1. This is an appeal against the conviction and sentence of the two appellants by the Sessions Judge, Jhalawad Division. Both the appellants have been convicted under Section 451, and Section 394 read with Section 397, Penal Code, for robbery of a gun, and sentenced to one year's rigorous imprisonment for the former offence and to seven years' rigorous imprisonment for the latter. Appellant 2 has been further convicted for attempt to murder under Section 307 and sentenced to four years' rigorous imprisonment. The sentences in both the cases have been ordered to run concurrently. The incident took place at Sedla a village of the former Bajana State on the night of 18th March 1947. Valoji Khanji, Mogarji Jemalji and Kanaji Ramji were the village Chowkiyats and after taking the usual round they were resting in the room of a Fakir named Gulabsha Bavasha at about 10 p.m. that night. After a while Valoji left to go on the round and while the others were chatting, it is alleged, that the appellants and one Muluji, the absconding accused, peeped into the room and were told to come in. Each one of them was armed with a gun, and immediately on entering the room they picked up a quarrel with Mogarji and others. There was a scuffle in the course of which Mogarji caught hold of the barrel of appellant 1 Maghaji's gun, Fakir Gulabsha tried to seize the barrel of appellant 2's gun, but the said appellant fired a shot hitting Gulabsha on the shoulder. Muluji took the gun of Kanaji which was lying in a corner of the room and all three of them then left with the gun. The village people were immediately informed of the occurrence & Mogarji went to Bajana the same night and gave the first information to the Police Sub-Inspector who registered the complaint and came down to the village and started investigation early in the morning. Extradition proceedings were taken and the two accused were ultimately handed over to the Saurashtra State at the end of April 1950, the delay having occurred on account of the changes in the jurisdiction over the Bajana State. At the end of the trial the two appellants were convicted and sentenced by the Sessions Judge, Jhalawad, as stated above.
2. The incident which took place at the room of Gulabsha on the night in question is proved by ample evidence in the case and in the main it has not been seriously disputed by Mr. Manier for the appellants. We have the evidence of Mogarii and Kanaji that as they wore resting in Gulabsha's room, the appellants and Muluji came there and were just peeping in the room through the door that was left slightly open by Valoji, who had left for the night round. The appellants were from Gedia a neighbouring village and they also worked as Chowkiyats and were known to Mogarji & Kanaji from before. There was a small kerosene light burning in the room and the culprits-were in the room for a few minutes at least. There was thus all the scope for identifying, them and there was no possibility of any mistake as to identity. Gulabsha too knew the appellants and Muluji from before and he fully corroborates Mogarji and Kanaji on the point of the identity of the intruders. Their entry in the room did amount to house trespass despite the fact that as they were peeping into the room they were told to enter. That was said innocently and does not amount to an invitation to enter. It appears that they had gone there to settle an old quarrel with Valoji and they did enter the room with the intent to commit an offence or at any rate to intimidate persons in possession of the room. In any event and even assuming that their entry was lawful at the inception, they did remain in the-room with the intent to commit an offence and to intimidate the occupants and thereby they did commit house trespass punishable under Section 451, Penal Code.
3. As for the robbery of the gun, Mr. Maniar has strenuously contended that this-part of the story is entirely a myth. (After referring to evidence relating to the theft of the gun the judgment proceeded:) In our opinion, the theft of the gun has not been satisfactorily established, and charge of robbery under Section 394 read with Section 397 must accordingly fail.
4. But assuming that the gun was in the room and had been stolen the offence is at best a theft by Muluji, Evidently, the appellants and Muluji had not gone to Gulabsha's room in order to commit a theft and the purpose of their visit was rather to settle an account with Valoji with whom they had enmity. The prosecution evidence itself is that as soon as the culprits entered the room Maghaji asked where Valoji had gone, and said it was his father's revenge meaning they had come to take revenge on Valoji. Then a scuffle took place between the occupants of the room and the intruders in the course of which accused 2 shot at Gulabsha. The removal of the gun, or for the matter of that idea of a theft, was never in the minds of the accused or Muluji and it was only as they were leaving the room that Muluji picked up the gun lying in a corner and went away. That was the last act of the culprits and that is admitted by all the witnesses and is also stated in the first Information. The injury to Fakir Gulabsha had been caused already & the theft was the last and a casual part of the incident, and the question is whether it falls within the purview of Section 394, Penal Code. Now theft is robbery if, in order to the committing of the theft, or in committing the theft, or in carrying away or attempting to carry away property obtained by the theft, the offender, for that end, voluntarily causes or attempts to cause to any person hurt etc. The hurt to Gulabsha was not caused in order to the committing of the theft of the gun. The words 'for that end' in Section 390 clearly mean that the hurt caused must be with the object of facilitating the committing of the theft or must be caused while the offender is committing theft or is carrying away or is attempting to carry away property obtained by the theft. It does not merely mean that the assault or the hurt must be caused in the same transaction or in the same circumstances. See-Bishambhar Nath v. Emperor AIR 1941 Oudh 476,-Karuppa Goundan v. Emperor AIR 1918 Mad 821 and-Karmun v. Emperor AIR 1933 Lah 407. The firing of the gun at Gulabsha had already taken place and it had no relation to the removal of the gun although the two might have taken place in the course of the same transaction. Therefore the offence, if any, was of mere theft by Muluji for which the appellants cannot be held liable. In any view therefore the conviction of the appellants under Section 394 read with Section 397 is unsustainable and must be set aside.
5. As for the firing of the gun and the attempt to murder, we have the evidence of Mogarji, Gulabsha and Kanaji, which is consistent, and which shows that it was Lakhaji appellant 2 who fired it at Gulabsha, as Gulabsha got up and caught hold of the barrel of the gun. Probably Lakhaji thought that the sun would be snatched away and ha therefore fired. The gun was fired at close range causing a wound two inches deep on the left shoulder and a bullet was recovered from the body. The gun was fully loaded and the wall of the room showed marks of firing and two bullets were also recovered from the room. The nature of the injury itself suggests that the accused had the intention of causing injuries which in the ordinary course of nature were, sufficient to cause death, if death had occurred it would have been a case of murder. The contention made for the accused, viz., that the gun went off accidentally in the course of the scuffle and had not been fired by accused 2 is most unconvincing and we find that the gun had been fired by appellant 2 at Gulabsha. Appellant 2 has therefore been properly convicted under Section 307. The sentence of four years' rigorous imprisonment awarded for the said offence is not excessive, and we see no reason to reduce the said sentence.
6. In the result, we set aside the conviction and the sentence of both the appellants under Section 304 read with Section 397, Penal Code. We confirm the conviction of appellant 1 under Section 451 and since he has already suffered a sentence of nine months and a half we reduce the sentence to the period already undergone, and order that he be set at liberty forthwith. We also confirm the conviction and the sentence of appellant 2 for the offences under Sections 451 and 307, Penal Code.
7. I agree.