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1. These two appeals have been preferred against the judgment of conviction and order of sentence passed by trial Court convicting appellants under Sections 460/34 and 397/34, I.P.C. Apart from the said conviction, appellants have been further convicted under Sections 323/34, I.P.C. Both the appellants have been sentenced to 7 years rigorous imprisonment under Sections 460/34, I.P.C. as well as under Sections 397/34, I.P.C. Apart from these sentences, both the appellants have been sentenced for one year R.I. under Sections 323/34, I.P.C.

7. The trial Court on the basis of evidence found that accused-Bhagwandeen did not commit any offence, as a result of which he was acquitted from all the charges. Present appellants were also acquitted under Section 307, however they have been convicted under Sections 460/34, 397/34, 323/34, I.P.C. and have been directed to undergo the sentence which I have mentioned herein-above. Hence this appeal.

8. According to learned counsel for appellants, accused-Mahendra who had died during investigation disclosed that present appellants left him outside the house on motor cycle. Admittedly, since he had died there was no occasion to conduct a joint trial of present appellants along with deceased-accused-Mahendra and, therefore, the confession made by deceased-accused-Mahendra would be a relevant fact under Section 30 of Evidence Act only when more persons than one are being tried jointly for the same offence, and a confession made by one of such person affecting himself and some other of such person is proved. Since de-ceased-accused-Mahendra was not tried as he died during investigation any confession made by him is of no use since he was not jointly tried and, therefore, Section 30 of the Evidence Act is having no applicability in the present case, The further contention of learned counsel is that under Section 460, I.P.C., a person could be held to be guilty only when the said person had actually committed the lurking house trespass or house breaking in night. Since it is prosecution's own case is that present appellants did not commit lurking house trespass and they simply accompanied the deceased-accused and were standing outside the house, therefore they cannot be convicted under Section 460, I.P.C. As the prosecution's own case is that appellants were standing outside the house of complainant and, therefore, they cannot be held to be guilty of the offence under Section 397, I.P.C. It has been putforth by learned counsel that the recovery which has been shown from present appellants is not worth reliable. In support of their contentions, learned counsels have placed reliance on following decisions :

13. Since the case of prosecution is that present appellants have not actually committed the lurking house trespass, therefore Section 460, I.P.C. has no applicability so far the present appellants are concerned. On going through Section 460, I.P.C., it is clear that before holding a person to be guilty under this section, it is to be proved that he committed lurking house trespass. Since the case of prosecution is that present appellants did not enter the house and they only accompanied and left deceased-accused-Mahendra at the house of complainant-Dr. Mahendra, according to me, present appellants cannot be convicted under Section 460, I.P.C. The decision of Faiz Baksh (1947 (48) Cri LJ 269) (Lah) (supra) in that regard throw sufficient light on the point.

14. Before holding a person to be guilty of offence under Section 460, I.P.C., the prosecution must prove :--

(i) that the accused committed lurking house trespass by night; or house breaking by night;
(ii) that he caused, or attempted to cause, death or grievous hurt;
(iii) that he did above whilst engaged in committing lurking house trespass by night or house breaking by night.

On the aforesaid analysis of section, we can say that this section applies to those persons who have actually committed lurking house trespass at night and not to those who may have accompanied their associates but did not commit the offence, Indeed, it applies to actual doers, and not the others.