Chamier, J.:— The appellants have been convicted by an Assistant Sessions Judge of an offence under section 457 of the Indian Penal Coda and have been sentenced to four years' rigorous imprisonment each. At the same trial Chhote alias Bhawani was convicted of the same offence and sentenced to six years' rigorous imprisonment. Chhote has not appealed. The two appellants in the first instance presented their appeals to the court of the Sessions Judge of Cawnpore. That officer forwarded the appeals to this Court on the ground that under section 408, proviso (b) of the Code of Criminal Procedure none of the convicts could appeal to the Court of Session. The question has been raised in more than one case of this kind whether an appeal against a sentence of imprisonment not exceeding four years lies to the High Court by reason of the fact that another person convicted at the same trial was sentenced to imprisonment for a term exceeding four years. Both Mr. Justice Tudball and Mr. Justice Piggott have held that in such a case as this all the appeals lie to the High Court. I am of the same opinion. This case is one which comes within the terms of proviso (b) to section 408 of the Code of Criminal Procedure. The fact that the person upon whom a sentence of imprisonment exceeding four years has been inflicted has not chosen to appeal does not affect the question. On the merits I have no doubt that the appellants Har Dayal and Muhammad Husain were rightly convicted. I have examined the evidence and I entirely agree with the Assistant Sessions Judge and the assessors that the two appellants were among the men who broke into the complainant's house on the night in question. Their appeals are dismissed.
Appeal dismissed.