( 1 ) APPELLANT Amin and his mother Shrimati Shakira have been convicted under Sections 302, 364 and 379,. P. Code by the Additional Sessions Judge, Sitapur. They were also found guilty under Section 201,. P. Code, but the trial court relying upon a decision of the Supreme Court did not consider it desirable to sentence them under this offence. Each of them has been sentenced to death under Section 302,. P. Code, to ten years rigorous imprisonment under section 364,. P. Code and to three years rigorous imprisonment under Section 379,. P. Code. The trial court had charged them with these offences directly as well as constructively by applying Section 34 of the Indian Penal Code, but in the judgment it held them to be directly liable. The charge against the two appellants was that on the evening of the 11-6-1956, they kidnapped Kumari Nabbo aged about 8 years to their house in village Imalia, police station mahmudabad, District Sitapur and thereafter murdering her and robbing her of the ornaments which she was wearing, they tried to screen themselves from, legal punishment by secretly throwing her dead body in the Lakhpera grove, which was more than a mile away at dead of night after wrapping it in a gunny bag. The usual reference for the confirmation of the death sentences passed against the two appellants is also before us.

( 2 ) WE may straightway observe that the trial court should have charged the two appellants under section 394,. P. Code and not under Section 379,. P. Code. Where violence is used for committing theft, it becomes robbery and the two appellants on the findings of the trial court were clearly guilty of an offence under Section 394,. P. Code. This, however, has not occasioned any injustice in this case, for both the appellants were convicted under Section 302,. P. Code. We therefore, proceed to narrate the prosecution story.

( 3 ) THE prosecution case is that Imalia is a big village about two miles away from police station mahmudabad. It is mostly inhabited by Pathans, and one of them Ahmad Yar Khan was employed in the Secretariat at Lucknow. Ahmad Yar Khans wife Shrimati Shahida (P. W. 2) and his eight year old daughter Nabbo as well as his other relations, however, resided at Imalia. The appellants were also related to this family and Shrimati Shakira appellant was an aunt of shrimati Shahida. The two appellants also resided in Imalia, Shakiras husband Sadiq Ali was in the tobacco business and he also cultivated some land of Shrimati Ruqqan, an ex-Zamindaria. About two years before the incident Sadiq Ali relinquished this land and six months before this incident, he along with his family members migrated to Patehpur in Barabanki district some 12 miles away. The appellants were in straightened circumstances and occasionally their relations helped them. About a year before the incident, Shahida gave her Karas to Shakira when she wanted a loan. Similarly P. W. 12 Hatim Ali, who was the son-in-law of Shakira used to give her money occasionally. About six days before the incident Amin came back to his house at Imalia and wanted a loan from Shahida, but Shahida told him that she cannot give any more money. Then on the morning of the date of the incident Shakira herself came to Imalia and approached shahida as well as Hatim Ali praying for a loan, but both of them expressed their inability to advance anything. It was in this background that the crime was committed.

( 4 ) ACCORDING to the prosecution Kumari Nabbo went out of her house to play outside at about 3 p. m. , on the 11-6-1956. She was wearing a black jumper, Pyjama of Chhint of a particular design and a ready-made Choti was attached to her hair and it was tied up with an imita-tion lachha. She was also wearing ornaments and had eight silver Lachhas of Imarti design on her feet, six silver Chooris of Motichur design on her wrists, four Balis of silver in each ear and a small gold nose pin in her nose. Shortly afterwards there was some rain and sh