Kumar @ Raju Vs. State of
 INSC 590 (7 April 2008)
C.K. THAKKER & D.K. JAIN
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
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
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
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 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
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 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
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 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 or 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.
"Before section 149 can be called in aid, the court must find with
certainty that there were at least five persons sharing the common 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".
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
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 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
"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 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
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 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
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 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
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.