Dacoity Original

DACOITY  Introduction Dacoity is one of the oldest forms of crimes in India and is committed purely for the purpose of looting or extortion. Every dacoity is robbery. There is only slight difference between robbery and decoity. Section 391 of Indian penal code says “when five or more person conjointly commit or attempt to commit a robbery or where the whole number of persons conjointly committing or attempting to commits 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”. It is punishable under section 396 of Indian penal code it says whoever commits decoity 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.

(A)Ingredients of Dacoity: (i) Five or More Persons: Under this section, the number of persons committing robbery must be five or more. Where the evidence showed that there were six robbers but at the trial three were acquitted, it was held that the conviction under this section is not sustainable. In Om Prakash v state of Rajasthan AIR 1998 SC 1220, the Supreme Court ruled that where the charge of dacoity is against five named persons and out of them two are acquitted, the remaining three cannot be convicted for dacoity. (ii) Committing or attempting to commit robbery: Robbery becomes dacoity when it is committed by five or more persons. Even an attempted robbery by five or more person’s amounts to an offence of dacoity and the fact that the dacoits failed to remove any booty is irrelevant. (iii) Conjointly Committing: There should be conjointly committing of offence of dacoity word conjointly used in section 391 I.P.C means jointly. All the five persons should act in a concerned manner participating in the transaction.

(B)Proof of Dacoity: A decoity begins as soon as there is an attempt to commit robbery. It is not necessary that the force or menace should be displayed by any overt act and it may be implied in the conduct of the mob.

(C)Punishment U/Sec 395: Whoever commits dacoity shall be punished with imprisonment for life or which rigorous imprisonment for a term which shall not be less than four years nor more than years, and shell also be liable to fine. (i) Jurisdiction of Court Offence u/sec 395, being triable by the Court of Session, magistrate section 30 had no jurisdiction to take cognizance of the same. (1995PrLj 1819)

 Difference between Robbery and Dacoity. The offence of robbery is defined in section 390 IPC and as is cleat from a perusal of the said section even a theft is robbery If during its commission the offender voluntarily causes or attempts to cause to any person death or hurt or wrongful restrain or fear of instant death or of instant hurt or of instant wrongful restrain. Whereas robbery is punishable under section 392 IPC and dacoity is punishable under sec 395 of IPC. (I)Number of Persons:  

In Robbery the numbers of persons are less than five. It may be committed by a single person. In dacoity, the number of persons are five or more.

(II)Seriousness:  

Robbery is less serious in nature. Dacoity is more serious offence than robbery because of the terror caused by the presence number of offenders.

(III)Position of Abettors:  

In Robbery, the abettors are liable independently. In dacoity abettors who are present and aiding when the crime is committed are counted in the number.

(IV)Jurisdiction of Court:  

Robbery may be triable by the illegal magistrate. Dacoity shall be triable by the Court of Session.

(V)Punishment: 

Whoever commits robbery shall be punished with rigorous imprisonment for a term which shall not be less than three years, nor more than ten years and shall also be liable to fine.



Court while convicting a person u/sec 395, P.P.C, can either sentence him to imprisonment for life or to rigorous imprisonment which cannot be than four years or more than ten years in addition to fine (1993 SCMR 1058).

(VI)Position in Highway:  

If robbery is committed on the highway, the imprisonment may be extended to fourteen years. The fact that the Dacoity is committed on the highway does not change the position or punishment.

 Sentence for Dacoity Section 395:- punishment for dacoity Indian penal code provides punishment for decoity; it says “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”. It comes into play only when the prosecution makes out an offence under section 390 and the number of assailants reaches to the statutory minimum. The maximum punishment provided under this section is life imprisonment for a term which may extend to ten years. Fine shall also be imposed. Dacoity is considered a very grave and serious crime and hence, courts have held that in cases of dacoity, deterrent sentence is called for. In awarding punishment for an offence under this section two things are to be considered 1) Having regard to the gravity of the offence committed the punishment that each individual deserves 2) On the facts and circumstances of a particular case whether an unusually heavy sentence is required to protect the interests of the public at large by acting as a deterrent to others. Where the presence of informant and other witnesses at the time and place of incident was established and their positive evidence regarding the way in which the dacoity was committed found reliable having no previous enmity with accused, no case of false implication established therefore, conviction of accused under section 395 was just and proper; Chhedu v. State of Uttar Pradesh, 2000 Cr LJ 78 (All).

 Aggravated form of Dacoity Section 396:- Decoity with murder It says “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 regroups imprisonment for a term which may extend to ten years and shall also be liable to fine”.

Decoity with murder depends on facts and circumstances of the case Case Referred: Shyam Behari v state of Uttar Pradesh on 5 October, 1956 Facts of the case In an attempt to commit robbery the appellant killed one of the victims who had caught hold of the appellant’s associate. The appellant was convicted under section 396 for the offence of dacoity with murder. The appellant contended that he could not be convicted under section 396 IPC because any murder committed by the dacoits during their fight when they were running away without any booty could not be treated as murder committed in the commission of the dacoity. Held The high court negative this contention and held that section 396 would be attracted even where an attempt had been made to commit dacoity and a murder was committed when the dacoits were trying to make safe retreat and confirmed the sentence of death passed by the session judge. The appeal of the accused was similarly dismissed by the apex court. In order to bring home the offence of dacoity with murder under section 396 it is not necessary to prove that in under was committed by any particular member of the gang or that it was a common intention of the gang to commit the murder or that other members of the gang expected the murder to take place. Nor it is necessary to prove that murder was committed jointly by all the members of the gang. All that is required to be established by the preoccupation is that the murder had been committed while committing a dacoity. If that is established then all the members of the aging who have committed dacoity are also equally liable for the murder under this section.

(i) when prosecution failed to establish any nexus between death and commission of dacoity charge under section 396 will fail;

Case Law: Wakil Singh state of Bihar, (1981) BLJ 462 Fact The case arose out of a dacoity said to have been committed in the house of the complainant, PW-Darbari Sao on the night of 24th May, 1965 at about 8.45 P.M. some unknown persons including the appellants entered the house, assaulted inmates, killed one of them and looted away properties worth thousands of rupees. There is no clear evidence to show that the deceased Kameshwer Sao was actually killed by one of the dacoits in the course of the dacoity. Although his dead body was found but the prosecution has not been able to establish any nexus between his death and the commission of the dacoity or even his injuries. In these circumstances it is obvious that charge under Section 396 must fail.

Held The trial court refused to act on the evidence of PW 2 also because this appellant was identified only before the committing court and not before the Sessions Court. Thus the only evidence against Wakil Singh consisted of PW (PROSECUTION WITNESS). In the instant case mentioned that none of the witnesses in their earlier statements or in oral evidence gave any description of the dacoits whom they have alleged to have identified in the dacoity, nor did the witnesses give any identification marks viz., stature of the accused or whether they were fat or thin or of a fair color or of black color. In absence of any such description, it will be impossible for us to convict any accused on the basis of a single identification, in which case the reasonable possibility of mistake in identification cannot be excluded. The High Court however has chosen to rely on the evidence of a single witness, completely overlooking the facts and circumstances. The High Court also ignored the fact. Since the High Court was reversing an order of acquittal, it failed to take into consideration the fact that having regard to there being only one witness who identified the accused concerned, the view taken by the trial court could not be said not to be reasonably possible. For these reasons, therefore, we are clearly of the opinion that the appellant who had been identified by only one witness must be acquitted. Thus fully satisfied that this was not a case which called for the interference of the High Court against the order of the acquittal passed by the Sessions Judge. The appeal is accordingly, allowed and the appellants acquitted of the charges framed against them. Krishnan Dan Singh who was on bail will now be discharged from his bail bonds and other appellants are directed to be set at liberty forthwith. The witnesses identified the dacoits in test identification had not given any description of the miscreants in their case diary statements. Only one witness was able to identify the accused and this was a reasonable ground for non-acceptance of the evidence as possibility of mistake in identification could not be excluded. (ii) When the presence of accused persons recoveries of different items of an incriminating nature from each of them are sufficient to establish that all of them conjointly participated in the offence of dacoity with murder, therefore their conviction under section 396 is liable to be confirmed; K.M.lbrahim alias Bava v. State of Karnataka, 2000 Cr LJ 197 (Karn). (iii) On considering special facts of the case. i.e. the age of accused and their status in life as also their antecedents, Sentence of 10 years R.I in place of sentence of life imprisonment would meet the ends of justice; K.M. Ibrahim alias Bava v. State Lakshimsher Das. 1999 Cr LJ 197 (Karn). (iv) In circumstantial evidences utter importance is of linking of chain, as soon as the chain of link is broken the value of circumstantial evidence gets reduced; State v. Lakshmisher Das, 1999 Cr LJ 2893 (Karn). (v) When it is evidentially proved that accused were participating in loot and murder during transaction of offence, each of them is liable to be punished under section 396; Kunwar Lal v. State of Madhya Pradesh, 1999 Cr LJ 3632 (MP).

 Minimum sentence for Dacoity Section 397:- Robbery or dacoity with attempt to cause death or grievous hurt This section says if at the time of committing robbery or dacoity the offender used 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 be less than seven years. Punishment-Rigorous imprisonment for not less than 7 years -Cognizable –Non-bailable-Triable by Magistrate of the first class–Non-compoundable.

(i)

An act would only fall within the mischief of this section 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;

Case Law: Shravan Dashrath Dartange v. State of Maharashtra, (1997)2 Crimes 47 (Bom) Ss.452, 392 and 397 r/w s. 34-Test Identification parade not conducted- Effect of-Accused armed with pistol and knives-Entered the house of complainant and using threat of weapons took away cash and other belongings of the persons present in the house-Conviction and sentence by trial courtAffirmed by High Court-Appeal by two of the accused contending that identification of accused in court without conducting a test identification parade renders prosecution case unreliable- S.397-Robbery'Offender uses deadly weapon'-Connotation of- Plea that since it was not shown by evidence that deadly weapon was actually used or put into any use, s. 397 cannot be resorted to- S. 397 r/w s. 34-Out of the four accused one armed with pistol and others with knives-Plea that since one accused alone was in possession of pistol, others could not have been vicariously held liable u/s 397 with the aid of s.34-

(ii)

There can be no quarrel that knife is a deadly weapon within the meaning of section 397;

Case Law: State of Maharashtra v. Vinayak Tukaram Utekar, (1997) 2 Crimes 615 (Bom) Fact It is that on 26th January, 1981, at about 9 p.m. the informant along with his friend Anant Iyer (P.W. 2) had gone to take a stroll. At about midnight the two of them reached Thane Railway Station. They decided to have tea at Platform No. 1 of the said Station. After taking the same while they were returning, three persons came. One of them namely respondent Vinayak put his hand in the shirt of the informant and snatched three gold buttons. The informant caught the hand of respondent Vinayak. He tried to run away. Thereupon respondent Vinayak took out a knife from the back pocket of his trousers and inflicted a blow on the shoulder of the informant. The informant overpowered him. A grappling between them took place. Both fell on the ground. In the meantime Anant Iyer snatched knife from respondent Vinayak and picked up the three gold buttons which had fallen on the ground. He then informed the RPF on Platform No. 2 of Thane Railway Station. Thereafter Senior Rakshak Awad Behari

Singh P.W. 3 came. He apprehended Vinayak and along with the informant and Anant Iyer came to the RPF outpost, situated at Platform No. 2 of Thane Railway Station. Meanwhile the informant Hemant Ramchandra Holkar was sent to Civil Hospital, Thane. At about 12.45 p.m. he was examined by Dr. Govind Mahadeo Kolge (P.W. 4), who found that he had sustained an injury of the dimensions of 3" x 2" x 3", which was attributable to a sharp cutting object. The said injury was possible by the knife shown to him. The F.I.R. of the incident was lodged by Hemant Ramchandra Holkar (P.W. 1) and on its basis P.S.I. Sidheshwar Ramchandra Digole (P.W. 6) registered an offence at about 3 a.m. Held In the trial Court the respondent Vinayak was charged under Section 397, I.P.C. To the said charge he pleaded not guilty and claimed to be tried. During trial in all the prosecution examined seven witnesses. Two of them, Hemant Holkar and Anant Iyer P.Ws. 1 and 2 respectively were examined as eye-witnesses. In defense no witness was examined.Vinayak has been wrongly acquitted by the trial Court for an offence u/S. 397, I.P.C. He deserves to be convicted for that offence. Order of the trial Court releasing respondent Vinayak under Section 360, Cr.P.C. is unsustainable and deserves to be quashed. The crucial question is whether respondent Vinayak is guilty of the offence of robbery within the meaning of Section 390, I.P.C. If the offence of robbery is proved then he would be also liable under Section 397, I.P.C. because knife is a deadly weapon and he caused hurt but with it to the informant. It is significant to point out that Section 397, I.P.C. only provides that if the offender while committing robbery or dacoity is armed or uses a deadly weapon etc. he shall not be awarded a sentence of less than seven years' R.I. It deals with robbery/dacoity of a more serious nature than that referred to in Sections 394 and 395, I.P.C. respectively. The impugned judgment releasing respondent Vinayak u/S. 360, Cr.P.C. is set aside.

(iii)

When identification of articles alleged to have been recovered from accused is not properly proved nor victim could identify accused in identification parade or in court accused cannot be convicted under section 397;

Case Law: Bhure khan state of Madhya Pradesh, AIR 1982 SC 984: (1982) CR LJ 818: (1982) SCC (Cr) 128 The conviction of the appellant Bhure Khan rests purely on recovery of a torch and currency notes of the value of Rs. 235 found with him. The identification of these two articles is not satisfactorily proved as forming part of the corpus delicti. Chakradhar Singh failed to identify Bhure Khan at either of the two identification parades and his identification in court will not help the prosecution. So far as the torch is concerned it is a very common article and no particular mark appearing thereon has been indicated as-enabling Chakradhar Singh to identify as belonging to him. As regards the currency notes it is true that these have not been claimed by Bhure Khan as his money but till these notes are established for be the subject matter of the dacoity which occurred at Chakradhar Singh's place the appellant is not called upon to plain its possession. For these reasons would be difficult to maintain the conation of

Bhure Khan. The appeal is therefore allowed and the appellant is quitted of the charge under Sections 397 I.P.C. and 395, I.P.C.

Section 398:- attempt to commit robbery or dacoity when armed with deadly weapon The section says if at the time of attempting to commit robbery and decoity, the offender is armed with any deadly weapon the imprisonment with which such offender shall be punished shall not be less than seven years.

Both section 397 and section 398 do not create substantive offence, but merely prescribe a minimum sentence for the offence of robbery and dacoity mentioned in these sections. Under section 397 of IPC if at the time of committing robbery or dacoity the offender uses any deadly weapons or causes grievous hurt or attempts to cause death or grievous hurt, he shall be liable to suffer a minimum sentence of seven years imprisonment. The essential of this section is as followa) An offence of robbery or dacoity must have been committed. b) The offender should be taken part in the said offence. c) The offender should have used a deadly weapon or cased grievous hurt or attempted to cause death or grievous hurt to any person at the time of committing a dacoity.

Case Law: Phool Kumar v Delhi administration on 13 March, 1975 AIR 1975 SC 905 Facts of the case The accused had entered a petrol pump. The first accused was armed with a knife while the second accused had small fun in his hand. The first accused asked the employees of the petrol pump to hand over the keys. To terrorize the employees the second accused fired three shots in the air. One shot struck the window and two hit the ground. Thereafter they ransacked the office and decamped with the money, the question threat arose for consideration was whether the first accused that was carrying a knife with him but did not use it for committing any over act would be covered under se 397. Held The Supreme Court held that in section 397 the words used were the offender uses whereas in section 398 the expression is armed with deadly weapons. Both the section provides minimum sentences of seven years. The court held that first accused was carrying a knife which was deadly weapon open to the view of the victims sufficient to frighten or terrorize them. Any other overt act such as brandishing of the knife or causing of grievous hurt with it. It was not necessary to bring the offender under this section.

 Offences connected with Dacoity Section 399:- Making preparation to commit dacoity Whoever makes any preparation for committing dacoity shall be punished with rigorous imprisonment for a term which may extend to ten years and shall also be liable to fine. In our Indian penal code there are very few sections where mere preparation of any offence is punishable for example offence against country. Preparation of dacoity is also one of the offences which preparation is punishable.

Case Law: Malkiat Singh v. state of Punjab AIR 1970 SC 713 It is held that the preparation in devising or arranging the means or measures necessary for the commission of the offence. On the other hand, an attempt to commit

Case Referred: Sadashiv @ Shiva Antappa Pujari vs. State Of Maharashtra on 26 August, 2002 Fact The Station House Officer, P.S.I. Gavaonkar, attached to R.K. Kidvai police station, received secret information that some seven unknown persons armed with dangerous weapons have assembled at Comrade, G.L. Patil, Municipal Corporation Market, Acharya Gonde Road, Seweree, and Mumbai for committing dacoity at Lokmanya Jewelers shop, situated in the near vicinity. After receiving said information, the police staff of the said police station went to the said spot, they divided themselves in two groups, and P.W.1 Gaonkar went ahead near those persons. He heard the said persons giving instructions as to how they should behave at the time of said dacoity. He gave a signal to other persons, and all members of the raiding party caught 4 of them. However 3 out of them managed to run away. Panch witnesses were called. The person, of apprehended persons searched. They found a country made revolver in possession of one Irshad, a chopper in possession of the present appellant and some other weapons in possession of other accused. After investigation, the appellant was put to trial with other associates and after trial the learned trial Judge, passed the order of conviction and sentence. In this case of this appellant is so unnatural that it cannot be accepted for basing a conviction, because it is alleged by the prosecution that this appellant possessed a chopper, which was seized from him under panchanama. There is absolutely no mention of it in the statement of P.W.1. The F.I.R. has been lodged by him two hours after reaching the police station, for which the prosecution was unable to give any satisfactory explanation. Had there been a chopper in possession of the present appellant, it would have been certainly mentioned by him in F.I.R. But that has not been done and there is no acceptable explanation coming from the prosecution. The possession of the chopper is the only evidence against the appellant so far as the said crime is concerned.

They could have been assembled for assaulting somebody else at the most. If proper explanation is offered for possession of such day to day use articles, and if there is no convincing evidence to show that such persons had assembled for the purpose of committing robbery or dacoity, they cannot be punished for the charge in context with other offences spelled out such persons cannot be punished under Sections 399, 402 of I.P.C. They would be guilty if guilt is proved but for some other offences connected with the evidence adduced by the prosecution against them. If the charge for committing the offence punishable under Section 399 of I.P.C. or Section 402 of I.P.C. is to be held as proved, some more evidence is needed and that should be also natural evidence. Held The appellant is hereby assailing correctness, propriety and legality of the order of conviction and sentence passed against him, in Sessions Case, wherein the appellant has been convicted for the offence punishable under provision of Sections 399 and 402 of Indian Penal Code. The appellant has been sentenced to undergo rigorous imprisonment for four years and to pay fine of Rs. 1000/-, in default to undergo rigorous imprisonment for one month in context with provisions of Section 399 of Indian Penal Code. He has been sentenced to undergo rigorous imprisonment for three years and to pay fine of Rs. 500/-, in default to undergo rigorous imprisonment for fifteen days for the offence punishable under Section 402 of Indian Penal Code. The learned trial Judge has lost sight of the important aspect of the matter and therefore, he landed in error of passing the order of conviction and sentence against this appellant. The said judgment and order of conviction and sentence being improper, incorrect and illegal, needs to be set aside.

Section 402:-Assembling for purpose of committing dacoity This section says whoever at any time after the passing of this act shall be one of five or more person assembled for the purpose of committing dacoity shall be punished with rigorous imprisonment for a term which may extend to seven years and shall also be liable to fine.

Case Referred: Chaturi Yadav v State of Bihar AIR 1979 SC 1412 Fact The accused had assembled at a lonely spot in the school premises when they were detected by the patrol squad. One of the accused was found to be in possession of a gun and a live cartridge, and others had merely one live cartridge in their pockets. There was absolutely no evidence to establish that the accused had assembled there for the purpose of committing dacoity. Held In the absence of such evidence, it was held that since one of the ingredients of the offence had not been established by the prosecution, no offence under this section was made out.

Section 400:- Punishment for belonging to gang of dacoits Whoever, at any time after the passing of this Act, shall belong to a gang of persons associated for the purpose of habitually committing 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 401:- punishment for belonging to gang of thieves The section says Whoever, at any time after the passing of this Act, shall belong to any wandering or other gang of persons associated for the purpose of habitually committing theft or robbery, and not being a gang of thugs or dacoits, shall be punished with rigorous imprisonment for a term which may extend to seven years, and shall also be liable to fine. This section makes the fact of belonging to a gang of dacoits by itself an offence. The essential ingredients of the section are:  

There must be a gang of persons; The gang must be associated for the purpose of habitually committing dacoity.

Punishment-Rigorous imprisonment for 7Years and fine -Cognizable –Non-bailable-Triable by Magistrate of the first class –Non-compoundable.

 Reform Suggested The Fifth Law Commission, in its forty-second report on the IPC, offered a few proposals for reform in the law relating to robbery and dacoity. However, it suggested imprisonment for a term up to ten years provided for dacoity. It also not only favoured the retention of the existing sentence of death or life imprisonment or rigorous imprisonment for up to 10 years provided for all members of the group when one of them commits murder while committing dacoity. However, the commission suggested scaling down for the existing mandatory imprisonment for a term of seven years provided for attempt to commit robbery or dacoity with deadly weapon to imprisonment for three years. It suggested that the sentence of rigorous imprisonment from a term up to 10years provided for getting assembled for committing dacoity. It also proposed that the provision of sec 402 should be extended to cover the cases where three or four persons assemble for the purpose of committing robbery. Clause 164 of the Bill sought to replace the existing sec 396, dealing with liability of members of the dacoity if any of them has committed murder while committing dacoity. Clauses 165, 166 and 167 of the Bill, as proposed by the Fifth Law Commission, intended to revise the existing sec 397, 398, and 399 of the IPC, respectively. However the Fourteenth Law Commission, in its one hounded and Fifty-sixth Report on the IPC, did not endorse the changes proposed on the clauses 164 and 165 of the Bill. Clauses 166 and 167, however, received the support of the Law Commission.

Clause 168 of the Bill sought to insert a new section (s 399A) to provide punishment for, on the lines of existing sec 399 (providing punishment for making preparations for committing dacoity) making preparation for committing robbery. The Fourteenth Law Commission perceived the proposal for reform as a logical one and endorsed the clause. However, these proposed reforms did not materialize as the 198 Bill lapsed in 1979 due to the dissolution of the Lok Sabha.

 Conclusion: To conclude, that the definition of dacoity contemplates that an accused should from very beginning have the intention to deprive another person of the property and to achieve that end, either hurt is caused or a person is placed. Under wrongful restraint, or it must be actually found that victim was put in fear of instant death, hurt or wrongful confinement when the same offence is committed by five or more serious in nature.