Section 396 IPC requires proof that murder was committed while dacoity was being committed.

Atar Singh was travelling on foot with his son Dhirendra Pal Singh, brother Raghunath Singh, Badam Singh and others after alighting from a bus near village Chehka, District Etah.

According to the prosecution, Mahavira and approximately 12 armed associates confronted Atar Singh due to prior enmity, exchanged fire with him, and fatally shot him.

Co-accused Chandrapal allegedly took away Atar Singh’s licensed gun and cartridge belt, while the other assailants removed two injured members of their group.

The FIR was registered against Mahavira, Munshi Lal, Chandrapal, Ram Lal, Kishan Pal, Sattu and 12 unknown armed persons under Sections 147, 148, 149, 302 and 404 IPC.

The post-mortem disclosed multiple firearm injuries and established death due to coma and syncope resulting from ante-mortem injuries.

The trial court framed charges under Sections 396 IPC and, alternatively, Sections 147 and 302 read with Section 149 IPC; Chandrapal was additionally charged under Section 404 IPC.

The trial court convicted all five accused under Section 396 IPC and sentenced them to ten years’ rigorous imprisonment.

During the appeal, the appeals of Krishan Pal, Ram Lal, Munshi Singh and Chandrapal abated upon their deaths, leaving only Sattu’s appeal for adjudication.

Whether the prosecution established that five or more accused had conjointly committed dacoity and that murder was committed while carrying out that dacoity, so as to attract Section 396 IPC.

Whether the surviving appellant Sattu could be convicted under Section 396 IPC merely on the basis of his alleged presence and participation in the firing, without proof of a prior intention to commit dacoity or any specific overt act connected with the alleged robbery.

The Court applied Section 396 IPC, which requires that one of five or more persons conjointly committing dacoity commits murder “in so committing dacoity”.

It read Section 391 IPC, under which dacoity involves five or more persons conjointly committing or attempting to commit robbery, or aiding such commission or attempt.

The statutory scheme therefore requires proof of a nexus between the conjoint commission or attempted commission of robbery/dacoity and the murder; mere joint presence, armed confrontation, or subsequent taking of property is insufficient to establish dacoity with murder.

The alternative charges under Sections 147, 302 read with Section 149 and 404 IPC did not justify the conviction actually recorded under Section 396 IPC.

The Court found that the prosecution’s own version showed a sudden encounter between Atar Singh and Mahavira’s group arising from prior enmity.

Mahavira allegedly challenged Atar Singh and fired first; Atar Singh retaliated, injuring two members of the opposing group, after which the group fired upon and killed him.

The alleged taking of Atar Singh’s gun and cartridge belt occurred after the shooting and was attributed specifically to Chandrapal.

The evidence did not demonstrate that the accused had assembled with the initial intention of committing robbery or dacoity, nor that the murder was committed in the course of such dacoity.

The Court also noted the absence of evidence proving that Mahavira’s gang included Sattu, the absence of any incriminating recovery from or at the pointing out of Sattu, and the lack of a specific overt act attributed to him.

Accordingly, the essential statutory nexus between dacoity and murder was not proved beyond reasonable doubt.

Sattu was acquitted of the charges, and his bail bonds were cancelled while the sureties were discharged.

The appeal was allowed, and the trial court’s judgment and order dated 2 November 1982 were set aside.