1. Debi Din was arrested on the spot with three others, while his other companions fled away. The evidence of Nanhu has been rejected by the Judge, but the fact of his arrest cannot be doubted. His explanation of his presence is not probable. He is a previous convict. I have no doubt as to his having bean a member of the gang. I uphold his conviction and sentence, and dismiss his appeal.
2. The accused Mangli, Dina and Rup Singh have been convicted by an Assistant Sessions Judge under Section 402, I.P.C. and sentenced to four years rigorous imprisonment each. Along with Debi Din who was sentenced to six years, they have appealed to the High Court. Under Section 408(b), Criminal P.C., when in any case an Assistant Sessions Judge passes any sentence of imprisonment for a term exceeding four years or any sentence of transportation, the appeal lies to the High Court. The sentences passed on the first three accused do not exceed four years, but that on Debi Din does. The interpretation put on this section by several learned Judges of this High Court is that when one accused has been sentenced to more than four years, all other accused persons convicted at the same trial, have to appeal to the High Court even though they themselves have received smaller sentences, and that this is so even if the accused, who has got more than four years does not choose to appeal.
3. In the case of Har Dayal v. Emperor AIR 1915 All 356 Chamier, J., stated that this was the view held by Tudball and Piggot, JJ., in which he concurred. Since then the invariable practice of this Court has been to entertain such appeals.
4. Coming to the merits of the appeal, the case of these three accused is hardly distinguishable from that of Debi Din previously disposed of by me. All the four persons were arrested on the spot. Their companion, who fled away, were armed and put up a fight. The police had received previous information that men were about to collect for the purpose of committing a dacoity, went to the spot of which the clue had been supplied and found the accused there along with others who could mot be arrested. The accused are not residents of the neighbourhood and had ostensibly no other business to be there. Their conviction is proper. The sentences are not severe. I dismiss their appeal.