facts of the case

1. The facts emerging from fardbayan of Pushp Lata Jaiswal recorded on 28.11.2000 at
19:30 hours is that dacoity was committed in the house of informant.

2. Dacoits, who were 14-15 in number, armed with pistol, knife etc. entered in the house
at about 6:30 p.m., overpowered the inmates, obtained key of the iron chest and looted
ornaments and cash as detailed in the fardbayan.

3. After committing dacoity, the dacoits went out of the house but again someone told
that we did not perform main job for which we had been here.

4. Thereafter one of the miscreant, who was tall in height, came back in the house and by
putting pistol on the neck of Kailash Prasad Jaiswal (Bhainsur) of the informant, opened
fire as a result Kailash Prasad Jaiswal died at the spot.

5. The informant has also given physical description of dacoits. On the basis of fardbayan of
Pushp Lata Jaiswal, Bundu P.S. Case No. 105/2000, dated 28.11.2000 under Section 396 of the
Indian Penal Code against unknown dacoits was registered.

charges framed
initially charge under Sections 396/120(B) of the Indian Penal Code against 9 accused was framed and
later it was altered to section 395 and charged under section 412.

ARGUMENTS ADVANCED BY THE

APPEALLANT-ACCUSED

Learned Counsel for the appellants has raised only one point. It is submitted that dacoity was committed
in the house of informant, looted articles were also recovered, the appellants were identified by the
witnesses, find support from the evidence adduced by the prosecution but conviction and sentence
recorded under Section 396 I.P.C. is incorrect. The appellants are not liable to be brought within the
ambit of under Section 396 of the Indian Penal Code because Kailash Prasad Jaiswal was not murdered
in course of commission of dacoity and, therefore, appellants are not conjointly liable for the murder
and they are not liable to be punished under Section 396 of the Indian Penal Code. It is fairly conceded
that ample evidence by the prosecution has been brought on record to prove that dacoity was
committed and looted articles from possession of one of the appellant Ramphal Oraon was also
recovered but evidence on record does not indicate that Kailash Prasad Jaiswal was killed in course of
commission of dacoity rather the eye-witnesses have clearly stated that after committing dacoity, the
appellants with their associates went out of the house. In the meantime one of the miscreant said that
important job has still left to be performed and thereafter one of the miscreant who was tall in figure,
returned back and caused injury to Kailash Prasad Jaiswal by means of fire arm from a close range.
Kailash Prasad Jaiswal sustained gun shot injury on his neck and died at the spot. By referring this fact
brought on record by the witnesses, it is submitted that murder of Kailash Prasad Jaiswal was not done
in course of commission of dacoity. Some of the miscreants were intending to commit murder and after
dacoity was over one of the miscreant who has been identified as convict Dhananjay Oraon @ Langra @
Lambu @ Sukra Oraon returned back and opened fire from a close range on the neck of Kailash Prasad
Jaiswal as a result Kailash died. The eye-witnesses, who had identified co-convict Dhananjay have clearly
deposed that it was Dhananjay, who killed Kailash Prasad Jaiswal. Under such circumstances, the
appellants do not owe vicarious liability as defined under Section 396 of the Indian Penal Code and they
are not liable to be punished under Section 396 of the Indian Penal Code.

ARGUMENTS BY THE PROSECUTION

Learned A.P.P. has opposed the argument and submitted that the appellants with their associates were
all along present in the house even after commission of dacoity, looted articles were with them, they
were present in the courtyard, in the meantime one of the miscreant told that main task has left to be
discharged. Thereafter one of the miscreant took out pistol and opened fire on the neck of Kailash
Prasad Jaiswal and killed him. After collecting valuables from the house, the appellants and their
associates were very well present over there, in the meantime, co-convict Dhananjay Oraon took out
pistol and opened fire causing death of Kailash Prasad Jaiswal at the spot. It is not that dacoity was over
and the appellants and their associates had left the place. The prosecution has successfully proved the
offence punishable under Section 396 of the Indian Penal Code against all, who have been convicted.
Offence under Section 412 I.P.C. has also been proved against Ramphal Oraon and they have rightly
been held guilty and inflicted with sentence.

JUDGEMENT
In view of the evidence available on record and the discussions made above, we do not agree with the
findings of the Trial Court that appellants are conjointly liable for the murder of Kailash Prasad Jaiswal
and they are liable to be punished under Section 396 of the Indian Penal Code. We are in agreement
with the submission advanced by learned Counsel for the appellants that dacoity was committed,
articles were looted and for that the appellants are liable to be held guilty for the offence under Section
395 of the Indian Penal Code. In the result, we feel inclined to alter the conviction and sentence from
one under Section 396 of the Indian Penal Code to one under Section 395 of the I.P.C. as against the
appellants. They are hereby held guilty under Section 395 of the Indian Penal Code and sentenced to
undergo R.I. for 10 years and to pay fine of Rs.5,000/- each and in default of making payment of fine
each of them shall suffer further imprisonment of six months. Conviction and sentence recorded under
Section 412 of the Indian Penal Code against the appellant-Ramphal Oraon is hereby upheld. Period
already undergone shall be set up under Section 428 of the Cr.P.C. The Convicting/Successor Court is
directed to issue modified conviction warrant against the appellants under Section 395 of the Indian
Penal Code as indicated above. The conviction and sentence recorded under Section 412 IPC against
Appellant-Ramphal stands upheld.