: The appellant had been charged inter alia with having
committed an offence under section 396, Indian Penal Code in that he on
10/11th day of September, 1954, about two or three gharis before sunrise in
village Banni Purwa, hamlet of Banni, police station Kotwali, Kheri, along
with other persons committed dacoity in the house of Mendai and that in the
commission of such dacoity, murder was committed by one of the members. The
learned Sessions Judge found that the appellant, and the others, had
entered the house of Mendai with intent to commit a robbery but were foiled
in the attempt owing to Mendai and Ganga having raised a hue and cry. The
residents of Banni Purwa and the adjoining 'abadi' of village Banni arrived
on the scene and the appellant and his companions, without collecting any
booty, ran away from the house of Mendai. They were chased by Mendai and
Ganga and when they were crossing the ditch of Pipra Farm, Mendai caught
hold of one dacoit. Another dacoit who was identified by several witnesses
as the appellant thereupon fired a pistol shot which hit Mendai and Mendai
fell to the ground and was removed to the hospital where he died. The
further movement of the appellant thereafter need not be recounted here.
The learned Sessions Judge as also the High Court recorded concurrent
findings of fact that the appellant shot and killed Mendai to secure the
release of one of his companions and also to ensure their safe retreat.
2. These concurrent findings of fact ware enough to dispose of the appeal
of the appellant before the High Court. He, however, raised a question of
law, viz., that he may be guilty under section 395 but not under section
396, Indian Penal Code 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. A distinction
was sought to be drawn between a case where the dacoits were escaping with
the booty and the case where the dacoits were running away without any
booty. It was argued that it would be an offence of dacoity with murder
when the dacoits, after committing robbery, were running away with the
booty and in order to escape with the booty they committed the murder and
that it would not be a dacoity with murder when dacoits had no. booty with
them but in order to avoid being caught they committed the murder. The High
Court negatived this contention and held that section 396, Indian Penal
Code 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 a
safe retreat. The conviction of the appellant under section 396, Indian
Penal Code was therefore confirmed along with the sentence of death passed
upon him by the learned Sessions Judge. On an application made by the
appellant for Leave to Appeal to this Court, the High Court granted to him
the necessary certificate under Art. 134 (1) (c) of the Constitution.
3. section 396, Indian Penal Code provides that
if any one of five of 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
.
Dacoity is defined in section 391, Indian Penal as under : -
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
.
4. The essential ingredients of the offence of dacoity, therefore, are that
five or more persons should be concerned in the commission of the offence
and they should either commit or attempt to commit a robbery.
5. There was, in the circumstances of the present case an attempt to commit
robbery by the appellant and his companions though in fact no. robbery was
committed by reason of the. hue and cry raised by Mendai and Ganga. The
dacoits took to their heels without collecting any booty when they found
that the villagers from Banni Purwa and Banni came immediately to the aid
of Mendai and Ganga. The offence of dacoity was, therefore, completed the
moment they took to their heels without any booty. There was an attempt to
commit a robbery though it was foiled as stated above; nonetheless the
dacoits would have been guilty and could have been punished for the offence
under section 395, Indian Penal Code which prescribes the punishment for
dacoity.
6. The prosecution, however, contended that the appellant was guilty not
only of the offence under section 395 Indian Penal Code but also under
section 396, Indian Penal Code because, the appellant and his companions
were conjointly committing the dacoity and the appellant who was the one of
the members committed the murder of Mendai in so committing the dacoity. If
the transaction which commenced with the entry of the appellant and his
companions in the house of Mendai continued right up to the time that the
appellant shot at Mendai while crossing the ditch of the Pipra Farm the
murder of Mendai committed by the appellant could certainly be said to have
been committed by the appellant in so committing the dacoity. It was,
however, contended on behalf of the appellant that the transaction of
dacoity was completed the moment the dacoits took to their heels without
any booty and the murder of Mendai committed by the appellant, was another
transaction which was dissociated from that transaction of dacoity. The
murder of Mendai accordingly was committed by the appellant not in
committing the dacoity but independently of the transaction of dacoity when
the dacoits were running away for safety and had proceeded a considerable
distance from the house of Mendai where the dacoity had been committed.
7. On a plain reading of section 391, Indian Penal Code it would appear
that in order that a dacoity can be said to have been committed it is
necessary that five or more persons conjointly commit a robbery or attempt
to commit a robbery. If a robbery was committed, the dacoits would have the
booty with them but if the matter rested only with an attempt to commit a
robbery there would be no. question of the dacoits having any booty with
them. It is necessary in this context to note the definition of robbery
given in section 390, Indian Penal Code and it is laid down there that
theft is 'robbery' if, in order to the committing the theft, or in
committing the theft, or in carrying away or attempting to cam away
property obtained by theft, the offender, for that end, voluntarily
causes or attempts to cause to any person death or hurt or wrongly
restrain, or fear of instant death or of instant hurt, or of instant
wrongful restraints.
There, was in the circumstances of the present case a clear attempt at
robbery but it did not comprise the carrying away or attempting to carry
away property obtained by theft. No. theft was committed nor were the
dacoits engaged in carrying away the property obtained by theft so that the
transaction of dacoity stopped short at the mere attempt to commit robbery.
If the transaction of dacoity was to extend up to the ditch of the Pipra
Farm there should have been the carrying away or an attempt to carry away
the property obtained by theft, which could not there unless and until the
booty had been collected by the dacoits at the house of Mendai and they
were running away for safety along with booty. If the appellant had shot at
Mendai while he and his companions were thus the unning away with the booty
the murder of Mendai could certainly be said to have been committed in the
commission of the dacoity.
8. The prosecution, however, relied upon the decision of the Allahabad High
Court in Sirajuddin v. state, 1951 AIR(All) 834 (A) and Kaley V. The State,
(S) 1955 AIR(All) 420 (B) as also the decisions of the Calcutta High Court
in Monoranjan Bhattacharjya V. Emperor, 1932 AIR(Cal) 818 (FB) (C) & the
Bombay High Court in Queen-Empress v. Sakharam Khandu, 2 Bom LR 325 (D) in
support of its contention that even though the dacoits were running away
without collective any booty and one of them committed murder in order to
ensure their safe retreat that murder could be said to have been committed
in committing the dacoity. The appellant, on the other hand, relied upon
the decision of the Allahabad High Court in Emperor V. Chandar, 1906
All(WN) 47 : 3 CrLJ 294 (E).
9. The case of Emperor v. Chandar (E) no. doubt lends support to the
contention of the appellant. The dacoits in that cast were not carrying off
any property. Yet the offence of dacoity is defined in section 395, Indian
Penal Code was held to have been completed by them, an attempt to commit
robery by the gang being clearly proved. It was, however, found that the
attempt to commit robbery was frustrated by arrival of the villagers and at
the time when the deceased was killed the dacoits were bent upon escaping
from the village and had abandoned their intention to rob. The Court was
therefore of the opinion that, in the facts of the case before it, it could
not be held that there had been murder
"in so committing the dacoity and the conviction under section 396
could not be sustained."
The conviction under section 396, Indian Penal Code, was accordingly set
aside and the findings was altered to one under section 395, Indian Penal
Code. In so far, however, there was evidence on record which, if proved,
would justify a charge against the appellant of an offence under section
302, Indian Penal Code, for which offence he had not yet been tried, the
Court thought it just and proper that he should be tried for that offence
and a direction was accordingly given that the appellant be committed to
the court of the Magistrate having jurisdiction, to stand trial at the
court of sessions on the charge of murder.
10. In 1951 AIR(All) 834 (A) also, the dacoits were running away without
collecting any booty by reason of the villagers having put up a bold front.
The court there held that the question whether murder was committed by the
dacoit while committing dacoity was a pure question of fact and of degree,
not to be determined by any general rule, but by the special circumstance
of each case. On the facts and circumstances of the case the Court,
however, came to the conclusion that there was nothing to show that the
murder was so dissociated by time or space from the dacoity that it could
be held that one chapter had closed and a now chapter had begun. The Court
having held that the transaction of dacoity was continuing right up to the
moment when the murder was committed, the case fell within section 396,
Indian Penal Code. This decision thus turned on the facts of the case and
could not be relied upon as laying down any general proposition that even
though the dacoits were running away without collecting any booty they
could be charged with having committed the murder in the commission of the
dacoity.
11. (S) 1955 AIR(All) 420 (B) was a case where the dacoits were running
away with the booty. The only importances of that decision is that the case
of 1906 All(WN) 47 : 3 CrLJ 294 (E) was considered by the learned Judges
there and they pointed out that the law in that case appeared to have been
laid down rather "too widely."
12. (S) 1932 AIR(Cal) 818 (FB) (C) also laid down the test whether the
transaction of dacoity was complete and another transaction and a separate
one had begun. If it could be predicated on the fact of a particular case
that the murder was committed after the transaction of dacoity was complete
and another and a separate transaction had begun, such murder would not
fall within the purview of section 396, Indian Penal Code. Even though in
that case there were indications to show that the dacoits had abandoned the
booty before the murder was committed, the ratio decidendi of the case was,
as noted above, the demarcation which was made between the completion of
the transaction of dacoity on the one hand and beginning of another and a
separate transaction in the case of which latter transaction only the
murder was committed.
13. 2 Bom LR 325 (D) turned on the question whether the retreat was so
separated by time or space from the offence which was the common object of
the assembly as not to form part of it. That was held to be a pure question
of fact and of degree not to be determined by any general rule but by the
special circumstances of each case. On the facts and circumstances of that
case, the Court held that there was no. such separation, that the retreat
was an essential part of the common criminal purpose and that it was the
continuation of the actual dacoity while the dacoits were still acting in
concert, and was so closely and necessarily connected with the actual
demand of 'khand' that it must be taken that the murder was committed in
prosecution of the common object of the assembly.
14. There is, therefore, considerable force in the contention urged on
behalf of the appellant before us that, In the facts and circumstances of
the present case, the transaction of dacoity had ended the moment the
dacoits took to their heels and another and a separate transaction took
place when the appellant shot at Mendai while crossing the ditch of the
Pipra Farm and that, therefore, the appellant could not be convicted of
having committed the offence under section 396, Indian Penal Code. Learned
counsel for the appellant strenuously contented that the conviction of the
appellant under section 396, Indian Penal Code should be quashed and that
on the concurrent findings of fact recorded by both the Courts below the
conviction should be altered to one under section 395, Indian Penal Code.
15. It is, however, unnecessary to do so because in the facts and
circumstances of the present case the appellant is liable to be convicted
of the offence under section 302, Indian Penal Code without anything more.
The charge under section 396, Indian Penal Code comprised of two
ingredients : - (1) The commission of the dacoity, and (2) the commission
of the murder in so committing the dacoity. The first ingredient was proved
without any doubt and was not challenged by the learned counsel for the
appellant, The second ingredient also was proved in any event as regards
the, commission of the murder because the attention of the accused was
focussed not only on the commission of the offence while committing the
dacoity but also on the individual part which he took in the commission of
that murder. So far as he was concerned, he knew from the charge which was
framed against him that he was sought to be made responsible not only for
the commission of the dacoity but also for the commission of the murder in
committing such dacoity. The evidence which was led on behalf of the
prosecution specifically implicated him and he was named by the prosecution
witness as the person who shot at Mendai while crossing the ditch of Pipra
Farm. His examination under section 342 of the Criminal Procedure Code also
brought out that point specifically against him and he was questioned in
that behalf. Both the courts below recorded their concurrent findings of
fact in regard to the part taken by the appellant in the commission of the
murder of Mendai. Under these circumstances it could not be urged that the
appellant could not be convicted of the offence under section 302, Indian
Penal Code if such a charge could be made out against him (Vide our
decision in Willie (William) Staney V. State of Madhya Pradesh, Cri App No.
6 of 1955 D/- 31-10-1955 : ( (S) 1956 AIR(SC) 116 ) (F).
16. We do not, therefore, think it necessary to express any definite
opinion on the question of law mooted in the order of the High Court
granting to the appellant certificate of fitness for appeal. Suffice it to
say that even if the conviction of the appellant under section 396, Indian
Penal Code be not perchance sustainable, the murder of Mendai having been
committed after the dacoits had taken to their heels without collecting any
booty, the case against the appellant in regard to the commission of the
murder of Mendai has been proved beyond any shadow of doubt and under those
circumstances we would convict the appellant of having committed the
offence under section 302, Indian Penal Code.
17. We accordingly see no. force in this appeal and dismiss the same. The
conviction of the appellant will stand confirmed and also the sentence of
death passed by the learned Sessions Judge upon him.