Conspiracy and the actual commission of the offence are two separate and distinct transactions, and the admissibility of statements under Section 27, Evidence Act is crucial in determining guilt.

Staples, A J C—This appeal and Criminal Appeals Nos. 263 (Sheikh Karim v. Emperor), 264 (Muhim Khan v. Emperor), 267 (Papa Miya v. Emperor), 305 (Ambadas Govind Kesale v. Emperor), and 306 (Kesheo Sitaram Joshi v. Emperor) of 1931 are from the convictions and sentences passed by Mr. Rodrick, Magistrate, First Class, Balaghat, exercising powers under Section 30, Criminal P. C., in Criminal Case No. 13 of 1931. The appeals were heard together, and this judgment will govern all. The eight appellants were prosecuted under Sections 395, 397, 120-B and 109, I. P. C. They have all been found guilty under Section 120-B (1), I. P. C., whilst Ambadas Govind Kesale, Kesheo Sitaram Joshi, Bal Mukund Huddar, Haribhau Laxman Sadhoo and Papa Miya have been found guilty under Sections 395 and 397 and no decision was given as regards the charge under Sections 395 and 397, read with Section 109, I. P. C., as regards Mt. Mantora.

2. The facts of the case have been stated in the Magistrate's judgment and may be briefly recapitulated. On the night of 25th December 1930 about 8 p. m. a dacoity was committed at the house of Sarwanlal malguzar of mouza Yerwaghat in the Balaghat District. A motor-car containing several persons drove up to his house, shots were fired, he was directed to give up the keys of his safe and he and one Maroti Lohar were wounded. Owing to the firing the other inmates of the house and the villagers kept aloof. The dacoits broke open the safe, took a quantity of gold and silver ornaments, two guns and three spears and decamped in their motor. A report was made the same night, or early the following morning, at the police station-house at Katangi and investigation followed. Subsequently the investigation was handed over to the C. I. D., Nagpur. From information received it appeared that a party of men had left Nagpur on Wednesday the 24th or Thursday the 25th by motor. They were seen at Paraswada tank on the road between Tumsar and Katangi about 4-43 p. m. on the 25th. They were also seen on the morning of the 25th on the same road near the forest chowki, not far from Paraswada, about 10 a. m.; and again in the afternoon about 5 p. m. they were seen by two boys on the kachcha road, leading from the chowki to Yerwaghat. On the return journey the car was again seen and some of its occupants identified at the Soor river, which is crossed by the road between Tumsar and Bhandara.

3. I would here note that for convenience I will refer to the first four appellants as Kesale, Joshi, Huddar and Haribhau. The car, which was seized and was produced in Court in evidence, admittedly belongs to Kesale, who was a taxi-driver in Balaghat, and for the last year or two has been living with Joshi at Nagpur and at Chichbhuwan, a few miles outside Nagpur, without any fixed occupation. There is evidence that just before last Christmas, Kesale and Joshi were living at Kesale's house at Chichbhuwan and that they were joined there by Huddar, Haribhau and Papa Miya. There is further evidence that the car containing all these five persons left on ''Wednesday or Thursday, i. e., on 24th or 25th December, and returned on the morning of Friday the 26th. Information against these persons was received at an early date and they were all arrested early in January. The other three appellants Sheikh Karim, Muhim Khan and Mantora, were arrested shortly afterwards as having taken part in the dacoity.

4. The fact of the dacoity has been established by the direct evidence of Sarwanlal malguzar (P.W. 59) and other witnesses for the prosecution as well as by the recovery of the ornaments, guns and spears that were stolen. It is also clearly established by the prosecution that the dacoity was committed by persons who came in a motor-car and left again in the car after committing the dacoity. The only question then to be determined is how far the prosecution evidence proves that the dacoity was committed by the appellants or some of them. (The learned Judge then disc