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Attorney(S)
  • Simrikh Muni
  • Govt. Advocate
Judges
  • Agarwala
  • Roy, JJ.
Acts
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Citation Codes
Equivalent Citations
citation codes
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Attorney(S)
  • Simrikh Muni
  • Govt. Advocate
Judges
  • Agarwala
  • Roy, JJ.
Acts
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Smart Summary

Structured Summary of the Opinion (Roy, J.)

Factual and Procedural Background

On the night between 27 and 28 February 1953 an armed dacoity occurred at about 1 a.m. at the house of Raghubar Dayal and Dhanni Mal in village Piana Kalan, district Bulandshahr. Fifteen to twenty dacoits participated; two of them, the appellants Kaley and Atri, were armed with guns while the others carried lathis. The offenders overpowered the householders and looted property. Neighbours were attracted by cries but did not enter the house. As the dacoits retreated with the loot the villagers pursued them. Near the Takia of a Paqir by the side of the field of Raja Faqir the dacoits turned and attacked the pursuing villagers. Kaley shot and killed Ratan Singh on the spot; Atri fired and wounded Malkhan Singh. A pitched fight ensued; both appellants were beaten, overpowered and arrested at the scene, and the other dacoits escaped. Cartridges were recovered and the arrested men were placed in the custody of Khem Chand.

The First Information Report was lodged by Dhanni Mal at 7 a.m. on 28-2-1953. Post-mortem examination of Ratan Singh on 28-2-1953 at 6 p.m. revealed gun-shot wounds and fractures; the doctor opined death was due to shock and haemorrhage from neck vessel injuries caused by shooting. Medical examinations also confirmed gun-shot and lathi injuries on other persons. At trial the Sessions Judge found the prosecution evidence credible and convicted both appellants under Section 396 of the Penal Code and under Section 19(f) of the Arms Act. Kaley was sentenced to death; Atri to transportation for life. Each was sentenced to one year's rigorous imprisonment under the Arms Act.

Legal Issues Presented

  1. Whether a murder committed by a dacoit during the dacoits' retreat with the stolen property (while being pursued) is murder "in the commission of dacoity" and therefore punishable under Section 396 of the Penal Code.
  2. Whether, in the circumstances of this case, the killing by Kaley should have been treated as an offence under Section 395 (or Section 302) rather than under Section 396, and whether an absence of a specific charge under Section 302 affects the validity of a death sentence imposed under Section 396.

Arguments of the Parties

Kaley (Appellant)

  • Contended that the offence established against him was not one under Section 396 but under Section 395 of the Penal Code because the killing was not part and parcel of the dacoity.
  • Argued that the killing of Ratan Singh could, at most, have been prosecuted under Section 302, and since there was no charge under Section 302, the death sentence imposed under Section 396 could not be maintained.
  • Also advanced a fact-based defence that he had been arrested in the evening before the dacoity and was falsely implicated.

Atri (Appellant)

  • Asserted that he was falsely implicated, claiming arrest in the morning after the dacoity while returning home.

The opinion records that a number of eyewitnesses were examined in support of the prosecution story, but it does not set out a detailed narrative of the prosecution's separate legal arguments.

Table of Precedents Cited

Precedent Rule or Principle Cited For Application by the Court
Queen Empress v. Umrao Singh, 16 All 437 (A) Held that if accused shown concerned in dacoity but not shown to be in the house when a murder took place (and evidence pointed otherwise), conviction under S.396 could not properly be sustained and only S.395 would apply. The court noted this authority but treated it as distinguishable and later qualified by subsequent decisions; it did not adopt that narrow rule for the facts of the present case.
Queen Empress v. Teja, 17 All 86 (B) Held that where, in the commission of a dacoity, a murder is committed, it is immaterial whether the accused was inside or outside the house or whether the murder occurred inside or outside; S.396 applies so long as murder was committed in the commission of the dacoity. Invoked as authority for a broader view that S.396 applies when the murder is committed in the course of the dacoity irrespective of the precise location of the killing; supports conviction under S.396.
Emperor v. Chandar, 3 Cri LJ 294 (All) (C) Held that where dacoits, interrupted and attempting to escape without plunder, attack and kill a pursuer to facilitate escape, S.396 did not apply and those who committed the killing were liable otherwise (conviction under S.395 maintained; retrial for murder ordered). The court considered this decision but found it distinguishable on facts and observed that the law in that case had been laid rather widely; it did not apply that restrictive rule here.
Monoranjan Bhattacharjya v. Emperor, AIR 1932 Cal 818 (D) Full Bench held that dacoity includes not only getting the booty but getting away with it; while being pursued in flight to complete the offence the dacoity is not complete, and a dacoit stabbing a pursuer is committing murder during the dacoity (S.396 applies). Adopted as supporting authority: the court relied on this principle to conclude that killings committed while the dacoits were retreating with the stolen property were committed in the course of dacoity.
Bishunath v. Emperor, AIR 1935 Oudh 190 (E) Held that S.396 applies even where murder is committed for facilitating the escape of perpetrators while retreating. Used as supporting authority for applying S.396 to murders committed during flight/escape.
Karim Bakhsh v. The Crown, AIR 1923 Lah 329 (P) Observed that the fact that murder was committed in the compound of the house raided while the dacoits were making good their escape is not sufficient to take the case out of S.396. Relied upon as further authority reinforcing that murders during retreat with booty fall under S.396.
Sunder v. Emperor, AIR 1925 Lah 142 (G) Held that where murder is committed by dacoits while retreating or carrying away the stolen property in order to facilitate their escape, it is murder committed in the commission of the dacoity and punishable under S.396. Invoked and applied to the facts: the Court concluded the appellants' actions fit this principle and thus S.396 was properly applied.

Court's Reasoning and Analysis

The court proceeded from the established factual findings: an armed dacoity was committed; Kaley and Atri were among the dacoits and both were armed with guns; on retreat with the stolen property they were pursued by villagers; during the pursuit Kaley shot and killed Ratan Singh and Atri shot and injured Malkhan Singh; both were captured and evidence (eyewitness testimony, recovery of cartridges, and medical/post-mortem reports) supported the prosecution account.

Legally, the central analytic question was whether the murders/shootings occurred "in the commission of dacoity" so as to attract Section 396. The court reviewed relevant authorities. It noted a line of cases (including Queen Empress v. Teja, Monoranjan Bhattacharjya v. Emperor, Bishunath v. Emperor, Karim Bakhsh v. The Crown, and Sunder v. Emperor) holding that when murder is committed while dacoits are retreating with stolen property or while being pursued in connection with completing their theft, the killing is part of the dacoity and S.396 applies. The court considered Emperor v. Chandar and Queen Empress v. Umrao Singh, decisions that suggested a narrower view, but found them distinguishable or too narrowly/too widely stated for present facts.

Applying the accepted principle to the facts, the court concluded the murders and shootings occurred while the dacoits were retreating with the loot to facilitate their escape; therefore the killings were committed in the course of the dacoity and punishable under Section 396. The court thus held that the Sessions Judge was correct to convict under S.396. The court also upheld the separate conviction under Section 19(f) of the Arms Act based on possession and use of firearms.

On sentencing, the court accepted the Sessions Judge's view that murder committed in such circumstances is not an extenuating circumstance and that a duty exists to protect those who attempt to arrest or pursue dacoits. Consequently, the court found the death sentence on Kaley and transportation for life for Atri to be appropriate under S.396, and upheld the one-year rigorous imprisonment sentences under the Arms Act for each appellant.

Holding and Implications

Core Ruling: The appeals are dismissed. The convictions of both appellants under Section 396 of the Indian Penal Code and under Section 19(f) of the Arms Act are affirmed. The sentence of death imposed on Kaley is confirmed and directed to be carried out according to law; Atri's sentence of transportation for life is confirmed. Each appellant's one-year rigorous-imprisonment sentence under the Arms Act is also affirmed. Leave to appeal to the Supreme Court is refused.

Implications: The immediate consequence is that the appellants' convictions and sentences as described above remain in force. The court applied and relied on established case law holding that murders committed while dacoits are retreating with stolen property (or committing acts to facilitate escape during the flight) are within the scope of Section 396. The opinion does not announce a new legal principle beyond applying existing authorities to the facts; it confirms the application of S.396 in circumstances where killing takes place while the dacoits are carrying away booty and attempting to escape.

This summary is limited to and derived exclusively from the contents of the provided opinion text (Roy, J.). No information has been added beyond that text.

Show full summary ...

    Kaley v. State

    Roy, J.:— On the Night between the 27th and 28th of February, 1953, an armed dacoity was committed at the house of Raghubar Dayal and Dhanni Mal at about 1 a.m in village Piana Kalan in the district of Bulandshahr. The dacoits were 15 or 20 in number. Two of them, namely, Kaley and Atri appellants, were armed with guns and the others were armed with lathis. They entered the house of Raghubar Dayal and Dhanni Mai, overpowered both of them and looted their property. The shouts raised by these two persons attracted their neighbours. During the commission of the dacoity, the neighbours did not actually enter the house. The dacoits, after committing the dacoity, escaped with the looted property. On their retreat, the villagers chased them. When the dacoits had just passed out of the village and were near the Takia of a Paqir by the side of the field of Raja Faqir, they turned round and made an attack on the villagers who were pursuing them. The appellants fired with their guns. Kaley appellant shot at Ratan Singh who died on the spot. Atri appellant shot at Malkhan Singh who received gun-shot injuries but fortunately escaped death.

    2. A pitched fight took place between the dacoits on the one hand and the villagers on the other at that spot and both sides received injuries. The gun of Atri appellant was broken and the gun of Kaley was snatched away from him. They were both beaten, overpowered and arrested. The other dacoits made good their escape. The two dacoits, who were arrested, were handed over to Khem Chand along with the cartridges that were found from their possession and the cartridges that were picked up from the passage where the fight took place. The First Information Report of the occurrence was lodged at the ‘thana’ by Dhanni Mal at 7 a.m on 28-2-1953, the ‘thana’ being at a distance of 4½ miles from the scene of occurrence. The police took up investigation of the matter. The ‘post mortem’ examination on the dead body of Ratan Singh was performed on 28-2-1953, at 6 in the evening. Gun-shot wounds were found on his person. Internal examination disclosed that the 5th, 6th and 7th Cervical Vertebrae were fractured and the first rib of the right side was also fractured. In the opinion of the doctor, death was due to shock and haemorrhage as a result of injuries to neck blood vessels caused by shooting. Malkhan Singh was also medically examined and he had gun-shot wounds. The other persons, who received injuries on the side of the complainant, were also medically examined and ‘lathi’ injuries were found on them. The two arrested dacoits were made aver to the police. The defence of Kaley and Atii appellants was that they were not amongst the dacoits. According to Kaley, he was arrested in the evening before the dacoity and he was falsely implicated. Atri alleged that he was arrested in the morning after the dacoity on his way home and he was falsely implicated.

    3. In support of the prosecution story, Dhanni Mai, Raghubar Dayal, Kehar Singh, Malkhan Singh Raghubir Singh, Rashid Khan, Nanhey Khan, Ram Saran, Parna and Bashir Khan, who were eye-witnesses of the dacoity and who had taken part in the encounter, were examined. Khem Chand, in whose custody the arrested dacoits were put, was also examined. The learned Sessions Judge, after a careful consideration of the evidence of these witnesses, came to the conclusion that a, charge under Section 396 of the Penal Code, was established beyond doubt against both these appellants. He accordingly convicted them under S. 396, Penal Cede and sentenced Kaley to death and Atri to transportation for life. He further convicted them under Section 19(f) of the Arms Act, and sentenced each of them to one year's rigorous imprisonment. There can be no doubt whatsoever that an armed dacoity took place in the house of Raghubar Dayal and Dhanni Mal on the night in question and the two appellants, who were amongst the dacoits, were arrested in the manner proved by the prosecution. Both of them were armed with guns. When the dacoits were being pursued by the villagers while they were retreating with their booty, Kaley shot dead Ratan Singh and Atri appellant fired with his gun and hit Malkhan Singh, causing him gun-shot injuries.

    4. On behalf of Kaley, it has been urged that the offence, that was made out against Kaley, was not one under S. 396 but was one under Section 395 of the Penal Code, and that the killing of Ratan Singh was not an act which was part and parcel of the dacoity so as to be made punishable under Section 396 of the Penal Code. It has further been urged that, for that individual act of Kaley, he could have been prosecuted under Section 302 of the Penal Code, but since there was no charge against him under that section, the sentence of death under Section 396 of the Penal Code, cannot be maintained.

    5. The first case, on which reliance has been placed for this proposition, is the case of — ‘Queen Empress v. Umrao Singh’, 16 All 437 (A). There it was laid down that where certain persona were shown the have been concerned in a dacoity in the course of which murder was committed, but it was not shown that they were in the house in which the dacoity was committed at the time when the murder took place and the evidence, if any, pointed to a contrary conclusion, the accused could not properly be convicted under S. 396 but only under Section 395 of the Penal Code. This declaration was later on distinguished by this Court in — ‘Queen Empress v. Teja’, 17 All 86 (B), where it was held that when, in the commission of a dacoity, a murder is committed, it matters not whether the particular dacoit charged under S. 396 was inside the house where the dacoity was committed or outside the house, or, whether the murder was committed inside or outside the house, so long as the murder was committed in the commission of that dacoity.

    6. In support of his contention that, in the circumstances of the present case, since there was no charge under Section 302 of the Penal Code, the sentence of death under Section 396 of the Penal Code, cannot be maintained, learned counsel for Kaley appellant has relied upon the case of — ‘Emperor v. Chandar’, 3 Cri LJ 294 (All) (C). There it was laid down that where, after the commission of a dacoity, the dacoits, being interrupted by the villagers, did not get any plunder and they were attempting to escape and one or more of them, in order to facilitate the escape, attacked and killed one of the pursuing party, Section 396 of the Penal Code, did not apply, but only the person or persons actually taking part in the killing were liable therefor. In that case, a conviction under Section 395 of the Penal Code, was maintained and for the offence of murder a retrial was directed. The decision in that case appears to us to be distinguishable on facts. Here the dacoits were escaping with the booty and when they were pursued and attacked by the villagers, they turned round and killed one of them and injured several others.

    7. In 3 Cri LJ 294 (All) (C), the decision was correct on facts but the law appears to have been laid down rather too widely.

    8. A Full Bench of the Calcutta High Court in — ‘Monoranjan Bhattacharjya v. Emperor’, AIR 1932 Cal 818 (D), held that, in order to commit dacoity, it is necessary not only that the dacoit should get the booty away but that he should get away with the booty and as long as he is being pursued in not haste after the act of the dacoity has just been committed and is in flight for the purpose of completing his offence, the dacoity is not complete and that, therefore, where one of the dacoits stabs and kills a man pursuing him, the murder is committed while committing dacoity so as to be punishable under S. 396 of the Code.

    9. In — ‘Bishunath v. Emperor’, AIR 1935 Oudh 190 (E), it was held that S. 396 applies even where murder is committed for facilitating the escape of the perpetrators of the crime while retreating. A similar view was taken by the Lahore High Court in — ‘Karim Bakhsh v. The Crown’, AIR 1923 Lah 329(1) (P), where it was observed that the fact that the murder was committed in the compound of the house raided at a time when the dacoits were making good their escape is not sufficient to take the case out of S. 396.

    10. In the case of — ‘Sunder v. Emperor’, AIR 1925 Lah 142 (2) (G), it was held that where murder is committed by dacoits while retreating or carrying away the stolen property in order to facilitate their escape, it would be murder committed in the commission of the dacoity punishable under Section 396 of the Penal Code. Upon the facts and circumstances of the present case and the evidence on the record, we are driven to the conclusion that the appellants were rightly convicted under Section 396 of the Penal Code. The murder was committed by Kaley appellant while the dacoits were retreating and were carrying away the stolen property in order to facilitate their escape. It was at the same time that Atri appellant, when he was chased and followed by the villagers with ‘lathis’, turned round and fired with his gun and hit Malkhan Singh, causing him the gun-shot injuries. In our opinion, they were rightly convicted and the sentence of death on Kaley was the proper sentence that could have been passed, and the sentence of transportation for life was the proper sentence against Atri appellant under Section 396 of the Indian Penal Code. They were also rightly convicted under S. 19(f) of the Indian Arms Act and each of them was properly awarded the sentence of one year's rigorous imprisonment. While awarding sentence to dacoits, a duty lies upon the Court to see that all protection is given to any member of the public who is brave enough to do his duty in trying to arrest dacoits. The fact that murder is committed because the criminal is being brought to bay and in the desire to escape is not an extenuating circumstance. In our opinion, there is no merit in these appeals which deserve dismissal.

    11. As a result we dismiss the appeal of Kaley and we accept the reference and confirm the sentence of death passed against Kaley appellant and we direct that it should be carried out according to law. The appeal of Atri appellant is also dismissed. Leave to appeal to the Supreme Court is refused.

    K.S.B

    12. Appeals dismissed.

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    Comments

    Kaley v. State
    (Apr 5, 1954)