Judgment Reuben, J. 1. This appeal is directed against a decision of the Sessions Judge of Monghyr accepting a unanimous verdict of the jury and convicting the appellants Bhutta Shah and Baso Shah under Sec. 460, Penal Code, and the appellant Baso Shah under Sec.380, Penal Code. Under the former section he has sentenced both the appellants to rigorous imprisonment for ten years. Under the latter section he has sentenced Baso Shah to rigorous imprisonment for one year, the sentence to run concurrently with the sentence under Sec. 460, 2. The prosecution case is that in the early hours of 23-2-1951, the two appellants entered into the house of Ghoghu Chamar (P. W. 1), a resident of Mirzapur in the jurisdiction of police station Teghra. The two men forced their way into a room, in which Ghoghu Chamars two daughters-in-law, namely Musammat Dahwa (P. W. 5) and Musammat Kalwa deceased were sleeping, by removing a tatti door by which the room was closed. After entering Baso Shah attempted to remove a hasuli from the neck of Kalwa. Kalwa caught hold of Basos dhoti and raised an alarm. Thereupon Bhutta stabbed her with a large knife and the two men ran away. Kalwa died soon after. 3. In addition to the two charges under which the appellants have been convicted Bhutta Shah was put on his trial under Sec.302. He was tried under this section by the Sessions Judge assisted by the five jurors acting as assessors. Differing from the unanimous opinion of the five assessors that Bhutta was guilty under Sec.302, the Sessions Judge has found him not guilty under that section and has acquitted him. 4. The only point which has been seriously urged before us by learned counsel is that there has been a misdirection in the case which has occasioned a failure of justice. Sec. 460 of the Indian Penal Code provides as follows : "If, at the time of the committing of lurking house-trespass by night or house-breaking by night, any person guilty of such offence shall voluntarily cause or attempt to cause death or grievous hurt to any person, every person jointly concerned in committing such lurking house-trespass by night or house-breaking by night, shall be punished with transportation for life, or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine." 5. To establish an offence under this section two things are necessary: firstly, that the person charged should have been committing lurking house-trespass by night or house-breaking by night along with some other person; and secondly, that while the person charged was So committing lurking house-trespass by night or house-breaking by night he or some other person committing such offence along with him voluntarily causes or attempts to cause death or grievous hurt to some other person. It is not necessary for a conviction under this section that the identity of the particular person who causes or attempts to cause death or grievous hurt should be established. It is pointed out that in the present case the charge that was framed against the appellants specifies the person who is said to have caused the death of Kalwa. The charge runs as follows : "That you, on or about the 22/23 day of February, 1951 at Mirzapur, P. S. Teghra, were jointly concerned in committing lurking house-trespass by night by entering into the building in the possession of Mostt. Kalwa and used as a human dwelling, that at the time of committing of such lurking house-trespass by night, one of you, namely, Bhutta Shah, voluntarily caused death of Mst. Kalwa and that both of you, thereby committed an offence punishable under Sec. 460 of the Indian Penal Code." In dealing with the charge, however, the Sessions Judge charged the jury as follows : "According to law, although it has been stated in this case by the prosecution that it was the accused Bhutta Shah who stabbed the woman, as they are said to have jointly entered into her room, both of them will be liable under Section 460, I. P. C. Even if from the evidence, you are not satisfied as to which of them, actually committed the offence, but if you find that she was stabbed by either of them, then in that case also both of them will be liable under this section." The contention is that whereas the charge that was framed was framed on the basis that Bhutta caused Kalwas death the Sessions Judge charged the jury on the basis that there was no such specification. 6. Reading the charge that was framed in the light of the definition of an offence under Sec. 460, I am not satisfied that there has been a misdirection. 6. Reading the charge that was framed in the light of the definition of an offence under Sec. 460, I am not satisfied that there has been a misdirection. I have indicated that for a conviction under Sec. 460, it is not necessary to ascertain the identity of the person who causes or attempts to cause death or grievous hurt. For the purposes of this case, therefore, it would have been sufficient if the charge had confined itself to stating that the two accused persons jointly committed lurking house-trespass by night and that while they were so committing the offence one of them caused the death of Kalwa. The charge was framed So as to bring in these two necessary elements of an offence under Sec. 460. But the Sessions Judge went further in order to make the charge more specific in accordance with the evidence adduced and, therefore, entered in the charge the detail that Bhutta Shah caused the death of Kalwa. A finding that this particular detailed charge was established, however, was not necessary to success of the charge against the appellants. Even if the charge failed in this particular, therefore, the accused persons would still be liable to be convicted under Sec. 460. There was thus no misdirection when the Sessions Judge directed the jury in the matter cited above. 7. Even if I take it that the charge must be read in a restricted sense, I do not think that the appellants are entitled to succeed. Reading the charge in this restricted sense it may be Said that there has been a misdirection to the jury. All that it comes to is that there is a defect in the charge and a consequent misdirection in the charge to the jury. Reading the charge in this restricted sense it may be Said that there has been a misdirection to the jury. All that it comes to is that there is a defect in the charge and a consequent misdirection in the charge to the jury. Sec. 537, Criminal P. C., provides that "Subject to the provisions hereinbefore contained no finding, sentence or order passed by a Court of competent jurisdiction shall be reversed or altered under Chapter 27 of the Code or on appeal or on revision on account of any error, omission or irregularity in the complaint, summons, warrant, charge or other proceedings before or during trial or in any inquiry or other proceedings under the Code, or of any misdirection in any charge to a jury unless such error, omission, irregularity or misdirection has in fact occasioned a failure of justice." In order to ascertain whether the error in the charge framed and the consequent misdirection to the jury has occasioned a failure of justice the appellate Court is entitled to look into the evidence. We have, therefore, looked at the evidence in this case. The main witness is naturally the girl Dahwa (P. W. 5), who is in fact the only witness to what occurred inside the room where she and Kalwa were sleeping that night. The next most important witness is her father-in-law whose account is that on hearing the alarm he woke up and saw the two appellants running out of his angan. On entering the room in which his daughters-in-law had been sleeping he found Kalwa stabbed and bleeding profusely and was told by Dahwa about the occurrence in the terms of which Dahwa has deposed to it in Court. Several other witnesses have deposed to the effect that they heard the alarm and recognised the two men running away. The first information report was lodged that very night by Ghoghu Chamar giving the prosecution story substantially in the same terms in which it was told in Court. The only discrepancy -- a discrepancy which was made the ground by the Sessions Judge for the acquittal of the appellant Bhutta on the charge under Sec.302 -- is that the first information report does not specify that Bhutta inflicted the injury which caused the death of Kalwa. The only discrepancy -- a discrepancy which was made the ground by the Sessions Judge for the acquittal of the appellant Bhutta on the charge under Sec.302 -- is that the first information report does not specify that Bhutta inflicted the injury which caused the death of Kalwa. The evidence of the witnesses to whom I have referred was placed very fairly before the jury by the Sessions Judge, with a strong comment as regards two of them that he did not think they ought to be believed. He also placed strongly before the jury facts bearing on the credibility of the evidence adduced, for instance, the improbability that in the house of a poor Chamar at a time when kerosene oil was scarce there would be a kerosene oil lantern burning in the room where the two women were sleeping. He also referred to the defence which was set up by the two appellants, namely, that on Ram Kishun Singh, who is a gotia of Shivadhari Singh (P. W. 9) and is Secretary of local school has purchased some land near the house of the two accused persons for the school and had threatened the two brothers because one of them, Bhutta Shah, would not depose in favour of the school with regard to this land. It is true that the defence is not set out at length in the heads of charge, but the case was a very short one and the defence made out must have been fresh in the minds of jury. What is important is the manner in which the Sessions Judge has dealt with that defect. There is admittedly no evidence in support of the defence story. All that we have on the record is a number of suggestions to different prosecution witnesses. The Judge very properly warned the jury that they must not come to a finding against the accused persons merely because the accused persons had failed to prove the defence set up by them and that the onus of proving the guilt of the accused persons was on the prosecution. He observes "Of course so far as the statement of the accused is concerned, there is no evidence that Ramkishun Singh has made the witnesses implicate them in this case. But On this account alone, you are not to find that the prosecution has proved its case. He observes "Of course so far as the statement of the accused is concerned, there is no evidence that Ramkishun Singh has made the witnesses implicate them in this case. But On this account alone, you are not to find that the prosecution has proved its case. I have given you sufficient warning on this aspect of the case. You are to judge the truth or otherwise of the prosecution evidence. Sometimes it so happens that on account of some dispute with some influential person of the village, persons are falsely implicated, and when it conies to evidence, the accused may not find it possible to prove the enmity." If in the light of this charge the jurors who had seen the witnesses deposing in the witness box accepted their evidence as establishing the prosecution case, this Court would not be justified in taking a different view as to the proper inference to be drawn from that evidence. From the opinion of the jurors expressed in their capacity of assessors, it is possible to take it that the jury accepted the prosecution story in its entirety, that is to say, they held the charge that was framed to have been established in its details. I do not wish to go upon this basis, however, as it may require the consideration of the question whether in view of the acquittal under Sec.302 it was open to the jury to come to such a finding. On the heads of charge as placed on the record we may proceed on the basis that the jury came to the conclusion that one of these two accused persons caused the death of Kalwa without coming to a definite finding as to which of them did so. I do not think that merely because the charge that was framed specified Bhutta as the person who caused Kalwas death it can be said that the accused persons have in any way been prejudiced in their defence. There is a further point arising out of the acquittal on the charge under Sec.302. I do not think that merely because the charge that was framed specified Bhutta as the person who caused Kalwas death it can be said that the accused persons have in any way been prejudiced in their defence. There is a further point arising out of the acquittal on the charge under Sec.302. It has been suggested that by reason of that acquittal the court is bound to take the view that Bhutta did not cause the death of Kalwa and, therefore, since the direct evidence on the point is that Bhutta caused her death and there is nothing to point at appellant Baso as having done so, there is no evidence on which the jury could have held that Baso killed Kalwa. Accepting for the sake of argument that the finding of the Sessions Judge on the charge under Sec.302 can be allowed to control in this manner the finding of facts on the other charge, the argument that has been put forward fails because there is no finding by the Sessions Judge that Bhutta did not cause the death of Kalwa. He has made it clear in his judgment that he was giving Bhutta the benefit of the doubt. What he held was merely that the prosecution had not proved the guilt of Bhutta. 8. For the reasons I have given I would dismiss the appeal. Misra, J. 9 I agree.