Full Judgment Text
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 11
CASE NO.:
Appeal (crl.) 855 of 2007
PETITIONER:
RAJ KUMAR @ RAJU
RESPONDENT:
STATE OF UTTARANCHAL
DATE OF JUDGMENT: 07/04/2008
BENCH:
C.K. THAKKER & D.K. JAIN
JUDGMENT:
J U D G M E N T
REPORTABLE
CRIMINAL APPEAL NO. 855 OF 2007
C.K. THAKKER, J.
1. This appeal is filed by Raj Kumar @
Raju-accused No.1 in Sessions Trial No. 14 of
1983. He was convicted for an offence
punishable under Section 396 of the Indian
Penal Code (IPC) along with three other accused
and ordered to undergo rigorous imprisonment
for ten years and to pay fine of Rs.2,000, in
default of payment of fine, to undergo
additional imprisonment for one year. The said
order was passed by the II Addl. Sessions
Judge, Nainital on August 9, 1985. The
appellant preferred an appeal against the said
judgment and order which was registered as
Crimial Appeal No. 2128 of 1985 in the High
Court of Allahabad and was re-numbered as
Criminal Appeal No. 315 of 2001 in the High
Court of Uttaranchal at Nainital and was
dismissed by the High Court on December 16,
2006.
2. The case of the prosecution was that
on September 24, 1982 one Tilak Raj-PW1
submitted a written report at Police Station,
Khatima stating therein that when he reached
his house for taking lunch at about 12.30 p.m.,
he saw Raj Kumar @ Raju, Pushpendra Singh,
Swadesh Chandra @ Gappu and Nirankar in his
house. All the accused were dragging his wife
who was soaked in blood. According to Tilak
Raj, on seeing him, the accused fled away.
Though he tried to catch hold of them,
Pushpendra Singh pushed at his chest due to
which he fell down. He raised hue and cry.
According to the complainant Raj Kumar, Swadesh
Chandra @ Gappu and Nirankar were holding
knives. All the accused committed loot of
articles from his house and also committed
murder of his wife Kamlesh Kumari. Rajendra
Kumar-PW6, Purshottam Lal-PW3, Prem Kumar-PW5
and other persons who came there, also saw the
accused running away. The first information was
recorded and investigation was conducted.
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 11
Accused were arrested and certain articles were
also recovered from them. On completion of
investigation, charge-sheet was submitted by
the Investigating Officer against four accused
referred to above and two others, namely, Mohan
Lal and Balram Singh for offences punishable
under Sections 396 and 412 read with Section
120B, IPC. The case was committed by the
Magistrate to learned II Addl. Sessions Judge.
Charge was framed and the accused were asked
whether they pleaded guilty upon which they
denied to have committed any offence and
claimed to be tried.
3. In order to prove the case against the
accused, the prosecution examined 13 witnesses.
Out of them Tilak Raj-PW1, informant and
husband of deceased Kamlesh Kumari was an eye-
witness who supported the case of the
prosecution. According to him, he saw all the
accused dragging dead body of his wife Kamlesh
Kumari from kitchen. He wanted to catch hold of
the accused but could not do so as Pushpendra
Singh pushed him and resultantly he fell down.
It was also his case that on hearing his cries,
PW3-Purshottam Lal, PW5-Prem Kumar and PW6-
Rajendra Kumar reached at the scene of offence
and saw all the accused running away. After the
arrest of accused, looted property and weapons
of offence, namely, knives were recovered.
4. It was also the case of the
prosecution that there was a conspiracy to
commit dacoity by all the accused on the
previous day i.e. September 23, 1982. To prove
conspiracy, the prosecution examined PW7-Kishan
Lal-real brother of PW1-Tilak Raj. PW11-Dr.
J.K. Goel who performed post-mortem of deceased
Kamlesh Kumari on September 25, 1982 was
examined to prove injuries sustained by the
deceased and to establish that she died due to
those injuries.
5. The case of the accused under Section
313 of the Code of Criminal Procedure, 1973 was
of total denial. In support of their case, the
accused examined DW1-Dr. Joshi and DW2-Laxmi
Datt.
6. The trial Court, after appreciating
the evidence on record, held that it was not
proved by the prosecution that there was
conspiracy between the accused to commit
dacoity. So far as charge for committing an
offence punishable under Section 120B, IPC is
concerned, the trial Court acquitted them.
Likewise, the trial Court held that since
recovery effected by the prosecution was not in
consonance with law, it could not be said that
stolen articles of dacoity were found from the
accused and consequently charge for an offence
punishable under Section 412, IPC also could
not be said to be established. All the accused
were, therefore, acquitted.
7. The Court, however, held that as far
as commission of an offence punishable under
Section 396 was concerned, from the evidence of
PW1-Tilak Raj and PW3-Purshottam Lal, PW5-Prem
Kumar and PW6-Rajendra Kumar, it was clearly
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 11
established. According to the Court, however,
an offence punishable under Section 396, IPC
was established against accused Nos. 1 to 4 Raj
Kumar @ Raju-A1, Pushpendra Singh-A2, Swadesh
Chandra @ Gappu-A3 and Nirankar-A4. It was not
established that Mohan Lal-A5 and Balram Singh-
A6 were also present and party to the crime.
They were, therefore, ordered to be acquitted.
8. All the four convicted accused
preferred appeal and the High Court, as stated
above, confirmed the order of conviction and
sentence recorded by the trial Court and
dismissed the appeal.
9. Notice was issued by this Court in the
present appeal instituted by accused No.1-Raj
Kumar @ Raju on February 9, 2007. On July 9,
2007, leave was granted. Bail, however, was
refused. In view of the said fact, the matter
was placed for final hearing and that is how
the matter is before us.
10. We have heard learned counsel for the
parties.
11. The learned counsel for the appellant
contended that both the Courts have committed
an error in convicting the appellant for an
offence punishable under Section 396, IPC. It
was submitted that charge was framed for an
offence punishable under Section 396, IPC
against the appellant along with other five
accused. When the trial Court acquitted two of
them, no conviction could have been recorded of
the remaining four accused for an offence
punishable under Section 396, IPC. It was
submitted that for conviction of accused under
Section 396, IPC, there must be five or more
persons and in view of acquittal of two out of
six persons, both the Courts were wrong in
invoking and applying Section 396, IPC. On that
ground alone, the order of conviction and
sentence deserves to be set aside. It was also
submitted that all the accused were charged for
criminal conspiracy but they were acquitted for
an offence punishable under Section 120B, IPC
and the said order was not challenged by the
State. Again, all the accused were charged for
an offence of dishonestly receiving property
stolen in the commission of dacoity, punishable
under Section 412, IPC, but even on that count,
the trial Court acquitted them and the said
order also has attained finality. In the light
of the above facts, conviction of the appellant
under Section 396, IPC is clearly illegal and
requires to be set aside. It was stated by the
learned counsel that the appellant was never
charged for commission of an offence of murder
of deceased Kamlesh Kumari, punishable under
Section 302, IPC and the Courts went wrong in
convicting him under Section 396, IPC. The
counsel submitted that the appeal deserves to
be allowed by setting aside the order of
conviction and sentence recorded by the trial
Court and confirmed by the High Court.
12. The learned Government Pleader, on the
other hand, supported the order of conviction
and sentence by both the Courts. He submitted
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 11
that it is true that all the accused were
acquitted by the trial Court for committing an
offence punishable under Section 120B, IPC
(criminal conspiracy). It is also true that
they were acquitted of an offence punishable
under Section 412, IPC (for dishonestly
receiving or retaining property stolen in
commission of dacoity). It is equally true that
out of six accused, two were acquitted by the
trial Court by giving benefit of doubt and
hence there were less then five accused before
the Court. But from the prosecution evidence
and particularly from the evidence of PW1-Tilak
Raj, PW3-Purshottam Lal, PW5-Prem Kumar and
PW6-Rajendra Kumar, the Courts below were
convinced that there was dacoity in the house
of PW1-Tialk Raj and during the course of
committing dacoity, the accused killed Kamlesh
Kumari, wife of PW1-Tilak Raj and convicted the
appellant under Section 396, IPC. That order
cannot be said to be illegal or unlawful.
Alternatively, the learned counsel contended
that the accused had committed murder of
Kamlesh Kumari and they can independently be
convicted for an offence punishable under
Section 302, IPC simpliciter. He, therefore,
submitted that the appeal deserves to be
dismissed.
13. Having heard learned counsel for the
parties, in our opinion, the appeal deserves to
be allowed. It is not in dispute that charges
were framed against six persons but even the
trial Court was not convinced with the
prosecution evidence about complicity of all
the accused and granted benefit of doubt to two
of them. It may be stated that the trial Court
did not record a finding that there were six
persons who committed dacoity and out of them,
two accused could not be identified but the
remaining four were identified and came to the
conclusion that it was proved that there were
six accused and all of them committed the
offence of dacoity but in view of insufficient
evidence as to identity, two of them were
required to be acquitted. In such case,
conviction of less than five accused can be
sustained as in accordance with law. But, once
the Court doubts the presence and participation
of two out of six accused and grants benefit to
them, there are less than five persons and no
conviction can be recorded for an offence under
Section 396, IPC against them. Let us consider
the legal position on this aspect.
14. Chapter XVII (Sections 378 to 462)
deals with offences against property. Sections
378 to 382 relate to theft. Sections 383 to 389
concern offences of extortion. Sections 390 to
402 deal with robbery and dacoity. Section 391
defines dacoity and it reads thus:
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
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 11
and aiding such commission or attempt,
amount to five or more, every person
so committing, attempting or aiding,
is said to commit "dacoity".
15. Whereas Section 395 provides
punishment for dacoity, Section 396 prescribes
penalty for an offence of dacoity with murder.
The said section reads thus:
396. Dacoity with murder
If any one of five or more persons,
who are conjointly committing dacoity,
commits murder in so committing
dacoity, every one of those persons
shall be punished with death, or
imprisonment for life, or rigorous
imprisonment for a term which may
extend to ten years, and shall also be
liable to fine.
16. In Ram Lakhan v. State of Uttar
Pradesh, (1983) 2 SCC 65, this Court held that
conviction for an offence of dacoity of less
than five persons is not sustainable. In that
case, the appellant was convicted for an
offence punishable under Section 395, IPC and
sentenced to seven years rigorous imprisonment.
FIR was registered against nine persons. The
trial Court, however, acquitted five persons
and convicted four. On appeal, the High Court
acquitted three persons out of four and
conviction of one of the accused, appellant
before this Court, was upheld. This Court,
while allowing the appeal and acquitting the
accused, held that before an offence under
Section 395 can be made out there must be an
assembly of five or more persons. On the
findings of the courts below, it was manifest
that only one person was left, who could not be
convicted for an offence under Section 395.
17. In Saktu & Anr. v. State of U.P.,
(1973) 1 SCC 202, the case of the prosecution
was that 15-16 persons entered the house of one
Jwala Prasad and looted the property. First
Information Report was lodged by the informant-
Jwala Prasad. All the accused were charged for
offences punishable under Sections 395, 397 and
412, IPC. The trial Court acquitted one of the
accused. In appeal, the High Court of Allahabad
acquitted some other accused but convicted
three accused (Nos. 1, 6 & 7).
18. It was contended before this Court
that as the High Court found that only three
persons had participated in the occurrence,
there was an error in convicting them for
dacoity, since the offence of dacoity could not
be committed by less than five persons. This
Court, however, negatived the contention
observing as under:
"The charge in the instant case is
that apart from the named seven or
eight persons, there were five or six
others who had taken part in the
commission of the dacoity. The
circumstance therefore that all except
the three accused, have been acquitted
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 11
by the High Court will not militate
against the conviction of those three
for dacoity. It is important that it
was at no time disputed that more than
thirteen or fourteen persons had taken
part in the robbery. The High Court
acquitted a large number of the
accused because their identity could
not be established. The High Court,
however, did not find that the group
which committed robbery in the house
of Jwala Prasad consisted of less than
five persons". (emphasis supplied)
19. It is thus clear that for recording
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 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 \026or even one- can stand. But
in absence of such finding, less than five
persons cannot be convicted for an offence of
dacoity.
20. A similar situation arises in dealing
with cases of ’unlawful assembly’ as defined in
Section 141, IPC and the liability of every
member of such unlawful assembly for an offence
committed in prosecution of common object under
Section 149, IPC. Section 141 indicates that an
assembly of five or more persons can be said to
be ’unlawful assembly’, if common object of the
persons comprising such assembly is as
mentioned in the said section. Section 149
declares that if an offence is committed by any
member of unlawful assembly in prosecution of
common object of that assembly, every member of
such assembly is guilty of that offence.
21. In Dalip Singh & Ors. v. State of
Punjab, 1954 SCR 145, it was held that if the
prosecution fails to establish that the
appellants were five or more in number, Section
149, IPC cannot be applied. But the Court held
that it is not essential that five persons must
always be convicted for invocation of the said
provision. Where it is possible to conclude
that though five or more persons were
’unquestionably’ at the place of offence and
the identity of one or more was in doubt,
conviction of less than five persons with the
aid of Section 149, IPC would be legal and
lawful.
22. Speaking for the Court, Bose, J.
stated:
"Before section 149 can be called
in aid, the court must find with
certainty that there were at least
five persons sharing the common
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 7 of 11
object. A finding that three of them
"may or may not have been there"
betrays uncertainty on this vital
point and it consequently becomes
impossible to allow the conviction to
rest on this uncertain foundation.
This is not to say that five persons
must always be convicted before
section 149 can be applied. There are
cases and cases. It is possible in
some cases for Judges to conclude that
though five were unquestionably there
the identity of one or more is in
doubt. In that case, a conviction of
the rest with the aid of section 149
would be good. But if that is the
conclusion it behaves a court,
particularly in a murder case where
sentences of transportation in no less
than four cases have been enhanced to
death, to say so with unerring
certainty. Men cannot be hanged on
vacillating and vaguely uncertain
conclusions". (emphasis supplied)
23. Again, in Mohan Singh v. State of
Rajasthan, (1962) Supp 3 SCR 848, two of the
five persons who were tried together for
offences punishable under Section 302 read with
Sections 147 and 149, IPC were convicted. In
the charge, those five accused persons and none
others were mentioned as forming unlawful
assembly and the evidence led in the case was
confined to them. The question was whether two
persons could be convicted by applying Section
149, IPC. The Court, referring to Dalip Singh,
stated:
"Cases may also arise where in the
charge, the prosecution names five or
more persons and alleges that they
constituted an unlawful assembly. In
such cases, if both the charge and the
evidence are confined to the persons
named in the charge and out of the
persons so named two or more are
acquitted leaving before the court
less than five persons to be tried,
then Section 149 cannot be invoked.
Even in such cases, it is possible
that though the charge names five or
more persons as composing an unlawful
assembly, evidence may nevertheless
show that the unlawful assembly
consisted of some other persons as
well who were not identified and so
not named. In such cases, either the
trial court or even the High Court in
appeal may be able to come to the
conclusion that the acquittal of some
of the persons named in the charge and
tried will not necessarily displace
the charge under section 149 because
along with the two or three persons
convicted were others who composed the
unlawful assembly but who have not
been identified and so have not been
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 8 of 11
named. In such cases, the acquittal of
one or more persons named in the
charge does not affect the validity of
the charge under section 149 because
on the evidence the court of facts is
able to reach the conclusion that the
persons composing the unlawful
assembly nevertheless were five or
more than five".
24. Similarly, in Krishna Govind Patil v.
State of Maharashtra, (1964) 1 SCR 678, after
referring to Mohan Singh, the Court observed:
"It may be that the charge discloses
only named persons; it may also be
that the prosecution witnesses named
only the said accused; but there may
be other evidence, such as that given
by the court witnesses, defence
witnesses or circumstantial pieces of
evidence, which may disclose the
existence of named or unnamed persons,
other than those charged or deposed to
by the prosecution witnesses, and the
court, on the basis of the said
evidence, may come to the conclusion
that others, named or unnamed, acted
conjointly along with one of the
accused charged. But such a conclusion
is really based on evidence".
25. In yet another decision in Ram Bilas
Singh v. State of Bihar, (1964) 1 SCR 775, this
Court said:
"The decisions of this Court quoted
above thus make it clear that where
the prosecution case as set out in the
charge and as supported by the
evidence is to the effect that the
alleged unlawful assembly consists of
five or more named persons and no
others, and there is no question of
any participation by other persons not
identified or identifiable it is not
open to the court to hold that there
was an unlawful assembly unless it
comes to the definite conclusion that
five or more of the named persons were
members thereof. Where, however, the
case of the prosecution and the
evidence adduced indicates that a
number in excess of five persons
participated in the incident and some
of them could not be identified, it
would be open to the court to convict
less than five of the offence of being
members of the unlawful assembly or
convict them of the offence committed
by the unlawful assembly with the aid
of Section 149, I.P.C. provided it
comes to the conclusion that five or
more persons participated in the
incident".
26. In Maina Singh v. State of Rajasthan,
(1976) 2 SCC 827, the appellant was charged
along with four others under Section 302 read
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 9 of 11
with Section 149, IPC. Only the appellant was
convicted and the rest were acquitted. He was
convicted under Section 302 read with Section
34, IPC. There was no indication either in the
FIR or in the evidence that any other person
unnamed or unidentified other than the five
charged, to have participated in the crime. The
appellant challenged his conviction.
27. Setting aside the conviction for an
offence punishable under Section 302 read with
Section 34, IPC, this Court held that if in a
given case, the charge discloses only the named
persons as co-accused and the prosecution
witnesses confine their testimony to them, even
then it would be permissible to come to a
conclusion that others, named or unnamed,
besides those mentioned in the charge or the
evidence of the prosecution witnesses, acted
conjointly with one of the charged accused if
there is other evidence to lead to that
conclusion, but not otherwise.
28. In Ram Dular Rai v. State of Bihar,
(2003) 12 SCC 352 : JT 2003 (9) SC 301, this
Court said;
"Coming to the question whether
Section 149 has application when
presence of more than five persons is
established, but only four are
identified, Section 149 does not
require that all the five persons must
be identified what is required to be
established is the presence of five
persons with a common intention of
doing an act. If that is established
merely because the other persons
present are not identified that does
not in any way affect applicability of
Section 149, IPC".
29. The learned counsel appearing for the
State, however, referred to Ram Shankar Singh &
Ors. v. State of Uttar Pradesh, AIR 1956 SC
441. In that case, six accused were placed on
trial for an offence of dacoity. Three of them
belonged to complainant’s village whereas
remaining three belonged to adjoining village.
The trial Court convicted all the six accused.
The High Court, however, acquitted three
accused and convicted the remaining three under
Section 395, IPC. This Court held that the High
Court erred in making a distinction between the
three accused belonging to the complainant’s
village while the remaining three belonged to
an adjoining village. This Court observed that
the High Court, having come to the conclusion
that three out of six accused were not guilty,
should have gone into the question whether
there was satisfactory evidence to show that
the three remaining accused could be convicted
under Section 395, IPC on the charge as framed.
This Court further held that the charge was
framed against six persons and they were placed
on trial. It did not indicate that those six
persons along with other unknown persons
committed dacoity. On the finding arrived at by
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 10 of 11
the trial Court that all the six persons
committed the offence of dacoity punishable
under Section 395, IPC, nothing more was
necessary. When the High Court set aside
conviction of three accused and acquitted them
out of six persons jointly tried, it was left
only with three appellants as the persons
concerned with the crime. The High Court, in
the circumstances, according to this Court,
ought to have considered whether there was
satisfactory evidence to show that the three
appellants could be convicted of the lesser
offence of robbery under Section 392, IPC if
there was evidence to show that they had
committed acts of theft and used violence while
committing the theft.
30. In the case on hand, both the Courts
below have considered the case of the
prosecution and acquitted two accused
completely. Moreover, all the accused were
acquitted for commission of offence of criminal
conspiracy as also of receiving stolen property
in commission of dacoity and the said acquittal
has attained finality.
31. Shyam Behari v. State of Uttar
Pradesh, AIR 1957 SC 320 also does not carry
the matter further. There, a finding was
recorded that the accused and his companions,
who were more than five, attempted to commit
dacoity but they failed in their attempt as the
villagers raised hue and cry. Residents of
village reached at the place and the miscreants
ran away without collecting booty. They were
chased by some persons and caught one of the
dacoits. He fired a pistol shot which hit a
villager who subsequently died. This Court held
that the offence of dacoity was complete and it
ended the moment the dacoits took to their
heels and another and a separate transaction
took place when one of the accused shot at a
villager. Hence, even though he could not be
convicted of having committed an offence under
Section 396, IPC, he could be convicted for an
offence under Sections 395 and 302, IPC.
32. Ramdeo Rai Yadav v. State of Bihar,
(1990) 2 SCC 675 : JT 1990 (1) SC 356 is
clearly distinguishable. In that case, charge
was framed against the accused for commission
of offence punishable under Section 396, IPC
but alternative charge was also framed for an
offence punishable under Section 302, IPC. In
the light of framing of alternative charge,
this Court held that conviction of the
appellant-accused for an offence punishable
under Section 302, IPC can be sustained.
33. Similar is the ratio in Anshad & Ors.
v. State of Karnataka, (1994) 4 SCC 381 : JT
1993 (3) SC 324. There five accused were tried
for offences punishable under Sections 396,
449, 395 and 307, IPC and were convicted. In
the light of the factual position, the Court
held that conviction of accused Nos. 1, 2 and 3
could be altered to one under Section 302 read
with Section 34, IPC, Section 394 read with
Section 34, IPC and Section 379 read with
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 11 of 11
Section 34, IPC.
34. In the instant case, as observed
earlier, there were six accused. Out of those
six accused, two were acquitted by the trial
Court without recording a finding that though
offence of dacoity was committed by six
persons, identity of two accused could not be
established. They were simply acquitted by the
Court. In our opinion, therefore, as per
settled law, four persons could not be
convicted for an offence of dacoity, being less
than five which is an essential ingredient for
commission of dacoity. Moreover, all of them
were acquitted for an offence of criminal
conspiracy punishable under Section 120B, IPC
as also for receiving stolen property in the
commission of dacoity punishable under Section
412, IPC. The conviction of the appellant
herein for an offence punishable under Section
396, IPC, therefore, cannot stand and must be
set aside.
35. For the foregoing reasons, the appeal
is allowed. The conviction of the appellant for
an offence punishable under Section 396, IPC is
set aside and he is ordered to be acquitted.
Since the appellant is in jail, he is ordered
to be released forthwith if his presence is not
required in any other case.
36. The appeal is accordingly allowed.