JUDGMENT

Harries, J. - The appellants, Mathuri, Ram Bharose, Mt. Sunder, and Bishnu were, together with Sri Kishan, Suraj Prasad and Pyare Lal, tried by the learned Sessions Judge of the Farrukhabad district upon a number of charges. Mathuri and Ram Bharose were each charged with offences under Sections 302 and 457, I.P.C. Sri Kishen was charged with an offence u/s 460, I.P.C., whilst Mt. Sunder, Bishnu, Suraj Prasad and Pyare Lal were each charged with an offence u/s 411, I.P.C. All the accused were tried together upon these charges and eventually Sri Kishen, Suraj Prasad and Pyare Lal were found not guilty of the respective charges brought against them and acquitted. Mathuri and Ram Bharose were found not guilty of murder u/s 302, I.P.C., and were acquitted upon that charge, but they were convicted u/s 460, I.P.C., though they were not specifically charged with an offence under that section, the charges against them being under Sections 302 and 457, I. P. C , only. Mt. Sunder and Bishnu were each convicted u/s 411, I.P.C., Mathuri and Ram Bharose were each sentenced to transportation for life u/s 460, I.P.C., whereas Mt. Sunder and Bishnu were each sentenced to a term of two years' rigorous imprisonment u/s 411, I.P.C.

2. Against their respective convictions, each appellant has preferred an appeal to this Court and such is the subject-matter of Criminal Appeal No. 72 of 1935. On the other hand the Local Government being dissatisfied with the acquittal of Mathuri and Ram Bharose upon the charges u/s 302, I.P.C., and with the acquittal of Sri Kishen upon the charge u/s 460, I.P.C., have preferred an appeal to this Court alleging that these acquittals are against the weight of evidence and, therefore, illegal. Such is the subject-matter of Criminal Appeal No. 266 of 1935. Sri Kishen is not before the Court and is said to be absconding and consequently we are not concerned with his case in this judgment. However, it is convenient to dispose of the appeals of Mathuri, Ram Bharose, Mt. Sunder and Bishnu and of the Government appeal against the acquittal of Mathuri and Ram Bharose in one judgment and that is the course we propose to follow.

3. The charges against the appellants arose out of an occurrence which undoubtedly took place upon the night of 17th/18th May 1934 at the house of one Mt. Ram Devi in Mohalla Lohai in the city of Farrukhabad. On that night a burglary was committed at this house. during which ornaments and jewellery to the value of about Rs. 35,000 were stolen and the occupants of the house, viz., Mt. Ram Devi and a young boy Bhagwati Prasad were foully done to death. It is the case for the prosecution that Mathuri, Ram Bharose and Sri Kishen were concerned in this burglary and that eventually part of the stolen property was received by the appellants Mt. Sunder and Bishnu and others, hence the charge u/s 411 against them. The facts upon which the prosecution was based can be-shortly stated as follows; Mt. Ram Devi was a rich Marwari widow who lived in the second storey of a house in mohalla Lohai in Farrukahabad City. On the ground floor of this house were two shops, one occupied by a firm dealing in cloth and the other by a firm dealing in brass-ware and similar merchandise. Mt. Ram Devi was at this time disposing of her furniture and jewellery and it is said that on the day of this murder there was jewellery in her house to the value of about Rs. 35,000. Persons came from time to time to see this jewellery and it is said that Mathuri who was a goldsmith had been to the house on a number of occasions either to see the jewellery with a view to purchasing some of it or to advise Mt. Ram Devi as to its sale. Some time previous to the murder Mt. Ram Devi's two daughters named Mt. Bhagirathi and Mt. Gomti had come from Calcutta to stay with their mother, but eventually both left. Mt. Gomti however left her young son Bhagwati Prasad with his grandmother Mt. Ram Devi had only one servant, Maiku by name, but it is said th