1. The four accused persons in this case were tried upon charges under Sections 457 and 380 of the Indian Penal Code and alternatively under Section 411 of the Indian Penal Code. They were tried by a Jury and the Jury having returned a verdict of not guilty, the learned Sessions Judge disagreed with that verdict and has referred the case to us under Section 307 of the Criminal Procedure Code. The accused have not appeared before us, but we have considered the evidence and there can be no question but that upon the evidence the accused were guilty at least of an offence under Section 411 of the Indian Penal Code. The evidence of prosecution 1st witness shows that he had bolted the doors of his house on the night in question and he was inside the room sleeping when apparently a thief or thieves entered the house by opening one of the doors from outside by making a hole in the door undoing the bolt and they removed a cavidi box and 4 bell-metal cups which were in that box. The box was found outside the village not very far off in a broken condition, all its contents having been removed. There is no direct evidence connecting any of these accused persons with the breaking into the house or the actual removal of the box and the bell-metal cups. But the properties were recovered soon afterwards in consequence of information which the Police received. Material object No. 1, which is an ornament and which is identified as belonging to P.W. No. 1, was given up by the 1st accused who is described as co-son-in-law of P.W. No. 1. He has stated that somebody else gave him the property. He has not examined the man nor has his possession of the property been otherwise accounted for. This was four days after the theft. Material object No. 2 was given up by the 2nd accused two days afterwards. He had buried it in a prickly pear bush near his house. Similarly material objects Nos. 3 and 4, which are bell-metal cups, were produced by the 3rd and 4th accused from the place where they had concealed them. These accused persons do not claim the properties as their own and we can find no satisfactory explanation given by them for their possession of them. Their suggestion seems to be that the properties have been foisted on them by the Police, but there is nothing upon the evidence which would warrant our accepting that suggestion. We think, therefore, that this is a case in which the accused have clearly committed an offence under Section 411 of the Indian Penal Code and that there should be a conviction under that section accordingly. But it appears from the record that there have been previous convictions against the 2nd and the 4th accused. The 2nd accused was asked before the Magistrate if he had been previously convicted for breaking the bars of a window of a rest house. The answer was 'yes,' and he admitted that he was sentenced to two years' rigorous imprisonment. But it appears that in the charge framed against him it is mentioned that he was previously imprisoned for a term of three years.
2. As regards the 4th accused he apparently had been previously convicted under Sections 395 and 75 of the Indian Penal Code, and sentenced to five years' rigorous imprisonment in the Vizagapatam Sessions Court. That does not appear to have been put to him, nor is there any evidence on record of the previous conviction. Before passing sentences, therefore, it is desirable and necessary that if there are previous convictions against the 2nd and 4th accused, they should be properly proved. We, therefore, direct the learned Sessions Judge of Vizagapatam to take evidence on the point and submit his finding to this Court.
3. This reference coming on this day for final hearing after the return of the report called for by the above order of this Court, and Counsel not appearing on behalf of the accused, upon perusing the letter of reference, dated 24th November 1915, Dist. No. 2781, and the record of the evidence and proceedings before the Court of Session and upon hearing the Public Prosecutor on behalf of the Government, the Court delivered the following.
4. The report of the learned Sessions Judge shows that the 2nd accused was convicted under Sections 380 and 7.5 of the Indian Penal Code and sentenced to six months' rigorous imprisonment and 30 stripes, and the 4th accused was convicted under Sections 395 and 75 and sentenced to three years' rigorous imprisonment. There was no conviction against 1st and 3rd accused. We sentence the 1st and 3rd accused under Section 411 of the Penal Code to six months each, the second accused to one year and 4th accused to two years' rigorous imprisonment under the same section.