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: 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 BriefsForeign Courts

South Africa High Court, Kwazulu-Natal Division: The Division Bench of Lopes and Radebe, JJ. while allowing the appeal reduced the sentence for murder and conviction for robbery was converted into the theft.

In the present case, the appellant, Mthobisi Mtho Mgidi was convicted of one count of robbery with aggravating circumstances and one count of murder and sentenced to 15 years’ imprisonment on the count of robbery, and life imprisonment on the murder count by the Umlazi Regional Court.

The facts surrounding the conviction are as follows: One night, the appellant and his friend Sikhakhane were walking along the road in a drunken state. Along the road, they met the deceased and he was too in a drunken state. While Sikhakhane was ahead of Mgidi, he heard someone calling him and he looked back and saw Mgidi stabbing the deceased with a knife. Sikhakhane then went up to Mgidi and pushed him away from the deceased and saw him covered in blood, and carrying a belt and either shoes or takkies which Sikhakhane stated belonged to the deceased. Sikhakhane and Mgidi’s mother testified where it was found that Sikhakhane had no knowledge of the circumstances under which Mgidi obtained possession of the knife and that Mgidi’s mother also saw his blood-stained clothes and knife.

Mgidi testified that he could not recall what happened that day and he ran away from his home after knowing that the police is looking for him.

The Counsel for the appellant, N.B. Dlamini submitted that the State bore the onus of proving criminal capacity and had failed to discharge that onus. He referred to a Judgment of Supreme Court of Appeal of South Africa, The Director of Public Prosecutions, Kwazulu-Natal v. Ramdass [2019] ZASCA 23 in which the accused was acquitted of both robbery and murder because it was found that the State had not proved that he had the necessary criminal capacity.

Counsel on behalf of the State, N. Dube submitted that Ramdass (accused in the abovementioned case) pertinently raised the defences, whereas in the present matter Mgidi pleaded not-guilty, because he could not recall having committed the offences and the memory of Mgidi was selective, because he remembered things which had taken place shortly before and after the incident. It was further submitted that in S v. Chretien 1981 (1) SA 1097 (A) at 1108C, it was mentioned that the fact that a person cannot remember what they did, does not mean that they were not criminally responsible.

The Court after analyzing the facts and circumstances of the case, observed that the evidence of the State witnesses clearly established that alcohol played a role in the unfolding events, it is clear that Mgidi was of sound enough mind to procure the knife with which he assaulted the deceased. The appellant remembered his interaction with his mother after arriving at home, and his actions in crying and then fleeing, indicate that he must have known what he did. In the circumstances of the present case, there is no evidence that the violence occasioned to Mr Khanyile by Mr Mgidi was instigated with the intention of depriving him of his property. In those circumstances, Mr Mgidi should have only been convicted of the murder of Mr Khanyile and the theft of a belt and a pair of takkies. The murder was neither planned nor premeditated.

The conviction for robbery was set aside, and replaced with a conviction on one count of theft and sentenced to undergo two years’ imprisonment on the conviction of theft. The appeal against conviction on the murder charge was dismissed and its sentence succeeded and a sentence of twelve years’ imprisonment was imposed. [Mthobisi Mtho Mgidi v. State, Case No. AR212 of 2017, decided on 31-05-2019]

Case BriefsForeign Courts

South Africa High Court, Free State Division, Bloemfontein: The petition for Leave to Appeal was filed before a Division Bench of C.J. Musi, AJP and O.J. Van Schalkwyk, AJ  against the convictions and sentence for the offence of robbery.

Two appellants – one and six were sentenced to eight-year imprisonment each and ten and twelve years respectively in respect of appellants – two and four. The basis for such a variation was an individual’s involvement in the crime and previous convictions of each of the accused.

Moreover, the minimum sentence for the offence was not imposed. The reason for this as per the Regional Magistrate was that the offences were not coupled with unnecessary violence. Firearms were exposed at the scene of the offences but were not utilized. The Regional Court found the backing in Section 51 (3) (a) of the Criminal Law Amendment Act 105 of 1997, which states that “if any Court referred to in sub-section (1) or (2) is satisfied that substantial circumstances exist which justifies the imposition of a lesser sentence than those prescribed in the subsections, it shall enter those circumstances on the record of the proceedings and thereupon impose a lesser sentence.”

The Statute demands “substantial circumstances” to exist to forego the minimum sentence and award a lesser one. In the State v. Malgas, 2001 (2) (SA) 1222 (SCA), “substantial and compelling circumstances” has been discussed in length and includes the age of an accused or previous convictions. Though, these factors must be weighed together with the aggravating factors of the offence. But over sympathy, aversion to imprisoning first offenders and personal doubts as to the efficacy of the policy implicit in the amending legislation should not qualify. In short, Legislatures have always made a point that for an offence a minimum punishment should be imposed as to maintain balance and consistency.

By relying on the just and reasonable discretion of the Regional Magistrate for imposing a lesser sentence, this Court upheld the conviction and sentences imposed by the Regional Court. [Mogoje Johannes Mogoje v. State, Case Nr: A109/2017, decided on 12-02-2018]

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 BriefsForeign Courts

High Court of South Africa, Eastern Cape Local Division: This case was filed before a Bench of G.G. Goosen, J. where Court dealt with the sentencing of accused who was convicted for kidnapping, rape and robbery with aggravating circumstances.

The two accused were convicted of kidnapping, robbery and rape. It was found that Accused 1 had already been convicted on 4 occasions. With respect to Accused 1 Court stated that- “He is however not a youth whose callow immaturity might explain his aberrant conduct.” He had experience of the effects of punishment and despite that, it did not cause him to change his behaviour which mandates a heavy punishment. The impact of the crime subjected to the victim, outweighs the personal circumstances of the accused. Accused 2 was a minor and thus was to be dealt with under the Child Justice Act, 2008. Accused 2 was of 16 years of age at the time of the commission of a crime. He had no previous convictions and the life he had been through showed that he was a child used to drugs and in need of care.

High Court found direct sentencing of imprisonment to be appropriate. According to the Act, imprisonment was to be given as a last resort and the Court viewed the case of Accused 2 to be one falling within the scope of imprisonment. [State v. Donovan Heugh, Case No. CC 17 of 2018, dated 25-01-2019]

Case BriefsForeign Courts

Supreme Court of Zambia: This appeal was filed before a 3-Judge Bench comprising of Hamaundu, Kajimanga and Chinyama, JJS., where trial court had imposed the death penalty on the appellant for aggravated robbery under Section 294 (2) of the Penal Code.

Appellant was convicted and sentences for death penalty for the commission of robbery having offensive and dangerous weapons. The Trial Court had referred to a case of Simon Mudenda v. People, (1980) ZMSC 26 in which it was held that in case of aggravated robbery that is, where firearms or other offensive weapons are involved, it was mandatory to give death penalty and Court cannot consider any extenuating circumstances or pass any other order. Therefore, Trial Court gave him death penalty under Section 294(2) of the Penal Code. Appellant contended that he did not have any firearm with him and prosecution did not establish the presence of firearm with appellant.

Supreme Court on perusing all the witnesses found that one eye witness had seen appellant’s accomplice armed with a firearm and this fact was not contested. Two other eye witnesses had seen a plank kind of thing to have fallen from the appellant’s bag which later was found in the ballistic report to be the part of the firearm recovered from appellant. Thus, Trial Court had correctly convicted and sentenced appellant. Therefore, this appeal was dismissed. [Anania Tembo v. People, 2018 SCC OnLine ZMSC 3, dated 10-12-2018]

Case BriefsHigh Courts

Delhi High Court: A Single Judge Bench comprising of Mukta Gupta,  J. dismissed a bunch of criminal appeals filed against the judgment of the trial court whereby the appellants were convicted under Section 392 read with Section 397 IPC.

The appellants were accused of having robbed passengers of a gramin sewa vehicle by pointing deadly weapons like knife, pistol and katta. The trial court, after appraisal of the facts and evidence and on perusal of witness testimonies, held that the allegations against the appellants stood proved to bring home their guilt. Accordingly, the appellants were convicted by the trial court as mentioned above. Aggrieved thereby, the appellants filed the instant appeals. They sought benefit of doubt as the main witness did not corroborate the prosecution case as to the carrying of particular weapons by the appellants as mentioned by the prosecution.

The High Court, after perusing the record was of the opinion that there was no error in the judgment passed by the trial court. The testimony, as well as the prosecution version, was appraised and it was found that there was necessary corroboration to bring home the guilt of the appellants.

One important issue arose in the appeal filed by one of the appellants — Wahid. It was contended that he was carrying a screwdriver while committing robbery which could not be said to be a deadly weapon and therefore could not have been convicted under Section 397 IPC. It was noted that in Phool Kumar v. Delhi Admn., (1975) 1 SCC 797, it was held that a person who uses the deadly weapon can only be convicted under Section 397 IPC. In the instant case, noted the Court, four appellants used four different weapons and committed the robbery together. In such a case, it was held,  the overall impact of the weapons is also to be seen. Thus, in light of the other appellants carrying weapons like knife and pistol, the effect on the mind of the victim would have been that of a deadly weapon. In such a view of the matter, the contention as aforesaid was turned down. Resultantly, the appeals were dismissed. [Arif v. State (NCT of Delhi),2018 SCC OnLine Del 12380, decided on 15-11-2018]

Case BriefsHigh Courts

Calcutta High Court: A Single Judge Bench comprising of Rajarshi Bharadwaj, J. allowed an appeal filed against the judgment of the trial court whereby the appellants were convicted for the offence punishable under Section 392 IPC.

As per the prosecution story, on the day of the incident, the complainant went to his oil mill, collected Rs 2,03,000, and proceeded towards the Post Office on his scooter. The appellants were alleged for following the complainant on a motorcycle, obstructing him on his way, threatening him with a gun, and taking away the money from the dickey of his scooter. Pursuant the complaint made by the complainant, an FIR was registered which ultimately resulted in conviction of the appellants by the trial court as mentioned above. Aggrieved thereby, the appellants preferred the instant appeal.

The High Court perused the entire evidence available on record as well as testimony of all the prosecution witness. It was found that the alleged money collected by the complainant was not proved. In such circumstances, there could not be any robbery. Although it was stated that Rs 13000 lat scattered at the place of occurrence, not even a single note was recovered. Mere presence of motorcycle could not aby robbery. It wasn’t clear as to how the police came to the spot. Person carrying the revolver was not identified, genuineness of documents to confirm the ownership of the scooter was not verified, the constable who read the cash-book to the Investigation Officer was not made a prosecution witness. The Court was of the view that in the absence of any direct evidence that the appellants were involved in commission of the offence, benefit of doubt may be extended to them. Accordingly, the appeal was allowed. The appellants were acquitted of all the charges, the order of the trial court was reversed. [Abdul Rashid v. State of W.B.,2018 SCC OnLine Cal 6326, dated 13-09-2018]

Case BriefsHigh Courts

Bombay High Court: A Division Bench comprising of V.K. Tahilramani, Acting CJ and M.S. Sonak, J. dismissed a petition challenging the rejection of petitioner’s application for grant of furlough.

The petitioner was convicted for the offences punishable under Sections 302, 341 and 397 IPC. He preferred an application for furlough, which was rejected. The petitioner preferred an appeal thereagainst, which too was dismissed. Aggrieved thus, the petitioner filed the instant criminal writ petition. The application of the petitioner to be released on furlough came to be rejected in view of Rule 4(2) of the Prisons (Bombay Furlough and Parole) Rules, 1959. The said rule provides that the prisoners convicted under Sections 392 to 402 IPC (both inclusive) shall not be eligible for grant of furlough.

The High Court, referring to earlier decisions, observed that Rule 4(2) is valid and intra vires and not vulnerable to challenge to the charge of being violative of Article 14 of the Constitution. In offences falling under the said sections, it would be hazardous to release convicts on furlough because when one abandons honest labour for the career of theft or intimidation coupled with violence, it tends to become a way of life and the temptation is too great to resist when the prisoner is at large. The offences of dacoity and robbery fall within a class by themselves. Thus, the classification is based on the danger inherent in releasing such prisoners and has a nexus with the object sought to be achieved. In view of the same, the High Court was not inclined to interfere in the matter. The petition was, accordingly, dismissed. [Sunil Gaurishankar Kharwar v. State of Maharashtra, 2018 SCC OnLine Bom 2450, dated 07-08-2018]

Case BriefsHigh Courts

Delhi High Court: A Single Judge Bench comprising of Valmiki Mehta, J. dismissed a regular first appeal filed under Section 96 CPC against the judgment of the trial court whereby the appellant’s application for leave to defend was dismissed.

Brief facts of the case are that the appellant-defendant took a loan of Rs 20 lakhs from the plaintiff and issued two cheques for the part-payment thereof. However, on presentation, the said cheques were dishonoured with remarks funds insufficient. After serving the legal notice, the petitioner filed a suit. The defendant filed an application for leave to defend. His basic defence was that the cheques in question were stolen from his car while he was driving from Rohtak to Delhi. However, the trial court dismissed the defendant’s application for leave to defend. Aggrieved thus, the defendant filed the instant appeal.

The High Court was of the view that judgment of the trial court did not warrant any interference. It was noted that indeed an FIR was filed by the defendant in regard to the said robbery. However, there was no mention of the said cheques being stolen. The defendant was using such fact to create a completely false defence to the suit. Referring to the Supreme Court decision in IDBI Trusteeship Services Ltd. v. Hubtown Ltd., (2017) 1 SCC 568, the High Court observed that once the defence is clearly frivolous and vexatious and there is no triable issue, leave to defend should not be granted. In the present case too, the Court completely disbelieved the story put forth by the defendant, and concluded that the defence was frivolous and vexatious. Thus, the trial court was right in dismissing the defendant’s application for leave to defend. The appeal was dismissed sans merit. [Mange Ram v. Raj Kumar Yadav,2018 SCC OnLine Del 10316, dated 03-08-2018]

Case BriefsHigh Courts

Delhi High Court: A Single Judge Bench comprising of Anu Malhotra, J., allowed a criminal petition filed against the judgment of the trial court wherein the appellant was convicted under Sections 392 and 397 IPC along with Section 27 of Arms Act.

The appellant was alleged to have robbed the house of the victim (complainant), and in the act, it was alleged, he used a deadly weapon (knife) that terrorized the victim. The appellant was booked under the above-mentioned sections. He was tried and convicted by the trial court. In the instant appeal, the appellant confined his challenge to the conviction under Section 397. It was contended that there were no allegations against the appellant that he used any deadly weapon in the course of committing the robbery, and as such, he could not be convicted under the said section.

The High Court perused the record and found that in his statement, the victim clearly stated that the co-accused in the case had a knife. But as to the appellant, the victim stated that he did not remember what weapon the appellant was holding. The Court referred to a Supreme Court decision in Dilawar Singh v. State of (NCT of Delhi),(2007) 12 SCC 641: (2008) 3 SCC (Cri) 330, wherein it was held, the word ‘offender’ (as used in Section 397 IPC) envisages individual liability and not any constructive liability. In the instant case, though recovery of the knife was made on the statement of the appellant, however, no specific attributions were made to the appellant carrying a knife at the day of the incident. Noting such facts and circumstances, the High Court held that no culpability could be fixed against the appellant under Section 397, for which the use of a knife is a sine qua non. Accordingly, while upholding his conviction under Section 392 IPC along with Section 27 of Arms Act, the High Court set aside the appellant’s conviction and sentence under Section 397 IPC. [Mumtaz v. State,2018 SCC OnLine Del 9534, decided on 13-06-2018]