JUDGMENT

Thomas, CJ - Jagannath alias Khairati, Sri Ram and Jamil Khan have been convicted by the learned Sessions Judge of Lucknow under Section 392, Penal Code, for committing a robbery on the high way, and sentenced to six years' rigorous imprisonment each. The trial was by jury and the jury by a majority of 3 to 2 found all the accused guilty, and the learned Sessions Judge accepted that verdict. In this Court the three accused have been represented -by three different counsel. Jagannath has been represented by Mr. A.N. Mulla, Sri Ram by Mr. Bahadurji and Jamil Khan by Mr. Siraj Husain. I find from the record that Mr. A.N. Mulla represented the accused Sri Ram and Jagannath in the Court of Session and accused 3 Jamil Khan was represented by a different counsel, (Mr. Partab Narain Sexena). Lengthy arguments have been advanced by the learned Counsel before me to show that there has been a misdirection to the jury and therefore the trial is vitiated. Under Section 418(1), Criminal P.C., an appeal may lie on a matter of fact as well as a matter of law except where the trial was by jury, in which ease the appeal shall lie on a matter of law only.

2. The facts of the case are that on 25th March 1941, about 11 p.m. Ali Nawab and Kazim Ali were returning home from the Plaza cinema riding on one bicycle. Near the Deputy Commissioner's house in Hazratganj they saw an ekka standing. They went on their way and the ekka drove up behind them. It passed them near Moti Mahal and then stopped. They noticed there were four men in it including the driver. One of the men pulled out a pistol and threatened them saying that he would shoot them if they did not give up their property. He took from Kazim Ali Re. 1-2-3 and from Ali Nawab a ladies wrist watch and 3 pies. Then two other men got down from the ekka and one of them while getting down had a fall. The men who had robbed Kazim Ali and Ali Nawab told them to go away quietly otherwise they would be killed. The robbers went off in the ekka. Kazim Ali and Ali Nawab, who lived in the Chowk circle, went to the Chowk police station and Ali Nawab handed over a written report. The Station Officer Hazratganj within whose jurisdiction the offence was committed was informed of the case and he started the investigation.

3. The evidence shows that Sri Ram was arrested the next day about 6 p. m. He had some injuries on his person. The same evening, Bashir Beg, the ekka driver, made a statement to the police. In his evidence in Court Bashir Beg, P. W. 3, stated that he was at Aminabad when at about 10-45 p. m. three men got into his ekka and told him to drive to Hazratganj. He first drove them to Banarsi Bagh and when he got there one of the men fired a shot from his pistol. He remonstrated with him. When they got near the Allahabad Bank the man fired a second shot. When they got near the Deputy Commissioner's house the ekka was stopped. He saw two men going on one bicycle. He was then asked to drive quickly and when the ekka passed the cyclists he was asked to stop the ekka. One of the men jumped down from the ekka with a pistol in his hand and told the two men on the bicycle to stop. The other men also jumped down from the ekka and one of them while jumping fell down. The man with the pistol told the cyclists to hand over all the money they had. After they had handed over all the property they were told to quietly go away. The men again got into his ekka and ho drove them to Kaiserbagh gate where they stayed for a short time and then went on to Lai Bagh, to the Husainganj crossing and then to Latouche Road. The men got down there telling him to wait while they got their coats and said that after he had driven them to Chowk they would pay him. He waited for about an hour, but they did not return, so he went home. He further stated that the man who had fallen from the ekka received injuries on his knee. The next day about 4 p. m. he took his ekka to Bakabganj bridge where ho met the three men again going