody on suspicion, and later enquiries showed that the ornaments belonged to Harka of Bakra. Consequently, they were forwarded to the Superintendent of Police at Jalore. Further investigation then proceeded and Gepla and Achalia were also arrested as being connected in the crime that had taken place at the house of Harka in Bakra. All three of them were prosecuted under secs. 302 and 380 of the Indian Penal Code.

3. The Sessions Judge, after a consideration of the evidence, came to the conclusion that no case under sec. 302 I.P.C. had been proved against any of the accused, and acquitted them under that section. He also held that no case under sec. 380 I.P.C. had been proved against Achalia and Gepla, and they were acquitted under that section also. As for Motia, he came to the conclusion that he was guilty under sec. 411 I.P.C. and convicted him under that section and sentenced him to two years rigorous imprisonment. This appeal is against the acquittals under secs. 302 and 380 I.P.C.

4. Motias case was that he was not even at Bakra on the night of the incident, and that he had been implicated on account of enmity by Hema P.W. He admitted that he had gone to the hotel of Sama, but said that he was drunk and did not know what happened there. As to the ornaments and other things recovered from his possession at Jaswantpura, he said that he had found these things along with the box in the jungle at Bakra. The box was buried under-ground and he dug it out because he noticed some fresh sand there. He denied the recovery of other things by the police at his instance. Gepla denied his guilt and said that he had been implicated on account of enmity, and that he was not at Bakra on that date. He also denied the recovery of the axe at his instance. Achalia also denied his guilt. It may be added that

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