JUDGMENT D.N. Roy, J. - These are two appeals, the one by Kallu and the other by Maiku Lal, who have been convicted by the learned Additional Sessions Judge of Kanpur of offences under Secs. 302/34, 394 and 449, I.P.C. Each of them has been sentenced to death under Sec. 302/34 and to other terms of imprisonment under the other two counts. These two persons have appealed. Along with the appeal there is the usual reference by the learned Additional Sessions Judge for the confirmation of their death sentences. 2. The two appellants along with two others, Bankey Lal and Udho had been prosecuted for committing house trespass in the house of Mohan Lal Panda in Bangali Mohal in the city of Kanpur on the 22nd of Oct. 1958 at about 6 P.M. with a view to commit an offence of the murder of Mohan Lal; for committing robbery at his house and also for committing the murder of Mohan Lal by cutting his throat. The learned Additional Sessions Judge gave Bankey Lal the benefit of doubt and acquitted him. He held that Udho had been falsely implicated and acquitted him. Maiku Lal and Kallu have been convicted and sentenced in the manner stated above. Kallu appellant is a resident of village Jamaluddinpur in the district of Unnao. Maiku Lal appellant was originally a resident of Pakkapur in district Farrukhabad, but he later on went to reside in village Haiderabad in district Unnao. Udho lived in Bengali Mohal in the city of Kanpur within close proximity of the house of the deceased. He and the deceased had been Gangaputras and they carried on the profession of Pandas. Amongst the Pandas of Kanpur, there are two rival factions and these two persons belonged to opposite camps. Bankey Lal was a resident of village Danapur in district Hardoi. 3. Briefly stated the prosecution story was as follows : The deceased Mohan Lal who was aged about 70 or 75 years was a rich man. He lived in house No. 35|93 in Mohalla Bengali Mohal along with his brother-in-law Bramha Narain, Bramha Narain's wife, Bramha Narain's widowed sister and Bramha Narain's sister's son Bachchu Lal. The house has a gate and in that gate there is a window. It was described by the witness as a Khirki which provides a narrow passage about 1 cubits in width fitted with shutters and latch. The house has a gate and in that gate there is a window. It was described by the witness as a Khirki which provides a narrow passage about 1 cubits in width fitted with shutters and latch. On the day of the occurrence, namely, on the 17th October 1958 all the inmates of the house left the house at about 5 P.M. to witness the Dashehra fair held on the parade ground in Kanpur leaving Mohan Lal at the house. It is said that Mohan Lal chained the gate and also the Khirki from inside when the persons aforesaid departed from the house to see the Mela. Bramha Narain returned to the house shortly after 6 P.M. with a view to light up the "chirag" before the family deity leaving the other members of the house on the Mela ground. Bramha Narain found the Khirki open. He went upstairs, entered into the Dehri adjoining the staircase and found Mohan Lal dead on the ground in a pool of blood with his throat cut. He raised shouts. There were three miscreants inside the house and they ran out; one of them had a blood-stained knife in his hand, another had a Jhola and the third was probably empty-handed. The person who was empty-handed gave Bramha Narain a push and all the three escaped. Bramha Narain was able to see the miscreants in the light of a lantern that was burning in the Dehri where Mohan Lal was found dead. Bramha Narain followed the miscreants and the shouts that were raised by him attracted the people who were nearby who also joined in the chase. It was said that Kallu appellant who was the last in the race amongst the miscreants was given a lathi hit by Premi (P.W. 18) and he was secured by him as also by Suraj Prasad, Subedar Singh and others who were in the chase. A Jhola was recovered from him containing 8 silver Lachchhas, a silver Kardhani, currency notes of the value of Rs. 198/-, certain quantity of coins of small denomination, a new Sari, a used Angauchha and certain other petty articles. Two of the men who had owed were said to have gone with cash and ornaments worth about Rs. A Jhola was recovered from him containing 8 silver Lachchhas, a silver Kardhani, currency notes of the value of Rs. 198/-, certain quantity of coins of small denomination, a new Sari, a used Angauchha and certain other petty articles. Two of the men who had owed were said to have gone with cash and ornaments worth about Rs. 1,000/- It was further said that Sub-Inspector Babu Ram of police station Chauki Gills Bazar was on duty and he also arrived at the place a few minutes after the arrest of Kallu. Kallu was taken to the Kotwali by Bramha Narain and others and by the Sub-Inspector, where a report was lodged by Bramha Narain on the same evening at 6-40 P.M. In that first information report it was stated that on that date between 3-4 P.M. Bramha Narain had seen the three miscreants, stated above, at the house of Udho Panda talking to him thereby suggesting that Udho was also in league with the three others in the commission of this crime. 4. The medical evidence proved that Mohan Lal had a lone injury which was an incised wound on the neck. The wound was too deep and it had cut the vertebra, trachea and the oesophagus. Death, according to the doctor who had conducted the post mortem examination, was due to the aforesaid injury. The doctor was further of the opinion that the injury denoted that the deceased was caused to lie down at rest and then his throat was cut and that the chance of such an injury having been given in the course of a scuffle can be eliminated because there were no marks of scuffle on the body. 5. In order to determine the guilt of the two appellants and also of the two others, namely, Bankey Lal and Udho who have been acquitted the prosecution examined certain witnesses to establish. (a) that Ram Chandar (PAY. 5. In order to determine the guilt of the two appellants and also of the two others, namely, Bankey Lal and Udho who have been acquitted the prosecution examined certain witnesses to establish. (a) that Ram Chandar (PAY. 23) had taken Kallu and Maiku accused in his rickshaw from the Bus-Station Collectorganj at Kanpur to Sarsaiyaghat on the 2nd of October at 9-50 a.m. in order to establish that these two outsiders came to Kanpur together on that date: (b) That prosecution witness Bram-ha Narain had seen all the four accused conversing together in the Baithak of Udho accused at 3 or 4 P.M. on that date, indicating thereby that they were hatching up a plot: (c) that Mukat Behari (P.W. 20) and Chiranji Lal (P.W. 21), residents of Bengali Mohal, saw Udho loitering in the lane in front of the house of 5.30 or 5-40 P.M.; (d) that Shyama Charan (P.w. 22) had seen Udho coming out of the Khirki fitted to the gate of the deceased at about 5 or 5-30 P.M. on the date, (e) that Kallu and Maiku accused had purchased half a seer of sweetmeat from the shop of Bhagwan Das (P.W. 9) on that date at 5 or 5-15 P.M., - the same sweetmeat having been found in a niche in the Dehri where the dead body lay; (f) that Bramha Narain prosecution witness distinctly saw Kann, Maiku and Bankey Lal in the light provided by the lantern which was burning in the Dehri and that prosecution witness Suraj Prasad saw them emerging out of the wicket fitted to the gate of Mohan Lal when an alarm was raised by Bramha Narain; (g) that Kallu was arrested red-handed at a distance of 15 or 20 paces from the house of the deceased after a lathi blow had been given to him by Premi (P.W. 18) and he was found with the Jhola Ex. 7 containing part of the stolen property. 6. The learned Additional Sessions Judge did not believe the evidence against Udho accused. He came to the conclusion that that evidence did not disclose that Udho had any connection with the other three accused. 7 containing part of the stolen property. 6. The learned Additional Sessions Judge did not believe the evidence against Udho accused. He came to the conclusion that that evidence did not disclose that Udho had any connection with the other three accused. He further came to the conclusion that Udho was a well-to-do person and had no motive whatsoever to join hands with the other three; that it was highly improbable that a conspiracy to rob and murder Mohan Lal could have been hatched in a room adjacent to the road and open to public gaze; that Shyama Charan and Mukat Behari and Chiranji Lal, prosecution witnesses, who contended that they saw Udho loitering in that lane, were set witnesses of the police and that Udho had been roped in because some time back a case under Sec. 107, Cr. P.C. had been initiated by Udho against various persons inclusive of one Sada Shiv, father-in-law of Munnu, nephew of prosecution witness Bramha Narain. 7. As regards Sankey Lal accused there was the evidence of identification by Bhagwan Das, Bramha Narain and Suraj Prasad. The learned Judge found it difficult to rely upon that evidence on three-fold grounds. Firstly, this accused was not alleged to have gone to the shop of Bhagwan Das when sweetmeats were purchased. Bhagwan Das claimed that he saw this accused at a later stage fleeing away. That evidence, even if believed, could have given him only a fleeting glimpse of this accused which would not have been enough to make the recognition of his features possible. Secondly, Suraj Prasad witness could not be implicitly relied upon when he said that he saw the accused fleeing. Thirdly, the way in which this accused had been dealt with by the police after his arrest made it highly probable that he was shown to the witnesses at the Kotwali on the 15th of November 1958 after he was taken from police station Collectorganj to the court. The court building was two miles off from the police station and the constables who had escorted him took more than four hours to cover that distance by rickshaw. It may be noted here that it was this accused who was said to have held a blood-stained knife in his hand at the time of his escape. 8. The court building was two miles off from the police station and the constables who had escorted him took more than four hours to cover that distance by rickshaw. It may be noted here that it was this accused who was said to have held a blood-stained knife in his hand at the time of his escape. 8. After having given in brief the reasons which led the learned Additional Sessions Judge in discarding the prosecution case against two of the accused, we proceed to examine the evidence against the two appellants in order to see whether the charges against them can be held to have been proved beyond all doubt. The evidence of Ram Chandar rickshaw-puller (P.W. 23) to prove association of Kallu and Maiku appellants on the day of occurrence is not free from reasonable doubt and may be discarded. Ram Chandar said that on the day in question at about 8 or 9 a.m. he took these two persons on his rickshaw from Collectorganj Bus Station to Sarsaiyaghat in Kanpur. He was not acquainted with them. He gave no description of them to the police when he was interrogated. He could not give any account of any other person whom he had taken on his rickshaw on that date. Likewise the evidence of Bhagwan Das (P.W. 19) which is of doubtful character may be discarded. Bhagwan Das at first contended that two persons (Maiku Lal and Kallu) came to his shop at 5 or 5-15 p.m. and purchased sweetmeat worth Re. 1/- that he was not acquainted with them and that on the same evening at 6 p.m. he saw two persons (Maiku Lal and Bankey Lal) running away. It may be pointed out that the prosecution contended that the same sweetmeat had been recovered from a niche of the room where Mohan Lal's dead body lay. In his statement Ex. Kha-2 before the police Bhagwan Das gave a version which indicated that each of the two persons purchased sweets worth Re. 1/-. Moreover sweets do not lend themselves to identification; and it is not claimed in this case that the sweets found in the room had any distinctive character to mark them as sweets of the shop of Bhagwan Das. 9. 1/-. Moreover sweets do not lend themselves to identification; and it is not claimed in this case that the sweets found in the room had any distinctive character to mark them as sweets of the shop of Bhagwan Das. 9. Bramha Narain (P.W. 3), his wife, his Sister and his sister's son Bachchu Lal had left the house at about 5 P.M. to see the Dashehra fair. Mohan Lal remained in the house. When these persons departed for the Mela, Mohan Lal chained the main gate together with the wicket or Khirki from inside. Bramha Narain returned home at about 6 P.M., that is, after sunset in order to light 'chirag' kept before the family deity. He found the wicket or Khirki open. He went up to fetch a match box. After emerging out of the staircase, he stepped into the Dehri adjoining the staircase and found Mohan Lal's dead body lying in a pool of blood. He was aghast and he raised shouts. Three persons came out from inside the northern room and tried to escape. One was holding a Jhola, another a blood-stained knife, and the third, who was empty-handed, gave him a push. The three escaped through the wicket-gate or Khirki. Bramha Narain, no doubt, saw the three miscreants in the light, but he could only have a fleeting glimpse of them. He chased them and attracted the passers by. Premi (P.W. 18) gave a lathi hit to Kallu. Kallu fell down and was apprehended between Jhanda-ka-Chabutra and the road with the Jhola containing the Lachchhas, the Kardhani and the Sari and certain other articles together with the currency notes and cash belonging to the deceased. Suraj Prasad (P.W. 12) and certain other persons aided Premi in apprehending Kallu. Kallu was taken to the Kotwali with the recovered articles when the first information report was lodged there at 6-40 P.M. The recovered articles were proved to belong to the deceased. Kallu admitted his apprehension. He, however, contended that the recovered articles did not belong to the deceased. Kallu was taken to the Kotwali with the recovered articles when the first information report was lodged there at 6-40 P.M. The recovered articles were proved to belong to the deceased. Kallu admitted his apprehension. He, however, contended that the recovered articles did not belong to the deceased. His plea was that the lachchhas, the Kardhani and the Sari belonged to Aunindra Kumar Singh of village Jamaluddinpur and that the cash and other articles belonged to himself; that Aunindra Kumar Singh had given the Sari and the ornaments to him to be made over to one Bhukhan Singh, his relation at Kanpur and when he was going to hand them over to Bhukhan Singh he was arrested by the police. He produced Aunindra Kumar Singh in support of his defence. Aunindra Kumar Singh is a friend of this accused. His contention was that the silver ornaments and the Sari belonged to Bhukhan Singh's brother's wife who lives at Kanpur; that they were left at his place some 40 dayi earlier when that lady came to his house in a ceremony and that he had sent them on the Dashehra day through Kallu accused to be handed over to that lady. Aunindra Kumar Singh's statement was not corroborated. Bhukhan Singh was not produced; nor was Bhukhan Singh's brother's wife produced to say that the articles belonged to her. The best evidence on that point would have been the evidence of Bhukhan Singh and Bhukhan Singh's brother's wife; and that evidence was withheld. The defence set up by Kallu was, therefore, in the circumstances of the case, false. The evidence against Kallu, which we have noticed above, conclusively proved that he along with two others committed lurking house-trespass by night, or house breaking by night, that those persons committed robbery and during the commission of that offence one or the other of them caused the death of Mohan Lal. The three miscreants were noticed inside the house by Bramha Narain. One of them who managed to escape and whose identity was not conclusively established held the blood-stained knife by which Mohan Lal was put to death in his hand. Mohan Lal had a lone injury on his neck. The reasonable inference would be that it was that man who escaped who had put the knife on the neck of Mohan Lal. Mohan Lal had a lone injury on his neck. The reasonable inference would be that it was that man who escaped who had put the knife on the neck of Mohan Lal. That, however, would be a matter of inference only because there was no actual eye. - Witness to the commission of the murder. Kallu's participation in the crime cannot, therefore, be doubted. And, as we have already said, he tried to escape from the house along with two of his confederates. He held part of the booty in his hand and was caught after having been given a chase just outside the house of the deceased. 10. Maiku Lal's participation in this crime is however, open to some doubt. We have already discarded the evidence of Ram Chander rickshaw-pulller and the evidence of Bhagwan Das, the sweetmeat vendor, against him. He was not arrested at the spot. Bramha Narain and Suraj Prasad no doubt stated that Maiku was amongst the three miscreants and he was seen fleeing from the house of the deceased. They must have had only a fleeting glimpse of a running man. They, no doubt, identified Maiku Lal, when the identification proceedings were held at the Kanpur Jail on the 18th December, 1958, correctly without making any mistake. It may be pointed out that these two witnesses had also identified Bankey Lal who was acquitted. It may also be pointed out that Premi witness, who had raised his lathi against the persons who were running away and who is said to have given a hit to Maiku Lal as well, failed to identify Maiku Lal at the identification proceedings. The identification evidence loses much of its character and importance when we come to notice how Maiku Lal was arrested and how he was dealt with after his arrest. Maiku Lal, as we have already said, is a resident of village Haiderabad in district Unnao. On the 26th of October 1958, Second Officer, Sri Chandra Shekhar Mani (P.W. 25) of police station Kotwali went to Haiderabad which lay within police circle Auras in district Unnao. He had with him constable Ram Singh of Kanpur and he took up constable Bishambhar Dayal (P.W. 5) of police station Auras with a view to arrest the accused Maiku. There is no evidence on the record to show whether there was any warrant of arrest against Maiku. He had with him constable Ram Singh of Kanpur and he took up constable Bishambhar Dayal (P.W. 5) of police station Auras with a view to arrest the accused Maiku. There is no evidence on the record to show whether there was any warrant of arrest against Maiku. It is said that Maiku was arrested in village Haiderabad on that very day at 10 or 11 a.m. Bishambhar Dayal (P.W. 5) said that he was arrested by him as per instructions of Sub-Inspector Chandra Shekhar Mani of Kanpur. Bishambhar Dayal further stated that they brought Maiku Lal under Purda, presented him before the Sub-Inspector in village Haiderabad and he took him to police station Auras under Purda and kept him there. According to him, he started from Haiderabad at 12 or 12-30 in the day. The police station was six miles off and the river had to be crossed. He said that he reached the police station in the evening. The evidence is that they had reached there at 4-30 p.m. There was then the evidence of constable Mahadeo Singh (P.W. 6) of the Auras police station who said that Maiku accused had been put in the lockup under Purdah and that on the 27th of October 1958 he was sent under Purdah to Unnao Jail through Imamuddin and Ram Baksh constables, at 5-30 in the morning and the route adopted by them was from Auras to Rahimabad, a distance of 10 or 11 miles on foot and from there to Unnao on motor. There was no evidence on the record to show as to how he could have been sent to Unnao Jail without being presented before a Magistrate. Imamuddin constable (P. W. 7) who escorted Maiku said that he took him under Purda from the police station to Unnao Jail. He too did not say that this accused had been presented before any magistrate before being sent to jail. According to him, he took the accused up to the bridge of Saikal on foot and from there went to Unnao on motor. He made it clear in his statement that the bridge of Saikal is not on the way leading to Rahimabad and that Rahimabad and the bridge of Saikal were on two different sides. The bridge of Saikal is about 10 miles from the police station and there is no bus service between the two. He made it clear in his statement that the bridge of Saikal is not on the way leading to Rahimabad and that Rahimabad and the bridge of Saikal were on two different sides. The bridge of Saikal is about 10 miles from the police station and there is no bus service between the two. Rahimabad according to him, was also 10 miles from the police station. The evidence of Imamuddin read with the evidence of Mahadeo Singh, Head Constable, makes it extremely doubtful as to how this accused had been dealt with after his arrest. Irshad Ali (P.W. 8) was the person who on the 28th of October 1958 took Maiku Lal accused under Purdah from Unnao Jail to Kanpur Jail and got him admitted there. They entrained at Unnao station at 10-30 a.m. and they must have taken about half an hour or so to reach Kanpur which is at a distance of only 12 or 13 miles from Unnao. Irshad Ali, no doubt, refuted the suggestion put to him in cross-examination that he took Maiku Lal to the Kotwali for being shown to the witnesses. We have it in evidence of Bramha Narain (P.W. 3) that he was called to the Kotwali and had been informed that the miscreants had been arrested and that he would have to identify them. In this connection we may briefly refer to the statement of Sri Chandra Shekhar Mani (P.W. 25) as well. We have already noticed that he had gone from Kanpur to Haiderabad with a view to effect the arrest of Maiku Lal. He had contacted the police at Auras within which jurisdiction Haiderabad lay. After the arrest of Maiku Lal, the natural course of conduct should have been that Maiku Lal should have been brought down to Kanpur direct, specially when Chandra Shekhar Mani admitted that on the 27th of October 1958 in the evening he returned to Kanpur. No explanation was sought from or offered by Sri Chandra Shekhar Mani as to why, in the circumstances stated above, it was thought necessary to send away Maiku Lal to Unnao Jail from police station Auras. Under the circumstances, an inference may legitimately be drawn that after Maiku Lal's arrest he was not properly dealt with and that the possibility of his having been shown over to the witnesses before the identification proceedings were held cannot be excluded. Under the circumstances, an inference may legitimately be drawn that after Maiku Lal's arrest he was not properly dealt with and that the possibility of his having been shown over to the witnesses before the identification proceedings were held cannot be excluded. No incriminating or stolen article was recovered from the possession of Maiku Lal. Under these circumstances, the evidence of identification of two witnesses against Maiku Lal cannot be safely relied upon and Maiku Lal would be entitled to an acquittal. 11. There remains now the question as to what offence was made out against Kallu appellant. Kaifu has been convicted under Sec. 302|34 (murder) , Sec. 394, I.P.C. (voluntarily causing hurt in committing robbery) and Sec. 449, I. P. C. (house-trespass in order to commit an offence punishable with death). Learned counsel appearing for Kallu strongly urged that Sec. 302|34, I. P. C. could not be applied to Kallu on the proved circumstances of the case, nor were Secs. 394 and 449, I. P. C. appropriate to the case and that Kallu could only have been convicted under Sec. 460 of the I. P. C. Kallu and the two others who trespassed into the house of the deceased at night entered there with the purpose of committing robbery. Their object could not have been initially to kill Mohan Lal. It was during the commission of the robbery that one or the other of them had caused the death of Mohan Lal. They committed lurking house-trespass by night or house breaking by night. At the time of the commission of that offence one of them voluntarily caused the death of Mohan Lal. Under Sec. 460, I.P.C. every person jointly concerned in committing such lurking house-trespass by night, or house breaking by night shall be punished with imprisonment for life or with imprisonment of either description for a term which may extend to ten years. Sec. 460 deals with the constructive liability of the persons jointly concerned in making lurking house-trespass by night, or house breaking by night, in the course of which death or grievous hurt to anyone is caused. It is immaterial who causes the death or grievous hurt. Every person jointly concerned in committing such house-trespass or house breaking shall therefore be punished in the manner provided in this section. It is immaterial who causes the death or grievous hurt. Every person jointly concerned in committing such house-trespass or house breaking shall therefore be punished in the manner provided in this section. As was pointed out by the Madras High Court in re Singaram Sec. 460 can be invoked only if, from the evidence, it is clearly possible to conclude that before the commission of the lurking house-trespass by night, or house breaking by night, the offenders did not have a common intention of committing anything other than the above mentioned offences and that if during the course of the commission of such an offence one of the persons causes death or grievous hurt to any person, then only, every person jointly concerned in committing lurking house-trespass by night or house breaking by night shall be guilty of an offence under Sec. 460, I. P. C. That exactly is the case here and we are of opinion that Kallu should have been convicted under Sec. 460, I. P. C. alone. 12. The question remains whether we can alter the conviction of Kallu from Sec. 302|34, Sec. 394 and Sec. 449, I. P. C. to one under Sec. 460, I. P. C. Learned counsel conceded that having regard to what had been observed by the Supreme Court in Willie (William) Slaney v. State of Madhya Pradesh, A.I.R. 1956 S.C. 116 the validity of such a procedure could not be doubted and that it would be open to the Court to alter the conviction and sentence. The charges that were levelled against Kallu gave him the clearest indication of the elements required to be proved under Sec. 460 of the I.P.C. The evidence on the record supported also the elements of that section. Under the circumstances, we are of opinion that no prejudice would be caused to Kallu, a fact which is also conceded by learned counsel appearing for Kallu, if the conviction is altered to one under Sec. 460, I.P.C. In the result, the appeal of Maiku is allowed, and he is acquitted of all the charges that were levelled against him. He should be set at liberty at once unless wanted in any other matter. The appeal of Kallu is allowed to this extent that while setting aside his conviction and sentences under Secs. He should be set at liberty at once unless wanted in any other matter. The appeal of Kallu is allowed to this extent that while setting aside his conviction and sentences under Secs. 302|34, 394 and 449, I.P.C., we alter his conviction to Sec. 460, I. P. C. alone under which we sentence him to undergo imprisonment for life. 13. The reference made by the learned Sessions Judge for the confirmation of the death sentences of Kallu and Maiku Lal is rejected. 14. There is, a revision by Bramha Narain directed against Udho Prasad and Bankey Lal in which it is prayed that the order of acquittal of Udho Prasad and Bankey Lal be set aside and they be dealt with in accordance with law. Apart from the legality of such an application, we are of opinion that the evidence that was led by the prosecution against Udho and Bankey Lal did not clearly establish that they were associated in this crime. Consequently this revision petition is rejected.