The Allahabad High Court has held that to sustain a conviction under Section 396 IPC (dacoity with murder), the prosecution must prove that dacoity was the first intention and that the murder was committed in the course of that dacoity. The observation was made by Justice Samit Gopal while allowing a criminal appeal and acquitting the surviving accused in a case dating back to 1981.
The case related to an incident on December 30, 1981, when Atar Singh was killed near a culvert in front of the village of Chehka. According to the prosecution, Atar Singh was travelling with his son, brother, and others after alighting from a bus when they encountered Mahavira and around 12 armed persons. The prosecution alleged that Mahavira had prior enmity with Atar Singh and challenged him, following which firing ensued from both sides. Atar Singh, who was carrying a licensed SBBL gun, fired back and injured two persons from Mahavira’s group. Further firing from Mahavira’s side resulted in Atar Singh sustaining firearm injuries, after which he fell and died. The prosecution also alleged that Chandrapal took away Atar Singh’s gun and cartridge belt after the firing.
Initially, the FIR invoked Sections 147, 148, 149, 302, and 404 IPC against six named accused and 12 unknown armed persons. The trial court, however, convicted the accused under Section 396 IPC and sentenced them to ten years’ rigorous imprisonment. During the pendency of the appeal, Krishan Pal, Ram Lal, Munshi Singh, and Chandrapal died, causing their appeals to abate. The appeal survived only in respect of Sattu, whose conviction was examined by the High Court.
The High Court examined whether the prosecution evidence established the ingredients of Section 396 IPC, which applies when five or more persons conjointly committing dacoity commit murder in the course of that dacoity. The Court referred to Section 391 IPC, under which five or more persons conjointly committing or attempting to commit robbery constitute dacoity.
The Court found that the prosecution’s own version did not establish that the accused had gone to the spot with the intention of committing dacoity. Rather, according to the prosecution, the parties had met all of a sudden and Mahavira challenged Atar Singh because of their previous enmity. Firing followed from both sides, resulting in Atar Singh’s death. Only after the firing and death did the prosecution allege that Chandrapal took away Atar Singh’s gun and cartridge belt.
Taking note of these circumstances, the bench observed that the prosecution story showed the meeting of the first informant and the presence of Mahavira and his associates was all of a sudden. The intention of the accused, as per the prosecution case, could not be said to be dacoity with murder. The Court stated that in the present case, the nexus between the act of committing dacoity and murder while committing so was not established.
The High Court noted that the prosecution story was in no manner consistent with a conviction under Section 396 IPC for dacoity with murder. The Court explained that Section 396 contemplates five or more persons conjointly committing dacoity as the first act, followed by murder committed in the course of that dacoity. In the present case, however, the prosecution had failed to establish such a sequence.
The Court observed that, as per the prosecution version, the side of the first informant and the side of the accused met all of a sudden and were challenged due to the enmity between Atar Singh and Mahavira. There was no evidence brought on record to show that Mahavira had a gang of dacoits including the surviving appellant.
The Court therefore concluded that the prosecution failed to establish that dacoity was the first intention and that, in committing dacoity, murder was committed. The Court additionally found it relevant that, despite the alleged firing by several persons, no other person from the informant’s side was injured. It was also noted that no incriminating material was recovered from the surviving appellant, Sattu’s possession or by pointing out.
The High Court accordingly allowed the appeal and set aside the judgment dated November 2, 1982, passed by the Additional District & Sessions Judge (Special Court), Etah.