Judgment SACHCHIDANAND JHA and B.N.P.SINGH JJ. 1. These two appeals on behalf of one appellant each arise from the same judgment and as such have been heard together and are disposed of by this common judgment. 2. The appellants have been convicted under Section 396 of the Penal Code and sentenced to imprisonment for life for committing murder of Subhash Rai while committing dacoity in the house of Pritam Rai, Sakil Rai and Tuklali Rai in the night of 24/25th February, 1995. 3. The occurrence was reported to SI Ram Charitar Paswan, Officer Incharge of Maner Police Station by Pritam Rai at the clinic of Dr. Ajay Kumar at Maner at 3 a.m. He stated that while he was sleeping in his maize field at one Oclock he heard some noise coming from his house; when he went to his house, he saw Jiva Nand Rai, Ram Lakhan Rai, Prabhu Rai and Rural Rai - co villagers, and Sudarshan Rai and Sakaldeo Rai of Village Dekuli, Police Station Bihta. They were armed with lathi, danda and garasa. They were asking his father Baijnath Rai about the whereabouts of his son saying that he was instrumental in getting his liquor bhathi (distillery) closed by the police and case instituted. They had to spend ten thousand rupees in the case. They had come to collect double of the amount i.e. twenty thousand rupees lest they wound be killed. Baijnath Rai replied that it was police action and they were not responsible for the closure of the bhathi Upon this the miscreants started assaulting his father by lathi, danda and garasa. On shout his (informants) uncle Subhash Rai, Jamuna Rai and aunt Sukali Devi came to rescue. They too were assaulted. After assault the miscreants left the place with some articles. The informant stated that after the miscreants left he brought his injured father Baijnath Rai and uncle Subhash Rai, Yamuna Rai and Sukli Devi for treatment to the clinic of Dr. Ajay Kumar at Maner where they were undergoing treatment. 4. On the basis of said fardbeyan Maner PS Case No. 29/95 was instituted under Sections 452, 380, 324 and 307 of the Penal Code and the investigation commenced. Subhash Rai was later shifted to Patna Medical College & Hospital (PMCH) at 4.30 p.m. as his condition was found to be serious. 4. On the basis of said fardbeyan Maner PS Case No. 29/95 was instituted under Sections 452, 380, 324 and 307 of the Penal Code and the investigation commenced. Subhash Rai was later shifted to Patna Medical College & Hospital (PMCH) at 4.30 p.m. as his condition was found to be serious. He succumbed to his injuries in the PMCH on the same day. After the death of Subhash Rai Section 302, IPC was added to the array of offences in the FIR. (Earlier, it appears from body of the FIR that Section 395, IPC had been added). After completing the investigation chargesheet was submitted against the appellants and said Jiva Nand Rai, Ram Lakhan Rai and Prabhu Rai showing him (Prabhu Rai) as absconder, besides one Shyam Narayan Rai. Jiva Nand Rai and Ram Lakhan Rai absconded at the stage of judgment. Shyam Narayan Sao was acquitted. 5. At the trial the prosecution examined eight witnesses to prove its case. The material witnesses are PW 1 Baijnath Rai, PW 2 Sukhali Devi, PW 3 Dasain Rai, PW 4 Jamuna Rai and PW 5 Pritam Rai, the informant himself. They all claimed to be eye-witnesses. Out of them PWs 1, 2 and 4 had suffered injuries in course of the occurrence by the miscreants. Dr. Ajay Kumar in whose clinic the injured as well as the deceased were treated was examined as PW 6. The doctor who conducted the Postmortem namely Dr. Ashok Kumar Yadav was examined as PW 7, while the Investigating Officer of the case namely Ram Charitar Paswan was examined as PW 8. The appellants also examined one Ramjee Rai as DW 1 in defence. At the end of the trial the appellants were convicted and sentenced as indicated at the outset. As Jiva Lal Rai and Ram Lakhan Rai absconded at the stage of judgment the pronouncement of the judgment was deferred in their case, while Shyam Narayan Sao was acquitted as mentioned above. 6. We heard Shri Ajay Kumar Thakur on behalf of the appellant Sudarshan Sao in Cr. Appeal No. 141/99 and Shri S.S. Asgar Hussain on behalf of appellant Rudal Rai in Cr. Appeal No. 148/99, besides the Stale Counsel. Shri Thakur submitted that the trial of Sudarshan Sao was result of mistaken identity. 6. We heard Shri Ajay Kumar Thakur on behalf of the appellant Sudarshan Sao in Cr. Appeal No. 141/99 and Shri S.S. Asgar Hussain on behalf of appellant Rudal Rai in Cr. Appeal No. 148/99, besides the Stale Counsel. Shri Thakur submitted that the trial of Sudarshan Sao was result of mistaken identity. Whereas the miscreant named in the FIR was Sudarshan Rai, on account of similarity of name the appellant was implicated in the case and put on trial. He referred to the protest petition dated 8.5.1995 (Ext. 1/A) in which too name of the miscreant was mentioned as Sudarshan Rai. 7. It is true that in the fardbeyan as well as in the examination in chief of PW 1 the name was mentioned as Sudarshan Rai but this apparently was a slip of tongue. All the witnesses including PW 1 in his cross- examination referred to Sudarshan Sao. All of them identified him in Court. As a matter of fact being a as co-villager the fact that he was identified in Court as one of the miscreants committing the crime, the submission has to be rejected. It is relevant to mention that this point was never taken by the appellant either at the stage of investigation or trial and therefore merely because in the fardbeyan or in the protest petition at some stage in the examination in chief of one witness his name was mentioned as Sudarshan Rai and not Sudarshan Sao, it cannot be said that his trial was result of any mistaken identity. 8. Shri Thakur then submitted that the informant had made another statement (Ext. 5/1) before the Officer Incharge of Pirbahore Police Station on 25.2.1995 at 7 p.m. in which names of the appellants were not mentioned. We find no substance in this submission for the reason that the said statement. Ext. 5/1, refers to the fardbeyan lodged by the informant earlier and if thus the fardbeyan had been lodged much prior to the statement before the Officer Incharge of Pirbahore Police Station, the veracity of the fardbeyan cannot be doubted on account of omission of names in Ext. 5/1. It appears to us that after Subhas Rai was shifted to PMCH and his death information must have been sent to Pirbahore Police Station within whose jurisdiction PMCH is situate, and on receipt whereof the Police Officer came to PMCH and recorded the statement. 5/1. It appears to us that after Subhas Rai was shifted to PMCH and his death information must have been sent to Pirbahore Police Station within whose jurisdiction PMCH is situate, and on receipt whereof the Police Officer came to PMCH and recorded the statement. It is not the case of the appellants that Ext. 5/1 should have been treated as the fardbeyan. It is to be kept in mind that not only the fardbeyan was recorded within two hours of the occurrence at 3 a.m., the formal FIR was also registered one hour thereafter at 4.05 a.m. The veracity of thefardbeyan therefore cannot be doubted. 9. Shri Thakur next submitted that from a bare perusal of the fardbeyan and the evidence on record it would appear that the miscreants had come to the house of the informant to settle score as they had a feeling that his son was instrumental in getting liquor bhathi closed causing loss of ten thousand rupees, and accordingly they had come demanding sum of twenty thousand rupees to compensate the loss. The dacoity was thus not the motive though they might have come prepared for the assault. The circumstances therefore db not make out a case under Section 396 of the Penal Code and as such the appellants could not be convicted under that section. 10. Shri Thakur further submitted that the prosecution has alleged specific motive which it failed to prove rendering the prosecution case doubtful. Further, the night of occurrence being admittedly dark, the source of identification was scant and therefore it cannot be said that the crime was committed by the appellant. 11. Shri S.S. Asgar Hussain submitted that the allegation against Rudal Rai is omnibus and none of the material witnesses stated that it was the appellant who had struck the blow. The evidence rather suggests that the blow was struck by Jiwanand Rai. There being no blow by lathi which the appellant was allegedly carrying, the death of the deceased cannot be attributed to Rudal Rai and therefore he could not be convicted. 12. In view of the order that we propose to pass we do not want to consider the aforementioned submissions of the counsel except those relating to applicability of Section 396 of the Penal Code. 12. In view of the order that we propose to pass we do not want to consider the aforementioned submissions of the counsel except those relating to applicability of Section 396 of the Penal Code. We find merit in the submission that the evidence on record does not suggest that the miscreants had come of commit dacoity in course of which the deceased was killed. They had come for revenge - to the extent of assault. Section 396 of the Indian Penal Code reads as under : "If any one of five or more persons, who are conjointly committing dacoity, commits murder in so committing dacoity, every one of those persons shall be punished with death or imprisonment for life, or rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine." From a bare residing it will be manifest that the offence prescribed under Section 396 can be said to have been committed when any one of the miscreants whose number should be five or more, commits murder while conjointly committing dacoity. In other words murder must be committed while committing dacoity. As indicated above, the prosecution case is that the miscreants had come seeking revenge or compensation for loss they had suffered on account of closure of the liquor bhathi and in fighting the case for which they believed the informant (son of PW 1) was responsible. After the informants father denied the Accusation he was assaulted by lathi and danda and when the deceased and others came to his rescue they were assaulted too. 13. We are prima facie satisfied that the appellants had come with a common object and with knowledge that offence of murder could be committed which is evident from the threat given by them that if twenty thousand rupees is not paid they would be killed. In the facts and circumstances, in our opinion, the trial Court should have framed charge under Section 302/149, IPC and not Section 396, IPC. 14. We are conscious of the fact that the offence under Section 396 of the Penal Code is combination of the offences of dacoity and-murder and therefore, even where the offence under Section 396 is not made out, the person responsible for the death of the deceased can be convicted under Section 302 of the Penal Code for the individual act done by him. Reference in this connection may be made to the well known case of Shyam Behari v. State of Uttar Pradesh, AIR 1957 SC 320 and Kanhaiya Nonia and others v. State of Bihar, 1996 PLJR 492. However unlike those cases there is no indication in the charge about any particular accused committing the fatal act resulting in death of the deceased. Indeed, evidence on record suggests that the fatal shot was fired by Jiwanand Rai but unfortunately charge does not given any such indication and therefore it is not possible to distinguish the cases of the appellants from one another. 15. We have also considered the possibility of altering the conviction from Section 396 of the Penal Code to one under Section 302/149 or 302/34 of the Penal Code but in view of the decision of this Court in Surya Nath Upadhaya and others v. State of Bihar, 2002 (4) PLJR 719, that too does not appear to be permissible. The relevant passage from the judgment may be quoted as under ; "It would appear that both Sections 34 and 149 incorporate the concept of vicarious liability. Even if the offending act is not committed by the particular person, where the act is done by several persons in furtherance of the common intention, or the act is committed by any member of the unlawful assembly in prosecution of the common object of that assembly or such as the members of the assembly knew to be likely to be committed in prosecution of the common object, every concerned persons is guilty of the offence as if it was committed by him alone. In my opinion, while it is permissible to convict an accused charged with committing the offence under Section 396, under Section 302 of the Penal Code for the individual act done by him, or his conviction under Section 396 awarded by the trial Court can be altered to Section 302 of the Penal Code by the appellate Court, there can be no such conviction with the aid of Section 34 or Section 149. Section 34 envisages existence of common intention on the part of several persons (of committing murder) in furtherance of which the act is committed making others liable for that act in the same manner as if it were done by him alone. Section 34 envisages existence of common intention on the part of several persons (of committing murder) in furtherance of which the act is committed making others liable for that act in the same manner as if it were done by him alone. Similarly for applying Section 149, existence of unlawful assembly, a common object of that assembly (to commit murder) or knowledge of the members of the assembly that the offence (of murder) is likely to be committed in prosecution of the common object, have to be proved apart from framing an appropriate charge. Where no such charge has been framed or any evidence led at the trial the accused cannot be convicted for the act committed by another person or persons with the aid of Section 34 or Section 149 as the case may be. So far as Section 149 is concerned it may be mentioned that being member of the unlawful assembly is itself an offence punishable under Section 142 of the Penal Code. In the instant case, as per the charge, the common object of the appellants was to commit dacoity and while so committing dacoity, the murder was committed. In the above premises, in the facts and circumstances of this case, the appellants cannot be convicted under Section 302/34 or 302/149 of the Penal Code. That is, perhaps, why this Court in the case of Kanhaiya Nonia observed : "Those who committed dacoity along with Kanhaiya Nonia but since on the facts proved the murder was not committed in so conjointly committing the dacoity, may suggest that in their case a failure of justice may take place if they are convicted without trial under Section 302/34 or 302/149 of the Indian Penal Code. Kanhaiya Nonia, however, cannot say so." (emphasis added). 16. We have also considered the question as to whether the appellants could be convicted under Section 395 of the Penal Code, if not under Section 396. On the materials on record we find it difficult to alter the conviction. Though dacoity is said to have been committed in as many as three houses belonging to Pritam Rai, Wakil Rai and Tuklali Rai the evidence is scant on the point of dacoity. The fardbeyan simply suggests that while returning from the place of occurrence the miscreants took away some articles from the house the particulars of which would be furnished later. The fardbeyan simply suggests that while returning from the place of occurrence the miscreants took away some articles from the house the particulars of which would be furnished later. At the stage of evidence bald allegation was made of taking away of the articles. Upon perusal of the evidence on record we do not thing it would be possible to convict the appellants under Section 395 of the Penal Code. 17. However while we find it difficult to make any alteration in the conviction of the appellants from Section 396 of the Penal Code to 302 or 302/149 or 302/34 or even 395 of the Penal Code, we are firmly of the view that it would result in miscarriage of justice if on technicality - because of failure of the trial Court to frame the correct charge, the appellants are acquitted. It is worth mentioning that in the occurrence as many as three persons sustained injuries which were either grievous or on vital parts of the body and therefore their presence of probability of their seeing the occurrence cannot be doubted. The occurrence was reported within two hours of the occurrence. The deceased was immediately taken to a private clinic where the fardbeyan was recorded by the Officer Incharge of the local Police Station. As his condition started deteriorating he was shifted to PMCH in the afternoon where he breathed his last. 18. Having regard to the attending circumstances we are of the view that a prima facie case under Section 302/149, IPC is made out and the Court ought to have framed charge for the said offence before proceeding with the trial against the appellants and others. It is not known as to whether the absconding accused, namely, Jivanand Rai and Ram Lakhan Rai who absconded at the stage of judgment, or Prabhu Rai who had absconded at the stage of investigation, were ultimately apprehended during the intervening period or not. Be that as it may, so far the appellants are concerned without expressing any opinion on the facts of the case, lest the appellants may suffer prejudice, we are of the view that this is a fit case in which there should be a retrial. Be that as it may, so far the appellants are concerned without expressing any opinion on the facts of the case, lest the appellants may suffer prejudice, we are of the view that this is a fit case in which there should be a retrial. Being of the view, as indicated above, that the appellants could not be convicted under Section 396 of the Penal Code, the impugned conviction is set aside and they are acquitted of the charge under Section 396, IPC but subject to the result of the retrial. 19. Out of the two appellants herein Sudrashan Sao is in jail. As a consequence of his acquitted under Section 396 of the Penal Code, he is directed to be released on furnishing bail bonds of Rs. 10,000/- with two sureties of the like amount to the satisfaction of the trial Court. The other appellant Rudal Rai is on bail. Both of them will appear before the trial Court on 25.8.2003 for framing of charge. On that day after framing the charge, the Court will proceed with the trial giving it due priority making all endeavours to conclude the same within a period of six months. 20. It is again made clear that any observation made in this judgment will not prejudice the parties. 21. The appeals stand disposed of in the above terms. 22. Let the lower Court recovered be sent down forthwith. Appeals disposed of.