Tiwari , Uma Shankar Rai, Vijay Bahadur Rai & Ors Vs. State of Bihar 
INSC 344 (25 March 1997)
MOHAN PUNCHHI, K.T. THOMAS
APPEAL NOS 1175-78 OF 1995 AND CRIMINAL APPEAL NO. 1873 OF 1996
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
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.
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.
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 went there presumably for reconnaissance and left. After evening meals when
he inmates of the house 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.
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.
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.
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.
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.
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.
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
dacoits did not share the intention with that person who committed murder.
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.
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.
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.
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
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.
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.
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.
counsel for the appellants pointed out from evidence that the only light been
available for PW-1 Sanfula 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.
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
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
Sri Ram Rai is no doubt the nephew of Sanfula Devi but she has not identified
him as one among the assailants.
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.
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.
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.