All HC | In case there is conviction of less than 5 persons for the offence of ‘Dacoity’, is it necessary to prove that 5 or more persons aided the crime? Court explains

Allahabad High Court: Saurabh Shyam Shamshery, J., while addressing a criminal appeal observed that “Conviction for “Dacoity” of less than five persons is not sustainable in the absence of finding that five or more persons were involved in the crime”. 

Three appellants filed the criminal appeal under Section 374 of the Criminal Procedure Code against the judgment and order dated 11-03-1983, wherein appellants Balbir and Lalaram were convicted under Section 395 of Penal Code, 1860 and Mohar Pal under Sections 395 read with 397 IPC.

Trial Court held that the appellants committed dacoity in the house of Raj Kumar.

Analysis, Law and Decision

Section 395 IPC | Punishment for Dacoity:

Whoever commits dacoity shall be punished with imprisonment for life, or with rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine.”

Section 397 | Robbery, or dacoity, with attempt to cause death or grievous hurt:

If, at the time of committing robbery or dacoity, the offender uses any deadly weapon, or causes grievous hurt to any person, or attempts to cause death or grievous hurt to any person, the imprisonment with which such offender shall be punished shall not be less than seven years.

“Dacoity” is defined in Section 391 IPC, which is reproduced as under:

“391. Dacoity.–When five or more persons conjointly commit or attempt to commit a robbery, or where the whole number 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”.

Supreme Court in the decision of Raj Kumar  v. State of Uttaranchal (Now Uttarakhand): (2008) 11 SCC 709, held that 

“…conviction of an offence of robbery, there must be five or more persons. In absence of such finding, an accused cannot be convicted for an offence of dacoity.”

“In a given case, however, it may happen that there may be five or more persons and the factum of five or more persons is either not disputed or is clearly established, but the court may not be able to record a finding as to the identity of all the persons said to have committed dacoity and may not be able to convict them and order their acquittal observing that their identity is not established. In such case, conviction of less than five persons–or even one–can stand. But in absence of such finding, less than five persons cannot be convicted for an offence of dacoity.”

Hence, in view of the above decisions, Court stated it clear that in case there is a conviction of less than five persons under Sections 395/397 IPC, trial court must arrive at a finding that there was the involvement of five or more persons.

In absence of the above-stated finding, no conviction could be made out under the aforestated Sections.

Prosecution completely failed in the present case, either to prove the participation of five or more persons in the commission of the offence or establish their identity.

Hence, Court held that the appellant’s conviction and the sentence are repugnant to the letter and spirit of Sections 391 and 396 IPC, therefore it cannot be sustained and trial court’s decision was set aside in the view of the said reasoning.[Balbir v. State of U.P., 2020 SCC OnLine All 845, decided on 09-07-2020]

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