Conviction for ‘Dacoity’ of less than 5 persons is not suitable, unless presence of 5 or more is confirmed

The Allahabad High Court while overruling the judgment of trial court held in the criminal appeal filed by Balbir and others against judgment and order passed by Sri D.C. Srivastava, Judge Special Court (Dacoity), Kanpur Dehat in State vs. Balbir and others, convicting appellants under Section 395 IPC read with 397 IPC that in absence of involvement of five or more persons, no conviction could be made out under Sections 395(Punishment for dacoity) and 397(Robbery, or dacoity, with attempt to cause death or grievous hurt) of  Indian Penal Code.

The counsel on the behalf of appellants has placed reliance on various judgments passed by Supreme Court and submitted that the prosecution is not able to prove its case because no independent witness was examined except the interested witnesses. He further submitted that Trial Court has convicted appellants, who are three in numbers, under Sections 395 and 397 IPC, as they are less than five persons, which is against the essential ingredients of Section 391 IPC. The counsel on the behalf of State has also relied on the decisions of SC and contended that Trial Court has convicted appellants by mentioning that they were part of the people who committed dacoity.

The High Court bench of Justice Saurabh Shyam Shamshery has referred the decision passed by Supreme Court in case of Raj Kumar alias Raju v. State of Uttaranchal, 2008 and Manmeet Singh alias Goldie vs. State of Punjab, 2015 and said that,

“The above mentioned finding is not sufficient to conclude that five or more persons were involved in the offence and not sufficient to convict appellants, who are three in numbers under the offence of dacoity. In view of above, prosecution has completely failed, in the present case, either to prove the participation of five or more persons in commission of offence or establish their identity. Therefore, in my considered view the conviction and sentence of appellants is being repugnant to letter and spirit of Sections 391 and 396 IPC, the same cannot be sustained.” The decision of trial court has set aside by Allahabad HC and criminal appeal has allowed.

By Anushka Saxena