Shyam Behari vs State Of U. P. - 1956 Supreme(SC) 74

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

1956 Supreme(SC) 74

SUPREME COURT OF INDIA
5th October, 1956
S.R. DAS, C.J.I., BHAGWATI, IMAM, S.K. DAS AND GOVINDA MENON, JJ.
Shyam Behari, Appellant
Versus
State of U.P., Respondent.
Criminal Appeal No. 72 of 1956.
Advocates appeared
Mr. G.G. Chatterji, Senior Advocate (Mr. O. N. Srivastava and Mr. Babu Ram, Advocates, with him), for Appellant; M r. G. C. Mathur and Mr. C P. Lal Advocates, for Respondent.

Advocates:
BABU RAIN, C.P.LAL, G.C.MATHUR, G.G.CHATTERJI, OMKAR NATH SRIVASTAV

Headnote: Penal Code, Sections 302, 395, 396-Attempt to commit robbery by five or more persons-No robbery committed on hue and cry being raised by villagers.-Dacoits chased by villagers-One of the dacoits killing one of chasers after having gone at some distance-Nature of offence-Conviction under Section 302 proper.
       On 10/llth day of September 1954, the appellant along with others had entered the house of one M with intent to commit a robbery but were foiled in the attempt owing to M and G having .raised a hue and cry. Many people collected there and the appellant and his companions, without collecting any booty, ran away from the house of M. They were chased by M and G and M actually caught hold of one dacoit. Thereupon the appellant fired pistol shot which hit M and M fell to the ground and was removed .el the hospital where he died. The appellant was charged inter alia with having committed an offence under section 396, Indian Penal Code.
       Held: (1) 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 M and G. The dacoits took to their heels without collecting any booty when they found that other villagers had come to the aid of M and G. 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, nevertheless the dacoits would have been guilty and could have been punished for the offence under S. 395, I.P.C. which prescribes the punishment for dacoity.
       (2) There was in the ciscumstances of the 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 or attempting to carry away the property obtained by the theft so that the transaction of dacoity stopped short at the mere attempt to commit robbery. The transaction of dacoity had ended the moment the dacoits to k to their heels and another and a separate transaction took place when the appellant shot at M and the 0appellant could not be convicted of having committed the offence under S. 396, I.P.C. It is, however, unnecessary to quash the conviction under section 396, because in the facts and circumstances of the case the appellant is liable to be convicted of the offence under S. 302, I.P.C. without anything more. The charge under section 396, I.P,C. comprised of two ingredients :-(1) the commission of the dacoity and (2) the commission of the murder in so committing the dacoity. So far as the appellant 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. 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 M. under these circumstances it could not be urged that the appellant could not be convicted of the offence under Section 302, I.P.C. if such a charge could be made out against him. - Section 423-Attempt to commit robbery by five or more persons- No robbery committed on hue and cry being raised by villagers One of the dacoits killing one of the chasers after having gone some distance-Nature of offence-Conviction under Section 302 I.P.C. proper Penal Code, Sections 302, 395, 396.

Judgement

BHAGWATI, J.: 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 th