JUDGMENT

Sulaiman, J. - This is a criminal appeal by Yamin and Barkat from an order convicting them u/s 395 of the Indian Penal Code and sentencing them to 5 years' rigorous imprisonment each.

2. There can be no doubt that on the 24th of August 1923 a very serious and deplorable communal riot took place at Saharanpur. It is neither necessary to go into the history of that riot nor to give any details of it. The present appellants were charged with having been concerned in the looting of the shop of the complainant Rupchand. Rupchand's statement is that at about 3 or 4 o'clock on that afternoon he was at his shop when a great gathering of Muhammadans took place in the bazar. They were taking out their akharas. He says that he saw a crowed of 50 or 60 Muhammadans coming from the Halwai's quarter crying " Kafiron ko mar lo" When he saw them he naturally got frightened, locked his shop and went straight away to his home which is at some distance from the shop. He did not actually see his shop being broken into or looted. He remained at his house for 2 or 21/2 hours and then, when he heard that things had settled down, he went to his shop and discovered that it had been broken into and looted. There is absolutely no reason to doubt the evidence of Rupchand and I accept it in its entirety. It may, therefore, be taken for granted that Rupchand saw a large crowed of 50 or 60 Muhammadans shouting that non-Muhammadans should be beaten, and that it was on account of the fear to his person and property that he locked his shop and went away from it. If it were established that it was this crowd of 50 or 60 Muhammadans or any members of this gang who looted his shop I would have no hesitation in holding that the offence committed was one of robbery and not merely a theft in a dwelling house. In order that the offence of robbery be committed it is not necessary that fear should be caused to the owner of the house after the robbers have entered the house. If the robbers scared away the owner on account of the fear caused in his mind before they had been able to make an entry in his house the offence of robbery would be quite complete. On the other hand if Rupchand had been scared away by this crowed of 50 or 60 men but the gang which actually robbed his house was not this gang but was some other band then I would be compelled to hold that it was simply a case of theft in a dwelling house and not robbery. If the band which actually robbed the house was not the band which had caused fear in Rupchand's mind the act of this second band would hot amount to an offence of robbery but would merely amount to a theft in a dwelling house, because neither the theft was committed in the presence of Rupchand nor was any fear caused in his mind by the gang which looted the shop.

3. The only other evidence regarding the looting of Rupchand's shop is the statement of the prosecution witness Banu Mal. This witness owns a shop opposite that of Rupchand. His statement is that he was. sitting at his shop that afternoon and kept the door of his shop partly open in order to see what was happening outside and yet to be ready to close his shop in case he feared that the crowd were going to attack it. He says that he saw some 10 or 15 Muhammadans removing the shutters of Rupchand's shop and entering it and looting it. He was, however, unable to identify the men who actually looted the shop. It is unfortunate that Banu Mal was not asked the exact time when this looting took place. It is, therefore, not possible to say definitely that the 10 or 15 Muhammadans whom Banu Mal mentioned were out of the crowd of 50 or 60 men who were seen by Rup Chand. Nor is it possible to say that the looting took place within a few minutes of the departure of Rupchand. As there was a general commotion in the town of Saharanpur it is not impossible that there were several bands of rioters marching down the streets at various times and at different places. The evidence of Rup Chand and Banu Ma