Important to commit”: Another essential element of dacoity

Important Points:

A. Ingredients of Sec. 391:

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1. Where robbery is committed by five or more persons, the offence is dacoity.

2. Even if their attempt is failed, it is also considered as dacoity.

3. “Five or more persons”: It is the most essential ingredient of offence of dacoity. Minimum number of accused five persons is necessary to constitute this offence.

4. “Conjointly commit or attempt to commit”: Another essential element of dacoity is that the accused (five or more) must conjointly commit or attempt to commit robbery.

A. State of H.P. vs. Jagar Singh (1989 CrLJ 12 H.P.)

Nine accused attacked the complainant at a place and threatened to hand over them all he had. They had beaten him. The complainant gave his money, wrist-watch, cycle, etc. All the accused were punished under Sec. 395 dacoity.

B. In Saktu vs. State of U.P. (AIR 1973 SC 760) case, the Supreme Court held that when it is established that more than five persons committed the dacoity the fact that conviction of all of them is not possible for want of evidence, the remaining accused can be convicted even if the number of them is less than five.

C. Punishment for dacoity: Sec. 395 imposes punishment imprisonment for life or with rigorous imprisonment for a term which may extend to ten years and also fine. The offence under this Section is cognizable, non-bailable, non-compoundable, and triable by the Court of Session.

D. Burden of proof:

As a matter of fact, it is very difficult to identify the accused in the offence of dacoity. The prosecution must establish (i) that five or more persons jointly committed the offence; or (ii) that one or more of the attempted or committed to commit robbery; and (iii) that others were present and aiding such commission or attempt. If the dacoity is committed by unknown persons, wearing veils in the dark nights it is highly difficult to establish their identity. Without identity of the accused, the Courts could not impose punishment. However there are three kinds of evidence generally available in robbery or dacoity.

First occasion, when the offenders are caught red-handed on the spot by the villagers. It is somewhat difficult in majority dacoities. The reason is that the villagers or residents do not wear the weapons. The accused wear deadly weapons and attack the complainants with courage and pre­plan.

Second occasion, when the wrong-doers are arrested in some other cases and they disclose their previous offences during the interrogation and investigation by the police in other cases.

Third occasion arises when the offender or offenders sell the stolen property after dacoity in another place. Such property and those accused are red-handedly caught.

F. Barendra Kumar Ghosh vs. King Emperor (AIR 1925 PC 1)

[Refer to Topic Joint Liability.]

G. Kalika Tiwari vs. State of Bihar (1997 SC 445 SCC)

The accused formed a group and did dacoity. One of them murdered the inmate. The trial Court punished all the members of the dacoity. The High Court imposed punishment only on the member who murdered and acquitted the remaining members.

The Supreme Court held that the High Court erred in acquitting the remaining members. It held that under Section 396 read with Sees. 302, 32 and 149, when a member of an unlawful assembly murders, all the members of that unlawful assembly shall be imposed with the same punishment. [This Case-Law may also be referred to in Topics “Common Intention Common Object” & “Culpable Homicide and Murder”.]

H. Dacoity with murder:

According to Section 396, 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. Nature of offence: Cognizable, non-bailable, non-compoundable, and triable by Court of Session.

I. Robbery or dacoity, with attempt to cause death or grievous hurt:

According to Section 397, if, at the time of committing robbery or dacoity, the offender uses any deadly weapon, or causes grievous hurt to any person, or attempts to cause death or grievous hurt to any person, the imprisonment with which such offender shall be punished shall not be less than seven years. Nature of offence: Cognizable, non-bailable, non-compoundable, and triable by Court of Session.

J. Attempt to commit robbery or dacoity when armed with deadly weapon:

According to Section 398, if, at the time of attempting to commit robbery or dacoity, the offender is armed with any deadly weapon, the imprisonment with which such offender shall be punished shall not be less than seven years. Nature of offence: Cognizable, non-bailable, non-compoundable, and triable by Court of Session.

K. Making preparation to commit dacoity:

According to Section 399, whoever makes any preparation for committing dacoity, shall be punished with rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine. Nature of offence: Cognizable, non- bailable, non-compoundable, and triable by Court of Session.

L. Punishment for belonging to gang of dacoits:

According to Section 400, whoever, at any time after the passing of this Act, shall belong to a gang of persons associated for the purpose of habitually committing dacoity, shall be punished with imprisonment for life, or with rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine Nature of offence: Cognizable, non-bailable, non-compoundable, and triable by Court of Session.

M. Punishment for belonging to gang of thieves:

According to Section 401, whoever, at any time after the passing of this Act, shall belong to any wandering or other gang of persons associated for the purpose of habitually committing theft or robbery and not being a gang of thugs or dacoits, shall be punished with rigorous imprisonment for a term which may extend to seven years and shall also be liable to fine. Nature of offence: Cognizable, non-bailable, non-compoundable, and triable by Magistrate of the first class.

N. Assembling for purpose of committing dacoity:

According to Section 402, whoever, at any time after the passing of this Act, shall be one of five or more persons assembled for the purpose of committing dacoity shall be punished with rigorous, imprisonment for a term which may extend to seven years and shall also be liable to fine. Nature of offence: Cognizable, non-bailable, non- compoundable, and triable by Court of Session.