Case BriefsHigh Courts

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]

Case BriefsHigh Courts

Bombay High Court: Sarang V. Kotwal, J., granted bail to an accused observing that his act by itself does not amount to recce.

Applicant sought release on bail for offence registered under Section 396 of the Penal Code, 1860.

Govind Tulshiram Surase in the FIR stated that his father was working as a watchman and on 26-03-2019, he had left to attend his duty at around 8.30 PM but did not return the next morning.

After searching for long Informant’s father was found dead in the cabin of a dumper parked on the highway with injuries on his person.

In view of the above FIR was lodged against unknown persons and applicant was arrested.

Applicant’s counsel submitted that there is hardly any evidence against the applicant. The informant’s statement mentioned that he had seen 3 persons come near the spot and left without any communication with anybody.

Applicant’s counsel further added that the case against the present applicant appeared that he had conducted Recce around the spot and therefore he was sought to be roped in as one of the offenders.

Circumstance being very weak, he deserves to be released on bail.

Decision

Bench on considering the submissions stated that the allegation against the applicant with regard to conducting reccee of the spot is not supported by any cogent evidence.

Further, the witnesses gave no description of the persons who had conducted recce.

In any case if some unknown person had come to the spot and left the spot that by itself may not amount to conduct of recce.

Court added that the statement is based on mere suspicion and subsequent identification of the applicant in the test identification parade is not of much importance.

Hence the applicant was granted bail with some conditions.[Akash R. Lokhande v. State of Maharashtra, 2020 SCC OnLine Bom 887, decided on 28-08-2020]

Case BriefsHigh Courts

Bombay High Court: A Division Bench of Surendra P. Tavade and Ranjit More, JJ., while dismissing the present appeal upheld the trial court’s decision for an offence punishable under Sections 302, 392 read with Section 34 of Penal Code, 1860.

Reason for appeal to be preferred

Appellant – Original accused challenged the Judgment and conviction order passed by Additional Sessions Judge of wherein the appellant was convicted for the offence punishable under Sections 302, 392 read with 397 IPC.

Facts

First informant was deceased’s daughter and worked at a sugarcane juice stall. Balli used to clean the sugarcane at informant’s place and take the same to informant’ Juice Stall. On one day, Balli when did not reach the stall, informant called the deceased to know whether the servant Balli had proceeded to the shop, to which her mother replied that his work was not over yet, and he may stay for some time and then attend the shop.

When the informant reached her house in the night, she found her mother lying in the pool of blood, with knife pierced in her chest and a deep injury on the neck.

Later, FIR was registered and during investigation through the call records, it was found that appellant was moving in the vicinity at the time of the incident. Police on searching for the appellant found him at his native place and was further arrested.

 Trial Court held the appellant guilty for the offence punishable under Sections 449, 397 and 302 of IPC.

Contentions

Counsel for the appellant submitted that prosecution did not prove the chain of circumstances to prove the guilt of the appellant.

Adding to the above, it was also submitted that there could be a possibility of involvement of third person committing offence and appellant was wrongly convicted for the offences.

APP submitted that discovery of ornaments, blood-stained cloths from the possession of the appellant unequivocally proved involvement of the appellant in the crime.

Further appellant’s counsel submitted that even it was proved that the appellant was found in possession of stolen articles, he could not be held guilty for the charge under Section 302 IPC and at the most, he will be held guilty under Section 392 IPC.

Decision

High Court noted that the appellant had contacted PW-17 and shown him the gold articles, further the said articles were seized from the appellant. After the incident, appellant went to his native place and showed gold ornaments to PW-17.

Appellant was found in possession of the gold articles immediately after the incident. He also produced clothes that were stained with blood. Another circumstance to be noted against the appellant was that he was seen in the vicinity of the scene of offence before the incident and during the time of the incident.

This, in view of the above, trial court’s decision is upheld and the present appeal is to be dismissed. [Girvarsingh Bhagwatsingh Devda v. State of Maharashtra, 2020 SCC OnLine Bom 315decided on 25-02-2020]

Case BriefsHigh Courts

Calcutta High Court: A Division Bench of Joymalya Bagchi and Ravi Krishan Kapur, JJ. allowed an appeal filed against the order of the trial court whereby the appellant was convicted for committing the offence of criminal conspiracy punishable under Section 120-B IPC, and also under Section 216-A IPC for harbouring robbers or dacoits.

The matter related to the incident of dacoity and rape of a man committed in a convent school in Ranaghat, W.B., on 14-3-2015. The appellant was a relative of one of the accused persons. It was alleged that the accused persons, after committing the ghastly crime of dacoity and rape, stayed at the residence of the appellant. He was, thus, charged with the offence of harbouring the accused dacoits. The appellant was convicted as above mentioned two offences. Aggrieved thereby, he filed the instant petition.

The High Court noted that the accused were staying at the house of the appellant as they were there to attend a marriage. Reliance was placed on State v. Nalini, (1999) 5 SCC 253, wherein the Supreme Court had held that more association with one of the principal offenders or even knowledge about the conspiracy cannot make a person a conspirator. It is the agreement which is the sine qua non of the offence of conspiracy. Considering the evidence in the instant case, the High Court was convinced that the necessary ingredients of crime of conspiracy were not proved against the appellant and, hence, his conviction under Section 120-B IPC was quashed.

Coming to the offence under Section 216-A IPC, the High Court noted that the ingredients of the offence of harbouring robbers or dacoits: i) that the persons in question were about to commit or had recently committed robbery; ii) that the accused knew this; iii) that the accused harboured them or some of them; iv) that the accused did so with the intention of – (a) facilitating the commission of robbery or dacoity, or (b) screening them or some of them from punishment.

It was observed by the Court: “…penal liability would not be attracted if a person harbours dacoits in general and it must be proved that he had harboured such dacoits who intended to commit a ‘particular dacoity’.”

Considering the evidence, it was held: “Knowledge of the appellant with regard to dacoity conducted at the convent does not appear to be proved beyond doubt as evidence of P.W. 11 is too vague to be convincing and the other evidence on record do not inspire confidence to come to such conclusion.”

In such view of the matter, the Court held that the accused was entitled to be acquitted and therefore, the conviction of the appellant as recorded by the trial court was set aside.[Gopal Sarkar v. State of W.B., 2019 SCC OnLine Cal 5112, decided on 20-12-2019]

Case BriefsHigh Courts

Delhi High Court: A.K. Pathak, J., modified the appellant’s conviction and sentence while allowing his appeal filed against the order of the trial court whereby he was convicted for an offence under Section 397 IPC (robbery or dacoity, with attempt to cause death and grievous hurt).

As per the victim, on the day of the incident, he was standing at a bus stand when the appellant along with one another robbed him of his phone and wallet by placing a paper cutter blade on his belly. The appellant was apprehended, however, the other person ran away. He was tried and convicted by the trial court aforestated.

Sunita Arora, Advocate for the appellant pressed the appeal only on the point that no offence under Section 397 was made out, and at best the appellant could be convicted for an offence under Section 392 (punishment for robbery).

Perusing the record, the High Court found favour with the appellant’s submission that the paper cutter blade which was recovered could not be termed as a “deadly weapon” within the meaning of Section 397. Discussing earlier cases, the Court held that the prosecution failed to show that the appellant used any “deadly weapon” while committing robbery and therefore ingredients of offence under Section 397 were not attracted in the case. Resultantly, the appellant’s conviction was altered to Section 392. Also, on his appeal for leniency in a sentence, the Court reduced appellant’s sentence to the period of imprisonment already undergone by him. [Guddu v. State, 2019 SCC OnLine Del 7855, decided on 19-03-2019]

Case BriefsHigh Courts

Calcutta High Court: A Single Judge Bench comprising of Rajasekhar Mantha, J. dismissed an appeal filed against the judgment and order of the Additional District Judge whereby the appellant along with seven others was convicted under Section 395 IPC.

In January 2005, the accused persons committed a dacoity in Samali Primary Block Health Center and took away Rs 6,74,784 by placing a bhojali (large knife) on the throat of one of the official. The accused persons were apprehended and convicted as mentioned above. While challenging the judgment of conviction, it was argued by the appellant that he was not identified by the seizure witness in Court. Also, that he was not identified in TI parade.

The High Court, while rejecting the submission of the appellant, held that in case of the appellant, the TI parade would have been useless. The appellant was absconding in January (when incident occurred) and was apprehended only in September. He was, however, named in the first charge sheet. The Court held that it was useless to conduct any TI parade of the appellant after a period of 9 months of the incident. For such and other reasons, the appeal was dismissed. While concluding, the Court also found that the money involved in the case that was recovered had not been deposited in the treasury which was indeed shocking. As such, the Court recommended departmental enquiry for major penalty and also criminal proceedings against the Investigating Officers concerned. [Madha Rai v. State of W.B.,2018 SCC OnLine Cal 5882, dated 31-08-2018]