C.M. Lodha, J.
1. All the above six appeals are directed against the Session Judge, Jhunjhunu, dated 24th March, 1969 whereby he convicted Sadhusingh under Section 397 I.P.C. and sentenced him to seven years' rigorous imprisonment. The other three accused Nathusingh, Amarsingh and Rampalsingh were convicted under Section 394 I.P.C. and sentenced to five years' rigorous imprisonment Aggrieved by their conviction and sentence, the accused have filed appeals Nos. 227 of 1969, 328 of (sic) 329 of 1970, 330 of 1970 and 331 of 1970. It may be noted that Criminal Appeal No. 227 of 1989 has been filed jointly by Amarsingh and Nathusingh through their counsel. However both these accused have also filed separate appeals through jail which are Nos. 328 and 331 of, 1970. Rampalsingh and Sadhusingh have also filed appeals through jail and their appeals are registered as Nos, 329 and 330 of 1970 respectively. The State, however, felt that the acquittal of all the accused under Section 302 I.P.C. was improper and therefore it has also filed an appeal against all the accused and that has been registered as Criminal Appeal No. 694 of 1969.
2. Briefly, stated the prosecution case is that on 14.12 67 the four accused as well as one Kurdasingh five in all, armed with deadly weapons such as a rifle and a pistol committed a dacoity at the house of Gharsiram PW 16 in the course of which they caused injuries to Gharsiram Jugalkishore, Basantilal and Sandal. They also relieved Santlal PW 1 s/o Gharsiram of a wrist watch and a shawl which he was carrying on his person but since there was a hue and cry which had attracted the attention of the villagers who collected at the spot the dacoits were not able to take away any booty with them However, when the dacoits were retreating, they were given a hot chase by the villagers and in order to have a safe retreat, one of the dacoits is alleged to have fired a shot as a result of which Dharma died. But the brave villagers also succeeded in capturing one of the dacoits, namely, Sadhusingh whom they confined in a room in the house of Gharsiram in village Kulot Khurd. A FIR of the occurrence was lodged the same night, at about 12.15 a.m. at the Police station, Surjagarh, which is situated at a distance of about 14 miles from the place of occurrence. The report was signed by Hiraram Panch, Harphoolsingh, Ram Swaroop and Nanakram of the Gram Panchayat, Mahpalbas and was sent through one Phoolsingh. The SHO PW 17 Shri Parbhatiram reached the scene of the occurrence the same night at 1.30 a.m. He sent all the four injured persons namely, Gharsiram, Santlal, Basantilal and Jugalkishore to the hospital at Chirawa in a jeep and arrested Sadhusingh who had already been confined by the villagers in the house of Gharsiram (vide recovery memo Ex P. 15). Thereafter he informed the Superintendent of Police, Jhunjhunu and the Deputy Superintendent of Police, Jhunjnunu Khetari, who also joined the investigation in the course of which Gharsiram presented two empty cartridges which were recovered by the police (vide recovery memo Ex. P 21) It may be stated here that the villagers had succeeded in not only capturing the dacoit Sadhusingh but had also brought two camels of the dacoits which were produced before the police and their seizure memos are Ex. P 23 and Ex P. 24. These camels however died at the Police Station later on. PW 5 Amarsingh also presented a country made pistol which the pursuit party had seized from the dacoits. The seizure memo of the pistol is Ex P 25 Some cartridges and few other articles were taken possession of by he villagers from the dacoits were also produced by the villagers before the SHO Shri Parbhatiram, but it is not necessary to make any detailed reference to them as admittedly the dacoits were not successful in taking away any plunder with them Accused Rampalsingh was arrested on 20.12.67 at village Nagli, District Alvar (vide recovery memo Ex P. 35). Accused Amarsingh was arrested on 16.1.68 in the precincts of village Talwaha (Haryana). His arrest memo is Ex P. 32. and accused Nathusingh was arrested on 23.12. 67 at Surajgarh (vide arrest memo Ex. P. 30). In the course of investigation, witnesses were called upon to identify the accused at an identification parade held by PW 9 Shri Pannalal. On 5.1.68 Nathusingh and Rampalsingh were put for identification at the sub jail at Jhunjhunu and P W16 Gharsiram, P.W. 5 Amarsingh, PW 2 Jugalkishore and PW 12 Hanuman correctly identified both these accused persons PW 1 Santlal and Mst. (sic) PW 4 were, however, called upon to identify these accused on another occasion, that son 10.1.68. Santlal was able to identify both the accused correctly while Mst. Sharbati failed to identify them. (sic) identification parade was held for identifying Amarsingh and the witnesses Gharsiram. Santlal, Amarsingh, Jugalkishore and Hanuman correctly identified him. The identification memo with respect to identification held on 5.1.68, 10.1 68 and 21.1 68 are Exs. P 2, P. 5 and P. 3 respectively. It may be noticed that the police was not successful in arresting the fifth dacoit, namely, Kurda Singh and consequently the four accused were prosecuted in the court of Munsiff-Magistrate, Chirawa, who committed them for trial to the court of Sessions Judge, Jhunjhunu.
3. In the course of the trial, the prosecution examined 17 witnesses. All the accused denied having committed any offence. Accused Nathusingh produced in his defence, namely, D/W l Ramkumarsingh and PW 2 Richpal Singh.
4. The learned Sessions Judge accepted the testimony of the four eye-witnesses, namely PW 16 Santlal, PW 2 Jugalkishore PW 16 Gharsiram and PW 4 Mst. Sharbati. He has further held that the three accused Nathu Singh, Amar Singh and Rampalsingh had been correctly identified by; the five witnesses Ghasiram, Amarsingh, Jugalkishore, Hanuman and Santlel and that the witnesses had ample opportunity to identify the culprits at the time of the commission of the offence. The learned Sessions Judge also found that Santlal Jugalkishore and Gharsiram were injured in the course of the commission of the dacoity. As regards causing the death, of Dharma, the learned Sessions Judge held that the prosecution...ad failed to prove that Dharma was killed by the shot fired by Sadhusingh and that it was not known as to who had fired, the shot which resulted in the death of Dharma, In this view of the matter he held that none of the accused could be held liable for causing the death of Dharma. He also came to the conclusion that in the facts and circumstance of case, the death of Dharma cannot be said to have be en caused, in the course of the commission of the dacoity. He therefore acquitted all the accused under Section 396 I.P.C. also. However, since according to the learned Sessions Judge the prosecution had succeeded in proving that Sadhusingh had caused grievous hurt to PW 2 Jugalkishore by a gun shoot, he was liable to be convicted under Section 397 I.P.C. and in this view of the matter as already stated above, Sadhusingh was convicted under Section 397 I.P.C. and the rest of the accused under Section 394 I.P.C.
5. We have heard Mr. P.N. Dutta on behalf of the accused. It was urged by him before us that the evidence regarding identification of the accused is not reliable. He has also urged before us that even though the rifle & the pistol which the accused are said to be carrying with them have been recovered and a few empties are also alleged to have been produced by the prosecution witnesses before the police, yet the police did not make any effort to get the empties connected with the fire arms alleged to have been snatched from the dacoits by the villagers and consequently, any adverse inference must be drawn against the prosecution. It has also been contended that the FIR does not make any mention about the watch and the shawl should having been removed by the dacoits from the person of Santlal.
6. In our opinion, none of the points urged by the learned Counsel for the accused has force. It may be observed that the dacoity was committed at about 7.30 or 8 p.m. in the month of December and all the witnesses who are said to be present at the time of the commission of the dacoity have stated, that there was enough light in the house of Grarsiram where the dacoity was committed to as to enable the witnesses to identify the culprits. Lanterns are said to be burning in the house of Gharsiram and we further find that it was a moonlit night. It further appears that the inmates of the house as well as other villagers who had come to the rescue of Gharsiram, Santlal and Mst. Sharbati sister-in-law of Gharsiram, offered considerable resistance to the dacoits and therefore they had ample opportunity to identify them. It is not of much importance that the witnesses did not give any distinguishing features for identification of the accused inasmuch as all of them except Mst. Sharbati correctly identified the culprits in the course of investigation. We also find from the statements of the police officers conducting the investigation, namely, PW 16 Shri Parbhatiram and PW 16 Shri Girdharilal, Deputy Superintendent of Police, that ample precautions were taken by them to keep the accused baparda so that the witnesses may not have an opportunity to see them and the sanctity of holding identification parade in the course of investigation may not be impaired. We have gone through the statements of PW 9 Shri Panna Lal, Magistrate, who conducted the identification parade the police officers PW 15 Shri Girdharilal and PW 16 Shri Prabhatiram and the identifying witnesses, namely, Gharsiram, Santlal, Jugalkishore, Hanuman and Amarsingh and are satisfied that the identification was conducted by the learned Magistrate in all fairness and that the police had taken all precautions before the identification parade was held so that the witnesses may not have any opportunity to see the accused closely. The fact that Gharsiram, Santlal, Jugalkishore and Basantilal were injured and Dharma died either in the course of the actual commission of the dacoity or soon thereafter in the course of the chase given by the villagers to the dacoits is beyond dispute and has not been challenged before us and, in our opinion, rightly. The presence of these witnesses, namely, Santlal, Gharsiram, Jugalkishore and Basantilal at the time of the dacoity therefore, cannot be doubted. It is further clear that none of these witnesses had enmity with any of the accused as all the accused were not known to them from before. Nothing has been brought out in the cross-examination of these witnesses so as to show that either they are not reliable or that they are-inimical to be accused. We therefore see no reason to disbelieve the evidence given by these witnesses that the four accused had committed dacoity at the house of Gharsiram as alleged by the prosecution. So far as Sadhusingh is concerned, the villagers gave ample proof of their bravery by capturing him. The pursuit party also succeeded in seizing both the camels of the dacoits as well as the fire arms and certain other sundry articles belonging to them. The FIR was lodged very promptly. We are therefore of the opinion that the guilt under Section 304 I.P.C. has been brought home to the accused Nathusingh, Amarsingh and Rampalsingh beyond all manner of reasonable doubt. The circumstances that the dacoits were not able to escape with booty was only due to the bravery of the villagers who had collected at the spot and offered such a resistance to the dacoits that they were forced to take to their heels The sentence of five years awarded to each of the three accused Nathusingh, Amarsingh and Rampalsingh is not at all excessive in the circumstances of the case and calls for no interference.
7. Coming to the case of Sadhusingh, it is fully proved against him by the evidence of Gharsiram, Santlal, Jugalkishore, Amarsingh and Hanuman that he was, in the first instance, armed with a pistol and he had fired the pistol at Jugalkishore which hit him on his buttock and later on, he had exchanged his pistol with the rifle which was in the hands of the accused Amar Singh. It is further clear from the medical evidence that Jugalkishore had circular gun shot wound on his left buttock (sic) in diameter and an operation hah to be performed on him to remove the bullet but it could not be taken out. It is also amply borne out from the prosecution evidence that Sadhu Singh had fired at Dharma also in the first instance. Thus there is not the least doubt that at the time of committing dacoity, Sadhusingh used a deadly weapon, namely, a fire-arm. Not only that, he attempted to cause death or previous hurt to Dharma and Jugalkishore and consequently a case under Section 397 I.P.C. is clearly made out against him. He has therefore been rightly convicted under Section 397 I.P.C. and the sentence of seven years' rigorous imprisonment is, of course, the minimum sentence which has been awarded to him.
8. The contentions raised by the learned Counsel for the accused that the evidence of the ballistic expert has not been produced and further that the fact regarding removal of the watch and the shawl from the person of Santlal had not been mentioned in the FIR are, in our opinion, not at all substantial. If by evidence of the ballistic expert the empties had been connected with the fire-arms alleged to have been recovered from the possession of the accused, that would have been a further proof against the accused. But even in the absence of that proof, we have ample convincing evidence on the record against the accused to which we have made a detailed reference above. There is nothing on the record, to show that the empties found at the spot could not have been fired by the fire-arms recovered from the possession of the accused. The accused therefore cannot take any advantage from the absence of expert evidence on this point which is a neutral circumstance of no help. If it is of no help to the prosecution, certainly of no help to the accused either. So also, in our opinion, the absence of the mention of the fact of removal of the watch and the shawl by the dacoits in the FIR is of no importance because the watch and the shawl were admittedly left in the court yard of the house of Gharsiram and the dacoits were not able to take away any booty. Moreover, the FIR was not written or signed by any of the witnesses present at the time of the dacoity. We attach no importance to the non-mention of the fact regarding the removal of the watch and the shawl by the dacoits in the FIR.
9. As a result of the foregoing discussion, we do not find any substance in the appeals filed by any of the accused
10. This brings us to the appeal filed by, the State, the Learned Deputy Government Advocate has placed strong reliance on Lalia v. State of Rajasthan 1967 RLW 377 and Kaley v. The State : AIR1955All420 . On the other hand, Mr. Datt has placed reliance on Shyambehari v. State of Uttar Pradesh : 1976CriLJ342 . The question whether the accused can be convicted under Section 396 I.P.C. depends by and large on the answer to the question whether in the facts and circumstances of the case, it can be said that the murder of Dharma was committed by any of the dacoits in the course of committing dacoity or, in other words, in the words of their lordships of the Supreme Court,' the transaction of dacoity had ended the moment the dacoits took to their heels and another and a separate transaction took place' when one of the dacoits shot at Dharma in order to evade his being caught and to make a safe retreat. Admittedly, in the present case, the dacoits were not successful in taking away any booty with them.
11. We have carefully gone through the judgment of their lordships of the Supreme Court, referred to above, as well as the various cases to which reference has been made by their lordships in the judgment. The only direct case in point is Emperor v. Chander and Ors. 3 Cr LJ 294 The dacoits in that case were not carrying any property. Yet the offence of dacoity as defined in Section 391 I.P.C. has been held to be completed by them, at attempt to commit robbery by the gang being clearly proved. It was however found that the attempt to commit dacoity was frustrated by the arrival of the villagers and at the time when the deceased was killed the dacoits were bent upon escaping from the village and had abandoned their intention to rob. The court was therefore of the opinion that in the facts and circumstances of the case before it, it could not be held that there had been murder 'in so committing dacoity' and the conviction under Section 396 I.P.C. could not be sustained. The conviction under Section 396 I.P.C. was accordingly set aside and the finding was altered to one under Section 395 I.P.C. In so far, however, there was evidence on record which if proved, would justify a charge against the appellant under Section 302 I.P.C., for which offence he had not yet been tried, the court thought just and proper that he should be tried for that offence and a direction should be given that the appellant be tried of the charge of murder.
12. In a later case of the same High Court, namely, Kaley v. the State (Supra), the dacoits were found running away with the booty and while considering Chandra's case (Supra), the learned Judges pointed out that the law in that case appeared to have been 'too widely' laid down.
13. There is one more case to which reference may usefully be made. It is Sirajuddin and Ors. v. State : AIR1951All834 . In that case also the dacoits were found running away without collecting any booty by reason of the villagers having put a bold front. The court held that the question whether murder was committed by the dacoits while committing dacoity is a pure question of fact and of degree not to be determined by any general rule but by the special circumstances of each case. From the facts and circumstances of the case, the court however, came to the conclusion that there was nothing to show that the murder was so dissociated by time or space from the dacoity that it could be held that one chapter had closed and a new chapter had begun. This decision thus turned on the facts of the case which were that the villagers on hearing the alarm that dacoits had come to the house of Piru Teli, surrounded the house and there was a free fight between the villagers and dacoits as a result of which one villager died and four received injuries. It was further observed that on the evidence in the case it was not possible to hold that at the time when the villager was killed the dacoits had abandoned the idea of dacoity and they murdered him only with the object of getting away. In the present case, it is clear that the dacoits had taken to their heels without any plunder with them and thus the idea of committing dacoity had been abandoned and the murder of Dharma was thus clearly with the object of getting away. In these circumstances it would not be unreasonable to hold that the transaction of dacoity had ended the moment the dacoits took to their heels and another and a separate transaction took place when in the course of pursuit one of the dacoits shot at Dharma Unfortunately, in the present case, there is absolutely no evidence as to by whose shot Dharma was killed. It would therefore not be possible to fasten the liability for the murder of Dharma on any of the accused and in this view of the matter the conviction under Section 302 I.P.C. is out of question As we have further found that the transaction of dacoity had come to an end the moment the dacoits took to their heels without carrying any booty with them and a separate transaction of having a safe retreat had come into existence at the time when Dharma was shot in the course of the chase, it is not possible to hold that the murder of Dharma was committed 'in so committing the dacoity', or, in other words, 'in the course of committing a dacoity In this view of the matter, we are unable to convict the accused under Section 396 I.P.C., or any of them under Section 302 I.P.C. and consequently, the appeal filed by the State has no force.
14. In the result, all the appeals stand dismissed.