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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.