LexKALIKA TIWARI AND ORS. ETC. versus STATE OF BIHAR
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KALIKA TIWARI AND ORS. ETC. A v. STATE OF BIHAR MARCH 25, 1997 [M.M. PUNCHHI AND K.T. THOMAS, JJ.] B Penal Code, 1860 : Sections 396, 120-B, 302 and 34-Dacoity with murder--Oiminal conspiracy-Even if one of the dacoits commits murder while committing dacoity all dacoits would be liable to be punished-Actual participation of each dacoit in the commission of murder not neces- C sary--f'resence at the exact scene and contemplation of the commission as also knowledge of the commission not necessary-Proof of common intention under Sec. 34 or common object under Sec. 149 also not necessa1y-W11en accused persons convicted under Sec. 396, addition of charges under Secs. 302 and 34 not necessary. D Criminal Trial : Recove1y of stolen property-Neither the police officer who made the recove1y nor the person who was present at the time of recove1y was examined as a witness-Held, f actum of recovery was not proved in the legal manner. Evidence Act, 1872: Identification-Witness identifying the dacoits who were brothers and relatives seen in the light of emthen lamp or count1y-made lamySufficiency of light-Held~· sufficient enough to identify them. E According to prosecution on the night of December, 22, 1987, dacoits armed "ith guns and lethal weapons entered the house of S, looted cash F and jewellery and then gunned down her two sons and a guest. S, who gave first information statement, named certain persons which included her two brothers and nephews. S was married to J who was a cogenital imbecile. They had an also two sons and three daughters. While sons were still in their infancy, their G properties were being looked after by a brother of S. After sons attained majority, relationship with their uncle gradually got strained. A few days prior to the occurence, the uncle's son had an altercation with the son of S. On the day of occurence, S's brother came to the house and left later on. In the night time, the tragic event took place. H 335 A B c D 336 SUPREME COURT REPORTS [1997) 3 S.C.R. The trial court convicted 12 of the accused under Section 396 and 120-B IPC and sentenced them to life imprisonment. High Court confirmed the conviction and sentence. It additionally convicted them under Sections 302 and 34, lPC. Hence this appeal. Partly allowing the appeals, this Court HELD : 1.1. It is only of academic utility to add Sec. 302 read with Sec. 34 IPC to Sec. 396 if the appellants are convicted for murder with dacoity, [339-B-C] 1.2. If a dacoit, in the progress of, and in pursuance of the commission of a dacoity, commits a murder, all his companions who are participating in the commission of the same dacoity may be convicted under Sec. 396 al- though they may not have participated in the commission of murder or its abetment and may not have been present at the scene of murder. [339-D-E] 1.3. It is not necessary that murder should have been within con- templation of all or some of them. All may not have known that murder was going to be committed or has already been committed. [339-E-FJ 1.4. It is not necessary for the prosecution to establish either com· mon intention under Sec. 34 or common object under Sec. 149, IPC as the E tenacles of Sec. 396 would prance to envelop all the dacoits huddled within is penal circumference. [339-G-H] F 2. There is no use of evidence regarding recovery of stolen articles since neither the police olficer who made the recovery nor anyone who was present at the time of such recovery was examined as a witness. Thus, the prosecution did not prove the factum of recovery in the legal manner. [340-C-D] 3.1. It is admitted fact that two of the appellants are direct brothers and six of them are direct nephews of S. So it was not difficult for her to G identify them. PW 2 who looked after cultivation of land and PW 3 who was an employee of the family were present at the time of occurence. The trial Court and the High Court found their evidence reliable. [340-G; 341-C-D] 3.2. It would be quite possible for witnesses to identify assailants in the light of earthen lamp. The visibility capacity of urban people who are H acclamatised to fluorescent light or incandescent lamps is not the stand- -- --· KALIKA TIWARI v. STATE 337 ard to be applied to villagers whose optical potency is attained to country- A made lamps. (341-E-F] Machhi Singh and Others v. State of Punjab, AIR (1983) SC 957, relied on. 4.1. A-7 was a stranger, ha
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