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PETITIONER: KALIKA TIWARI , UMA SHANKAR RAI ,VIJAY BAHADUR RAI & OTHERS

       Vs.

RESPONDENT: STATE OF BIHAR

DATE OF JUDGMENT:       25/03/1997

BENCH: MADAN MOHAN PUNCHHI, K.T. THOMAS

ACT:

HEADNOTE:

JUDGMENT:                             WITH             CRIMINAL APPEAL NOS 1175-78 OF 1995                             AND               CRIMINAL APPEAL NO. 1873 OF 1996                       J U D G M E N T THOMAS. J.      For Sanfula  Devi -  a mother  of two  sons  and  three daughter the nightfall on 22nd December, 1987 was dreadfully catastrophic as dacoits exterminated her entire male progeny besides plundering  all her  valuable jewellery.  Those whom she named  as the  muraders included  her two  brothers  and nephews. Police after investigation charge-sheeted 14 person including those  kins of  Sanfula Devi for the murder of the sibblings Gauri  Shankar rai  and Keshav  Rai -  and another person (Hari  Narain )  who happened  to be  present in  her house then.  Sessions court convicted 12 of the caused under Section 396 and 120-B of the Indian penal code and sentenced them to  imprisonment for life. (some of them were convicted under Section  27 of the Arms Act also.) High Court of Patna while confirming the aforesaid conviction and sentence added Section 302  with the aid of Section 34 of Indian penal Code also while disposing of the appeals filed before it.      Sanfula  Devi   was  married  to  jag  Narain  who  was congenital imbecile.  Five Children  were born to her in the wedlock- two  sons (Gauri  Shankar and keshav Rai) and three daughters. The eldest son got married and the second son had only reached marriageable age during the time of occurrence. While  the   sons  were  in  their  infancy  Sanfula  Devi’s properties were  looked after  by her  brother A-4  Inderdeo Rai. But  when the  sons reached  age of  maturity the  were miffed with  their uncle over the manner he dealt with their properties. Eventually  the relationship became strained and led to  rancour. A few days prior to the occurrence Inderdeo Rai’s son  Rama Shanker  Rai. (A-1)  had an altercation with Gauri Shankar Rai.      Prosecution case,  in short,  is the  following: on the occurrence day, Hari Narain Visited Sanfula Devi’s house for mooting a  marriage proposal  for her second son Keshav Rai. Inderdeo Rai  went there  presumably for  reconnaissance and left. After  evening meals  when he  inmates  of  the  house

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retired for a rest the dacoits reached there armed with guns and other  lethal weapons.  Rama  Shanker  Rai  (A-1)  asked Sanfula Devi to surrender Key of the safe and after wangling the key the dacoits looted the case and jewellery. They then closed the  door of  the room from outside where the females were sitting  and went on a pillage during which they gunned down Gaury  Shakar Rai  and Keshav  Rai and also their guest Hari Narain. Therefore, they all left with the booty.      Trial court  convicted all except A-9 Jag Narain and A- 14 Radhamuni Pal, of the offences aforesaid. Those convicted persons filed  appeals in the High Court, while the State of Bihar filed  appeal against  their   acquittal under Section 302 IPC.  High court Disposed of all the appeals by a common judgment  confirming   the  conviction  and  sentence  under Sections 396  and 120-B  and additionally  convicting  those persons under  Section 302  red with  Section 34 of the IPC. However, no  substantial change  was made to the sentence as the High  Court directed  the sentence  of life imprisonment under Section  302 to  run concurrently  with  the  sentence imposed under Sections 396 and 120-B IPC.      All the aforesaid convicted persons, except A-8 Bahadur Pal, Have  come up  with appeals  before this Court. thus we are dealing  with the  convicting and  sentence passed on 11 accused. We heard all learned counsel at length.      Shri K.B.  Sinha, learned senior counsel who argued for some of  the appellants,  made an endeavour at the outset to shoe that the conviction under Section 302 read with Section 34 was bad as the common intention of the dacoits was not to murder any  of the  deceased. We pointed out the futility of the endeavour  to the learned counsel that if appellants are liable to  convicted under  Section 396  IPC it  is only  of academic utility  whether conviction  under Section 302 read with Section  34 should  have been  additionally  added.  We expressed to  learned senior  counsel that  on the  peculiar facts of  this  case  we  are  not  inclined  to  award  any sentences  less   than  imprisonment   for  life   to  those appellants whose  conviction for  the offence  under Section 396 is liable to be upheld by us.      Under Section  396, if  any one of the dacoits "commits murder in so committing dacoity" every one of the dacoits is liable  to   be  punished   either  with   either  death  or imprisonment for  life or  rigorous imprisonment  for a term which any  extend to 10 years. If dacoit in the progress of, and in  pursuance of,  the commission of a dacoity commits a murder, all  of his companions, who are participating in the commission of  the same  dacoity may be convicted under this section, although  they may  have no  participation  in  the murder beyond  the fat  of participation  in dacoity.  It is necessary that  the  murder  should  have  been  within  the contemplation of  all or  some of  them when the dacoity was planned. nor  in it necessary that they should have actually taken part  in, or  abetted, its commission. Indeed they may not have  been present  at the  scene of  murder, or may not have known  even that murder was going to be, or had in fact been, committed. But nonetheless they all will be liable for enhanced punishment,  provided a  person is in fact murdered by one  of the  members of  the gang  in commission  of  the dacoity.      It is  not necessary for the prosecution in such a case to  establish  either  any  common  intention  envisaged  in Section 34  or common  object contemplated in Section 149 of IPC. If  one of  the dacoits  committed  murder  during  the commission of  dacoity the  tentacles of  Section 396  would prance to  envelop all  the dacoits huddled within its penal circumference and then it would be immaterial that the other

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dacoits did  not share  the intention  with that  person who committed murder.      There is  no dispute that the house of Sanfula Devi was looted on  the said  night  nor  the  fact  that  the  three deceased were  murdered by  some of those who went to commit dacoity. Hence  the only  question which  the courts were to decide was  whether appellants  or any  one of them were not the participants in the dacoity.      We may point out that there is no use in this case with the evidence  regarding recovery of a large number of stolen articles. This is because neither the police office who made the recovery not any one who was present at the time of such recovery not  any one  who was  present at  the time of such recovery was  examined as a witness for the prosecution. The public Prosecutor who conducted the trial would have thought the  investigating officer who verified the records relating to recovery  of the  stolen articles  would be sufficient to prove such  recoveries. whatever be sufficient to prove such recoveries. Whatever  be  the  reason  which  dissuaded  the Public Prosecutor  to examine  any such  witness,  the  fact remains  that  prosecution  did  not  prove  the  factum  of recovery of  stolen articles  in the legal manner. Hence the evidence relating  to such recovery would only remain at pay as for the appellants in this case.      In appreciating  the contentions raised before us it is useful to  bear in mind that it is an admitted fact that A-4 Inderdeo Rai and A-10 Brij Nandan Rai are direct brothers of Sanfula  Devi.   Among   the   Remaining   appellants,   A-1 Ramashankar Rai, A-2 Gopaljee Rai, A-3 Shri Keshwar Rai, A-6 Uma Shankar  Rai, A-11  Mangal Rai  and A-12 Sri Ram Rai are direct nephew of Sanfula Devi. A-5 Vijay Bahadur alias Bikau Rai is closely related to A-4 Inderdeo Rai. Hence it was not difficult for  Sanfula Devi  and inmates  of  the  house  to identify those  appellants if  they had seen them during the occurrence.      Sanfula Devi  was examined as PW-1. It was she who gave first  information  statement  to  the  police  wherein  she mentioned the  names of  A-1 Ramashanker  Rai, A-2  Gopaljee Rai, A-3  Sri keshwar  Rai and A-5 Vijay Bahadur & Bikau Rai having armed  with guns  etc. She  mentioned those  names as persons who  gaterashed into  the female apartment where she was then.  She had  not gone  out of  the apartment till the dacoits left  the premises.  When the  moved out and went to the first floor She saw her son Gauri Shanker Rai Lying dead with his  hand tressed up and her other son Keshav Rai lying dead nearby besides the dead body of her guest Hari Narain.      PW-2 Parikha Pasi was factotum of the family of Sanfula Devi, mainly looking after cultivation of their agricultural lands. He  too was present when their agricultural lands. He too  was   present  when   the  occurrence  took  place.  He identified  A-1  Ramashanker  Rai,  A-2  Gopaljee  Rai,  A-3 Keshwar Rai, A-4 Inderdeo Rai, A-5 Vijay Bahadur @ Bikau Rai and  A-6   Uma  Shankar  Rai  in  the  trial  court  as  the participants in the occurrence.      PW-3 Jiut  Ram was  another employee  of the family who too  was   present  when   the  occurrence  took  place.  He identified A-2  Gopaljee Rai,  A-5 Vijay  Bahadur  Rai,  A-7 Kalika Tiwary,  A-10 Brij Nandan Rai and A-11 Mangala Rai as the assailants.      Evidence  of   the  above   three   witness   regarding identification of  the assailants  in court  was found to be reliable and  the trial  court as  well was  the High  Court fully acted on it.      Learned counsel  for the  appellants pointed  out  from evidence that the only light been available for PW-1 Sanfula

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Devi was  an earthen  lam burning  inside the  room. On that score he  contended that  the said  light was  to meagre  to identify the  participants  of  the  crime.  The  visibility capacity of  Urban people who are acclamatised to fluoresent lights or  incandescent lamps  is not  the  standard  to  be applied to  villagers whose  optical pontency  is attuned to country-made lamps.  Their visibility is conditioned to such lights and  hence it  would be  quite possible  for them  to identify men  and matters  in such light. A similar view has been adopted  by this  Court in  Machhi Singh and others vs. State of  Punjab (AIR  1983 SC  957). For that reason we are not impressed  by the  argument that  the light from earthen lamp would  not have  been sufficient  for those  witness to identify the assailants.      We have  therefore no difficulty in concurring with the finding of  the High  Court regarding the involvement of A-1 Ramashanker Rai,  A-2 Gopaljee Rai, A-3 Sri keshwar Rai, A-4 Inderdeo Rai  A-5 Vijay  Bahadur @ Bikau Rai. The conviction and sentence  passed by  the High  Court on those appellants would hence stand undisturbed.      But the  position regarding A-7 Kalika Tiwary, A-12 Sri Ram Rai and A-13 Maloo Pal Is different. The Presence of A-7 Kalika Tiwari was mentioned only by PW-3 Jiut Ram. None else and seen  him as  one of the dacoits. For PW-3 Jiut Ram, A-7 Kalika Tiwari was a total stranger who hailed from a distant village. No  Test Identification  parade was  conducted with Juit Ram. In these circumstances we are unable to uphold the finding that A-7 Kalika Tiwari was one among the dacoits.      A-12 Sri Ram Rai is no doubt the nephew of Sanfula Devi but she  has not identified him as one among the assailants. PW-7 Singhasani  Devi, who  was in  the neighbourhood of the place of  occurrence, deposed  that on hearing the commotion from the house where the occurrence took place she went near that place  and peeped  through a  window to  see  that  was happening. then she identified three dacoits, one among them was A-12 Sri ram Rai. But she did not mention anything about A-12  Sri   Ram  Rai   when  she   was  questioned   by  the investigating officer.  Her evidence is thus weakened by the aforesaid impairment  in her testimony. We therefore deem it unsafe to  uphold the conviction of A-12 Sri Ram Rai on that sole testimony.      A-13 Maloo Pal was not identified by any of the witness examined in  this case.  His conviction  was based solely on the covery  of stolen  articles. As we have already observed regarding the  futility of relying on the evidence regarding recovery, the  conviction of  A-13 Mallo  Pal also cannot be sustained.      In the result, we set aside the conviction and sentence of A-7  Kalika Tiwari,  A-12 Sri  Ram Rai and A-13 Maloo Pal and they  are acquitted. But appeals regarding the remaining appellants would stand dismissed.