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ORISSA HIGH COURT
J. Das, J.
Niranjan Das and Ors. - Petitioners
versus
Girdhari Dasand Ors. - Respondents
Crl. Misc. Case No. 799 of 1988
Decided on September, 1989
Counsels for the parties:
Mr. P.K. Routrary - For the petitioners Mr. R. P. Mohapatra – For the Respondents
IMPORTANT POINT
If individual acts of persons cannot reasonably be referred to a united or concerted action of such persons, there cannot be any question of any conviction for dacoity of the group of persons concerned.
Headnote:Indian Penal Code, 1860 - Section 395 Cognizance taken under - Challenged - Accused persons numbering more than five came in a body and cut the paddy and took away the same - When the complainant protested, one of the accused N pushed him - No evidence that this individual act of the accused is a manifestation of the common attention of others, who participated in the Crime - It cannot be said that all the accused persons conjointly committed robbery - Cognizance should have been taken under Section 379/34 and u/s. 323 against accused N-Proceedings pending under Section 395 quashed.
Held: That in dacoity there are elements of either extortion or robbery and theft is the primary offence. In order to constitute dacoity, robbery should not only be committed by five or more persons, but all of them must commit said robbery "conjointly" and unless five or more persons commit the robbery "conjointly" the offence will fall short of the definition of "dacoity".
"Conjointly" refers to united or concerted action of the persons participating in the transaction. If individual acts of persons cannot reasonably be referred to a united or concerted action of such persons, there cannot be any question of any conviction for dacoity of the group of persons concerned. (para 5)
Result: Petition Allowed.
JUDGMENT
J. Das, J. - This Criminal Misc. Case is directed against the order dated 21-3-1988 passed by Sri A.C. Patnaik, Sub-divisional Judicial Magistrate, Balasore, in I.C.C. Case No. 432 of 1987 taking cognizance under Section 395, I.P.C.
2. The prosecution case appears to be that the complainant alleged that he raised the paddy in question and the accused persons numbering more than five came in a body and cut the paddy and took away the same. It also transpires from the evidence of the witnesses that when the complainant protested, accused Niranjan pushed him and as a result of that the complainant fell down. On these facts, the cognizance has been taken under Section 395, I.P.C.
3. The learned advocate for the petitioners argued that the taking of cognizance under Section 395, I.P.C. in the circumstances of the case is unwarranted and improper.
There is much force in the contention of the learned advocate for the petitioners.
4. Dacoity has been defined under Section 391, I.P.C. which is as follows:
"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 persons so committing, attempting or aiding, is said to commit dacoity."
According to the definition of decoity, when five or more persons conjointly commit or attempt to commit robbery within the meaning of Section 391, I.P.C. they are said to commit dacoity. Robbery has been defined in Section 390, I.P.C. which is as follows:
"In all robberies there is either theft or extortion.
When theft is robbery- Theft is "robbery" if, in order to the committing of the theft, or in committing the theft, or in carrying away or attempting to carry away property obtained by the theft, the offender, for that and, voluntarily causes or attempts to cause to any person death or hurt or wrongful restraint, or fear of instant wrongful restraint.
When extortion is robbery - Extortion is "robbery" if the offender, at the time of committing the extortion, is in the presence of the person put in fear, and commits the extortion by putting that person in fear of instant death, of instant hurt, or of instant wrongful restraint to that person, or to some other person, and, by so putting in fear, induces the person so put in fear then and there to deliver up the thing extorted.
Explanation - The offender is said to be present if he is sufficiently near to put the other person in fear of instant death, of instant hurt, or of instant wrongful restraint."
Thus, it is clear that robbery constitutes either theft or extortion in certain circumstances.
When it is a case of robbery, this should be accompanied by voluntarily causing or attempting to cause any person death or hurt or wrongful restraint etc.
When it is a case of extortion, then the said extortion must be committed by putting a person in a fear of instant death, or of instant hurt or of instant wrongful, restraint etc. and induces the person so put in fear then and there to deliver up the thing extorted.
Section 383, I.P.C. defines extortion which is as follows:
"Whoever intentionally puts any person in fear of any injury to that person, or to any other, and thereby dishonestly induces the person so put in fear to deliver to any person any property or valuable security; or anything signed or sealed which may be converted into a valuable security, commits extortion."
Further theft has been defined in Section 378, I.P.C. which is as follows:
"Whoever, intending to take dishonestly any movable property out of the possession of any person without that person's consent, moves that property in order to such taking, is said to commit theft."
5. Thus it is seen that in dacoity there are elements of either extortion or robbery and theft is the primary offence. In order to constitute dacoity, robbery should not only be committed by five or more persons
