H. N. SETH, J. ( 1 ) THESE three appeals are directed against the judgment of the 1st Addi. Sessions Judge, Moradabad, dated 26th of February, 1975 convicting Prem Pal of offences under sections 460 and 394 Indian Penal Code and sentencing him to ten years and seven years R. I. respectively under the two courts. ( 2 ) WHEREAS the State of Uttar Pradesh in Government Appeal No. 1515 of 1975 claims that the trial court should have, after convicting Prem Pal under section 302 Indian Penal Code instead of section 460 Indian Penal Code sentenced him appropriately, its claim in Criminal Appeal No. 1514 of 1975 is for enhancement of the sentence awarded to Prem Pal under section 460 Indian Penal Code from ten years R. I. to imprisonment for life. Appellant in Criminal Appeal No. 1937 of 1975 is Prem Pal who claims that his conviction and sentence for the offences under sec. 460 and 394 Indian Penal Code should be set aside and he should be acquitted of the charges leveled against him. ( 3 ) BRIEFLY stated the case for the prosecution was that on the night between 6th and 7th f December, 1973 Smt. Shanti Devi along with her husband and ailing child was sleeping in the verandah of their house in village Jargaon. At about 3a. M. four persons came inside her haveli and began to steal her belongings from inside the kotha. The sleep of Shanti Devi and her husband Jaswant Singh was disturbed and they got up. When they saw the miscreants they started shouting. Their shouts attracted the attention of the neighbours, namely, Jaipal Singh, Vikram Singh and Chhuttan Singh who along with many other persons arrived at the spot armed with lathies and torches. Prem Pal accused was spotted amongst the miscreants in the light of the lantern which was burning inside the kotha as also that of the torches. It was seen that he was armed with a gun and the other miscreants had pistols in their hands. Shanti Devi had got up on her roof and was shouting while the robbers were carrying away the stolen property, Jaswant Singh, husband of Smt. Shanti Devi, came out and shouted that he had recognized Prem Pal. Thereupon Prem Pal fired a gun shot which caused injury to Jaswant Singh who fell down and died on the spot. Shanti Devi had got up on her roof and was shouting while the robbers were carrying away the stolen property, Jaswant Singh, husband of Smt. Shanti Devi, came out and shouted that he had recognized Prem Pal. Thereupon Prem Pal fired a gun shot which caused injury to Jaswant Singh who fell down and died on the spot. The four persons then made good their escape. ( 4 ) SMT. Shanti Devi got first information report of the incident scribed by one Ram Kumar and thereafter the said written report was sent to police station Kurfetahgarh, 18 miles away where it was lodged at 9. 15 A. M. on 7th of December, 1973. On the basis of the said report a case under section 460 Indian Penal Code was registered against Prem Pal. The investigation was then taken up by Sri Ram Kishan, Station Officer, (P. W. 7) who reached the spot and made arrangement for sending the dead body- of Jaswant Singh for postmortem examination. Post mortem on the dead body of ]aswant Singh was conducted by Dr. B. R. Singh (P. W. 8) on 8th of December, 1973. Dr. B. R. Singh found the following ante mortem injury on the person of the deceased: Gun shot wound of entrance 1 x 1 on the front of left side of chest 3t above the nipple. Wound was chest cavity deep. Margins were lacerated and inverted. Blackening, charring round the wound was present. ( 5 ) IN the opinion of the Doctor, the aid Injury was sufficient to cause death in the ordinary course and that the death may have been caused on the night between 6th and 7th of December, 1973. In due course after completing the investigation, the police submitted a charge sheet and Prem Pal was committed to Sessions to stand him his trial. In the court of Sessions, Prem Pal was charged for committing offence under section 460 Indian Penal Code and in the alternative under section 302 Indian Penal Code as also for committing an offence under section 394 Indian Penal Code. ( 6 ) ACCUSED Prem Pal denied the allegations and charges leveled against him and pleaded not guilty. He alleged that he has been falsely implicated as he was inimical to Vikram Singh, who had previously also got him falsely arrested in a case of theft wherein he had been acquitted. ( 6 ) ACCUSED Prem Pal denied the allegations and charges leveled against him and pleaded not guilty. He alleged that he has been falsely implicated as he was inimical to Vikram Singh, who had previously also got him falsely arrested in a case of theft wherein he had been acquitted. ( 7 ) AFTER considering the evidence produced in tire case, the learned Sessions Judge came to the conclusion that there could be no doubt that Jaswant Singh had been shot dead un the night between 6th and 7th of December, 1973 during the course of robbery committed in his house. There was at that time the light of lantern burning inside the house and the torches that were in the hands of some of the witnesses available in which the witnesses had an opportunity to recognize Prem Pal amongst the robbers. It was Prem Pal who had fired the gun shot at Jaswant Singh and caused him fatal injuries. In the opinion of the Sessions Judge, a case under sections 460 and 394 Indian Penal Code was made out against Prem Pal He convicted and sentenced him accordingly. Even though he accepted the case that it was Prem Pal who had show dead Jaswant Singh he after convicting Prem Pal for an offence under section 460 Indian Penal Code refrained from convicting him under section 302 Indian Penal Code. ( 8 ) THE stand of the State is that the prosecution has succeeded in clearly establishing that Prem Pal was guilty of an offence under section 302 Indian Penal Code and that he should have been convicted and sentenced accordingly. At any rate, there was no justification for not awarding a sentence of imprisonment for life to Prem Pal for the offence under section 460 Indian Penal Code. The claim of Prem Pal, as already stated above; is that he deserved to be acquitted of all the charges leveled against him. ( 9 ) THE fact that on the night between 6th and 7th of December, 1973 certain miscreants entered the house of Jaswant Singh and stole certain properties and during the course of the said robbery Jaswant Singh was shot dead is amply proved by the medical evidence produced in the case as also the evidence of P. W. 2 Shanti Devi P. W. 3 Bhaipal Singh and P. W. 5 Vikram Singh. It appears that the fact was not seriously controverter on behalf of the accused before the trial court as well. The main controversy in the case before the trial court as also before us concerned the question whether there was sufficient occasion and opportunity for the prosecution witnesses to have identified Prem Pal as the assailant of Jaswant Singh during the course of robbery and whether the evidence of the eye witnesses produced by the prosecution, who deposed that Prem Pal was amongst the robbers and had fired the fatal gun shot at Jaswant Singh, could be believed. As already indicated, the prosecution in this regard relied upon the testimony of Shanti Devi (P. W. 2) Fhaipal (P. W. 3) and Vikram Singh (P. W. 5 ). The learned Sessions Judge came to the conclusion that in this regard implicit reliance could be placed on the testimony of P. W. 2 Shanti Devi and P. W. 3 Bhaipal Singh but it was doubtful if Vikram Singh (P. W. 5) had the opportunity of actually identifying the culprits. The question that arises for our consideration in these appeals is whether the Sessions Judge was juslified in placing implicit reliance on the testimony of Shanti Devi (P. W. 2) and Bhai Pal Singh (P. W. 3) for finding that Prem Pal was amongst the miscreants and that it was he who was responsible for firing the gun at Jaswant Singh. ( 10 ) SHANTI Devi (P. W. 2) fully corroborated the prosecution case described above. According to her that night a lantern was burning inside the house and that she had an opportunity to recognize Prem Pal who was known to her from before in the light of the burning lantern. She is an inmate of the house and her presence at the time of incident cannot be doubted. There is no reason to think that she was not telling the truth when she stated that a lantern was burning inside the house at that time. Nothing has been brought out in her cross-examination to show that she had any interest in falsely implicating Prem Pal in this crime. Her statement in this regards finds corroboration from the version given by her in the first information report which was lodged at the police station. Nothing has been brought out in her cross-examination to show that she had any interest in falsely implicating Prem Pal in this crime. Her statement in this regards finds corroboration from the version given by her in the first information report which was lodged at the police station. ( 11 ) BHAI Pal Singh (P. W. 3) has his house at a distance of about 100 paces from the house of Jaswant Singh. He deposed that on the fateful night he got up on hearing the noise and rushed to the house of Jaswant Singh with a torch and a lathi. He saw that 3 or 4 miscreants were coming out from the door of Jaswant Singh. One of them had a gun and the remaining three were armed with revolvers. It was Prem Pal who was carrying the said gun. The miscreants were also carrying the looted properties. When Jaswant Singh shouted that he had recognized Prem Pal, Prem Pal fired a gun shot at Jaswant Singh who died at the spot. He stated that a lantern was burning in the house of Jaswant Singh and that he could see the faces of the miscreants in the light of the torch flashed by him. Nothing has been brought out in his cross examination as well as to show that he had any reason to falsely implicate Prem Pal in this crime. The evidence of these two witnesses is sufficient to justify the conclusion arrived at by the Sessions Judge that the prosecution had succeeded in establishing that it was Prem Pal who had, during the course of lurking house trespass, fired the gun shot at Jaswant Singh and was responsible for causing his death. In the circumstances, it is not necessary for us to make any comment on the evidence of Vikram Singh (P. W. 5) who has not been relied upon by the Sessions Judge for fixing the identity of Prem Pal as a person responsible for causing death of Jaswant Singh. ( 12 ) NEXT question that arises for consideration is as to whether the Sessions Judge on the finding arrived at by him was justified in convicting Prem Pal for an offence under section 460 Indian Penal Code and not under section 302 Indian Penal Code. ( 12 ) NEXT question that arises for consideration is as to whether the Sessions Judge on the finding arrived at by him was justified in convicting Prem Pal for an offence under section 460 Indian Penal Code and not under section 302 Indian Penal Code. On the findings arrived at by the learned Sessions Judge which findings have been, confirmed by us there can be no manner of doubt that an offence of lurking house trespass had been committed by Prem Pal along with 3 others. During the course of that lurking house trespass, Prem Pal shot at Jaswant Singh and caused his death. Further certain properties belonging to the house of Jaswant Singh and Shanti Devi were also carried away by the miscreants. On these facts, the learned Sessions Judge seems to think that the ingredients of section 460 which runs thus: If at the time of the committing of lurking house trespass by night or house breaking by night any person guilty of such offence shall voluntarily cause or attempt to cause death, or grievous hurt to any person, every person jointly concerned in committing such lurking house-trespass by night or housebreaking by night, shall be punished with imprisonment for life, or with imprisonment of either description for a term which may, extend to ten years, and also be liable to fine. are made out and as such accused Prem Pal had to be convicted under section 460 Indian Penal Code and not under section 302 Indian Penal Code for which he had been charged in the alternative. ( 13 ) IN our opinion, section 460 Indian Penal Code is intended to create a vicarious liability and makes all the persons committing lurking house-trespass by night or house breaking by night responsible for causing the death or grievous hurt to any person even though there might nor have been any common intention to cause death or grievous hurt. This section no where provides that a person who causes death or grievous injury during commission of lurking house-trespass by night or house breaking by night shall not be responsible for his own act and would not be convicted of the offence which he actually commit. This section no where provides that a person who causes death or grievous injury during commission of lurking house-trespass by night or house breaking by night shall not be responsible for his own act and would not be convicted of the offence which he actually commit. In a case where lurking house-trespass by night and house breaking by night is committed by a number of persons and some one causes the death of or grievous hurt to any person, the person causing death or grievous hurt would be responsible for causing such death or grievous hurt and would be punishable under the appropriated section. The remaining persons who had joined in committing house breaking by night or lurking house-trespass by night would be vicariously liable for such an act and would be punished under section 460 Indian Penal Code. The evidence produced in the case clearly indicates that Prem Pal deliberately fired the gun shot at Jaswant Singh and caused his death. He was thus clearly guilty of committing the murder of Jaswant Singh, punishable under section 302 Indian Penal Code. All other persons who had joined Prem Pal in committing offence could have been convicted for an offence under section 460 Indian Penal Code. We are accordingly of opinion that there is substance in the State appeal that the trial court should have, instead of convictions Prem Pal under section 460 Indian Penal Code convicted him for an offence under section 302 Indian Penal Code and passed an appropriate sentence. ( 14 ) NO exception can be taken with regard to Prem Pals conviction and sentence under section 394 Indian Penal Code. ( 15 ) IN the result, Government Appeal No. 1515 of 1975 is allowed. The conviction of Prem Pal for an offence under section 460 Indian Penal Code is altered to one under section 302 Indian Penal Code and he is sentenced to undergo imprisonment for life on this court. Criminal Appeal No. 1514 of 1975 filed by the State Government for enhancing the sentence of Prem Pal under section 460 Indian Penal Code to imprisonment for life has, in view of the order passed by us in Criminal Appeal No. 1515 of 1975, become in fructuous and is dismissed as such. Criminal Appeal No. 1514 of 1975 filed by the State Government for enhancing the sentence of Prem Pal under section 460 Indian Penal Code to imprisonment for life has, in view of the order passed by us in Criminal Appeal No. 1515 of 1975, become in fructuous and is dismissed as such. Criminal Appeal No. 1937 of 1975 filed by Prem Pal against his conviction and sentence awarded to him under sections 460 and 394 Indian Penal Code shall subject to the modification made above in Government Appeal No. 1515 of 1975 stand dismissed. The net result is that Prem Pal now stands convicted for offences under sections 302 and 394 Indian Penal Code and he is sentenced to imprisonment for life and to seven years R. I. respectively under the two count. Prem Pal is on bail. He shall surrender and serve out the sentence imposed upon him in accordance with law. Order accordingly. .