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Mr. Ahmed strenuously argues all the appellants were armed and shared common intention to commit the murder. There is clear distinction between the vicarious liability envisaged under section 396 I.P.C. vis-à-vis section 34 of the I.P.C. Ingredients of section 396 I.P.C. are as follows:

(a) Five or more persons committed dacoity and,
(b) One of them committed murder in the course of such dacoity.

If the aforesaid conditions are proved, prosecution is not called upon to show each one of the gang of dacoits shared common intention to murder. On the other hand, to attract the offence under section 302 read with section 34 of the I.P.C., prosecution must prove each of the accuseds shared common intention to murder and pursuant to such common intention, murder had been committed.

As discussed earlier, I am of the view prosecution has not been able to prove that robbery had been committed by five or more persons in the present case. Thus, charge under section 396 IPC ought to fail and mere membership in a group to commit robbery would not ipso facto attract the vicarious liability as envisaged under section 34 of the Indian Penal Code for the offence of murder. Under such circumstances, could the appellants be convicted in the alternative under section 302 read with section 34 of the I.P.C.? In Shyan Behari Vs. State of Uttar Pradesh4, a Constitution Bench held if the charge under section 396 of the I.P.C. AIR 1957 SC 320 fails and accused may be convicted for the offence of murder if the evidence shows that he had committed the murder. This view is reiterated by the Apex Court in Rafiq Ahmed alias Rafi Vs. State of Uttar Pradesh5 wherein it is held conviction under section 302 of the I.P.C. would not prejudice the accused. In the present case, alternative charge under section 302 read with section 34 of the I.P.C. was framed against the appellants. No order of acquittal on the said charges was recorded by the trial Court as it had proceeded to convict the appellants under section 396 of the I.P.C. In similar circumstances, the Apex Court in Ramdeo Rai Yadav Vs. State of Bihar6 held conviction of the accused under section 302 of the I.P.C. is maintainable. However, to do so, it must be shown that the accused had committed the murder or shared common intention altogether to do so. Analysing the roles of the appellants in that perspective I find Bidhan Ghorui had exhorted Azim Mistry to fire by stating "Awaj Kara" and thereupon Azim Mistry indulged in an imminently dangerous act of firing at innocent passengers which inevitably would have caused loss of life. In fact, a 12 years old boy died due to such firing. In this factual matrix, conduct of the aforesaid appellants clearly establish their common intention to murder pursuant to which the child was killed. With regard to other appellants that is, Ranajit Mondal and Joydeep Roy @ Raju though they had participated in the robbery and were armed, they did not play any role in the murder of (2011) 8 SCC 300 (1990) 2 SCC 675 the child. They had not used the firearms. This circumstance persuaded me to come to the conclusion the said appellants did not share common intention with Bidhan Gharui and Azim Mistry to murder the victim. Under such circumstances, I am inclined to hold that the evidence on record has proved specific roles played by Azim Mistry in firing upon exhorting of Bidhan Gharui resulting in the death of the minor Somnath Majumdar. Thus, ingredients of the offence punishable under section 302 read with section 34 of the I.P.C. are proved against them. However, the other appellants, namely, Ranajit Mondal and Joydeep Roy who were present at the place of occurrence and participated in the robbery did not use their firearms or by any other conduct displayed sharing of common intention with the other aforenamed appellants to murder the deceased. Hence, they cannot be convicted under section 302 read with section 34 of the I.P.C. Their conviction under section 396 of the I.P.C. altered to 392 of the I.P.C.