V. D. BHAKGAVA, J.

( 1 ) THIS is an application for leave to appeal to the Supreme Court under Article 134 (1) (c) of the constitution against our judgment by which we had dismissed the appeal of the State against the acquittal of the opposite parties, Kamlesh Hari and Kunwar Singh.

( 2 ) KUNWAR Singh, Suresh and Kamlesh Hari were prosecuted inter alia, under Sections 120-B and 396 I. P. C. arid under Section 302 I. P. C. for having criminally conspired with two other persons, namely, Prakash and Imam Ali deceased to commit the offence of theft by house breaking; to commit dacoity with murder of Ganga Saran and obtaining the key of Pyarey Lals house from Ganga Saran at the Kothri of Khan; and to commit abduction of Ganga Saran for murdering him and for having committed the dacoity along with Prakash and Khan on the 29th of November, 1956, by taking the key, wrist watch and gold ring from Ganga Saran in the Kothri of Khan and in the commission of that dacoity committed the murder of Ganga Saran.

( 3 ) KUNWAR Singh and Suresh were further charged under Section 363 read with Section 109 I. F. G. and Sections 407 and 307 read with Section 114 I. P. C. for abetting Kamlesh Hari, and prakash in the abduction of Ganga Saran on 29-11-1956, at 3-30 p. m. from his shop and taking him to the kothri of Khan in order to murder him and for committing house breaking by night on the 29th of November, 1956, at about 7. 45 p. m. and in the course of house breaking committed an offence under Section 307 by firing a gun at the crowd and injuring Hari Shanker on his neck.

( 4 ) THE Sessions Judge had acquitted Kamlesh Hari of all the charges, but he convicted Kunwar singh under Sections 411, 457 read with Section 34 I. P. C. and sentenced him to various terms of imprisonments. He convicted Suresh under Sections 302, 411, 457 read with Section 34 I. P. C. and 19 (f), Arms Act, and sentenced him to death under Section 302 I. P. C. and to various other terms under the other sections.

( 5 ) THE State filed an appeal No. 1576 of 1958 against the acquittal of Kamlesh Hari which was heard by us. Appeals were also filed by Kunwar Singh and Suresh against their conviction. The appeals filed by Suresh and Kunwar Singh were dismissed, but as regards the Government appeal there was difference of opinion between both of us. My brother, Beg, J. was of opinion that the appeal against the acquittal of Kunwar Singh under Section 302 should be allowed and he should be sentenced to imprisonment for life, but the government appeal directed against the acquittal of Kamlesh Hari should be dismissed in toto. I was of opinion that the government appeals against Kunwar Singh and Kamlesh Hari both should be allowed and I found both of them guilty under Sections 120b read with 390 and 120b read with 302 I. P. C. and was of opinion that they should be sentenced to imprisonment for life under both the counts in addition to the sentence already imposed on Kunwar Singh by the trial court.

( 6 ) THERE being a difference of opinion that) matter was referred to a third Judge, Hon. V. Bhar-gava, J. who was of the opinion that the appeal as against both Kamlesh Hari as well as kunwar Singh should he dismissed. After his opinion the matter was laid again before us on 16-1-1959, and we passsed the following order:

"in accordance with the opinion of the Third Judge, we dismiss Government appeal No. 1576/58 and maintain the order passed by the trial court so far as the accused respondents Kamlesh Hari and Kunwar. Singh are concerned. "

Against the order of acquittal this application has been filed for leave to appeal to the Supreme court.

( 7 ) ON behalf of the appellant several points have been argued some of which may have been of some importance and there may have been a possibility of certifying this case as a fit one for. appeal to the Supreme Court had it been a case of conviction. Specially it was argued that since there has been a difference of opinion on some of the questions of

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