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.