1. These are five criminal appeals, Nos. 957, 1018, 1019, 1025 and 1183, register No. 6 of 1952-53. The District and Sessions Judge, Gulbarga, by judgment dated 16-9-1952, has convicted and sentenced die appellants, Shivappa, Mohd. Khan, Yellappa, Laxmayya and Chandrayya to transportation for life for offences Under Sections 121, 396 and 436, IPC We have heard the arguments of the learned Counsel, Shri Shaik Mohd. Hasan and die learned advocate, Shri Manoher Raj Saxena for die appellants and the learned Government Advocate, Shri Srinivasaraghavachari for the State.
2. The facts alleged are that on 17-10-1950 at midnight in Antwaram village, Chincholi Tk., Gulbarga Dist. the five appellants together with several other communists attacked the Police outpost at Antwaram; diat fire was exchanged in which four constables were injured and one Govardhan More was shot dead. The First Information Report was issued on 25-10-1950 and it reached the court on the 26th. A panchanama of the corpse was made though no inquest was held. Both these documents do not contain the name of any of the appellants. The challan was filed 8 months later on, on 11-6-1951 after the arrest of the accused in March and April 1951 and a supplementary challan on March 1952. The prosecution has adduced 9 witnesses and die defence none.
3. P.W. 1 is Mohd. Wazir Ali, the Munsif Magistrate in whose presence the identification parades were held. P.W. 2 is Mohd. Soofi, die District Superintendent of Police, Bidar. He has deposed that he arrested A-5 Chandrayya and raided the place visited by him, found ammunition and rifles which he seized. He has deposed furdier that as he found tiiat these rifles and die tommy gun belonged to die outpost at Antwaram from where they were stolen, he sent Chandrayya to be prosecuted for the offence committed at Antwaram. P.W. 3 Vishwanadiam is the panch of die dead body. P.W. 4 Ramchandra Reddy has deposed that during the occurrence the house wherein the Police people were sitting was set fire to and that he helped to put out the fire after die departure of the communists. He has deposed that he also heard the exchange of fire between the Police and the communists.
P. Ws. 5 and 6 B. G. Mahadak and Bhimrao N. Tate are the two eye-witnesses. Mahadak is die Havaldar of Police and he has identified A. 2 and A. 3 in the identification parade. He has clearly deposed that he identified the accused at the time of the occurrence also in the light caused by die house which was burnt down. He has made it clear that he had occasion to observe diese accused for more dian half an hour and as tiiere was sufficient light he identified diem fully. The deposition of P.W. 6 is more or less to the same effect. He has also identified all the five appellants not only at the time of die occurrence but also in the various identification parades held in tile presence of the Magistrate. P.W. 7 Laxmansingh has deposed that he received information from the Police out-post at Antwaram at his station at Kanch-waram and forwarded it to Chincholi from where dip First Information Report was issued. P.W. 8 William Bhaskar is the Sub-Inspector of Chincholi and he has deposed to arresting die appellant, Yelliah. P.W. 9 Bhojraj is the Circle Inspector of Shahbad and he has identified the panchanarha of the dead body which he framed.
4. This is all the evidence in die case. In addition there is a confession of the Accused 1, Shivappa to the effect that he was concerned in the occurrence to the extent that he handed over a bundle of grass for setting fire to the house.
5. The learned Counsel for the appellants argued that the F. I. R. was issued after the delay of 7 days; that it was based on a written information sent by P.W. 5 to P.W. 7, Laxmansingh, Nakedar of Kanchwaram, and that this written information has not been adduced. The F. I. R. is based on the information laid by Laxmansingh to the stationhouse Chincholi and the omission to produce the document first prepared by Mahadek is fatal to the prosecution. The learned Counsel argued further that the evidence regarding identification parade was disbelieved by the learned District and Sessions Judge and rightly so, because not only the appellants were identified long after their arrest but also the witnesses did not give any description of the features of the various accused beforehand; that there is plenty of authority to the effect that where identification is done without giving previously the description of the features, much weight cannot be attached to it. He has elaborated tin's point by referring to the pancha-namas Exs. 6 and 7 in which not a word is spoken about the features of the accused which it is said that the eye-witnesses had occasion to note.
Finally, the learned Counsel argued that the charge Under Section 121, i.e., waging war against the State cannot be sustained as the sanction necessary under that section was not obtained. Regarding the charge Under Section 396, i.e., dacoity with murder he argued that having regard to the points he made above, namely, the delay in forwarding the F. I. R. as also the omission to state the features of the accused, this charge also is not made out. He argued further that there is a material discrepancy between P.W. 5 and P.W. 6 in as much as P.W. 5 states that he identified the accused in the light of the fire caused by the burning of the house, but P.W. 6 states that he identified A-2 before he went into the house, the fire being lit some time after A-2 went into the house. Regarding the offence Under Section 436, the learned advocate argued that it is also not proved inasmuch as it cannot be imagined that the communists who were charged with dacoity could have left Dynamite or kerosene oil on the spot; that it is all a frame-up by the Police and, therefore, the accused should be acquitted.
6. We carefully considered the above argument and examined the record. In our opinion, the learned Counsel is right as far as the offence Under Section 121 is concerned. The necessary sanction is not en record and the learned Government Advocate also states that no sanction was taken. We, therefore, acquit the accused from this charge. There remain the charges Under Sections 396 and 436. It should be noted that no individual act of any of the accused has been proved. Hence they can only be constructively liable, if at all, constructive liability under the Indian Penal Code arises in 3 well defined cases. A person may be constructively liable for an offence which he did not actually commit by reasons of-
1. his being a member of a conspiracy to com-, mit such an offence; or
2. because he was a member of unlawful assembly, the members whereof knew that an offence committed by one of them was likely to be committed; or
3. that it was the common intention of all to commit such an offence.
The first case is covered by Section 121A, the second by Section 149 and the third by Section 34, IPC The prosecution had adduced no proof of conspiracy. The accused can, therefore, be held liable, only, if common intention of either description can be attributed to them. A perusal of the charge-sheet as well as the challan shows that though each of the accused was charged of committing the offences Under Sections 396 and 436 'Conjointly with others', yet Sections 149 and 34, IPC were not specifically mentioned.
7. The learned District and Sessions Judge has attributed common intention to all the accused on the ground that the very fact that the police outpost of Antwaram was fired at it for four hours would show that the accused acted' as if they wie one person. This juld show that they were animated by an intention common to all. We see no reason to differ from this finding of the learned Judge and it would appear to us that the accuse were animated with the common intention mentioned in Section 34, IPC There is plenty of authority to show that the omission to mention Section 34 in the charge-sheet is no defect, The cases cited here viz., - 'Karnail Singh v. State of Punjab AIR 1954 SC 204 (A); - 'Sampuran Singh v. Ahmad Din' AIR 1941 Lah 274 (B); - 'Debi Proshad v. Emperor' AIR 1932 Cal 455 (C); .- 'Emperor v. Barendra Kumar' AIR 1924 Cal 257 (F13) (D) may be perused. The reason given in these eases is that Section 34 is not a substantive effence which would require its mention in the charge-sheet. The question, therefore, arises whether the offence Under Section 396 has been proved.
8. This section is enacted to declare the liability of other persons as co-extensive with that of the actual murderer and, for this purpose, all that is required to be proved is that they should have been 'conjointly committing' the dacoity and any death caused by a dacoit in the course of dacoity would be murder, and attributed to all of them. The death need not be proved against anyone of the dacoits in particular, so long as death is the result of cumulative effect of the violence used by the gang. The accused are not allowed to plead that they do not know that the death will be the result of the violence used. Individual acts of violence do not require consideration for holding all the accused liable. They would fall for consideration only for fixing the appropriate sentence in respect of each of the accused. As far as the joint liability of the accused is concerned, the only things to prove are (1) that there was a dacoity (2) which was the joint act of the persons concerned and (3) that the murder was committed iA the course of the dacoity in question.
9. It should be noted however, that the only limitation on the joint liability of the dacoits to the words used in the section itself 'in so committing a dacoity', i.e., the murder should take place during the commission of the dacoity and then alone the accused will be conjointly liable. In - 'Mathura Thakur's case the complainant had cut a paddy crop. The accused some hundreds strong and under the leadership of Mathura Thakur attacked the complainant and his men and one person belonging to the party of the complainant was killed while ho was running away and the accused then took away the whole of the paddy crop. It was held by the High Court of Calcutta that conviction Under Section 396 was not correct, inasmuch as, dacoity of the paddy crop took place after the murder and the deceased was done to death before dacoity and while he was running away, and, therefore, it cannot be held that the deceased was assaulted with a view to commit dacoity.
10. In the light of the above propositions of law we have to consider whether the offence Under Section 396 can be deemed to have been proved by the prosecution. Admittedly the rifles and the tommy gun were removed after the exchange of fire between the accused and the police party and after the death of one of the constables. When the police party ceased to fire-back for the reason that ammunition was wholly spent up, the accused and their party men came and surrounded the survivors and proceeded to disarm them and in this process they removed the tommy gun and. the rifles. This would show that the death of the constable occurred before the dacoity. We will have to consider further whether the attack on the police outpost was with the object of taking away the tommy gun and the rifles. It does not seem so; as both the eye-witnesses have deposed that the attack was, in the very words of the accused to show how powerful the communists were. They left unmolested the three survivors just for that purpose so that they may relate to all and sundry how they were worsted in the encounter. They even exhorted these survivors to leave their jobs which brings them a salary of Rs. 50/- and to join the communists who were all powerful. Having regard to all these facts deposed to by the prosecutions' own witnesses, it would appear to us that death was not committed in the commission of a dacoity. Hence conviction Under Section 396 does not appear to be correct. The liability for the murder of the constable would lie on the actual murderer, but the prosecution evidence does not show at all who the actual murderer was. We, therefore, acquit the accused from the charge Under Section 396, I. P, C. also.
11. There remains the charge Under Section 436, i.e., arson. It is abundantly proved by the evidence of the prosecution witnesses including the eyewitnesses that the accused with their party men burned down the house occupied by the police. As we agree with the court below that the accused were actuated by common intention, it is evident that the acts of the accused who may have lighted fire which burned down the house will be considered to be the act of all the accused and therefore an offence under this section is clearly proved. We hold the accused guilty of this offence and sentenced them to 10 years rigorous imprisonment.
12. In the result, the appeals of the accused in so far as they relate to their conviction Under Sections 121 and 396 is concerned, are allowed and the sentences passed against them for this offence are also set aside but the conviction for Section 436 is maintained while the sentence is reduced to 10' years. The M. O. should be dealt with as directed, by Sessions. Copy in the other files.