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.

2. In brief the case of prosecution is that in the locality of civil line of Panna, Dr. Hemant Sinha and Dr. Veena Sinha are having a hospital-cum-residential building. In the night of 28-6-2001 (2.30 a.m.) P.D.S. Bundela Station Officer In-charge was patrolling in the city, at that juncture he heard the hue and cry coming from the house of Dr. Hemant Sinha, as a result of which he entered in the house to enquire the matter, where Dehati Nalishi (Ex. P-7) was lodged by Dr. Hemant Sinha that he heard some whisper, as a result of which he woke up and noticed that some person is inside his house, he was under impression that person may be his son Tanmay, and therefore he called by naming him and when he did not respond, he went to his room and found that he was sleeping. The light of open courtyard was on and when he inspected the open courtyard, he found one lattice to be broken. He further noticed that one person having a katta in his hand was standing nearby the bunglow of one judicial officer and when he tried to catch him, he after brandishing the Katta jumped over the wall and fled. At that juncture, one person having beard came out from his worship room, he was having one box in his one hand and in another hand he was holding a Katta, On seeing Dr. Hemant, he ran towards the wall and threw the box and when he tried to climb the wall, Dr. Hemant caught hold his leg. On hearing his hue and cry, his wife Veena Sinha, son Tanmay, daughter Kanu Priya and servant Lakhan ran towards the said intruder. The said intruder shouted that no one should come otherwise they may face dire consequences, thereafter he fired the Katta, as a result of which complainant sustained injury on his left shoulder. Anyhow the said miscreant was overpowered by his son, daughter and other persons, thereafter Dr. Hemant directed his wife to find out what articles have been stolen. In the meantime, his son on telephone, informed certain persons about the incident. The miscreant who was caught, on being asked, stated his name to be Mahendra Shrivas and the person who fled, was said to be Bhagwandeen. Intruder Mahendra further stated that two persons, namely, Dhirendra Verma and Badri Prajapati (appellants) accompanied Bhagwandeen on a motor cycle and dropped him near the house of complainant. In the Dehati Nalishi report, he gave the details of the articles which were stolen.

3. On the basis of Dehati Nalishi, a case was registered and investigation was initiated. During the investigation, Investigating Officer seized a country made pistol as well as two cartridges from accused-Mahendra. Other tools to commit robbery were also seized from him. Accused-Mahendra was arrested from spot and he was sent for medical examination since he received certain injuries. On 28-6-2001 appellants were arrested and at their instance certain stolen articles were recovered.

4. During the investigation, the prime accused-Mahendra died and charge-sheet was submitted against present appellants as well as against Bhagwandeen. The committal Court committed the case to the Court of Session and from where it was received by trial Court for trial,

5. The trial Court on going through charge-sheet framed charges punishable under Sections 460/34, 307/34, 397/34 and 323/34, I.P.C. All the accused persons abjured their guilt. Apart from these charges, co-accused-Bhagwandeen was further charged under Sections 398, I.P.C. and 25/27 of Arms Act. All the accused persons abjured their guilt and pleaded complete innocence.

6. In order to prove charges, the prosecution examined 14 witnesses and placed Exs. P-1 to P-33 the documents on record. The defence of accused persons is of false implication, but, they did not choose to examine any witness in their defence.

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 :

(i) Kalpanath Rai v. State (through CBI), AIR 1998 SC 201 : (1998 Cri LJ 369);

(ii) Shri Phool Kumar v. Delhi Administration., AIR 1975 SC 905 : (1975 Cri LJ 778);

(iii) Asstt. Collector of Customs, New Delhi v. Harbans Lal Sharaf, 1980 Cri LJ 618 (Delhi);

(iv) Jaynal Mir v. State of West Bengal, 1987 (3) Crimes 540 (Cal);

(v) Faiz Baksh v. Emperor, AIR 1947 Lah 188 : (48 Cri LJ 269).

9. On the other hand, Shri Ajay Tamrakar, learned counsel appearing for the State argued in support of impugned judgment.

10. It is no more in dispute that the prime accused-Mahendra who was caught at (sic) the spot and who made confession, roping the present appellants, died during the investigation and for this reason he was not tried. Thus, it is to be seen that what would be the value of confession which he made in police custody indulging and implicating himself in the crime and roping present appellants. The evidentiary value of such a confession has been envisaged under Section 30 of the Evidence Act which reads thus :

30. Consideration of proved confession affecting person making it and others jointly under-trial for same offence.-- When more persons than one are being tried jointly for the same offence, and a confession made by one of such persons affecting himself and some other of such persons is proved, the Court may take into consideration such confession as against such other person as well as against the person who makes such confession."

On going through the above said section, it is luminously clear that inter alia the aid of this section can be taken against the other co-accused persons only when accused who -had made the confession affecting himself and other accused person is jointly tried. The Illustration (a) to this section is as clear like a noon day which reads thus :--

(a) A and B are jointly tried for the murder of C. It is proved that A said -- "B and I murdered C." The Court may consider the effect of this confession as against B."

11. Before a statement by one of the accused person can be taken into consideration against the other accused the following conditions must be fulfilled ;--

(i) There must be joint trial for the same offence;

(ii) it must be a confession;

(iii) the confession of guilt must affect himself and others, i.e. implicate the maker substantially to the same extent as the other accused;

(iv) the confession of guilt must be duly proved.

The applicability of this section must be applied with great caution and with due care. Indeed, this section should be construed very strictly. I have already enumerated the essential conditions for the applicability to this section herein above. According to me, all the conditions should exist at one time and if any of the condition is missing in a case, this section had no applicability and the accused cannot be roped. One of the essential condition to this section is the person making the confession must face a joint trial, however, if the said person who is dead and had never been brought to trial, his confession is not at all admissible.

12. Thus, the confession of accused-Mahendra implicating and affecting himself in the crime and roping other accused persons can be taken into consideration only if there is a joint trial. Since there was no joint trial nor there could be any joint trial along with accused-Mahendra because he died during investigation, Section 30 of the Evidence Act is not applicable and it is not at all helpful to the prosecution and present appellants cannot be roped and held responsible under any of the offence on the basis of said confession made by deceased-accused-Mahendra. In this context, the decisions of Kalpanath Rai (1998 Cri LJ 369) (supra); Jaynal Mir (1987 (3) Crimes 540) (Cal) (supra) and Harbans Lal Sharaf (1980 Cri LJ 618) (Delhi) (supra) are quite relevant.

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.

15. In view of above, the conviction of present appellants under Sections 460/34, 397/34 and 323/34, I.P.C. is hereby set aside and they are acquitted from these charges.

16. Yet there is another facet of the case. The contention of learned counsel for appellants is that evidence in regard to alleged stolen articles which were said to have been recovered from appellants is not worth reliable. The said submission is found to be devoid of any substance. On the basis of discovery of fact by appellants, the stolen articles were seized from their possession. I have gone through, the seizure memo as well as the memorandum under Section 27 of the Evidence Act and I do not find any infirmity in it. These documents are proved by cogent evidence. The articles which were seized at the instance of appellants from their possession were identified by complainant vide identification memos Exs. P-10 and P-11. These articles were correctly identified by Dr. Hemant Sinha and Dr. Veena Sinha.

17. Since the stolen articles were recovered from the present appellants, and there is evidence that they were knowing that the articles are stolen property therefore they are held to be guilty of the offence under Section 411, I.P.C. and accordingly they are directed to suffer rigorous imprisonment of three years R.I. each with fine of Rs. 1,000/- each, in default, they shall further undergo rigorous imprisonment of six months each.

18. These two appeals are accordingly partly allowed.