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Mr. Ahmed, with Ms. Khan appearing for the State in all the appeals submit P.Ws. 1, 2 and 4 have clearly established the prosecution case against the appellants. Their evidence is corroborated by P.Ws. 5 and 6 who named all the appellants including one Sunil Mondal @ Chittu as the dacoits. It is possible P.Ws.1, 2 and 4 had not seen Sk. Motaleb and Sunil Mondal who were standing at the gate and preventing people from getting into or alighting from the compartment. Moreover, co-accused Momrej also assisted the appellants in committing the dacoity and his role is proved through the evidence of the owner of the vehicle, P.W. 9, his son, P.W. 10 and P.W. 11 who saw Azim Mistry and 5/6 others getting into the 'Tata sumo' vehicle at Baruipur petrol pump which was driven by Momrej. In the course of dacoity, Bidhan Ghorui had exhorted to fire by stating Azim Mistry 'Awaj Kara'. Thereafter Azim fired at the child resulting in his death. All the appellants shared common intention to murder the boy. Hence, the appeals are liable to be dismissed.

Summary of the prosecution evidence:

P.W. 1, Asraf Gazi is the informant. He had boarded a local train bearing No.SD 127J (Diamond Harbour to Sealdah local) in bagey No.11218 around 2.30 p.m. from Mograhat Station. When the train arrived at Hotar railway station, two boys had got into the bagey and sat opposite to him. When the train left Durgapur station and proceeded towards Kalyanpur, one of the boys put a pistol on his stomach and hit on the hand. The other boy put a pistol on his head and snatched a red and white colour bag wherein he was carrying a cash of Rs. 96,950/- which was given to him by his employer for purchasing buffaloes in connection with his meat shop. He shouted 'dakat dakat' and proceeded towards the door of the compartment. He found two more boys standing in front of the gate. One of them said 'Awaj Kara' and the other fired from his pistol and injured a young boy who fell down on the seat. As the train slowed down at Kalyanpur railway station, the dacoits got off the train and fled away. He also alighted at the railway station and telephoned his employer who advised him to go to Baruipur GRPS. He proceeded to Baruipur GRPS and waited for his employer. Khairul Gazi son of the employer came at the police station and scribed the first information report. He proved the first information report. In course of investigation, he made statement before the Magistrate. He identified Azim Mistry in the T.I. Parade held during investigation. In court he identified Ranajit, Joydeep, Bidhan and Azim. He stated Azim had shot at the boy while Bidhan had exhorted him to the fire by stating 'Awaj Kara'. Joydeep had put a pipe gun on his head and snatched the bag. Ranjit had put a pipe gun on his stomach and hit him with the butt of the revolver.

It may also be relevant to note illustration (d) to the aforesaid section.

"(d) A without any excuse fires a loaded cannon into a crowd of persons and kills one of them. A is guilty of murder, although he may not have had a premeditated design to kill any particular individual."

In the present case Bidhan Ghorui had exhorted Azim Mistry to fire by stating 'Awaj Kara'. Pursuant to such exhortation, Azim Mistry fired at the sitting passengers, one of whom was a 12-year old minor child who died due to gun-shot injury. Act of Azim Mistry in mercilessly firing at passengers in a train compartment pursuant to exhortation of co- accused Bidhan Ghorui was so imminently dangerous that it must in all certainty have caused death or bodily injury likely to cause death attracting the 4th clause of section 300 IPC. However I do not find any active participation of the other appellants in the said act.

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.