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PETITIONER: BANWARI

       Vs.

RESPONDENT: STATE OF UTTAR PRADESH

DATE OF JUDGMENT: 14/02/1962

BENCH: DAYAL, RAGHUBAR BENCH: DAYAL, RAGHUBAR KAPUR, J.L. SARKAR, A.K.

CITATION:  1962 AIR 1198            1962 SCR  Supl. (3) 180

ACT: Criminal, Trial--Three commitment orders for three  offenses -Offenses tri able at one trial-Sessions Judge recording all evidence  in one trial-Legality of  trial--Charges-Power  of Sessions  Judge to substitute charges framed  by  Committing Magistrate-Murder-Common  Intention Indian Penal Code,  1860 (Act XLV of 1860), s. 34-Code of Criminal Procedure, 1898 (V of 1898), ss. 226, 234, 239, 537.

HEADNOTE: Banwari  armed with a gun and Ram Charan armed with  an  axe were  going together when they met Lakhan.  After some  talk Banwari  shot  at and killed Lakhan.   They  then  proceeded together  for  some distance when they met  Bhagwan.   After some talk Banwari shot at and killed Bhagwan.  Thereupon the villagers  started  pursuing them and they ran  and  Banwari shot  and  injured Narayan.  One report was  lodged  of  the three incidents and the police sent up three charge  sheets. The  Magistrate  made  three orders  of  commitment  framing charges  against the two appellants under s. 302  and  s.307 read with s. 34 Indian Penal Code respectively in respect of the first incident, under s. 302 read with s. 34 in  respect of  the second incident and under s. 307 read with s. 34  in respect  of the third incident.  The Sessions  judge  framed certain charges describing them as amended charges, under s. 302  read with s. 34 against both accused for the murder  of Lakhan,  under  s.  302 against Banwari for  the  murder  of Bhagwan and under s. 307, against Banwari for the  attempted murder  of Narayan.  He recorded the entire evidence in  one trial  and  by a common judgment convicted Banwari  and  Ram Charan  and sentenced the former to death and the latter  to imprisonment  for life.  The appellants contended  that  the trials  were  illegal  as  the  procedure  followed  by  the Sessions  judge was not warranted by law, that Ram  Charan’s conviction for the murder of Bhagwan and attempted murder of Narayan  was bad as he was not tried for those offenses  and that the conviction of Ram Charan with the aid of s. 34  was bad as he had no common intention with Banwari to commit any of the offenses. Held, that though the procedure of recording evidence in one trial  with  respect to offenses which were the  subject  of

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different  trials  was  unwarranted  the  trials  were   not vitiated 181 on  this account.  The procedural error ’Was  curable  under ss. 537 of the Code of Criminal Procedure. The  three offenses with which the appellants  were  charged were of the same kind and one joint trial of those  offenses was justifiable under s. 234 Code of Criminal Procedure.   A joint  trial of both the appellants for the  three  offenses each  of which was alleged to be committed by  them  jointly within  twelve months would have been justifiable under  ss. 231 and 239 of the Code.  Even if there were three committal orders the Sessions judge could try the accused at one trial if the provisions of ss. 234 to 239 permitted a joint trial. In  the present case the Sessions judge did not  purport  to consolidate the committal orders and try the accused at  one trial  though really that is what actually happened when  he recorded  evidence in one case only and presumably  examined the  accused also once.  The trial was not vitiated  by  any procedural  error nor had any prejudice been shown  to  have been caused to the appellants. Payare  Lal  v. The State of Punjab, (1962)  3  S.C.R.  328, referred to. Ram  Charan had been charged for all the offenses for  which be  was convicted.  The so-called amended charges framed  by the Sessions judge were really additional charges and not in substitution  of the charges framed by the Magistrate.   The Sessions judge had no power to drop any charges under  which the accused had been committed for trial ; he could frame  a charge, or add to or otherwise alter the charge as the  case may be where a person was committed for try without a charge or   with  an  imperfect  or  erroneous  charge.   But   the conviction  of  Ram Charan could not be sustained.   He  did nothing  in  any  of the three  incidents.   The  facts  and circumstances  of the case did not establish that he  had  a common intention with Banwarl to commit any of the offenses. There  was no allegation that he had enmity with any of  the victims  or  that there was any preconcert between  him  and Banwari From the fact that he was in the company of  Banwari all  along no inference of common intention could be  drawn. The question of his dissociating from Banwari did not  arise when  he  had not associated himself in the  first  instance with him.

JUDGMENT: CRIMINAL APPELLATE  JURISDICTION : Criminal Appeal No. 80 of 1961. Appeal  by special leave from the judgment and  order  dated December 8, 1960 of the Allahabad 182 High Court in Criminal Appeal No. 1517 of 1960 and  Referred No. 104 of 1960. A.S.  R.  Chari,  O. P. Rana and K.  K.  Sinha.  for  the appellants. G. C. Mathur and C. P. Lal, for the respondent. 1962.   February  14.   The  Judgment  of the  court   was delivered by RAGHUBAR DAYAL, J.-Banwari and Ram Charan appeal, by special leave,  against  the  order of  the  Allahabad  High  Court, dismissing  their appeal and confirming their conviction  by the 11 Additional Sessions Judge, Etawah.  Banwari was  con- victed  of the offenses under s. 302 Indian Penal  Code  for committing the murder of Lakhan Singh and Bhagwan Singh  and

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also  for  an offence under s. 307 Indian  Penal  Code,  for having  attempted to Commit the murder of Babu  Singh.   Ram Charan was convicted of the same three offenses read with s.34, Indian Penal Code. The  facts leading to the appeal are these, Banwari, a  Lodh by  caste,  and  Ram  Charan,  armed  with  a  gun  and  axe respectively, passed the field of Lakhan Singh, Lakhan Singh asked  Banwari  as to where he was going.   Banwari  replied that he was going for shooting birds.  Lakfian Singh  turned back.   Banwari  fired two shots at  Lakhan  Singh.   Lakhan Singh fell down and died. Banwari  and Ram Charan, thereafter,  proceeded  south-wards and  at  a  distance of about six  or  seven  furlongs,  met Bhagwan  Singh, who was grazing his cattle.   Bhagwan  Singh questioned  Banwari as to where he was going.  Banwari  said he  was  going to shoot crocodiles in  the  river.   Bhagwan Singh  said there were no crocodiles in the river and  asked Banwari to go back and look to his work.  When Bhagwan Singh turned towards south, Banwari fired a shot at him, Bhagwan  183 Singh  sat  down.  Banwari again fired a shot  at  him.   He further fired two more shots, Bhagwan Singh died. The  village people pursued the two appellants  and  Banwari fired  at  them.  He fired at Babu Singh,  but  hit  Narayan Singh. One report was lodged at the Police Station with respect  to these  incidents.  The police, after enquiry, sent up  three charge-sheets under a. 173, Code of Criminal Procedure.  The Magistrate  registered three cases, one with respect to  the murder  of Lakhan Singh, another with respect to the  murder of  Bhagwan Singh and the third with respect to the  offence under  s. 307 Indian Penal Code, for shooting at Babu  Singh and Naravan Singh.  Ultimately be committed both the accused for  trial  to  the Sessions Court in  each  of  the  cases. Sessions Trials Nos. 34, 37 and 38 of 1960 were  registered on the basis of those three committal orders. In the case with respect to the murder of Lakhan Singh,  the Magistrate  framed  one charge under a.  302,  Indian  Penal Code, against Banwari and another charge against Ram  Charan for  an offence under s. 302 read with s. 34,  Indian  Penal Code. In  the  proceedings with respect to the murder  of  Bhagwan Singh, he framed one charge against both the accused Banwari and Ram Charan, for an offence under s. 302 read with s. 34, Indian Penal Code. Lastly,  in the proceedings under s, 307, he again framed  a common charge against both the accused for an offence  under a. 307 read with s. 34 Indian Penal Code. At the commencement of the hearing of the Sessions Trial No. 34  of 1960 on July 18, 1960, on which date  presumably  the other two Sessions 184 Trials  were  also fixed for hearing; the  learned  Sessions Judge  framed  certain charges describing  them  as  amended charges.   In  Sessions Trial No. 34 of 1960,  he  framed  a charge  against Banwari and Ram Charan for an offence  under s. 302 read with s. 34 Indian Penal Code with respect to the murder  of Lakshan Singh.  In Sessions Trial No. 37 of  1960 be  framed  an amended charge against Banwari under  s.  302 Indian Penal Code, for his committing the murder of  Bhagwan Singh.   In  Sessions  Trial No. 38 of  1960  he  framed  an amended  charge against Banwari of an offence under  s.  307 Indian Penal Code, for having shot at Babu Singh and Narayan Singh  with  such  intention  and  knowledge  and  in   such circumstances that if by that act he had caused the death he

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would  have  been  guilty  of  murder.   He  read  over  and explained the amended charges to the accused. In  the  proceedings of the Court dated July  18,  1960  the learned Sessions Judge noted:               "The amended charge was read out in Court  and               explained   to  the  prisoner  (section   271,               Criminal   Procedure  Code)  who  pleads   not               guilty.               The S.T 37/60 and 38/60 are consolidated  with               the  case  and  evidence is  recorded  in  the               present  case (under section 234  Cr..  P.C.).               The L.D.G.C. opened his case and examined  the               following witnesses." The  learned  Sessions Judge opened his  judgment  with  the following observation:               "Three  Sessions trials Nos. 34, 37 and 38  of               1960,  in  which both Banwari and  Ram  Charan               figure as accused persons, were beard together               and  are being disposed of by on(,,  judgment.               Banwari  accused stands charged under  section               302 Indian Penal Code for having committed the               murders of Lakhan Singh               185               and  Bhagwan Singh and also under section  307               Indian  Penal Code for having made an  attempt               to kill Narayan Singh on 12th November,  1959,               in   village   Boorhadana,   police    station               Dibiapur.   He  along  with  Ram  Charan   has               further  been charged under section  302  read               with  34  and 307 read with 34 of  the  Indian               Penal Code for having in furtherance of  their               common  intention committed the above  murders               and made an attempt to kill Narayan Singh." In  his  order  at  the end  of  the  judgment  the  learned Additional Sessions Judge said:               "’Banwari   accused  is  found  guilty   under               section  302 of the Indian Penal Code for  the               murder  of Lakhan Singh and is  convicted  and               sentenced to death.  He is further found guil-               ty under section 302 of the Indian Penal  Code               for  the murder of Bhagwan Singh and  is  con-               victed  and sentenced to death for this  inci-               dent  also.  He shall be. hanged by  the  neck               till he be dead.               He  is further found guilty under section  307               of the Indian Penal Code and is convicted  and               sentenced to eight years R.I.               The  other accused Ram Charan is found  guilty               under  section 302 read with 34 of the  Indian               Penal Code for the murder of Lakhan Singh  and               is    Convicted   and   sentenced   to    life               imprisonment.   He  is  further  found  guilty               under  section 302 read with 34 of the  Indian               Penal Code for the murder of Bhagwan Singh and               is  convicted  and sentenced  to  life  impri-               sonment  on  this count also.  He  is  further               found guilty under section 307 read with 34 of               the  Indian  Penal Code and is  convicted  and               sentenced  to five years R. 1.  The  sentences               shall run concurrently.  He is in custody  and               shall be detained to serve out his sentences.               186               This judgment governs all the Sessions  Trials               Nos.  34,  37 and 38 of 60 and a  copy  of  it               shall be placed on the records of’S.T. Nos. 37

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             and 38 of .60 ." The  criminal  appeal filed by the appellants  in  the  High Court  perported  to be an appeal against the order  of  the Sessions Judge in Criminal Sessions Trial Nos. 34, 37 and 38 of  60  and the grounds taken in the appeal  were  that  the conviction was against the weight of evidence on the record, that  no  offence  was made out from  the  evidence  of  the prosecution witnesses and that the sentence was too severe. The  High  Court  considered the  case  proved  against  the appellants and dismissed their appeal. Mr.  Chari,  for  the appellants, has  urged  the  following points: (1)  Ram  Charan, appellant, was not tried for the  offenses of committing the murder of Bhagwan Singh and of  attempting to  murder  Babu  Singh and Narayan Singh,  as  the  learned Sessions  Judge  tried the appellants with respects  to  the offenses  mentioned in the amended charges which  were  read and  explained  by  him to the accused,  and  therefore  Ram Charan’s conviction for those two offenses was bad, (2)  The Sessions Judge conducted three separate  trials  on the  basis  of  the three commitment  orders,  but  recorded evidence in one case only i. e., in Sessions Trial No. 34 of 1960.  Such a procedure which in a way amounted to the amal- gamation  of  the three Sessions Trials into  one,  was  not warranted by the provision of the Code of Criminal Procedure and that this error in the mode of trial, being not  curable under is. 537 of the Code; vitiated it. (3)  If the trial be held to be valid, the 187 sentence of death on Banwari errs on the side of severity. (4)The  conviction  of Ram Charan is bad as  there  is  no evidence  on  the  record that  the  various  offenses  were committed by Banwari in furtherance of the common  intention of  both  Banwari  and Ram Charan.  In the  absence  of  any evidence  about previous concert and of Ram Charan’s  having any  motive to join in the commission of the  offenses,  the fact that Ram Charan was with Banwari at the time the  three offenses were committed is insufficient to convict him . Mr.  Matbur,  for  the State, has  urged  that  the  learned Sessions  Judge  framed amended charges in addition  to  the charges  framed by the Magistrate, that both the  appellants could  be  legally tried for the various  offence.%  in  one trial and that Ram Charan’s conviction is correct. The  first  question therefore to determine is  whether  the learned Sessions Judge framed amended charges in addition to the charges which had been framed by the Magistrate and  for the  trial  of  which  the  Magistrate.  had  committed  the appellants to the Court of Sessions, or he substituted those charges in the place of the ones prepared by the Magistrate. The  learned  Sessions Judge, in his judgment,  has  clearly said  in  the paragraphs quoted above, that  Banwari  ,stood charged for the three offenses simpliciter and also  jointly with  Ram  Charan for the three offenses read  with  s.  34, Indian Penal Code,.  This clearly indicates that he did  not contemplate the amended charges to be in substitution of the charges framed by the Magistrate.  This is also indicated by two further facts. The  learned Sessions Judge had no power, under the Code  of Criminal  Procedure,  to drop any charges  under  which  the accused  had  been  committed .for trial.   He  can  in  the exercise of the powers under 188 s.   226 of the Code of Criminal Procedure, frame a  charge, or  add to or otherwise alter the charge as the case may  be in  oases  where a person is committed for trial  without  a

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charge  or  with an imperfect or erroneous charge.   As  the Magistrate  had  not framed a charge under  s.  302,  Indian Penal  Code,  simpliciter,  with respect to  the  murder  of Bhagwan  Singh and a charge under s. 307,  simpliciter,  for attempting  to  murder  Babu Singh and  Narayan  Singh,  the learned  Sessions Judge thought it necessary to  frame  such charges against him and he did an.  Banwari was not  charged by the Magistrate under s. 302 read with s. 34, Indian Penal Code  for  the offence of committing the  murder  of  Lakhan Singh  and therefore the Sessions Judge prepared the  charge against both Banwari and Ram Charan with respect to such  an offence.   It  is  only this amended  charge  which  was  in reality  in  substitution  of  the  charge  framed  by   the Magistrate.   Or, it may be said, that this  amended  charge was the charge framed by the Magistrate, but amended by  the Sessions  Judge  by  adding the name of  Banwari  among  the persons  charged and altering the language as a  consequence of it. Lastly,  the  final  order of  the  learned  Sessions  Judge recorded conviction of Banwari for the offenses  simpliciter and of Ram Charan for those offenses read with s. 34, Indian Penal Code.  At that stage, there was no point in  recording the  conviction of Banwari with respect to the  charges  for the various offenses read with s. 34, Indian Penal Code.  It was’  however,  desirable that at the  commencement  of  the trial Banwari charged both for offenses simpliciter and  for offenses  read with s. 34, Indian Penal Code, to  avoid  any contention in future in case he be convicted for an  offence with  which he was not actually charged, i. e. convicted  of an offence read with s. 34, Indian Penal Code when there was no such charge against him or be convic- 189 ted of an offence simpliciter there being no charge for that offence. We  are therefore of opinion that there is no force  in  the argument  that Ram Charan was convicted of an  offence  with which he was not charged and tried by the Sessions Judge. The   learned  Sessions  Judge  did  not  comply  with   the provisions  of  a.  271 of the Code  of  Criminal  Procedure inasmuch  as  he did not read over and explain  the  charges framed  by  the  Magistrate.  This  omission  on  his  part, however,  does not vitiate, the trial in view of s.  537  of the  Code  when  it  is not shown  that  any  prejudice  has resulted to the appellants on account of this omission. The  procedure  of recording evidence with  respect  to  the offenses which were the subject of different Sessions Trials in  the  proceedings  of one Sessions Trial  alone,  is  not certainly  warranted  by  the  provisions  of  the  Code  of Criminal  Procedure.   Every  separate  trial  must  proceed separately with result that every proceeding, including  the recording  of  evidence, in each trial should  be  separate. The  question,  however,  is whether  this  wrong  procedure adopted  by  the learned Sessions Judge,  has  vitiated  the trial,  irrespective of the fact whether prejudice has  been caused to the accused or not. It  is  contended for the State that  both  the  appellants, Banwari  and Ram Charan, could have been tried at one  trial for  the  offenses  they were charged with in  view  of  the provisions of as. 234 and 235 ofthe   Code  of   Criminal Procedure.  We are of opinionthat the provisions of a.  235 Cr.  P. C.would not have  justified  one  trial  for   these offenses.  We do not have the three charge sheets  submitted by  the  police to the Magistrate, but the fact  that  three charge-sheets  were submitted and that the  Magistrate  made three  commitment orders indicate that the  prosecution  did

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not come to Court with the allegation that three offenses 190 were  committed  in  the course  of  the  same  transaction. However, we agree that the provisions of ss. 234 and 239  of the  Code  of Criminal Procedure would  have  justified  the joint  trial  of the appellants for the offenses  they  were charged with and tried. Section 234 allows the trial of a person accused of three or less  number of offenses of the same kind  committed  within the  space of twelve months, and provides that  offenses  of the  same kind are those which are punishable with the  same amount  of punishment under the same section of  the  Indian Penal Code or of any special or local law.  The two offenses under s. 302 with respect to the murder of Lakhan Singh  and Bhagwan  Singh are punishable under the same section of  the Indian  Penal Code with the same amount of  punishment.   In view  of the proviso to s. 234, an offence of attempting  to commit an offence is of the same kind as that other offence. Thus, the offence under a. 307 Indian Penal Code, is of  the same  kind as the offence under s. 302.  The three  offenses of which the appellants were charged, therefore, are of  the same  kind  and  one joint trial  of  those  offenses  would therefore be justified under s. 234 of. the Code. Section  239 lays down the joinder of persons at  one  trial and  provides that persons accused of more than one  offence of  the same kind within the meaning of a. 234 committed  by them  jointly  within  a period of twelve  months  could  be charged  and tried together.  Therefore, the trial  of  both Banwari and Ram Charan for the aforesaid three offenses each of which was alleged to have been committed by them  jointly within twelve months, would have been justified. The  learned Sessions Judge did not, however purport to  try the  appellants  at one trial, As is clear from  the  record that  he proceeded with the three trials but  just  recorded evidence in only one. 191 It  has  been  urged that amalgamation  of  three  different Sessions  Cases  is not warranted by the provisions  of  the Code of Criminal Procedure.  The Code simply provides by as. 233  to  239 that ordinarily each distinct offence  must  be separately  tried except in cases covered by the  provisions of as. 234  235, 236 and 239.  It is clear that if  separate commitments  had been made of such distinct offenses,  which did not come within the exception to a. 233, they could  not be  tried at one trial by consolidating those  three  cases. But  this  does not mean that if there  had.  been  separate commitments  of  person who could be tried together  at  one trial,  or  of the same person for offences which  could  be tried together at one trial, the accused could not be  tried at  one  trial.  It often happens that, persons  accused  of committing  a particular offence or offenses jointly or  in the course of the same transaction are not put up for  trial at  the same time, usually for the reason that some of  them were not available.  They may be available later on and sub- sequently  committed for trial.  If no trial  has  proceeded with  respect  to  the first commitment by  that  time,  the Sessions Judge is not bound to have two separate trials, one with  respect to each commitment.  He can certainly try  all the  accused  at one trial and in that way  consolidate  the proceedings  on  the  two  committal  orders  in  one.   The committal  order just gives the Sessions  Court,  cognizance over  the  trial of the persons  committed.   The  committal order does not bind the Sessions Judge to try those  persons alone  at  one  trial,  who  have  been  committed  by   the particular  committal order.  The question of the  trial  of

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the various committed persons does not depend on the  number of committal orders, but on the provisions of as. 233 to 239 of  the  code.  If one trial can be  justified  under  those provisions  and  there is no prejudice to the  accused,  the Sessions  Judge  can  certainly  consolidate  the  committal orders in those cases and try the accused 192 at one trial.  He may, for the purpose of the trial, frame a fresh charge with appropriate counts against the accused, in substitution of the charges framed by the Magistrate in  the different  committal  proceedings If the persons  have  been committed  by  one  committal order alone  with  respect  to different offenses which could not be tried at one trial  in accordance  with these. sections, the joint trial  of  those persons  on those charges would be illegal.  This  makes  it clear that the validity of a joint trial before the Sessions Judge is dependent on the fact whether the provisions of the Code justify one joint trial or not.  We  therefore hold that though a Sessions Judge cannot  try at  one  trial persons committed under  different  committal orders  with respect to distinct offenses whose joint  trial is  not warranted by the provisions of ss.234 to 239 of  the Code, he is competent to try at one trial persons who can be tried  at one trial under the provisions of  those  sections even if there had been separate committal orders. In the present case, however, the learned Sessions Judge did not purport to consolidate the committal orders and try  the accused  jointly  at one trial, though really that  is  what actually happened when he recorded evidence in one case only and presumably he examined the accused also once.  He  heard the  arguments  once and he actually  delivered  one  common judgment in all the three Sessions Trials.  There  therefore does not really arise in the present case the question  that the  Sessions Judge wrongly amalgamated or consolidated  the three  Sessions Trials.  In the circumstances of  this  case the  trial is not vitiated by any procedural error  nor  has any prejudice been shown to have been caused in the  conduct of the trial or its result. We  have already said that the proceedings in each  separate trial should be separate and that on  193 that  basis  the procedure adopted by the  learned  Sessions Judge  was wrong.  The question for determination, then,  is whether his following the wrong procedure vitiates the trial and the conviction of the appellants or is curable under  s. 537 of the Code. We are of opinion that such a defect does not invalidate the trial in view of s. 537 of the Code. In. Payare Lal v. The State of Punjab (1) this Court said :               "In  regard to this section (s. 537),  it  was               said by the Pi-ivy Council in Pulukuri Kottoya               v.    King Emperor (L.  R. 74 1. A. 65), at p.               75,               ,"When  a  trial  is  conducted  in  a  manner               different  from  that proscribed by  the  Code               (,,is  in N. A. Subramania Iyer’s case, L.  R.               28  T.A.  257),  the  trial  is  bad,  and  no               question of curing an irregularity arises; but               if the trial is conducted substantially in the               manner  prescribed  by  the  Code,  but   some               irregularity  occurs  in the  course  of  such               conduct,  the irregularity can be cured  under               section 537, and none the less so because  the               irregularity  involves, as must Pearly  always               be  the case, a breach of one or more  of  the

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             very comprehensive provisions of the Code.’               It seems to us that the case falls within  the               first   category  mentioned  by   the   Pi,ivy               Council.   This is not a case of  irregularity               but want of competency." As  already  held,  the impugned procedure  adopted  by  the learned Sessions Judge in the, present case does not  relate to  the competency of the Court to try the various  offenses at one trial. (1) [1962] 3 S.C.R 328. 194 The  amendment  made in a. 537 of the Code by  the  Code  of Criminal Procedure (Amendment) Act, 1955 (Act XXVI of  1955) does  not in any way go in favour of the appellants  as  the result of the amendment is that the Scope, of s.537 is  made wider, covering cases of misjoinder of charges as well. We therefore hold that the trial of the appellants bad  been valid. Banwari  has  been sentenced to death under  s.  302  Indian Penal Code.  Mr. Chari urges that Banwari must have shot  at Lakhan Singh as a result of the latter giving provocation as alleged by Banwari in his statement as, otherwise, there was no  motive for his shooting at Lakhan Singh and that  there- fore  the lesser penalty for the offence of murder would  be the  proper  Sentence against him.  We do  not  agree.   The Courts   below   disbelieved  Banwari’s   version   of   the conversation  with Lakhan Singh.  Even if that  conversation be believed, we do not think that  should have provoked  him to such an extent that he should have fired at Lakhan  Singh not  only once, but also a second time.  There could  be  no justification  for  his firing at Bhagwan Singh who  is  not said  to  have given any provocation  even.   Banwari  fired several shots at Bhagwan Singh.  In the circumstances, we do not see any reason to consider the sentence of death to.  be unjustified and to reduce it. So  far as Ram Charan is concerned, we are of  opinion  that his  conviction cannot be sustained.  He did nothing at  Any of  the  three  incidents.  His conduct  in  remaining  with Banwari throughout cannot lead to any conclusion that he had common  intention with Banwari to shoot at Lakhan  Singh  or Bhagwan Singh or Babu Singh and Narain Singh, what to say of his  having  a common intention with Banwari to  commit  the murder of the first two. It  is not the case of the prosecution that Banwari and  Ram Charan had any enmity with any of 195 the victims or that they had prearranged between  themselves to  pick up any sort of conversation or quarrel with  Lakban Singh  or Bhagwan Singh and then to shoot at them.  All  the incidents happened by accident.  If Lakhan Singh and Bbagwan Singh  had not questioned Banwari, probably,  nothing  would have  happened.   They questioned him and  for  some  reason Banwari fired at them.  He might have considered that  their questions  to him as to where he was going was  an  indirect reference to his going armed and a sort of reflection on his possessing a gun. The  Courts lbeow imputed common intention to Ram Charan  on account   of  his  not  disassociating  himself   from   the activities  of Banwan.  The question of  disassociation  did not  arise when he had not associated himself in  the  first instance  with Banwari’s activities.  He was  probably  much bewildered  at  the conduct of Banwari  in  shooting  Lakhan Singh down as Lakhan Singh or any one else would have  been. After  the  shooting of Lakhan Singh both  Banwari  and  Ram Charan  are said to have just proceeded towards  the  south.

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It was after Bhagwan Singh had been shot dead that they took to  their  heels.  Ram Charan could not have  anticipated  a second incident with Bhagwan Singh.  There was no reason for their  prearranging  the  shooting of  Bhagawan  Singh,  Ram Charan’s  running away simultaneously with the running  away of  Banwari after the shooting of Bhagwan Singh  could  have been  motivated by the instinct of saving himself  from  the villagers who could have thought that he was a party to  the various incidents.  When Courts could consider his  presence in  that  light, the villagers could have thought  on  those lines much more easily.  His running away, therefore, is  no indication  of his guilty conscience.  It was the result  of his  anticipating popular reaction.  In  the  circumstances, his possessing an axe at the time was not for committing any violence against Lakhan Singh or the 196 other  victims.   He had it with him either as a  matter  of course  or for doing the work he might have been doing  that day.  We are therefore of the opinion that Ram Charan had no common  intention  with  Banwari in  his  acts  towards  the various victims of the incident and that he has been wrongly convicted. We  therefore  dismiss the appeal of Banwari and  allow  the appeal  of Ram Charan and acquit the latter of the  offenses he has been convicted of. Appeal partly allowed.