JUDGMENT
R.P. Gupta, J.
1. Two appellants have been convicted by 7th Additional Sessions Judge, Jabalpur, vide judgment dt. 12-4-1988 for having committed offence punishable under Sections 395, read with 397 and 396, Indian Penal Code. They have been sentenced to life imprisonment each for these offences.
2. The trial Court has found that these accused along with others (total 5 or more) on the night between 23rd and 24th June, 1986, at village Agariya, PS. Majhgawan distt. Jabalpur, committed dacoity in the house of Babulal. The decoits exploded Bombs in the house beat the inmates of the house including ladies and looted them of their cash, ornaments and utensils. When the neighbours came to help the inmates of the house, on their hue and cry, the decoits threw Bombs and one Bomb exploded at Chhedilal neighbour, who died as a result of this explosion and resultant injuries. The inmates of the house were Babulal, his wife Muliya Bai, his son Harilal (PW.1), Rammi Bai, wife of Harilal, Harilal’s sister in law (Mami), Nijjo Bai, daughter Urmila Bai; son, Dashrath, his wife Koshalya Bai (PW4) and other daughter-in-law Rambai (PW2) and Moujilal (PW. 11) another son of Babulal. The dacoits caused injuries to Babulal, Muliya Bai, Koshalya, Urmila. They looted ornaments of the ladies, utensils from these ladies and Rs. 2,000/- in cash apart from other articles. The trial Court found the identity of two appellants fully established, one of whom Munda was named in the FIR given by Heeralal, on the next morning, on the basis of identification, at the time of commission of offence, made by Koshalya Bai and Urmila Bai. Even a looted Katori was recovered from his possession at his instance. The other appellant Ram Sharan was also identified by one of the neighbour, Netram (PW. 10). The trial Court found that though the identity of other dacoits could not be established and they could not be arrested, yet they were more than 5 dacoits in all who participated in this dacoity. The identity of Munda and Ram Sharan was found to be fully established.
3. The main reliance of the trial Court is on the testimony of Heeralal (PW.1), who lodged FIR., Koshalya Bai (PW.4), Mouhjilal (PW.11), Netram (PW.10), S.I., V. K. Shukla the investigating officer (PW.16), who at the disclosure of Munda accused (Ex.P.4) on 1-7-1986 recovered looted Katori from the possession of Munda at his instance. Karodhi (PW.7) and Lotan Prasad (PW.8) had become hostile to the prosecution but they could not explain their signatures on the memorandum nor could explain their previous statement about disclosure and recovery at the instance of accused Munda, given to Police. There is also reliance on the testimony of Dr. N. A. Ansari (PW.3), who conducted autopsy on the body of deceased Chhedilal on 24-6- 1986. The injuries on his body were found to be result of Bomb explosion causing tatooing by the Gun powder. There was rupture of lever on 3 places. The death was found to be resultant from these blast injuries.
4. Although no one appeared to argue on behalf of the appellants, the point raised in the ground of appeal is that it was not established that there were 5 or more dacoits who participated in the loot or attack in the house on inmates of the house of Babulal. Not more than 3 persons had been mentioned by the inmates of the house and there was no indication by any witness if there were others also. So it could not be a case of dacoity and hence Sections 395 and 396, Indian Penal Code could not be attracted. Another point raised in the grounds of appeal was that there was no evidence that these appellants used any deadly weapon such as Bombs. No witness had stated that any of them threw any Bomb, so the assertion was that the liability of causing death of Chhedilal could not be fastened on the appellants. It was also asserted in the grounds of appeal that there was no sufficient or reliable evidence about the identity of appellants participation in the crime of looting the inmates of the house.
5. We have perused and scrutinized closely the evidence of the witnesses adduced by the prosecution as also the various documents and statements of accused persons. The FIR in this case was lodged on 24-6-1986 at 6 a.m. at Majhgawa Police Station by Hanlal (PW. 1). In this FIR he narrated that while the family members were sleeping in the house, his father Babulal called out at about 1 am. that some thieves were coming from the Chhani (thatched roof). At that time 3 persons jumped from the thatched roof into the courtyard and one of them threw a Bomb like article which exploded. He ran out, crying Chor-Chor. The villagers came and one of the thieves threw a Bomb towards them after coming out of the house. That Bomb struck Chhedilal Yadav and he was injured. These thieves exploded one Bomb on his family members. The family members were crying and weeping. The thieves looted the house and family members for about an hour. Then the thieves escaped towards Chirvani. He along with Dwarika Prasad and Arjun Patel, went to the house and found his family members injured and that they were looted of their money, ornaments and other articles. The thieves had beaten his parents, daughters-in-laws and daughter. He narrated that from amongst the thieves his daughter Kaushalya Bai and his daughter Urmila identified one thief as Satyanarayan Choubey alias Munda of the village, who had abused them with filthy abuse like “Maddar Chod Pahchantee Hai Tijouri Kee Chabi De”. He claimed that the thieves were aged 25 to 30 years and his family members could identify them.
6. So in this FIR the number of the looters was mentioned as three with name of one as Munda alias Satyanarayan. There is no indication that there were other looters around the house or in the house i.e. more than three. Rambai (PW.2) Kaushalyabai (PW.4), who were the inmates of the house do not say how many robbers came in the house or were present. Kaushalya Bai (PW.4), names Munda whom she had identified during the loot, and 2 others who had jumped from the Chhani (thatched roof). She does not suggest that there were more than 3 persons in or outside the house. Mukandilal and another inmates of the house also do not say how many persons participated in that loot. The witnesses are Mukandi Lal (PW.5) and brother of Chhedilal, Netram (PW.10). These people and Chhedilal had rushed to the house of Babulal on hearing cries of ‘Chor-Chor’. According to Mukandilal somebody threw a Bomb at his brother Chhedilal but he could not identify who did so. He does not say how many robbers or dacoits were there. Netram (PW. 10) saw 2 or 3 persons when he rushed towards the house of Babulal on hearing cries. One of them was Ramsharan accused whom he noticed near the flour mill of Mishra and Ramsharan had exhorted others to attack him (the witness) by raising abuses “Maadar Chod Ko Maaro”, one of them threw Bomb which exploded and he ran away. He later on learnt that Chhedilal had died due to Bomb explosion. Even this witness, therefore did not say if there were more than 3 persons as the robbers.
7. There is no evidence regarding there having been more than 3 robbers entering the house or participating in the loot or remaining outside the house.
8. The trial Court, in its judgment, has very vaguely observed that there was dacoity in the house of Babulal and Harilal. The Court has further assumed that there must have been more than 3 persons in this dacoity as some had entered the house and some others must have thrown Bomb on the neighbours. These observations are without evidence and therefore, cannot be sustained as findings of fact. So we find that the evidence discloses that there were 3 robbers who jumped into the house of Babulal and Harilal and looted the inmates by exploding Bombs, beat them and also exploded Bomb at the neighbours who came to help inmates of the house. As a result of this Bomb throw, Chhedilal died.
9. So it is not a case of dacoity, it is a case of armed robbery at night by committing lurking House Trespass into the house. ‘Dacoity’ is defined in Section 391, Indian Penal Code. There must be 5 or more persons, committing robbery, to amount to dacoity, otherwise it remains robbery. So the present is case of armed robbery in which injuries were caused and even death was caused by use of deadly weapons by the robbers.
10. As to the identity of robbers we find that there is overwhelming evidence regarding identity of Munda alias Satyanarayan, appellant No. 1. Kaushalya Bai named him at the time of robbery. She discloses this to Hari Ram who mentioned it in FIR., which was recorded immediately after the incident. She identified and named him in Court on oath. She knew him from before as son of Sharan. He had abused her and threatened her at that time. This is sufficient evidence to prove that he was one-of the robbers. The evidence of these inmates of the house i.e. Rambai and Moujilal shows improvement in this respect. But we ignore that part of their evidence. But it makes no difference. The evidence of Kaushalya in the light of what she stated to Harilal on the day of incident which was recorded in the FIR is truthful acceptable beyond doubt. There is weighty evidence to prove the guilt of this appellant Munda beyond doubt.
11. Further more, the recovery of stolen Katori at the instance of this accused in pursuance of his disclosure statement, with name Anjoo engraved on it may be ignored as no inmate of the house has identified the Katori. Kaushalya has truthfully stated that a Katori which was stolen had the name Anjoo engraved on it. There is sufficient evidence of seizing witnesses that the Katori recovered at the instance of accused had the name ‘Anjoo’ engraved on it. But Katori was never produced in Court for identification. Still in the absence of specific identification of the recovered article in Court during trial by Kaushalya Bai or any other inmate of the house, there remains a lacuna to prove that this recovered Katori is the same as was stolen from the house. After all, name ‘Anjoo” may be engraved on many Katories due to many reasons. So the safest course is to ignore this evidence.
12. However, this makes no difference. There is ample evidence, as already discussed that Munda alias Satyanarayan was one of the robbers in a joint robber;/ by 3 persons in a joint action, in which deadly weapons like Bombs were used, inmates of house were beaten and death of Chhedilal was caused with a Bomb by one of robbers, to prevent aid to the victims.
13. So far as the identity of Sharan accused is concerned, the only evidence is of Netram (PW. 10). It appears that his statement had been recorded a month after the incident, as is stated by Netram himself. Of course, the I.O. has stated that he recorded the statement of Netram next day after the dacoity, but that becomes doubtful when the witness himself says that for the first time he gave his statement to Police one month after the incident. In the statement under Section 161, Criminal Procedure Code of this witness produced on record, there is some over-writing regarding month. So it becomes doubtful that statement of Netram was recorded by Police on 24-6-1986. So little weight can be given to the testimony of Netram regarding evidence of identity of Ramsharan accused. Therefore, Ramsharan is entitled to benefit of doubt.
14. The only other question which remains for consideration is what offences were committed by Munda since there were less than 5 persons involved in the robbery. Offence under Sections 395 and 396 are not made Out. However, it was an armed robbery during which injuries to victims, and death by Bomb was caused. There is no doubt that Munda, along with his companions, committed robbery in the house after committing lurking house trespass by night for that purpose. The robbers used force and used deadly weapons like Bombs. The offence clearly falls under Section 392, Indian Penal Code.
15. Section 394, Indian Penal Code is also attracted in this case it lays-down that if any person, in committing or in attempting to commit robbery, voluntarily causes hurt, such person, and any other person jointly concerned in committing or attempting to commit such robbery, shall be punished with imprisonment for life or with rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine.
16. It was a joint action robbery by at least 3 robbers of whom Munda appellant was one. They jointly caused injuries to the inmates of the house and also committed murder of a person who came on hearing the cry, to help the inmates. Section 394 is therefore attracted. This appellant is punishable under this section also. Since the charge was under Section 396 Indian Penal Code, the offence under Section 394 would be minor offence to Section 396, Indian Penal Code and so the appellant can be convicted for this offence when the charge is under Section 396, Indian Penal Code.
17. The next question is that a murder was committed by the robbers while committing robbery in the house or escaping. It was part of their joint action. Death was caused by throwing a Bomb. So the action amounts to murder punishable under Section 302, Indian Penal Code. There was no independent charge against the accused under Section 302, Indian Penal Code, but the charge was under Section 396, Indian Penal Code. The question is whether this accused can be convicted under Section 302, Indian Penal Code if the charge fails under Section 396, Indian Penal Code, because the number of robbers proved is less than 5. In this respect Section 221, Criminal Procedure Code is important. It is as under :-
“Section 221 : Where it is doubtful what offence has been committed.
(1) If a single act or series of acts is of such a nature that it is doubtful which of several offences, the facts which can be proved, will constitute, the accused may be charged with having committed all or any of such offences, and any number of such charges may be tried at once; or he may be charged in the alternative with having committed some one of the said offences.
(2) If in such a case the accused is charged with one offence, and it appears in evidence that he committed a different offence for which he might have been charged under the provisions of sub-section (1), he may be convicted of the offence which he is shown to have committed, although he was not charged with it.”
18. Section 396, Indian Penal Code pertains to ‘Dacoity’ with murder. It is as under :-
“Section 396 :- If any one of five or more persons, who are conjointly committing dacoity, commits murder, in so committing dacoity, every one of those persons shall be punished with death or imprisonment for life, or rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine.”
19. The ingredients of this charge are therefore, that there are 5 or more persons; they con-jointly commit dacoity and one of them commits murder during the course of dacoity.
20. Section 391, Indian Penal Code provides that robbery becomes dacoity when 5 or more persons ‘conjointly commit it.’ These persons can be either actually committing or some committing and other person only aiding. They should be 5 or more.
21. Robbery under Section 390, Indian Penal Code is defined as ‘theft’ in which, either in the commission or in carrying away or attempt to carrying away the property procured by theft, the offender voluntarily causes or attempts to cause any persons death, or hurt or wrongful restraint or fear of these.
22. So a charge under Section 396, Indian Penal Code means a charge of robbery conjointly by 5 or more persons in which death is caused or we may also say that a conjointly committed theft by 5 or more persons in which one of the offenders voluntarily causes death. So voluntarily causing of death by any of these robbers in conjoint action, is necessary ingredient of a charge under Section 396. When so analysed, it appears clear that a charge under Section 396, Indian Penal Code is a charge in which 5 or more persons conjointly committed robbery and any of them commits murder. Conjointly is an important ingredient of this offence.
23. ‘Conjointly’ indicates jointness of action and understanding. Every one acts in aid of other. ‘Conjointly’ means to act in joint manner, together, ‘unitedly by more than one person. ‘Conjoin’ means ‘join together’, as per the Oxford Large Print Dictionary. According to Corpus Juris Secundum, ‘Conjointly is explained as ‘together’ , the one with knowledge, consent and aid of the other and pursuant to an agreement or understanding or ‘unitedly’. In the ‘Words and Phrases’ ‘Vol. 8 A’, published by ‘West Publishing’, same meaning is adopted as in Corpus Juris Secundum. It explains that ‘conjoint’ robbery’ is where the act is committed by two or more persons. According to Webster’s New International Dictionary ‘conjoint’ means ‘united’, ‘connected’ associated or to be in conjunction or carried on by two or more in combination. The use of word ‘conjointly’ in Section 391, Indian Penal Code indicates that the 5 robbers act with knowledge and consent and in aid of one another or pursuant to an agreement or understanding i.e. unitedly. That is the spirit of their ‘conjoint’ action. Thus in most of dacoities the robbers would be acting with a common object to loot with use of violence. At least in some cases of dacoities, the robbers act and use force in pursuance of their common intention and in all cases they act in prosecution of a common object.
24. The word ‘conjointly’, as used in Section 391, Indian Penal Code indicates jointness of action and objective. In one instance, the meaning of this word was considered by judicial commissioner’s Court in the case of Nathu Tulsi v. Anoopsingh, AIR 1956 V.P. 18. That Court observed that under Section 391, Indian Penal Code it is essential that all the persons should share the common intention of committing robbery.
25. From above discussion it follows that when certain persons are charged with offence under Section 396, Indian Penal Code they can also be charged, alternately, or additionally even with murder punishable under Section 302 with a vicarious liability to every one of them either under Section 149, Indian Penal Code or under Section 34, Indian Penal Code. All these charges could also be framed on these culprits within the meaning of Section 221(i), Criminal Procedure Code as their action is joint, or in prosecution of a common object or in pursuance of common intention.
26. In the present case the charge framed against this accused Munda, was that he on that particular night and at that place along with others (total 5 or more persons), ‘conjointly committed dacoity’ in the house of Harilal and one of the dacoits threw Bombs and caused death of Chhedilal and so offence under Section 396, Indian Penal Code was committed. So this charge includes commission of murder in conjoint action by 5 or more persons. The actual word used in the charge are ‘Sanyukt Hokar’. It becomes thus clear that the charge for offence punishable under Section 302/34, Indian Penal Code as also under Section 302/149(i), Indian Penal Code, could have been framed in this case as an alternate charge as also an additional charge, in addition to Section 396, Indian Penal Code. The tenor of the charge makes it clear that the accused were also standing trial for committing murder of Chhedilal by one of them throwing Bomb in a conjoint action, which clearly means all persons acted to achieve a common object or acted in pursuance of common intention. So, firstly, the charge is under Section 302/34, Indian Penal Code is included in the charge under Section 396, Indian Penal Code as framed and secondly, at any rate, it could be framed as an alternative charge or even an additional charge within the meaning of Section 221, sub-section (i) as noted above. So, under Section 221(ii), Criminal Procedure Code, even if not framed specifically, conviction can be made for such charge.
27. The Court need not take resort to Section 222, Criminal Procedure Code. The word “Minor” used in that section is not defined and the usual meaning given to a ‘minor offence; is an offence punishable with lesser sentence on some of the facts of ‘major offence’. But in the present case Section 221 para (11) is clearly attracted. There is ample authority for the proposition that if a person is charged for an offence under Section 302/149, Indian Penal Code, he can be convicted under Section 302/34, Indian Penal Code. Similarly if he is charged under Section 302, Indian Penal Code, he can be convicted under Section 302/34 Indian Penal Code and vice versa, provided the ingredients are included in the charge. Recently, in case of Lakhjeet Singh v. State of Punjab, cited in 1994 Suppl. (I) SCC 173 at page 177, the Apex Court has held that in case when there is charge under Section 302, Indian Penal Code and ingredients established show an offence committed by the accused under Section 306, Indian Penal Code, on the basis of presumption under Section 113(a), Evidence Act, such accused could be convicted under Section 306, Indian Penal Code as there was no prejudice caused to the accused in the trial. We are not taking that charge under Section 302/34 and 302/149 was framed in our case but that it could be framed as an alternate or additional charge under Section 221(i), Criminal Procedure Code.
28. In the case before us also there is no scope for any prejudice to the accused in the trial if he is found guilty for the offence under Section 302/34, Indian Penal Code, when the charge of dacoity is not established but charge of murder by the robbers, in conjoint action, in pursuance to their common intention is established.
29. In the present case it is fully established that three robbers (one of whom was the appellant Munda) jumped in the house of the victims from the Chhan, They were armed with deadly weapons including Bombs. One exploded a Bomb in the house, as soon as they jumped in with threat of life to all. When neighbours came for help, one of them threw Bomb at them killing one of the neighbours. Then they escaped together. These facts fully establish that they acted in pursuance of common intention of all three of them in the entire transaction, including transaction of exploding Bombs to kill the victims, to successfully effectuate the robbery. So, the accused appellant Munda is certainly liable vicariously for the offence of murder under Section 302/34, Indian Penal Code. He can be so convicted for this offence under the provisions of Section 221 (ii) as already discussed.
30. In view of above discussion we convert the conviction of the appellant Munda to offences punishable under Section 392, Indian Penal Code, 394, Indian Penal Code and 302/34, Indian Penal Code. However, the appellant Sharan is acquitted of the charge and his appeal is accepted.
31. The appellant Munda is convicted and sentenced as under :-
CONVICTION SENTENCE Under Section 394, Indian Penal Code read Imprisonment for life. with Section 392, Indian Penal Code. Under Section 302 read with Section 34, Imprisonment for life. Indian Penal Code. These two sentences, however, shall run concurrently. 32. With this modification in conviction, confirming the sentence, the appeal of Munda alias Satyanarayan is dismissed. Ram Sharan is acquitted. His bonds are discharged. Munda will undergo his sentence.