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2011 DIGILAW 802 (RAJ)

Ram Singh v. State of Rajasthan

2011-04-22

MEENA V.GOMBER, RAGHUVENDRA S.RATHORE

body2011
Hon'ble Dr. GOMBER, J.—This judgment will dispose of the aforementioned appeals arising out of a common incident dated 16.3.1998 which had become the subject matter of FIR No. 45/98 registered under Section 395, 396, 307, 324, 323 and 120B IPC and 3/25 of the Arms Act, at Police Station Diggi District Tonk. 2. Accused Ramjilal, Makkhan, Pappu, Sayra, Babu, Mahendra Soni, Kalyan Singh, Ram Singh and Birbal i.e. 9 persons had been set up for trial in the first instance. Vide judgment dated 12.8.2004 all the accused persons except Birbal, had been convicted for the offence punishable under Sections 395, 396, 302 read with 149, 147, 148, 323, 307 read with 149 of the IPC. The accused Babu, besides above, had also been convicted and sentenced for offences punishable under Section 3/25 of the Arms Act. Accused Mahendra Soni, Kalyan Singh, Ram Singh, Pappu and Ramjilal were sentenced as under:- (i) Two year's rigorous imprisonment for the offence under Section 148 IPC; (ii) Life imprisonment and a fine of Rs. 1000/- in default whereof to further undergo one year's rigorous imprisonment for the offence under Section 302 read with 149 IPC; (iii) Life imprisonment along with a fine of Rs. 1000/- in default whereof to further undergo one year's rigorous imprisonment for the offence under Section 395 read with 396 IPC; (iv) Five year's rigorous imprisonment and a fine of Rs. 1000/- in default whereof to further undergo one year's rigorous imprisonment for the offence punishable under Section 307 read with 149 IPC; (v) One year's rigorous imprisonment for the offence punishable under Section 323 read with 149 IPC. The accused appellant Makkan was sentenced as under:- (i) Two year's rigorous imprisonment for the offence under Section 148 IPC; (ii) Life imprisonment along with a fine of Rs. 1000/- in default whereof to further undergo one year's rigorous imprisonment for offence under Section 395 read with 396 IPC; (iii) Five year's rigorous imprisonment along with a fine of Rs. 1000/- in default whereof to further undergo one year's rigorous imprisonment for the offence under Section 307 IPC; and (iv) One year's rigorous imprisonment for the offence punishable under Section 323 read with 149 IPC. Accused Sayra had been sentenced to undergo as under:- (i) Two year's rigorous imprisonment for the offence under Section 148 IPC; (ii) Life imprisonment along with a fine of Rs. Accused Sayra had been sentenced to undergo as under:- (i) Two year's rigorous imprisonment for the offence under Section 148 IPC; (ii) Life imprisonment along with a fine of Rs. 1000/- in default whereof to further undergo one year's rigorous imprisonment for the offence punishable under Section 302 IPC; (iii) Life imprisonment along with a fine of Rs. 1000/- in default whereof to further undergo one year's rigorous imprisonment for the offence punishable under Section 395 read with 396 IPC; (iv) Five year's rigorous imprisonment along with a fine of Rs. 1000/- in default whereof to further undergo one year's rigorous imprisonment for the offence under Section 307 read with 149; and (v) One year's rigorous imprisonment for the offence under Section 323 read with 149 IPC. The accused Babu had been sentenced as under:- (i) Two years' rigorous imprisonment for the offence punishable under Section 148 IPC; (ii) Life imprisonment along with fine of Rs. 1000/- in default whereof to further undergo rigorous imprisonment for one year's for the offence under Section 302 read with 149 IPC; (iii) Life imprisonment along with a fine of Rs. 1000/- in default whereof to further undergo one year's rigorous imprisonment for the offence under Section 395 read with 396 IPC; (iv) Five years' rigorous imprisonment along with a fine of Rs. 1000/- in default whereof to further undergo one year's rigorous imprisonment for offence under Section 307 read with 149 IPC; (v) One year's rigorous imprisonment for the offence under Section 323 read with 149 IPC; and (vi) Three years' rigorous imprisonment along with a fine of Rs. 100/- in default whereof to further undergo rigorous imprisonment for three months for the offence punishable under Section 3 read with 25(1)(b) of the Arms Act; All the sentences were to run concurrently and benefit of Section 428 Cr.P.C. as in accordance with law had been given. Accused Ramjilal, Makkan, Sayra and Pappu have challenged this order vide criminal appeal no. 1027/04; Ram Singh and Babu have challenged this order of conviction and sentence vide criminal appeal No. 908/04; while Mahendra Soni and Kalyan Singh have challenged the order of conviction and sentence vide criminal appeal No. 251/05. 3. Accused Ramjilal, Makkan, Sayra and Pappu have challenged this order vide criminal appeal no. 1027/04; Ram Singh and Babu have challenged this order of conviction and sentence vide criminal appeal No. 908/04; while Mahendra Soni and Kalyan Singh have challenged the order of conviction and sentence vide criminal appeal No. 251/05. 3. Accused Birbal, after the commencement of trial before the learned Additional Sessions Judge (Fast Track) No. 1, Tonk, absconded and could be arrested only on 1.11.2004 and produced before the court on 13.1.2005 and his separate trial was conducted after his arrest. Vide impugned judgment dated 31.8.2006, he had been convicted for the offence punishable under Section 395 read with 396, 307 read with 149 and 147, 323 of the IPC and he had been sentenced as under:- (i) Life imprisonment along with a fine of Rs 1000/- in default whereof to further undergo one year's rigorous imprisonment for the offence punishable under Section 395 read with 396 IPC; (ii) Five years' rigorous imprisonment along with fine of Rs. 1000/- in default whereof to further undergo one year's rigorous imprisonment for offence under Section 307 read with 149; and (iii) One year's rigorous imprisonment for the offence under Section 147, 323 IPC. All the sentences were to run concurrently and benefit of Section 428 Cr.P.C. as in accordance with law, was given. However, he has acquitted of the offence under Section 302 of the IPC. This judgment and order of sentence was challenged by Birbal vide criminal appeal No. 1018/06. 4. The facts as culled out by the prosecution are as follows:- On 16.3.1998 at about 8.30 p.m. SHO Police Station Diggi Shri Banwari Lal, PW.4, on receipt of a telephonic information Exhibit P.135 (rapat rojnamcha) to the effect that some miscreants were creating nuisance in the temple Kalyanji Maharaj, reached there. PW10 Basantilal, a member of pujari family of the temple, gave a written report Exhibit P1 alleging that after completion of evening aarti and offering of bhog at about 8.00 p.m.,he along with his brother Rajendra PW.17, uncle Ram Swaroop PW.15, and other family members, went to the western side of the temple known as `parikrama' for having their food (prasadi). His brother Yaduraj PW.34 was made to sit on the takhat on the gate of the temple whereas his sister Shakuntala, nephew Jeetu PW.30 and niece Shimla PW. His brother Yaduraj PW.34 was made to sit on the takhat on the gate of the temple whereas his sister Shakuntala, nephew Jeetu PW.30 and niece Shimla PW. 28 were sitting near the gate of garbhgrah (main temple). They were about to start dinner (prasadi), a gunshot noise from the side of garbhgrah was heard and scared Shimla came crying that dacoits had come to the temple. On hearing this they rushed towards the garbhgrah and saw one person going out of garbhgrah with the `mukut' and `sirpech' of Kalyanji Maharaj and two persons were seen threatening Yaduraj and others on a gunpoint. Rajendra chased and caught hold of the miscreant running with `mukut' and `sirpech' and sister Shakuntala tried to snatch it from him. The scuffle started and immediately, four to six more miscreants armed with weapons came and dragged Shakuntala to the Garuda Chowk. Four five gunshots fired by them injuring Shakuntala (deceased), Jeetu PW 30, Rajendra PW 17, Ram Swaroop P/w 15 and Yaduraj PW.34.Shakuntala fell in the chowk and complainant Basantilal was also threatened on a gunpoint by one of the miscreants wearing a maroon suit. Another fire shot injured a lady. Meanwhile his brother Rajendra PW.17, apprehending that they may again go to the garbhgrah, bolted it from inside whereas his uncle Ram Swaroop tried to shut the middle door of the temple but the miscreants did push the same the he could not. The gunshots fired by the miscreants also injured Laxman (deceased), Ram Rattan and others. The mob chased the miscreants but could catch hold of only two of them who disclosed their names as Ram Singh and Birbal and the names of their other companions were disclosed as Makkan Meena, Madan Meena, Pappu Meena, Badri Meena, Babu Meena, Shambhu Meena and Sayra Meena, all residents of Sanwalpura, Sikar. Names of Prakash Meena of Nayabas, Sikar and Mahendra Soni of Jadiawas, Sikar, were also disclosed by them. According to the complainant the miscreants ran towards the rear side of the temple after the mob tried to chase them and on checking the temple 'sirpech' was found missing. 5. PW 4 Banwari Lal sent Ex. P1 report through a Constable to the Police Station for registering the case which was registered as No. 45/98 and formal FIR Ex. P.4 was chalked. 5. PW 4 Banwari Lal sent Ex. P1 report through a Constable to the Police Station for registering the case which was registered as No. 45/98 and formal FIR Ex. P.4 was chalked. The Additional SP, SDM & SP Tonk also reached the spot and investigation of the case was handed over to Janardan Sharma, Additional S.P. (PW. 60). Soon after the incident, injured persons namely Shimla, Shakuntala, Madhu, Yaduraj, Jeetu, Ramrattan, Laxman etc. were sent to the hospital for treatment. Shakuntala succumbed to injuries immediately after the incident whose postmortem was got conducted the next morning. The injured Laxman, who was referred to SMS Hospital, died during treatment on 22.3.1998 i.e. after six days. 6. During investigation, site plan Ex. P 6 was prepared, blood stains were lifted and cartridge case, weapons of offence, which included one country made revolver, 12 bore KP special cartridge case, shoes, a piece of shirt pocket etc. left at the place of occurrence, were seized. Shoe molds and jeep tyre molds etc. were taken and photographed the next morning and accused appellants Ram Singh and Birbal were arrested. Statements of eye witnesses were recorded and accused Kalyan Singh, the jeep driver, was arrested on 18.3.1998 and the jeep No. RJ 14 T 1981 along with its documents including the copy of driving license of accused Kalyan Singh and a parking receipt No. 4026 dated 16.3.1998 issued by the Ramdas trust, lying therein was recovered at his instance. The accused Ramjilal was arrested and at his instance the `sirpech Art. 1 was recovered from his house. Accused Makkhan was also arrested on 18.3.1998 and his shoes and shirt which he was wearing at the time of incident, were seized and were sent for examination. At the instance of Babu, a 6 round pistol was recovered. The seized articles were sent for FSL and scientific evidence for molds and other chemical reports were received. Medical reports of all injured persons were collected and placed on record. Test identification parades of accused and also of case property 'sirpech' etc. were conducted and statements of witnesses and injured eye witnesses were recorded. 7. The seized articles were sent for FSL and scientific evidence for molds and other chemical reports were received. Medical reports of all injured persons were collected and placed on record. Test identification parades of accused and also of case property 'sirpech' etc. were conducted and statements of witnesses and injured eye witnesses were recorded. 7. The charge-sheet was filed on 11.6.1998 in the Court of ACJM, Malpura for the offence under Sections 395, 396, 307, 324, 323, 120B IPC and 3/25 Arms Act against Mahendra Soni, Kalyan Singh, Pappu, Birbal, Ram Singh, Makkan and Ramjilal under Section 173(3) Cr.P.C. whereas against Sayra and Babu under Section 173(8) Cr.P.C. After the arrest of Sayra on 9.2.2000, supplementary charge-sheet against him was filed on 28.2.2000 and after arrest of Babu, second supplementary charge-sheet was filed against him which were also committed to the Court of Sessions. 8. On receipt of the case committed to it, the Court of Additional Sessions Judge (Fast Track) No. 1 Tonk, after hearing the charge arguments, read over the charges to all the accused including Birbal on 7.8.1998 for offences under Sections 395, 396, 302 alternatively 302 read with 149, 147, 148, 323, 307 alternatively 307 read with 149 IPC against all the accused persons, which were later amended on application filed by the Public Prosecutor. Besides these charges, accused Babu was also charged with offence under Sec.3/25 Arms Act. The accused denied the charges and claimed trial. It is not out of place to mention that the accused Birbal absconded during the trial and his trial was separated and after his arrest on 9.4.2003 his separate trial was conducted which culminated in impugned judgment dated 31.8.2006. 9. In order to substantiate its case, the prosecution examined as many as 64 witnesses and exhibited 136 documents including the FSL reports Ex.P/123 and Ex.P/124, Finger Print Bureau report Ex.P/125 with regard to shoe and tyre molds and Ballistic report with regard to the weapons, cartridges, cases, pallets and wads collected during investigation, in the trial against all others except Birbal and 50 witnesses and 127 documents in the trial against Birbal. After completion of prosecution evidence, the accused persons were examined under Section 313 Cr.P.C. and all incriminating material, evidence and other circumstances were put to them. After completion of prosecution evidence, the accused persons were examined under Section 313 Cr.P.C. and all incriminating material, evidence and other circumstances were put to them. They alleged false implication and examined 13 witnesses and exhibited 26 documents in defence, which included the police statements of prosecution witnesses confronted to them being Ex. D2 to Ex. D.12, Ex. D.14 to Ex. D 16, Ex. D 17 to Ex D. 21 and also their previous statements made in the court. Accused appellant Birbal in his trial examined DW1 Jagdish in defence and exhibited documents which included the previous statements of witnesses before the court and also before police. 10. On the basis of material before him, the learned Additional Sessions Judge (Fast Track) No. 1 Tonk, vide judgment dated 12.8.2004 found them guilty of forming an unlawful assembly with the common object of committing dacoity in the temple and being laced with fire arms, committing rioting and dacoity and in the commission of dacoity of Kalyanji idol, committing murder of Shakuntala and Laxman and causing such injuries to Jeetu and Laxman alias Satyaprakash which were sufficient to cause death and also for causing simple and grievous injuries on the persons of Shimla, Yaduraj, Ram Ratan, Madhu, Vimla and Ram Swaroop. Babu, besides above was found guilty of possessing firearms without license. Birbal, however, vide judgment dated 31.8.2006 had been acquitted of offence under Section 302 IPC and found guilty for offence under Section 395, 396, 147, 323 and 307 read with 149 IPC, as mentioned hereinbefore. 11. Heard the learned counsel appearing on behalf of the appellants of all the four appeals and perused both the impugned judgments and also the material available on record. Appeal No. 1027/04 (i) Shri S.R. Bajwa, learned senior counsel, along with Shri V.P. Bishnoi, appearing on behalf of appellants namely Makhan Ramjilal, Pappu and Sayra, assailing the impugned judgment dated 12.8.2004, vehemently argued that the learned trial Court has erred in arriving at a finding of conviction of the appellants on the basis of testimony of eye witnesses which had numerous contradictions and embellishments rendering testimony highly dubious. (ii) Second argument advanced by the learned senior counsel was predicated to the test identification parades of the accused appellants as also that of the case property. (ii) Second argument advanced by the learned senior counsel was predicated to the test identification parades of the accused appellants as also that of the case property. It was argued that they suffered from irregularities and as per settled principles of law, the conviction could not have been recorded on the basis of such an identification parade. Further that the magistrate conducting the identification parade did not observe the formalities required i.e. by mixing the identical case property and also by mixing the persons of the same physique built and by hiding the special marks on the face of the accused appellants and that such identification parade could not earn adequate probative value. (iii) Third argument advanced by learned senior counsel was with regard to the recovery of Article -1 `sirpech' at the instance of Ramjilal, stating that there was nothing to show that the place from where Article-1 was recovered at his instance, was in his exclusive possession and until that was proved, said recovery could not be made basis of his conviction. (iv) The fourth argument advanced by the learned senior counsel was with regard to the fact of recovery of a piece of cloth from the place of occurrence allegedly matching with the shirt of Makkhan recovered from him vide Exhibit P. 47. His argument was that there was no mention in his arrest memo Exhibit P. 53 that at the time of arrest, appellant Makkhan was wearing a shirt without pocket and that this piece of cloth had also not been produced in court and such evidence could not be used against the accused Makkhan. (v) The fifth argument advanced by the learned senior counsel was predicated to the fact that accused Pappu had been linked with the crime on the basis of statements of witnesses who claimed to have heard one of the accused asking Pappu to snap the telephone by naming him as `Pappuda' and that he snapped the telephone, but according to him this fact found mention neither in FIR nor in site-plan. (vi) The sixth argument advanced by the learned senior counsel Shri S.R. Bajwa assisted by Shri V.P. Bishnoi was that the identification parade of Sayra could not help the prosecution as there was no evidence to show that the persons mixed for test identification parade also had the same mole marks as Sayra. (vi) The sixth argument advanced by the learned senior counsel Shri S.R. Bajwa assisted by Shri V.P. Bishnoi was that the identification parade of Sayra could not help the prosecution as there was no evidence to show that the persons mixed for test identification parade also had the same mole marks as Sayra. (vii) His seventh argument was that the names told by Ram Singh and Birbal who were caught by the public at the spot could not be read against co-accused. According to him, in view of Section 30 of the Evidence Act they could only be admissible if the two accepted their own guilt of participation in dacoity. (viii) His last argument was that first and foremost requirement for test identification paradeis for the witnesses to spell out the hulia of the person they are going to identify. According to him, in the present case none except one or two of the witnesses spelt out the hulia in their statements before police. Even according to him at the time of test identification also they did not spell out hulia. Appeal No. 251/05 Shri S.S. Hora, learned counsel appearing on behalf of appellants namely Mahendra Soni and Kalyan Singh, argued that there was no evidence against his clients for their having participated in the actual dacoity. According to him the prosecution witnesses categorically admitted that they were not seen in the temple at the time of the occurrence. The only allegation against Mahendra Soni was that he accompanied 8-9 persons before the aarti and was carefully gazing at the idol. There was even no recovery from him so as to link him with the crime. With regard to Kalyan Singh his submission was that he was connected with the crime on the basis of recovery of jeep No. RJ 14T 1981. He is stated to be the driver of the jeep and according to him, none of the witnesses has stated about his entering the temple at the time of occurrence. Further that the witnesses who identified him in the test identification parade, could not identify him in the court. His next argument was that the identification parade had been conducted with an inordinate delay and, therefore, the possibility of their having been shown to the witnesses could not be ruled out. Further that the witnesses who identified him in the test identification parade, could not identify him in the court. His next argument was that the identification parade had been conducted with an inordinate delay and, therefore, the possibility of their having been shown to the witnesses could not be ruled out. His submission was that the appellant Kalyan Singh was arrested on 18.3.1998 and Mahendra Soni on 27.3.1998 but the test identification parade was conducted on 13.4.1998 i.e. after about 18 to 25 days. His next argument was that name of Kalyan Singh did not find mention in FIR Exhibit P. 1. Further that the witness who identified Kalyan Singh in the test identification parade admitted that he had been shown prior to identification parade in the court, police station and jail. His last argument was that the names disclosed by Ram Singh and Birbal could not be read against the co-accused as this disclosure amounted to extra judicial confession. His argument was that the story of Mahendra Soni having been seen as admiring the idol before the aarti, also does not hold water because in his previous statement Exhibit D. 14 given before the trial court by PW.15 Ram Swaroop, he claimed to have seen 50 to 100 persons in the aarti when they were seen in the temple. Summing up his arguments, learned counsel submitted that his clients deserved acquittal because firstly, they were not in the temple at the time of occurrence; secondly there was no recovery from Mahendra Soni and there was no evidence to prove their constructive liability or being part of forming unlawful assembly with the common object of committing murder or attempt to murder or other cognate offence as there was nothing to show that his clients had any knowledge of others travelling with firearms and that 12 bore gun which is allegedly recovered from the co-accused, could not have been hidden while being taken to the temple. According to him, there was nothing to connect them with the crime. Appeal Nos. According to him, there was nothing to connect them with the crime. Appeal Nos. 908/04 & 1018/06 Shri Biri Singh, learned senior counsel assisted by Shri Rajesh Choudhary appearing on behalf of appellants namely Ram Singh & Babu and appellant namely Birbal, contended that appellant Ram Singh is stated to have been caught hold of by the public at the spot itself and a recovery of 12 bore gun with cartridges is stated to have been recovered from him through PW.58 Ramavtar. His argument was that when Ram Singh had been caught hold at the spot itself, there was no reason of him being arrested the next day. With regard to accused Babu it was argued that he has been connected with the crime on the basis of recovery of revolver at his instance. However, witnesses of recovery namely Satyanarayan and Ramesh Chand were not examined. It was argued that the recovery is stated to have been made at his instance from a earthen pit in 2003 i.e. after five years of the incident which does not look credible. The same arguments as by other counsel with regard to the identification parade were advanced by the learned senior counsel. It was further submitted that accused Birbal has been acquitted of the offence under Section 302 IPC as against which no appeal has been filed by the State, therefore, others also deserved acquittal of the offence under Section 302 read with 149 IPC. 12. Per contra learned Govt. Advocate strongly supported the impugned judgments and submitted that the prosecution case was mainly based on the evidence of eye witnesses who are more than ten, out of whom some are injured also and whose presence at the place and time of occurrence cannot be doubted. His argument was that the evidence of identification of case-property and that of accused, has been relied by trial Court for the purpose of corroboration only. Moreover, according to him validity of identification parade could also not be challenged on the ground of irregularity in the manner of holding it or on the ground of delay in holding it when the Magistrate who held the parade and the police officer who conducted the investigation, have not been cross examined in that behalf. [Bharat Singh vs. State of U.P., AIR 1972 SC 2478 ] So far as the contradictions are concerned, according to the learned Govt. [Bharat Singh vs. State of U.P., AIR 1972 SC 2478 ] So far as the contradictions are concerned, according to the learned Govt. Advocate, they are minor and immaterial and in an overawing incident like this where there are large number of accused and also large number of witnesses, such minor contradictions are quite natural because every witness has a different perception power. According to the learned Govt. Advocate there was sufficient evidence to prove that before committing the actual incident the accused formed an unlawful assembly with the common object of committing dacoity being laced with firearms. They committed rioting and as a sequel towards achieving the common object, they visited the temple even before the aarti and carefully watched the idol and took stock of all the places in the temple premises and it is only after the aarti was over and when most of the public left the temple leaving behind the family members and people of nearby shops, that the accused committed the offence on gunpoint. His argument was that the law cited by the appellants is of no help to them because present case is not solely based on the test identification parade, but the test identification and other scientific evidence had been filed for the purpose of corroboration and the eye witnesses some of whom are injured eye witnesses and whose presence at the time of occurrence was natural, have given picturesque description of the manner in which the incident took place and the part played by each of the accused towards achievement of the common object of assembly i.e. committing dacoity and do away with all the resistors or hurdles by all means to the extent of even causing murder, hurt etc. It was contended that two persons Laxman and Shakuntala were killed and responding to the argument advanced by Shri S.S. Hora, learned counsel for appellants Mahendra and Kalyan Singh, it was submitted that if murder, by one or some of dacoits, is committed, proof of common intention or common object of all is not necessary to be established. Their being party in the conjoint commission may be by aiding even, is enough. Every one of the dacoits is liable to be punished under Section 396 IPC, though all of them had no participation in murder. Their being party in the conjoint commission may be by aiding even, is enough. Every one of the dacoits is liable to be punished under Section 396 IPC, though all of them had no participation in murder. Relying on the judgment of Hon'ble Apex Court in Kalika Tiwari & others vs. State of Bihar, AIR 1997 SC 2186 , it was submitted that if a dacoit, in the progress of, and in pursuance of, the commission of a dacoity commits a murder, all of his companions, who are participating in the commission of the same dacoity, may be convicted under Section 396, although they may have no participation in the murder, beyond the fact of participation in dacoity. It is not necessary for the prosecution in such a case to established either any common intention as envisaged in Section 34 or common object contemplated in Section 149 of IPC. It is also not necessary that the murder should have been within the contemplation of all or some of them when the dacoity was planned, nor is it necessary that they should have actually taken part in, or abetted, its commission, indeed they may not have been present at the scene of murder, or may not have known even that murder was going to be, or had, in fact been committed. But nonetheless, they all will be liable for enhanced punishment, provided a person is in fact murdered by one of the members of the gang in commission of the dacoity. 13. Common arguments advanced on behalf of all the appellants were with regard to the irregularities and delay in conducting identification parade; as also with regard to recovery and identification of `sirpech' and the contradictions embellishments and the improvements in the statements of eye witnesses which will be dealt with at appropriate places while looking and re-appreciating the evidence. 14. We proceed to adjudicate upon the most important question involved in the present case in the light of the submissions advanced by the learned counsel for the appellants. Whether the accused are guilty of the offence(s) with which they are charged. In dealing with said question we first delineate the salient features of the case of the prosecution. The first feature of present case is that PW.28 Shimla, PW.34 Yaduraj, PW.29 Madhu, PW.6 Vimla, PW.11 Ramratan, PW.30 Jeetu and PW.34 Laxman alias Satyaprakash, are injured witnesses. Whether the accused are guilty of the offence(s) with which they are charged. In dealing with said question we first delineate the salient features of the case of the prosecution. The first feature of present case is that PW.28 Shimla, PW.34 Yaduraj, PW.29 Madhu, PW.6 Vimla, PW.11 Ramratan, PW.30 Jeetu and PW.34 Laxman alias Satyaprakash, are injured witnesses. Besides them, other three eye witnesses are PW.17 Rajendra, PW.15 Ram Swaroop and PW.10 Basanti Lal. Since the case of the prosecution is based on eye witnesses account and most of whom are injured also, and not solely on the identification parade, therefore, the appreciation thereof is necessary. When the evidence of an injured eye witness is to be appreciated, the under noted legal principles enunciated by the courts are to be kept in mind. (a) The presence of an injured eye witness at the time and place of the occurrence can not be doubted unless there are material contradictions in his deposition; (b) Unless it is otherwise established by the evidence, it must be believed that an injured witness would not allow the real culprits to escape and falsely implicate the accused; (c) The evidence of injured witnesses has great evidentiary value and unless compelling reasons exist, their statements are not to be discarded lightly; (d) The evidence of injured witness can not be doubted on account of some embellishments in natural conduct or minor contradictions; (e) If there be any exaggeration or immaterial embellishments in the evidence of any injured witness, then such contradiction, exaggeration or embellishment should be discarded from the evidence of injured but not the whole evidence; (f) The broad substratum of the prosecution version must be taken into consideration and discrepancies which normally creep due to loss of memory with passage of time, should be discarded. It is clear from above that testimony of an injured witness is entitled to a greater weight. Since the offence with which the accused had been charged, is not an ordinary offence and is based on eye witness account, it is essential to look into, in detail, the statements of eye witnesses in view of contradictions, embellishments and improvements pointed out by the defence counsel. 15. The law with regard to the appreciation of the eye witnesses is also well settled. 15. The law with regard to the appreciation of the eye witnesses is also well settled. So far as the eye witnesses are concerned, in appreciating their evidence, the approach of the court should be to see whether the evidence of the witness as a whole is reliable and has a ring of truth in it. Minor discrepancies of trivial matters not touching the core of the case, hyper technical approach by taking sentences torn out of context here and there, not going to the root of the matter, would not be proper. Even honest and truthful witnesses may differ in some details unrelated to the main incidence because power of observation retention and reproduction differ with individuals. The minor variations in the testimony of other witnesses are of hardly any significance and consequences. Minor embellishments and improvements, which did not impinge upon the substratum of the testimony of a witness, are irrelevant. The reason is obvious. There is always a hiatus between the date of crime and the date when the witness appears in the court. With passage of time either memory fails or it does not happen that a witness who keeps on thinking about a particular incident, starts adding some imaginary facts. 16. In this background the material on record, if looked into, it shows that PW.34 Yaduraj is the star witness as he is the one who was sitting on the `takhat' near the temple gate in front of the idol and with whom the appellants had first encounter. According to him 8 to 9 persons were involved in the incident. Three persons out of whom two had firearms (one revolver and a gun) came to the temple and pointed gun towards him asking him not to move and that the person who did this was wearing a maroon suit. According to him the third person who was empty handed, went to the temple and took out the `mukut' and `sirpech' from the idol. At the time when he was running out of the temple (garbh grah) with 'mukut' and 'sirpech', Rajendra came running from `parikrama' side and caught hold of him. At that time Shakuntala, who was also sitting along with Jeetu and Shimla near the gate, tried to snatch the `mukut' from that person. The scuffle started and she succeeded in snatching the same from him. At that time Shakuntala, who was also sitting along with Jeetu and Shimla near the gate, tried to snatch the `mukut' from that person. The scuffle started and she succeeded in snatching the same from him. The person with `mukut' called his two co-accused saying `Birbal Ram Singh save me' and then two more persons, out of whom one was limping, fired in the air and pointed gun and the other inflicted gunshot to Shakuntala. Shakuntala fell down and the `mukut', which fell down in scuffle, was immediately taken away by his 13 year old son Jeetu PW.30 so as to hide it. When Jeetu was running with `mukut' one out of two more persons who were in the chowk, fired on Jeetu's back and naming `Pappuda one of them asked him to disconnect the telephone connection, which he did, and the accused started running towards the other gate of the temple so as to escape. On Basanti Lal's asking for help, nearby shop-keepers, residents, employees of the temple namely Laxman, Ram Ratan, Ramesh, Tailor, Mahaveer, Shiv Ratan came and Laxman caught hold of the accused wearing maroon suit. The other accused naming him as "Sayra", asked him to fire who shot Laxman in the temple chock itself and all of them ran from the western lane. Villagers chased them and could apprehend two of them who, on asking by the public, told their names to be Ram Singh and Birbal and names of their companions as Ramjilal, Makkan, Sayra, Babu, Mahendra, Kalyan and Pappu. He identified the accused in jail before PW.54 Magistrate and admitted his signatures on Exhibit P. 5 the test identification parade. This witness identified Ram Singh as the one limping; Ramjilal as the one running with `mukut' & `sirpech'; Pappu as the one disconnecting the telephone and pelting stone in his father Ram Swaroop. He identified the accused in jail before PW.54 Magistrate and admitted his signatures on Exhibit P. 5 the test identification parade. This witness identified Ram Singh as the one limping; Ramjilal as the one running with `mukut' & `sirpech'; Pappu as the one disconnecting the telephone and pelting stone in his father Ram Swaroop. He identified Mahendra Soni as the one who came to the temple along with other co-accused before aarti and who was talking to his companies about the idol; Ram Singh, as the one who was asked by Ramjilal to save him, the other accompanying him was asked by Ramjilal to save him, the other accompanying him was stated to be not present (as Birbal was absconding); Babu as the one who came first of all and threatened him on gun point; Makkan as the one who inflicted injury by gun shot on the back of his son Jeetu. He proved his signatures on Exhibit P. 79 test identification parade of Sayra. He is the one who identified almost all the accused during the test identification parade probably for the reason that he was the first to have seen all entering the temple premises and threatening him and performing their respective rolls which gave this witness reasonably sufficient time to observe everyone and everything in a well lit temple. His presence there was natural and there is no reason to disbelieve him. 17. PW. 4 Banwari Lal, SHO, claimed to have reached the temple on getting the information about some miscreants in the temple and claimed to have been handed over Exhibit P. 1 by PW.10 immediately after the incident giving therein the names of the eye witnesses. 18. PW.10 Basanti Lal is the FIR lodger, who reiterated the facts mentioned in Exhibit P1 during his statements before the court. From his statements, it is clear that at the time the incident started, he along with Rajendra, Ram Swaroop and other family members was in `parikrama', i.e. on the western side of the `garbhgrah' where the idol was placed and he reached at the place of occurrence soon after the incident started. 19. PW.10 Basanti Lal, PW.15 Ram Swaroop, PW.17 Rajendra, PW.30 Jeetu and PW.28 Shimla, are also eye witnesses besides PW. 34 Yaduraj (discussed hereinabove). They are the family members of the pujari of the temple Kalyanji Maharaj. 19. PW.10 Basanti Lal, PW.15 Ram Swaroop, PW.17 Rajendra, PW.30 Jeetu and PW.28 Shimla, are also eye witnesses besides PW. 34 Yaduraj (discussed hereinabove). They are the family members of the pujari of the temple Kalyanji Maharaj. Besides them other family members are also stated to be present in `parikrama' as it was a day of osra of Ram Swaroop, Pujari the uncle of FIR lodger). Deceased Laxman, PW.11 Ram Ratan and PW.44 Laxman alias Satyaprakash, are stated to have reached the place of occurrence immediately after the incident started. 20. Two persons namely Laxman and Shakuntala have died in the incident and PW.44 Laxman alias Satyaprakash, PW.30 Jeetu, PW.11 Ram Ratan, PW.6 Vimla, PW.29 Madhu, PW.34 yaduraj and PW. 28 Shimla sustained injuries in the incident and thus being injured witnesses, their presence at the spot cannot be doubted. The statements of PW.17 Rajendra are in harmony with PW.34 Yaduraj. He also identified all the accused in the court. Besides these, PW.15 Ram Swaroop, PW.6 Vimla, PW.7 Leela, PW.11 Ram Ratan, PW. 28 Shimla, PW.29 Madhu and PW.30 Jeetu, also deposed in harmony with the aforementioned witnesses with regard to the manner in which the incident occurred except that some of them alleged the number of accused as 7 to 8 whereas others as 8 to 9. 21. PW.60 Janardan Sharma, the Investigating Officer of the case, is another important witness who prepared the site plan Exhibit P. 6 the next morning i.e. immediately after the incident and recovered cartridges and a revolver from the takhat vide Exhibit P. 13, pieces of paper of 12 bore fired cartridge, wad and 13 pallets vide Exhibit P. 17, one misfired cartridge, blood stains near the staris in the chock where Shakuntala is stated to have been shot vide Exhibit P. 16, one 12 bore desi katta vide Exhibit P. 11, blood stains in varandah, blood stains from mark 11 where Laxman is stated to have been shot and also a 12 bore cartridge vide Exhibits P. 15 and 18, a pair of shoe in the drain and road vide Exhibit P. 8, blood stains from varandah outside the temple premises where accused Ram Singh and Birbal were made to sit by the public, shoe pair near the drain, a piece of printed cloth from Garud Chock vide Exhibit P. 7. Men may lie but not the circumstances and the description of the place of occurrence shown in Exhibit P. 6 site-plan clearly proves how the incident occurred. During investigation he recovered Article 1 `sirpech' at the instance of Ramjilal, jeep RJ 14 T 1981 along with its documents including the copy of driving license of Kalyan Singh and parking receipt of Rs. 3/- issued by Ramdas Trust on 16.3.1998 at the time of its parking in the parking place, at the instance of Kalyan Singh. He seized a piece of cloth from the place of occurrence and also recovered the shirt at the instance of Makkan which, as per FSL report, matched with the piece of cloth seized from the place of occurrence immediately after the incident. 22. The fact that immediately after the incident two firearms, being a desi katta and a gun, were recovered vide Exhibits P. 12 and P. 14 from the accused Ram Singh and Birbal through Ramavtar when they had been caught by the public within a few minutes, is also an important circumstance which along with other circumstances discussed hereinabove, point towards the commission of offence of dacoity by the accused. The scientific evidence with regard to the firearms and cartridges etc. recovered from the place of occurrence as also from the accused, has been established from the report of Ex. P. 126 which had been tendered in evidence under Section 293 Cr.P.C. 23. The argument of learned counsel for the appellants Mahendra Soni and Kalyan Singh, that whatever was told by the two apprehended accused namely Ram Singh and Birbal to the public, tantamounted to extra judicial confession, is not sustainable because telling of one's name in response to the question put to him by the public two apprehended him, can by no stretch of imagination, be termed as his confession. Because telling of one's name by the two is neither exculpable nor inculpable and said answers were neither here nor there. The word "confession" in common acceptation means and implies acknowledgment of guilt. Extra judicial confession is primarily a judicial creation, and has to be used with restraint in limited circumstances, and should also be corroborated by way of abundant caution. The word "confession" in common acceptation means and implies acknowledgment of guilt. Extra judicial confession is primarily a judicial creation, and has to be used with restraint in limited circumstances, and should also be corroborated by way of abundant caution. "Confession" has not been defined in the Indian Evidence Act but the law relating to confession is found generally in Section 24 to 30 of the Evidence Act and Sections 162 and 164 of the Code of Criminal Procedure 1898. Confession is a species of admission, and is dealt with in Sections 24 to 30 of the Evidence Act. A confession or an admission is an evidence against the maker of it, if its admissibility is not excluded by some provision of law. Section 25 is imperative, and a confession made to a police officer under no circumstances is admissible in evidence against the accused. The partial ban imposed by Section 26 relates to a confession made to a person other than a police officer. Section 27 is in the form of proviso and it partially lifts the ban imposed by Sections 24, 25 and 26. But the names of appellants Ram Singh and Birbal told to the public do not amount to any admission nor confession what to talk of extra judicial confession. There is no evidence to show that the accused Ram Singh and Birbal confessed their guilt or made any statement capable of being covered under Section 30 of the Evidence Act, before any of the witnesses or made any extra judicial confession. Moreover, said fact has not been made basis of the finding of conviction as calling their companions by names during the commission of crime, has come in the evidence of almost all the witnesses. 24. So far as the argument with regard to irregularities in conducting identification parade is concerned, a perusal of statements of Tehsildar PW 47 conducting identification parade of `sirpech' and of two senior judicial officers, shows that sufficient precautions had been taken and Ex. P. 90, Ex. P. 116, Ex. P. 118, Ex. P. 132 and Ex. P. 133 go on to show that the accused were instructed to remain baparda. P. 90, Ex. P. 116, Ex. P. 118, Ex. P. 132 and Ex. P. 133 go on to show that the accused were instructed to remain baparda. Even otherwise the irregularities if any, in the present case are not such which go to the root of the case because the case in hand is not solely based on the identification evidence and the same is used by the prosecution for the purpose of corroboration. This argument of all the counsel for the appellants, in the facts and circumstances of this case, is not sustainable. The medical evidence with regard to the murder of Shakuntala and Laxman shows that both of them died of injuries caused by firearms. 25. PW.21 Dr. Anil Meena conducted the postmortem of Shakuntala and made report Exhibit P. 38, found punctured wound on her chest running to ribs and claimed to have taken out two metal pieces and the cause of death was opined as hypovolumic shock on account of the injury sustained which was opined to have been caused by firearm and as sufficient to cause death in the ordinary course of nature. PW.52 Dr. S. Dutta, PW.40 Dr. Vivekanand, PW.1 Dr. H.L. Bairwa conducted the postmortem of deceased Laxman and prepared Exhibit P. 31 Postmortem Report. His injury report was proved as Exhibit P. 27 stating that a punctured would was found on the left parietal and mid parietal, there was a fracture of parietal bone. Two metal pieces were found in the head and the cause of death was opined as firearm injury on the head which was opined as sufficient to cause death in the ordinary course of nature. PW.30 Jeetu and PW.44 Satyaprakash alias Laxman, with regard to whose injuries the charge for an offence under Section 307 against Makkan and 307 read with 149 against all has been levelled, have been medically examined by PW. 1 Dr. H.L. Bairwa. The injury report of Satyaprakash alias Laxman is proved as Exhibit P. 58 wherein multiple punctured wounds on his stomach and chest, pelvis and external genitalia, on different parts of thigh as also on left hand fingers and wrist were found. Both the injuries were opined to be fresh gunshot injuries, C.T.Scans Exhibits P. 59 and P. 60; X-ray report Exhibit P. 94 have been proved by the doctor PW.1. Both the injuries were opined to be fresh gunshot injuries, C.T.Scans Exhibits P. 59 and P. 60; X-ray report Exhibit P. 94 have been proved by the doctor PW.1. It is clear from Exhibit P. 94 that in his hand many pallets were found. The injury report of PW. 30 Jeetu has been proved by PW.1 Dr. Bairwa as Exhibit P. 61. According to PW.1, many punctured gunshot wounds on the chest and stomach were found. The doctor who prepared the X-ray report of Jeetu is PW. 51 Dr. Annu Bhandari. She has proved X-ray report Exhibit P. 62 and admission card Exhibit p. 63. Injury reports of PW.11 Ram Ratan being Exhibit P. 32, of PW.34 Yaduraj being Exhibit P. 30, injury report Exhibit P. 37 of PW 26 Shimla, have also been proved by PW. 52 Dr. S. Datta, PW. 51 Dr. Annu Bhandari and PW. 21 Dr. Anil Meena. In the same manner the injury reports of PW. 6 Vimla and PW. 29 Madhu have also been proved by PW. 21 as Exhibit P. 34 and Exhibit P. 35 respectively. 26. Looking to the nature of the offence, this evidence, in the facts and circumstances of the case, cannot be looked into in isolation. The other circumstances which are relevant are that besides the above evidence, it has come on record that all the accused are from village Sanwalpura, Jatiabas and Nayabas of District Sikar and except Mahendra Soni & Kalyan Singh, all being to the same community. Sikar district admittedly is more than 300 kms away from the place of occurrence in Diggi (District Tonk). Other circumstances which has come on record is that the place from where the tyre molds were taken and photographed by PW. 60 the next morning, is near the field of Ramchand PW.57, although hostile, has deposed that his field is situated near Kaali Nadi on the way from Diggi to Jaisinghpura and on the date dacoity was committed in Kalyanji temple, he was on his field. He denies having seen any car or jeep on that day but admitted having seen the tyre molds of jeep. He was confronted with Exhibit P. 110, his previous statement. He denies having seen any car or jeep on that day but admitted having seen the tyre molds of jeep. He was confronted with Exhibit P. 110, his previous statement. He denied any jeep's coming to his field in the evening of the date of incident with 8-9 persons in it, and stopping for a while to cool it and case themselves and also denied having been told of their being from Sikar District coming for Kalyanji temple darshan. All these circumstances offer a valuable piece of evidence that the accused persons who were residents of a far off place, being 8-9 in number, has come to Kalyanji temple. We may also note that besides PW. 57 Ramchand, other witnesses, PW.12 Rambabu, PW. 13 Badrilal, PW. 14 Ramdev son of Gopal, PW. 42 Mahavir Prasad and PW.35 Shiv Ratan, although not eye witnesses of the main incident, but providing important link towards the circumstances related to the case, have deposed at variance with their statements recorded under Section 161 Cr.P.C. and were declared hostile. 27. With regard to the value of hostile witnesses, the Supreme Court in the decision reported as Sheikh Zakir vs. State of Bihar, AIR 1983 SC 911 , observed as under:- "It is not quite strange that some witnesses do turn hostile but that by itself would not prevent a court from finding an accused guilty if there is otherwise acceptable evidence in support of the prosecution." In the decision reported as Bhola Ram Khushwaha vs. State of M.P., AIR 2001 SC 229 , the Supreme Court held that "the fact of an independent witness turning hostile is not in itself a ground to acquit the accused." In view of the dicturn laid down by the Supreme Court in the afore-noted two decisions, we have no hesitation in holding that merely because these aforementioned witnesses had turned hostile and deposed at variance with the case set up by the prosecution against the appellants when there is an overwhelming material on record establishing the guilt of the appellants, the case of the prosecution cannot be thrown to the winds because of some witnesses turning hostile. 28. As noted hereinabove, the witnesses namely PW.17, PW. 15, PW.10, PW. 28, PW. 34, PW. 28. As noted hereinabove, the witnesses namely PW.17, PW. 15, PW.10, PW. 28, PW. 34, PW. 29, PW 11, PW 30, PW 44 and the police officers associated with the investigation and the apprehension of the two appellants at the spot, have fully supported the case of the prosecution. The aforesaid witnesses have impeccable character in as much as they have withstood the test of cross examination. Nothing could be elicited from the cross examination of the said witnesses which could cast doubt on their veracity. 29. It is established from the analysis of the aforementioned evidence that the accused persons, were more than five in number, travelled all the way from Sikar in the jeep, seized at the instance of appellant Kalyan Singh, formed an unlawful assembly with the common object of committing dacoity in Kalyanji temple and in prosecution thereof laced with firearms, did commit rioting and dacoity of `sirpech' and `mukut' and in the commission thereof, murdered Shakuntala and Laxman with intention to kill them and attempted to murder Satyaprakash alias Laxman & Jeetu and also caused simple and grievous injuries on the persons of Ram Ratan, Ram Swaroop, Yaduraj, Vimla and Shimala. 30. In inferring the common object of an unlawful assembly, various factors depending upon the facts and circumstances of each case, need to be taken into consideration in the case in hand. All of them belonged to the same community and same District Sikar, travelling more than 300 kms to reach the place of occurrence, is an important circumstance. Besides that, the other factors i.e. recovery of firearms, cartridges from the place of occurrence and also from Ram Singh and Birbal, who were apprehended at the spot itself, go on to establish that laced with deadly weapons, the common object of the assembly was to commit rioting and dacoity in the temple of Kalyanji Maharaj and there was a general purpose to resist all opposers even, if necessary, upto the point of death. 31. Besides the evidence of eye witnesses discussed hereinabove, coupled with the factors mentioned above, there is a cluster of following other witnesses and some more circumstances connecting the appellants with the crime i.e. PW.16 Bhagwan Sahai, PW.18 Nawal Kishore, PW.19 Dinesh and PW.22 Ram Karan, who claimed to have first of all seen the accused appellants in Diggi town. 31. Besides the evidence of eye witnesses discussed hereinabove, coupled with the factors mentioned above, there is a cluster of following other witnesses and some more circumstances connecting the appellants with the crime i.e. PW.16 Bhagwan Sahai, PW.18 Nawal Kishore, PW.19 Dinesh and PW.22 Ram Karan, who claimed to have first of all seen the accused appellants in Diggi town. First of whom PW.22 Ram Karan, Manager of Ramdas Trust, who claimed to have issued parking receipt for jeep No. RJ 14T 1981 to the appellant Kalyan Singh after taking the parking fees of Rs. 3/- in old bus stand, although declared hostile, has admitted that a jeep with a red plate inscription "On Govt. Duty" being No. RJ 14T 1981 had been parked on that day and Rs. 3/- parking slip had been issued by him and PW 60 Janardan Sharma, Investigating Officer of the case has proved his statements Exhibit P. 28 made before him. However, the other witnesses PW.16 Bhagwan Sahai, PW.18 Naval Kishore and PW.19 Dinesh, who were present in the parking place, claimed to have heard the conversation between PW.22 Ram Karan and accused persons in particular Kalyan Singh and Mahendra Soni. They also claimed to have seen 8-9 persons in the jeep and then saw them going towards the temple and seeing them in the temple before the aarti but thereafter seeing them near the hand pump and later knowing about the dacoity in the temple. The jeep has been recovered at the instance of accused Kalyan Singh vide Exhibit P. 40 along with the documents which included the parking receipt issued by Ramdas Trust on 16.3.1998 as also the copy of the driving license of accused Kalyan Singh. Exhibit P. 40 the recovery of jeep has been proved by PW.27 Kailash Sharma and PW.41 Jugal Kishore who were not cross examined on any of these issues. According to these three witnesses, i.e. PW.16 Bhagwan Sahai, PW.18 Naval Kishore and PW.19 Dinesh, a jeep with a red plate "On Govt. Duty Agriculture Department" had come to the parking place at about 7 p.m. and PW.22 Ram Karan issued a parking receipt of Rs. 3/- and according to PW.16 Bhagwan Sahai and PW. 18 Nawal Kishore there were 7-8 persons in the jeep. Duty Agriculture Department" had come to the parking place at about 7 p.m. and PW.22 Ram Karan issued a parking receipt of Rs. 3/- and according to PW.16 Bhagwan Sahai and PW. 18 Nawal Kishore there were 7-8 persons in the jeep. Statements of PW.22 Ram Karan get corroborated with the statements of PW.16 Bhagwan Sahai who claimed that one of the persons from the jeep paid parking fee and the other sitting on driving seat of jeep told his name as Kalyan Singh and purpose of visit to Diggi as government checking. In this sequence is the evidence of PW.18 Nawal Kishore, who claims that accused wearing a maroon suit, had asked him aarti time, which he told to be from 7 to 8 p.m. but when he went at aarti time he did not see any of them in the aarti. Rather on return they saw them near the hand pump and on informing them that the aarti was over, they reverted saying that they would peacefully go for darshan later. According to them the jeep driver asked one of the persons sitting in the jeep wearing pant-shirt and a blue cap naming him `Mahendra' to give the money, who gave it. According to them, one was wearing a maroon suit, one was limping from his right leg and remaining had wrapped sheets. Thereafter they heard about the dacoity in the temple but did not see the jeep in the parking place. PW.18 Nawal Kishore identified Mahendra Soni in the court as well as in the test identification parade. 32. It is clear from the evidence of these three witnesses read with the statements of eye witnesses in the temple and the seizure of jeep from Kalyan Singh vide Exhibit P. 40 and also the documents seized along with it vide Exhibit P. 41, that the accused persons who were 8-9 in number, came by jeep to the parking place near old bus stand, very close to the temple, asked the witnesses about the aarti time and instead going for darshan at the aarti time, they waited near the hand pump so that the public goes away and before the aarti they at about 7-730 p.m. went to the temple and accused Mahendra Soni was seen admiring the idol at that time, which has been corroborated by PW.10 Basanti Lal, PW.34 Yaduraj Singh, PW. 17 Rajendra, PW. 17 Rajendra, PW. 15 Ram Swaroop and PW. 6 Vimla. According to PW.17 Rajendra, after aarti, Mahendra Soni and Kalyan Singh were not seen in the temple. They have been identified as the ones who entered the temple before the aarti. The identification memos Exhibit P. 5 and P. 70 pertaining to Kalyan Singh and Mahendra Soni, have been proved by PW. 54 Vinod Kumar Arya. PW. 25 Krishna Gopal was examined twice before the court and his previous statement Exhibit D.21 was confronted to him wherein also he had mentioned about 3-4 persons waiting outside the temple. This witness had a prasad shop outside the temple. There are certain contradictions in his statements recorded after passage of five years which are quite natural. He has identified the accused Ramjilal, Kalyan Singh, Pappu and Mahendra Soni and he is the one who claims to have seen the accused going out of the temple. 33. The evidence discussed hereinabove goes on to establish that Kalyan Singh and Mahendra Soni, although not physically present at the time of occurrence, were part of the unlawful assembly along with the co-accused and from the very beginning till the end they participated in the incident. As Kalyan Singh being driver of the jeep waited for the completion of the act so as to be available to facilitate the escape with the booty whereas Mahendra Soni is proved to have gone in the temple along with others before the aarti for taking stock of the whole situation. Therefore, just because they were not physically present at the time of actual commission of dacoity, cannot escape from their liability. Although they were not present at the time of commission of murder but for an offence under Section 395 and 396 IPC it is not necessary, even, the person aiding is covered under the definition given in Section 391 IPC. Moreover there is sufficient evidence of their being part of unlawful assembly also, formed with the common object of committing dacoity in the temple. Accused Ram Singh and Birbal were caught on the spot, therefore, their identification was not required. 34. From the discussion made hereinabove, it is clear that the case in hand is not solely based on the test identification parade or recovery but it is a case of eye witness account. Accused Ram Singh and Birbal were caught on the spot, therefore, their identification was not required. 34. From the discussion made hereinabove, it is clear that the case in hand is not solely based on the test identification parade or recovery but it is a case of eye witness account. The time of occurrence was mid March at 8.00 p.m. in a well lit big popular Kalyanji temple PW6, PW.10, PW11, PW15, PW.17, PW. 28, PW 29, PW 30, PW 34 whose presence was natural and who got fairly sufficient time to see and register the complete incident. PW.16, PW.18 and PW.19 as also PW22, although hostile, read along with the statements of PW.60 and also Exhibits P. 40 and P. 41, which have been proved by PW. 27 and PW.41, clearly go to prove that the accused persons formed an unlawful assembly and came in a jeep which was parked in the parking area after getting a receipt of Rs. 3/- and went to the temple before aarti to take stock of the whole situation and came back and as soon as the aarti was over and the public had gone, thinking the time to be safe, some of them entered the temple laced with firearms and the other waited outside and on Ramjilal being caught with the `mukut' and `sirpech', others went in and started firing. The circumstances also show that all the accused are from same community and belonged to a place more than 300 kms from the place of occurrence and the explanation given by accused Birbal that he had come with DW.1 Jagdish has, rightly been rejected by the learned trial Judge on account of his natural conduct reflected during the cross examination of DW1. Others had pleaded alibi but failed to substantiate their defence by any concrete evidence. As against this there were not one or two factors but plenty of them coupled with eye witnesses account, indicating towards their guilt. The circumstances in which the offence has been committed, clearly indicates that the accused formed an unlawful assembly for the purpose of committing dacoity in the temple. 35. The learned trial Court has, besides others, also convicted the appellants with the aid of Section 149 of the IPC. The circumstances in which the offence has been committed, clearly indicates that the accused formed an unlawful assembly for the purpose of committing dacoity in the temple. 35. The learned trial Court has, besides others, also convicted the appellants with the aid of Section 149 of the IPC. Section 149 of the IPC creates a specific and a distinct offence, the vicarious liability of the members of the unlawful assembly for the acts which are done in prosecution of the common object of the unlawful assembly and such offences as the members of the unlawful assembly knew to be likely to be committed. Each case has to be adjudged according to the facts as unfolded. In the instant case, it is clear that the principle embodied in this Section were attracted; the members of this unlawful assembly knew that by their co-joint participation in the offence actually committed, it was likely to be committed in the prosecution of their common object i.e. the commission of dacoity and murder in the commission thereof; this can well be gathered from the fact that accused being laced with firearms were members of the unlawful assembly, exaltation by one of them on Yaduraj PW.34 and causing gunshot injury by Birbal on the person of Shakuntala, who succumbed to those injuries, and gunshot injury inflicted by Sayra on the person of Laxman in the temple chock itself while retreating, goes on to show that murder was committed in effecting a safe retreat which was an essential part of the common criminal object, and that was in continuation of the actual dacoity. The murder of both of them can be taken as committed in the prosecution of the common object and in commission thereof. 36. Now it is to be seen as to what offence can be said to have been made out because the accused have been charged with offence under Section 396 as also with 302 alternatively 302 read with 149 IPC. 36. Now it is to be seen as to what offence can be said to have been made out because the accused have been charged with offence under Section 396 as also with 302 alternatively 302 read with 149 IPC. Section 396 Indian Penal Code provides that -"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," and `Dacoity' is defined in Section 391 Indian Penal Code as under:- "When five or more persons conjointly commit or attempt to commit a robbery, or where the whole umber of persons conjointly committing or attempting to commit a robbery, and persons present and aiding such commission or attempt, amount to five or more, every person so committing, attempting or aiding is said to commit dacoity." The definition of `dacoity' in Section 391 shows that two stages, namely the stage of attempting to commit and the stage of actual commission of robbery, have been treated alike, and come within the definition. In other words, attempt to commit dacoity is also dacoity. Section 395 IPC prescribes punishment for simple dacoity. It is clear from the definition that total number of persons committing or attempting and aiding should be five or more. Every person so committing, so attempting or aiding is said to commit dacoity. The word `conjointly' is the most important word bearing on the liability of persons accused of an offence of dacoity. While it may be true to say that common intention is no part of the offence of dacoity, the word conjointly used in this Section manifestly refers to united or concerted action of the persons participating in the transaction. A dacoity begins as soon as there is an attempt to commit robbery conjointly be five or more persons. Thus as held in Musakhan vs. State of Maharashtra, AIR 1976 SC 2566 , that Section 395 IPC comes into play when an act of dacoity is committed by five or more persons jointly and, therefore, the question of applying Section 149 IPC is a mere surplusage. Thus as held in Musakhan vs. State of Maharashtra, AIR 1976 SC 2566 , that Section 395 IPC comes into play when an act of dacoity is committed by five or more persons jointly and, therefore, the question of applying Section 149 IPC is a mere surplusage. The element of jointness is essential to the offence of the dacoity and what is necessary is that all the persons should have shared the common intention of committing robbery. 37. Section 395 of Indian Penal Code prescribes the punishment for simple dacoity whereas Section 396 deals with punishment for dacoity with murder. It lays down that if any one of the dacoits commits murder in so committing dacoity, every one of the dacoits is liable to be punished for the offence. Thereby, that if a dacoit, in the progress of, and in pursuance of, the commission of a dacoity commits a murder, all of his companions, who are participating in the commission of the same dacoity, may be convicted under Section 396, although they may have no participation in murder. 38. It is also not necessary that the murder should have been in the contemplation of all or some of them when the dacoity was planned nor is it necessary that they should have actually taken part in or abetted its commission. Indeed they may not have been present at the scene of murder, or may not have known ever that murder was going to be, or had in fact, been committed. But none the less, they all will be liable for enhanced punishment provided a person is in fact murdered by one of the members of the gang in commission of dacoity. (Kalika Tiwari vs. State of Bihar, AIR 1997 SC 2186 Page 3129). The question whether murder was committed while committing dacoity or in the course of dacoity is a pure question of fact and a degree, not to be determined by any general rule, but by the special circumstances of each case. (Sirajuddin vs. State AIR 1951 All 834 ). 39. Murder committed by dacoits while carrying away stolen property is `murder committed in the commission of dacoity'. Likewise murder committed to facilitate the escape of the dacoits with the booty has also been held to have been committed in committing the dacoity within the meaning of Section 396 IPC. (Sirajuddin vs. State AIR 1951 All 834 ). 39. Murder committed by dacoits while carrying away stolen property is `murder committed in the commission of dacoity'. Likewise murder committed to facilitate the escape of the dacoits with the booty has also been held to have been committed in committing the dacoity within the meaning of Section 396 IPC. However, in the case of Shyam Behari vs. State of U.P., AIR 1957 SC 320 , where the dacoits were running away without collecting any booty and when they had proceeded a considerable distance from the house where the dacoity had been committed, one of the accused killed a chaser Mehdai while he was crossing the ditch of Pipra Farm in order to effect the release of other accused who had been caught by the chasers, it was held by the Apex Court in the facts and circumstances of the case, that the transaction of dacoity had ended the moment the dacoits took to their heels and another and a separate transaction took place when the appellant shot at Mendai while crossing the ditch of Pipra Farm. However, if the murder is committed by dacoits when they were engaged in carrying off the stolen property, is murder committed while they were engaged in committing dacoity and is, therefore, punishable under Section 396 IPC (5 Cr.LJ 201). But where after the commission of dacoity, in which however the dacoits being interrupted by the villagers, did not get any plunder, and were attempting to escape and one or more of them in order to facilitate the escape attacked and killed one of the pursuing party, it was held that Section 396 did not apply, but only the person or persons, actually taking part in the killing were liable therefor, (3 Cr.LJ All 294). 40. The legal position that emerges from above is that the accused must be shown to have conjointly committed robbery or aided such commission. Where a gang consisting of five or more persons conjointly commit dacoity and one of them commits murder in the commission of dacoity, all other members of the gang who conjointly commit dacoity are liable under Section 396 IPC. The only requirement is that all of them should conjointly commit dacoity and the murder must have been committed in committing dacoity. 41. The only requirement is that all of them should conjointly commit dacoity and the murder must have been committed in committing dacoity. 41. With this background of legal position, if the facts of the case in hand are looked into, it is clear that Shakuntala was shot dead near Garuda Chowk while snatching the `mukut' from Ramjilal and Laxman as shown in site-plan Exhibit P. 6, was shot by Sayra at mark `11'; which is also within the temple premises and in the facts of the case when the accused were escaping with the booty i.e. `sirpech'. It is amply proved that murder of Laxman was also committed in the commission of dacoity and was part of the same transaction. It cannot be said to be a separate transaction as held in the case of Shyam Behari (supra). The accused have also been charged under Section 302 read with 149 IPC but in view of the principle in the case of Musakhan (supra), the question of applying Section 149 IPC is a mere surplusage because Section 395 read with 396 come into existence when an act of dacoity is committed by five or more jointly. Since it is established that the two murders were committed in the commission of dacoity by the accused who were more than five and were conjointly committing dacoity, the offence under Section 396 IPC gets attracted and there is no need to convict them under Section 302 or 302 read with 149 IPC. 42. Now the next question is that during the commission of dacoity, Jeetu and Laxman alias Satyaprakash have also been proved to have been caused such gunshot injuries by Makkan as were sufficient to cause their death and said act being part of the same transaction, tantamounts to an offence under Section 397 IPC making all of them liable for this act of Makkan. But the accused, had, instead been charged with and sentenced for offence under Section 307 alternatively 307 read with 149 IPC. In these circumstances, the offence under Section 397 IPC being a graver offence, we are of the considered view that the conviction and sentence awarded by the learned trial Court for offence under Section 307 to Makkhan and under Sec. 307 read with 149 IPC to all others, in the facts and circumstances, deserves to be upheld. 43. In these circumstances, the offence under Section 397 IPC being a graver offence, we are of the considered view that the conviction and sentence awarded by the learned trial Court for offence under Section 307 to Makkhan and under Sec. 307 read with 149 IPC to all others, in the facts and circumstances, deserves to be upheld. 43. The appellants were also charged with and convicted for offence under Section 323 read with 149 IPC. Although as per Section 220, illustration 'm' to sub-clause 4 of Cr.P.C. a person can be separately charged under Section 323 also along with 392 and 394 for voluntarily causing hurt while committing robbery but it has to be seen in the facts of each case. In the case in hand the statements of injured witnesses coupled with the medical evidence prove this charge beyond doubt. 44. It is clear from above that the prosecution has established its case beyond reasonable doubt against each of the appellants. Besides the account of eye-witnesses and the version of other witnesses PW-60 Investigating Officer, who had reached the spot within minutes of the incident, the testimony of nearby people also being contemporaneous coupled with the medical opinion, the recovery of firearms, the recovery of jeep, the shoes, shoe molds, tyres, cartridges etc. from the place of occurrence, it is evident that the accused persons are guilty of the offence for which they have been convicted. 45. Alternative submission made by the learned counsel on behalf of all the appellants was that they have already suffered incarceration for more than 12 years and if they are acquitted of the charge under Section 302 alternatively 302 read with 149 IPC, and instead are found guilty of Sec. 396 IPC, then their sentence of life imprisonment be reduced to the period already undergone. 46. This submission was opposed by the learned Govt. Advocate. 47. Considered the arguments in this regard. While imposing a sentence the first facet that must be kept in mind in that the accused must realise that he has committed the act which is not only harmful to the society of which he forms an integral part but is also harmful for his own future both as an individual and as a member of the society. The second facet highlights the punitive deterrent aspect of a sentence and the third facet highlights the reformatory aspect of a sentence. The second facet highlights the punitive deterrent aspect of a sentence and the third facet highlights the reformatory aspect of a sentence. Although in a modern civilized society the reformatory aspect of the sentence is being given importance however in case of a too lenient or a too harsh sentence, both lose their efficaciousness. One does not deter and the other may frustrate, thereby making the offender a hardened criminal. 48. In this back ground having regard to the facts and circumstances of the present case, and the nature of offence and the manner in which appellants laced with deadly weapons have committed the dacoity in the temple along with murder which is the most heinous crime in the penal law, we are not persuaded to accede to the submissions made on behalf of the appellants as the offence committed by them along with the loss of lives of two innocent persons shows the criminality of the minds of the appellants. They, in our considered view, do not deserve any leniency as the offence is against the society and affecting its security. Therefore, the submission made in respect of sentence, is rejected. 49. Accordingly, the appeal Nos. 908/04, 1027/04 and 251/05 are partly allowed and the judgment and order dated 12.8.2004 is upheld to the extent of conviction and sentence of the accused appellants for offence under Section 395, 396, 148, 307 read with 149 and 323 read with 149 IPC are upheld. As regards the conviction and sentence of appellant Makkan for Section 307 simplicitor, it is modified as 307 read with 149 IPC. Likewise, the conviction and sentence of Sayra for offence under Section 302 simpliciter and others under Section 302 read with 149 IPC, is set aside. Conviction of Babu for offence under Section 3/25 Arms Act is maintained. 50. Appeal No. 1018/06 filed by appellant Birbal, is dismissed. 51. All the four appeals mentioned hereinabove, stand disposed accordingly. The appellants are stated to be behind the bars. Copy of the judgment be sent to them for information and the record of trial court be returned forthwith.