IMPORTANT POINT
An assembly of five or more persons participating in the offence is thus the sine qua non for an offence under section 396.

Judgment

Amitava Roy, J.

Leave granted.

2. The instant appeal launches a challenge to the conviction of the appellant herein under section 396 of the Indian Penal Code (for short hereinafter referred to as the “Code”) for committing dacoity as well as murder of one Mohinder Singh and the consequential sentence of imprisonment for life and fine of Rs.3,000/-, in default of further rigorous imprisonment for two months held out by the judgment and order dated 17.1.2007 passed in Sessions Case No.RT-4/15.3.05/17.5.05 by the learned Additional Sessions Judge, Rupnagar and affirmed by the judgment and order dated 1.11.2010 rendered by the High Court of Punjab and Haryana at Chandigarh in CRLA No.133/2007.

3. We have heard the learned counsel for the parties.

4. Stated briefly, the prosecution case is traceable to the First Information Report (for short the “FIR”) lodged with Morinda Police Station on 28.05.2004. The FIR disclosed that the informant, Gursatinder Singh had lodged it on the date of the incident i.e. 28.0.5.2004 contending that he along with Mohinder Singh, Cashier, Surinder Pal, Accountant City Sub-Division, PSEB and Balbir Singh, Cashier at about 11.00 a.m. had travelled in a Matador vehicle No.PB-11-6119 driven by Gurcharan Singh to collect the salary of the employees from the State Bank of Patiala, Kharar Branch and that in due course an amount of Rs. 7,78,156/-was collected from the bank and put in a green colour bag. According to the informant, an amount of Rs. 7,18,715/-towards salary of the City Sub-Division was put in another bag and both the bags were taken in the Matador vehicle. At 2.30 p.m. when the party reached the Suburban Sub Division Office, Morinda, Mohinder Singh, Cashier alighted from the vehicle with the bag containing Rs.7,78,156/-. It was then, according to the informant, that a gentleman aged about 25/30 years with Mulla looks and wearing a cap confronted him (Mohinder Singh) with a pistol like article in his hand and tried to snatch the bag of money from him. It was stated further that as Mohinder Singh resisted, the intruder fired from his pistol for which he (Mohinder Singh) fell down. The shot had injured him on the left side of his chest. The assailant then carried the bag of money on a Bajaj Chetak Scooter No.5648 along with another young man of the same age who was standing nearby. The informant mentioned that both the persons then in the scooter drove towards Kurali. That he raised an alarm on which people gathered and thereafter Mohinder Singh was taken to the Government Hospital, Morinda where he was declared dead was also stated. In the FIR the informant did not name any of the offenders but claimed that he would be able to identify the two persons.

5. On the basis of the recorded statement of Gursatinder Singh son of Jit Singh, Accountant, Sub Division, Morinda, the information was registered as FIR No.69 dated 28.05.2004 under section 302/397/34 IPC and 24/25/29 of Arms Act and on the completion of the investigation, a charge sheet was laid under Section 173 of the Cr.P.C.. On the completion of the committal proceedings, five accused persons including the appellant were sent up for trial. At the trial before the learned Addl. Sessions Judge, Rupnagar in the aforementioned sessions case, charges were framed as hereunder:

“That you Satnam Singh, Sukhwinder Singh, Malkiat Singh, Manmeet Singh, Balwinder Singh along with Gurcharan Singh (Proclaimed offender vide Order dt.30.11.2004) on 28.5.2004 in the area of Morinda agreed to do an illegal act i.e. to commit dacoity or to commit murder and in pursuance of that agreement you all the above said accused committed the dacoity of Rs. 7,78,156/-and committed the murder of Mohinder Singh and thereby you all committed an offence punishable under Section 120-B of the IPC and within my cognizance.

Secondly, on the same date and time you all the accused namely Satnam Singh, Sukhwinder Singh, Malkiat Singh, Manmeet Singh, Balwinder Singh and Gurbachan Si