JUDGMENT
M.K. Chawla, J.
(1) Accused Paras Parsad in criminal appeal No. 131 of 85 and accused Suraj Pal Singh in criminal appeal No. 154 of 85 Along with Achhey Lal were at different times employed in factory known as Metropol, which was being run at 262, Okhla Phase Iii, New Delhi. In the evening of 15-11-80, they are alleged to have to the said factory and casually enquired from Ram Lal Chowkidar as to who amongst the owners of the concern would be sleeping in the factory premises that night, Ram Lal told them that most probably Om Pal would be sleeping. Late at night, they are alleged to have again come to the factory, fully armed, and manhandled Babu Ram Chowkidar by forcing him to call out Om Pal from the room he was sleeping in. As soon as Om Pal opened the door, the accused persons stabbed him and took away with them the brief case containing cash amounting to Rs. 2641.00. In that process, the accused had wrongfully restrained and confined Ved Parkash and Shiv Prasad Tiwari, the other chowkidars employed at the factory.
(2) The accused Acchey Lal could not be arrested and was declared as proclaimed offender. Accused Suraj Pal Singh was arrested from Aligarh while Paras parshad was apprehended and brought from Bihar. The prosecution, in all, examined 25 witnesses to prove their case. Both the accused denied their involvement and set up the plea of alibi. They, however; did not produce any defense.
(3) The learned Additional Sessions’ Judge on examination of oral as well as documentary evidence placed and proved on the record, came to the conclusion that the prosecution has established beyond all reasonable doubt that the accused Suraj Pal and Paras had on the night of 15th of 16th November, 1980, come to the factory No. 262, Metropol, Okhla Phase Iii at 1.30 A.M. Along with their co-accused Achhey Lal (P.O.) and committed lurking house trespass into the said factory with an intent of committing theft while armed with deadly weapons, namely, knives and revolvers and in furtherence of common intention of all of them. committed the murder of Om Parkash and also committed theft of a brief case containing cash amount of Rs. 2641 and in pursuance thereof criminally intimidated and wrongfully restrained and confined Ved Prakash, Babu Ram and Shiv Prasad Tawari. Thus all of them committed the offence punishable under Section 457, 460, 302, 380, 506 (Part II) and 341/342 read with Section 34 IPC.
(4) Keeping in view the nature of the crime committed by accused Suraj Pal Singh and Paras Parsad, they were sentenced to undergo R.I. for three years and a fine of Rs. 100.00 under Section 457/34 Indian Penal Code ; to undergo R.I. for a term of 10 years and a fine of Rs. 200 under Section 460 read with Section 34 Indian Penal Code ; to under go R.I. for a period of 5 years and a fine of Rs. 200.00 under Section 380/34 IPC.; to undergo R.I. for 2 years under Section 506 (Part II) read with Section 34 Indian Penal Code ; to undergo S.I. for one year under Section 341, and 3 months under Section 342/34 Indian Penal Code Lastly, both the accused were sentenced to life imprisonment and a fine of Rs. 200.00 under: Section 302 read with Section 34 Indian Penal Code . la default of payment of respective fines, they were directed to undergo S.I for 2 months each on each count.
(5) Learned Additional Sessions Judge further observed that the evidence under Section 299 Criminal Procedure Code . against accused Achhey Lal has beea. recorded, so that it can be used against him as and when he is apprehended.
(6) The main grievance of the learned counsel for the accused Paras Parsad and Suraj Pal Singh before us is that even if the prosecution story is taken on its face value, none of them could be held guilty of the offence under Section 302 Indian Penal Code inasmuch as there is no evidence to suggest that on the day, time and place of the occurrence, they had the common intention to kill Om Parkash Pal. Primarily, their intention was to commit the theft at the factory. However, in the process of committing the theft, Achhey Lal alone inflicted the injuries on the person of Om Parkash Pal which ultimately proved fatal for which the present appellants had no knowledge and cannot be held liable.
(7) On the other hand, the contention of Shri K.K. Bakshi, counsel for the State, is that once it is proved that all the three accused came to the factory fully armed and inflicted several injuries on the person of Om Parkash Pal on the various parts of his body, their intention was clear to commit the murder of Om Parkash Pal, for which they have rightly been convicted and sentenced, according to law.
(8) As the point in issue is quite narrow, we do not propose to refer or discuss the prosecution evidence all over again except the relevant evidence to establish the identity of the accused and the circumstances to prove their intention of coming to the factory. It is not disputed that sometime back Suraj Pal accused had worked in the factory to look after Om Parkash Pal’s cattle shed situate in a portions of the factory. He had left the services of the factory about two months before the present occurrence. Similarly, about one and a half year back, Achhey Lal had also performed the same duties. Paras Parsad accused used to work in another factory being run on the first floor of the premises of Metropol factory. Public Witness -1 Babu Ram at the relevant time was working as a chowkidar in Metropol factory and his duty was to look after and guard the property of the factory. In the month of November 1980, his duty hours were from 7 P.M. to 9 A.M. Public Witness -9 Ram Lal Chowkidar’s duty was to manage Mr. Pal’s cattle shed from 8 A.M. to 8 P.M. Ved Parkash Public Witness was working as delivery man in this factory. He used to sleep in the factory as and when he was late in completing his assigned job. Public Witness -7 Shiv Prasad was also a chowkidar. He used to sleep in one of the rooms of the factory premises. All these employees knew the accused. persons from be fore and happened to be present in the factory premises at the time of occurrence. It is not disputed that the accused persons Along with Achhey Lal had first enquired from Ram Lal chowkidar as to who amongst the owners of the factory would be staying back. On coming to know that Om Prakash Pal would, sleep in the factory that night, they quietly left the place. This visit was at 8.45 P.M. on 15th.November, 1980. According to PW-1 Babu Ram, all the three again came to the factory, past midnight. At that time, accused Achhey Lal and Soraj Prasad were holding knives in their hand while Paras Parsad was armed with Katta (country-made pistol) Immediately after reaching the foctory, they caught hold of Babu Ram from! his neck and took him to the first floor of the office of the factory and made- him to call out Om Parkash Pal. Out of fear Babu Ram called “Babuji, Babuji”, while Achhey Lal knocked at the door. When Om Parkash Pall opened the door, Paras accused caught hold of him while Suraj gave fist and leg blows. It was Achhey Lal who gave repeated knife blows to Om Parkash, Pal. At that point of time, they tied the hands of Babu Ram from behind. and locked him in the lavatory After catching hold of Babu Ram chowkidar from the gate of the factory premises and while proceeding to the first floor premises, the accused had bolted the room from outside where Shiv Prasad. peon was asleep. This witness had seen the three accused from the window duly armed Along with Babu Ram going towards the first floor office of the factory. On enquiry as to why they have bolted the door from outside, they (accused) declared that in case he (Shiv Prasad) raised any noise, be would be killed. This witness corroborated Babu Lal having seen his both bands tied’ from behind and heard him calling Om Parkash Pal by saying “Babuji Babuji”. Thereafter be heard the shrieks of Pal Sahib and also the sound of fighting. Public Witness Ved Parkash had to stay back in the factory after performing: his usual duties on the delivery van as it had gone out of order late in the- evening. He was sleeping in one of the office rooms of the factory when the: accused persons woke him up and locked him in the kitchen situated downstairs. At that time, Ved Parkash saw accused Suraj Pal and Achbey Lall armed with knife while Paras was holding a country-made pistol. All these: witnesses could only be rescued in the morning after the Police bad reached the place of occurrence. These witnesses not only supported each other, but also the prosecution version, of the manner in which they all were wrongfully confined and the murderous attack on Om Parkash Pal. All these witnesses have been thoroughly cross-examined but no question put or even a suggestion given to doubt their identity ‘or’ false implication. In fact, none of the accused have challenged the prosecution evidence in respect of their identity. Rather the evidence confirms the belief that both the accused and Achhey LaL were known to each of these witnesses from before, as the accused had been working in the same factory promises for quite sometime, prior to the incident In fact of the over-whelming evidence of the eye-witnesses, learned counsel for the accused have not seriously challenged the identity or the accused who had come to the factory at the time and place as alleged by the prosecution. All these facts taken together leave no doubt in our mind that accused Paras Parsad and Suraj Pal Singh Along with their accomplice Acbhcy Lal (P.O.) had come to the factory premises of Metropol, Okhla at about 1.30A.M. and had wrongfully restrained the witnesses referred to above. The death of Om Parkash Pal was caused by giving repeated knife blows to him at about that very time.
(9) Now, the only question that requires going into is as to with what intention the accused persons had come to the factory i.e. whether the purpose of their visit was to commit the theft of the amount supposed to be in the room where Om Prakash Pal was sleeping or they had made preparations to commit the murder of Om Parkash Pal under all circumstances. Before dwelling on this argument, we may note that in fact a cash amount of Rs.2641.00 lying in a brief case was found missing on the next day when the Police reached the premises.
(10) The submission of the learned counsel for the State is that the primary intention of the accused persons was to kill Om Parkash Pal. To support this contention, learned counsel laid stress on the fact that all the three bad visited the factory premises in the evening to enquire as to who was to sleep in the premises that night. Thereafter, late at night, all the three had reached the factory premises duly armed and straightway went to the office room where Om Prakash Pal was sleeping. In order to get the room unlocked, the accused forced Babu Ram to call his employer and immediately on, opening the door, one of them caught hold of Om Parkash Pal while the other gave slaps and leg blows and whereas Achhey Lal started giving knife blows on the various parts of the body of the deceased. From these circumstances, the only conclusion according to the learned counsel for the State can be that all the accused bad the common intention to commit the murder Om Parkash Pal.
(11) After giving our careful consideration on this aspect of the case, we do not agree with this submission for numerous valid reasons. There is no evidence on record to suggest that the three accused met and had chalked out a plan to commit the murder of Shri Om Parkash Pal. There was no previous enmity between the accused persons and their ex-employer 0m Parkash Pal, as we do not know as to bow and under what circumstances Achhey Lal and Saraj Pal left his service. From the evidence on record, it stands proved that none of the accused had caused any injury to anyone of the employees of the factory except that they were physically prevented and wrongfully confined by locking them in separate rooms with the warning not to raise any alarm. Primarily their intention appears to be to remove the amount lying In the brief-case, which in fact, had been found to be missing. Before this incident, none of the present appellants had uttered any words or exhorted Achhey Lal to kill Om Parkash, Pal. They in furtherance of their intention did not use their respective weapons of offence to kill Om Parkash Pal.
(12) Had the accused come to the factory with the common intention of killing Om Prakash Pal, they would not have spared any of the other witnesses who were known to them from before and were capable of disclosing, their identity to the Police. This has not been done. The object, therefore, was only to restrain them from raising the alarm whereas Babu Ram was. made to assist them in removing the amount lying with Om Parkash Pal.
(13) The learned lower court in our opinion went wrong in convicting: the present appellants for the offence punishable under Section 302 read with Section 34 Indian Penal Code Otherwise, all the offences with which the accused have been charged stands fully established. Achhey Lal is not before this Court and as such we cannot make any observations regarding his conduct but for his part the present appellants cannot be held liable.
(14) With this modification, we maintain the conviction and sentence of the present appellants under Section 457/460/380/506 (part II) and 341/ 342 read with Section 34 Indian Penal Code The conviction and sentence under Section. 302 Indian Penal Code is hereby set aside.
(15) On the question of sentence, learned counsel for the appellants pointed out that both the accused are in judicial custody since the date of their arrest which in the case of Paras Parsad is 19th May, 1981, and in the case of Suraj Pal is 26th May, 1981. By this time, according to the learned. counsel, both the accused have undergone the sentence of about 8 years and with remissions must have completed 10 years of rigorous imprisonment That may be so, but once we have dismissed the appeal except for the offence under Section 302/34 Indian Penal Code ., no further directions are required to be issued.