Alagiriswami, J. - (1.) The two appellants in Crl. A. No. 54 of 1970 were tried before the Additional Sessions Judge of Bhagalpur for offences under Ss. 302 and 394 of the Indian Penal Code and convicted by him for both the offences. On a reference made by the Additional Sessions Judge for confirmation of the death sentence awarded to them and two appeals filed by them the High Court of Patna upheld their conviction under S. 394 but acquitted them of the offence under Section 302. The accused as well as the State of Bihar have appealed to this Court, the former in respect of their conviction under Section 394 and the State against their acquittal in respect of the offences under Section 302. The facts giving rise to these appeals are as follows:
(2.) Ram Prasad Mandal, a resident of Bhagalpur, his wife Rukmini and their daughter Pushpa Devi were returning from Vellore, where the daughter underwent treatment. They were travelling from Calcutta to Bhagalpur by the Howrah Danapur Fast Passenger on 6-4-1965. They were accompanied by their servant Mohan Lal (P.W. 1). At Pirpainty railway station appellant Pashupati Singh entered their compartment and when the train reached Ghogha railway station appellant Sutali Rai and another accused, now absconding, got into that compartment. The two appellants had Gupti in their hands. After some time the absconding accused took out a Chura and asked Ram Prasad Mandal to give him whatever he had. Appellant Pashupati Singh stood near Mohan Lal and Sutali Rai near Rukmini Devi. Ram Prasad Mandal offered whatever he had but tried to catch the hand of the absconding accused. Thereupon all the three accused attacked Ram Prasad Mandal who fell down. Rukmini Devi asked them not to assault and took out her chudies from one hand and handed over to one of the accused. Her necklace was snatched by one of the three accused and when she tried to pull the alarm chain all the three assaulted her with the weapons in their hands and she also fell down. Mohan Lal who tried to intervene was assaulted with a Gupti by Pashupati Singh and relieved of his wrist watch and rupees fifty or sixty, which he had. Pushpa Devi handed over her ornaments. The miscreants thereafter pulled the chain and got out of the train. When the train stopped, Fireman Abdul Asiz (P.W. 8) came to the compartment and found Pushpa crying and Ram Prasad Mandal and Rukmini Devi lying injured. The Guard (P.W 10) also came there. At the next railway station Sabour the Assistant Station Master (P.W. 5) advised them to go to Bhagalpur as there would be delay in getting medical aid at Sabour. He also informed Bhagalpur railway station. The train reached Bhagalpur at about 1.15 A.M. on 7-4-1965. P.W. 10 handed over a written memo. Ext. 2. to the Officer-in-charge Railway Police, on the basis of which the first information report was drawn up by P:W. 12 at about 1.45 A.M. By this time Ram Prasad Mandal was dead and Rukmini Devi was in a serious condition. All of them were sent to the hospital where Rukmini Devi died at 6 A.M. The appellant Sutali Rai surrendered on the 10th of May, 1965 while Pashupati Singh was arrested on the 11th of May, 1965. In the test identification parade held on the 24th of Kay, 1965 Mohan Lal and Pushpa Devi identified both of them. In due course a charge sheet was laid against both of them with the result already mentioned.
(3.) Pashupati Singh's defence was that he was innocent, that the two eye witnesses had opportunities to know him before the occurrence and that he had been shown to them before the identification parade. Sutali Rai also alleged that he had been shown to the identifying witnesses. We are satisfied that the conclusion arrived at by the courts below that PWs 1 and 2 were eye witnesses to the occurrence and they had properly identified the assailants, is based on a proper appreciation of the evidence. We shall later deal with the question as to the offence of which the appellants were acquitted.;