IMPORTANT POINT
If a dacoit in Progress of, and in pursuance of the commission of a dacoity commits a murder, all participants may be convicted u/s 396 I.P.C. although they may have no participation in murder beyond fact of participation in dacoity.

JUDGMENT

Thomas, J. -For Sanfula Devi- a mother of two sons and three daughters - the nightfall on 22nd December, 1987 was dreadfully catastrophic as dacoits exterminated her entire male progeny besides plundering all her valuable jewellery. Those whom she named as the murders included her two brothers and nephews. Police after investigation charge sheeted 14 persons including those kins of Sanfula Devi for the murder of the sibblings- Gauri Shankar Rai and Keshav Rai– and another person (Hari Narain) who happened to be present in her house then. Sessions court convicted 12 of the accused under Sections 396 and 120-8 of the' Indian Penal Code and sentenced them to imprisonment for life. (Some of them were convicted under Section 27 of the Arms Act also.) High Court of Patna while confirming the aforesaid conviction and sentence added Section 302 with the aid of Section 34 of the Indian Penal Code also while disposing of the appeals filed before it.

2. Sanfula Devi was named to Jag Narain who was a congenital imbecile. Five children were born to her in the wedlock two sons (Gauri Shankar and Keshav Rai) and. three daughters. The eldest son got married and the second son hag only reached marriageable age during the time of occurance. While the sons were in their infancy Sanfula Devi s properties were looked after by her brother A-4 Inderdeo Rai. But when the sons reached age of maturity they were miffed with their uncle over the manner he dealt with their properties. Eventually the relationship became strained and led to rancour. A few days prior to the occurrence Inderdeo Rai's son Rama Shankar Hai (A-1) had an altercation with Gauri Shankar Rai.

3. Prosecution case, in short, is this following: On the occurrence day, Hari Narain visited Sanfula Devi's house for mooting a marriage proposal for her second son Keshav Ra1. Inderdeo Rai went there presumably for reconnaissance and left. After evening meals when the inmates of the house retired for a rest the dacoits reached there armed with guns and other lethal weapons. Rama Shankar Rai (A-1) asked Sanfula Devi to surrender key of the safe and after wangling the key the dacoits looted the cash and jewellery. They then closed the door of the room from outside where the females were sitting and _went on a pillage during which they gunned down Guari Shankar Rai and Keshav Rai and also their guest Hari Narain. Thereafter, they all left with the booty.

4. Trial court convicted all except A-9 Jag Narain and A-14 Radhamuni Pal, of the offences aforesaid. Those convicted persons filed appeals in the High Court, while the State of Bihar filed appeal against their act quittal under Section 302 IPC. High Court disposed of all the appeals by a common JUDGMENT confirming the conviction and sentence under' Sections 396 and 120-8 and additionally convicting those persons under Section 302 read with Section 34 of the IPC. However, no substantial change was made to the sentence as the High Court directed the sentence of life imprisonment under Section 302 to run concurrently With the sentence imposed under Sections 396 and 120-B IPC.

5. All the aforesaid convicted persons, except A-8 Bahadur Pal, have come up with appeals before this Court. Thus we are dealing with the conviction and sentence passed on 11 accused. We heard all learned counsel at length.

6. Shri K.B. Sinha, learned senior counsel who argued for some of the appellants, made an endeavour at the outset to show that the conviction under Section 302 read with Section 34 was bad as the common intention of the dacoits was not to murder any of the deceased. We pointed out the futility of that endeavour to the learned counsel that if appellants are liable to be convicted under Section 396 IPC it is only of academic utility whether conviction under Section 302 read with Section 34 should have been additionally added. We expressed to the learned senior counsel that no the peculiar facts of this case we are not inclined to award any sentence