Desai, J

[1] This is an appeal by the state against a judgment of the Sessions Judge of Banda acquitting the respondents of the offence of Section 396, I. P. C. It was alleged that they in the company of six or seven others committed, a dacoity on the evening of 10-7-1950 on the road from Baberu to Kamasin at a place about two miles from Baberu and robbed police constable Phool Singh of police station Baberu of the Government gun and cartridges which he was carrying and murdered him.

[2] On 10-7-1950 the chaukidar of village Satniyaon made a report at police station Baberu that there was a likelihood of a breach of the peace in his village. So the head constable deputed P. Cs. Phool Singh deceased and Hanif to go to Satniyaon at once. The deceased was given a Government gun and cartridges while Hanif carried his own gun. They went on cycles. They stayed in Satniyaon for some hours, found that everything was peaceful and at 4 or 4.15 P. M. left for Baberu. In order to go to Baberu one has to go from Satniyaon to village Gurauli Saphai, which is about two miles from Batniyaon and about five and a half miles from Baberu, on Baberu-Kamasin road. There is no road of any kind betw