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PATNA HIGH COURT
Purnendu Singh, J.
Hans Lal Rai – Appellant
Versus
State of Bihar – Respondent
Criminal Appeal (SJ) No.168 of 2012
Decided on 5.5.2026
Counsel for the Parties:
For the Appellant:Mr. Bhavesh Kumar, Advocate
For the Respondent: Mr. S.N. Prasad, App
IMPORTANT POINTS
(1) Dacoity is nothing but an exaggerated version of robbery with a difference in number of accused.
(2) Mere non-examination of Investigating Officer does not ipso facto vitiate prosecution case – Effect of such omission has to be assessed in facts and circumstances of each case.
(3) Mere acquittal of some of accused on same evidence by itself does not lead to conclusion that all deserve to be acquitted.
Headnote:
(A) Indian Penal Code, 1860 – Section 395 – Criminal Procedure Code, 1973 – Sections 374 (2) and 389(1) – Dacoity – Conviction and sentence – Investigating Officer has not been examined by prosecution – Investigating Officer is a material witness, being essential to explain manner in which investigation was conducted and steps taken during investigation – However, mere non-examination of Investigating Officer does not ipso facto vitiate prosecution case – Effect of such omission has to be assessed in facts and circumstances of each case, particularly with regard to whether any prejudice has been caused to accused – Where ocular and other substantive evidence is otherwise found to be cogent, reliable and trustworthy, prosecution case cannot be rejected on that ground alone. (Para 15)
(B) Indian Penal Code, 1860 – Section 395/397 – Criminal Procedure Code, 1973 – Sections 374 (2) and 389(1) – Dacoity – Conviction and sentence – ‘Dacoity’ is nothing but an exaggerated version of ‘robbery’ with a difference in number of accused – Even in a case where accused is not convicted for offence under Section 397 IPC, still he can be punished under Section 395 IPC and no prejudice is caused to him as ultimately prosecution has to prove ‘robbery’ and ‘dacoity’ either for offence punishable under Section 395 IPC or under Section 397 IPC – However, to bring case against accused under Section 397 IPC, prosecution has to prove one additional fact that offender has used any deadly weapon or has caused grievous hurt to any person, or has attempted to cause death or grievous hurt to any person, which it failed – In present case, only four persons were put on trial – Essential ingredients of offence of dacoity have not been established – Appeal allowed. (Paras 22 and 23)
(C) Indian Penal Code, 1860 – Section 395 – Criminal Procedure Code, 1973 – Sections 374 (2) and 389(1) – Dacoity – Conviction and sentence – Section 395 IPC is attracted only when individual offender is proved to have “used” a deadly weapon during commission of offence – Mere presence in company of other offenders or general allegations of use of weapons by group would not suffice to fasten liability under Section 395 IPC, unless specific overt act of use of deadly weapon is attributed to accused concerned – In present case, there is no cogent and reliable evidence to establish that appellant himself used any deadly weapon within meaning of Section 395 IPC – Mere acquittal of some of accused on same evidence by itself does not lead to conclusion that all deserve to be acquitted in case appropriate reasons have been given on appreciation of evidence both in regard to acquittal and conviction of accused – Evidence against each accused must be independently assessed and conviction must rest on reliable and trustworthy evidence – Material witnesses have categorically failed to identify any of accused persons – Appellant acquitted from all charges levelled against him. (Paras 24, 26, 27, 28, 29 and 30)
Result: Appeal allowed.
JUDGMENT (CAV)
Heard learned counsel appearing on behalf of the appellant and, learned APP for the State.
2. The present appeal has been filed under Section 374(2) and 389(1) of the Code of Criminal Procedure challenging the judgment of conviction dated 15.02.2012 and order of sentence dated 18.02.2012 passed by the learned 3rd Addl. Sessions Judge, Muzaffarpur in Sessions Trial No.139/2000 arising out of Motipur P.S. Case No. 25/94 whereby and whereunder the appellant has been convicted for the offence punishable under Section 395 of the Indian Penal Code and has been sentenced to undergo Rigorous Imprisonment for 10 years.
Brief Facts of the Case
3. As per the allegation made in the FIR, the informant, Ram Ashray Rai of village Meghua, P.S. Motipur, District Muzaffarpur, recorded his fardebyan before Sub-Inspector of Police Sri R.N. Tiwary on 15.03.1994 at about 9:00 P.M. at the informant’s house, stating therein that on the same day at about 7:00 P.M., while the informant was watching television in his room with open door about, 6-7 dacoits and 50 unknown variously armed with guns, pistols, lathis and pharsas suddenly entered into his house and forcibly demanded the licensed gun of the informant and, upon his resistance assaulted him with lathis. Out of fear, the informant disclosed that the gun was kept in the upstairs room, whereupon 2-3 dacoits went to the upper floor and took away the gun, while the other accused persons, had confined the informant. During the occurrence, the informant also heard the sounds of firing and bomb explosions outside his house. Further case is that the dacoits had also demanded cash and jewellery, which they looted after breaking the lock of the jewellery box. The accused also looted clothes and other articles. It has been alleged that about 40-50 other dacoits had entered the house and were committing loot in different rooms. According to the informant, some dacoits had covered faces to whom he could not identify, however, the accused persons, namely Hans Lal Rai (appellant), Kailash Rai, Nandan Rai, Ram Chandra Rai and Lalos Rai, were identified by him in the light of the lantern and by their voices and their face being not covered. It is further alleged that due to firing and bomb explosions caused by the dacoits, the cattle shed (bathan) of the informant was burnt to ashes. On alarm being raised by the villagers, the dacoits fled away towards the west-north direction. The occurrence allegedly continued for about 15-20 minutes. On the basis of information, a case of dacoity/loot of gold ornaments, clothes, utensils and other household articles, worth several thousand rupees, including a licensed gun standing in the name of his brother Ramdeo Rai and had assaulted the son of the informant during the occurrence.
4. On the basis of the statement of the informant, the F.I.R being Motipur P.S. Case No. 25/94 was registered for the offences under sections 395/397 of the Indian Penal Code. After institution of the FIR, the police proceeded with the investigation and after completion of investigation, charge-sheet was submitted. Thereafter, the trial court took cognizance against the appellants and the case was committed to the Court of Sessions for trial.
Argument on Behalf of the Appellant
5. Learned counsel appearing on behalf of the appellant submitted that the impugned judgment of conviction and order of sentence passed by the learned Trial Court is wholly unsustainable in the eyes of law, as the conviction of the appellant is based solely upon single identification of the informant/PW3. The FIR has been lodged against 50 accused persons, out of whom, the informant has identified only four persons, including the present appellant. It has been submitted that P.W.1 and P.W.2, who are own brothers of the and the eyewitnesses to the occurrence, have categorically stated in their deposition that they could not identify any of the accused persons during the alleged occurrence. He submitted that the
