Section 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 and aiding such commission or attempt, amount to five or more, every person so committing, attempting or aiding is said to commit “dacoity”.
Essentials :
- ‘Conjointly
This word manifestly refers to united or concerted action of the persons participating in the transaction. It is only when their individual action can be properly referred to their concerted action that the question of conviction under this section can arise. When there is doubt as to how many persons are involved in commission of offence and the accused/appellants were not identified during Test Identification Parade, they are entitled to benefit of doubt.
- Five or more persons :
Five or more persons should be concerned in the commission of the offence and they should commit or attempt to commit robbery.’ For application of this section it is necessary that all the persons should share the common intention of committing robbery. The accused must be shown to have committed robbery or aided in the commission of it and that they must be among the body of persons who extorted money or aided them in extorting money.
In counting the number of offenders for the purposes of this section the whole number of persons conjointly committing or attempting to commit a robbery and persons present and aiding such commission or attempt are taken into account.
Dacoity is different from robbery only in respect of the number of offenders. Dacoity is thus more severely punishable because the offence is considered to be graver than robbery by reason of the terror it causes by the presence of greater number of offenders. Abettors present and aiding when the crime is committed are also counted in the number. Dacoity includes robbery and because robbery is only aggravated form of theft or extortion, therefore, dacoity includes theft and extortion also. Offering of resistance by the victim is not necessary. Thus, if in a case of dacoity the inmates of a house, seeing the large number of dacoits do not offer any resistance and, therefore, no force or violence is required or used by the dacoits, the offence will not be reduced from dacoity to theft.
The Supreme Court in the case of Saktu v. State 1973, made it clear that Section 391 no where says that the conviction of minimum five persons is necessary for an offence of dacoity. It will thus be seen that the principle underlying joint liability under Sections 34, 149, 120-A, which is punishable under Section 120-B, is similar to offence of dacoity under Section 391 which is made punishable under Section 395.
Section 395:
Whoever commits dacoity shall be punished with 18 imprisonment for life], or with rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine.
In T Alias Sankaranarayanan v State Rep. By Inspector of Police 2011, allegation was that accused along with others entered the premises of complainant in false pretext of conducting income tax raid and looted jewels and cash. Accused acquitted since there was no TIP and accused was identified for first time in Court after seven years of occurrence.
Section 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.
Dacoity with murder creates co-extensive responsibility of each participant for murder in the act of such a dacoity.
Ingredients. –
The following are the ingredients of this section:
1. The dacoity must be the joint act of the accused persons.
2. Murder must have been committed in the course of the commission of the dacoity.
Example
If any one of five or more persons who are conjointly committing dacoity commit murder in so committing dacoity then every one of them shall be liable for murder. For co-extensive liability the presence of all the accused at the scene of dacoity is not necessary.
The house of X was raided by a gang of five dacoits one of whom had a gun. After looting, while the dacoits were running away with their booty, they shot down one villager and inflicted fatal wounds upon another who died afterwards. It was held that the murder committed by dacoits while carrying away the stolen property was ‘murder committed in the commission of dacoity and every offender was, therefore, liable for the murder committed by one of them.
Cases
In State of U.P. v. Sukhpal Singh, accused persons entered premises, looted licensed gun and other articles and also killed two persons and injured others. All prosecution witnesses stated that they had known accused persons and they were not strangers to them. In moon-light and lantern-light they clearly identified them. It was, therefore, held that holding of test identification parade was not necessary. Therefore, acquittal of accused persons by High Court on misreading of entire evidence on record and on the ground of not holding test identification parade was held liable to be set-aside and the judgment of conviction under Section 396 I.P.C. by Trial Court was restored by the Supreme Court.
In Amarnath Tha v. Nandkishore Singh & Ors. the accused were charged of the offence of dacoity with murder.About 30-40 unknown persons committed dacoity. During dacoity, the dacoits fired gun-shots towards the deceased who was aged 75 years and died immediately due to injuries. The dacoits flew away from the scene after committing murder and dacoity. The trial Court convicted three accused under Section 396/412, but the High Court set aside the conviction of two and confirmed the sentence of appellant which was affirmed by the Supreme Court.
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