JUDGMENT

1. This common judgment shall decide three Criminal Appeals bearing no. 593/2022, 354/2022 and 367/2022 preferred by the appellants Azad @ Gaurav, Jitender @ Jitu and Bharat Kumar Goswami, respectively to impugn the judgment dated 16.03.2022 (hereinafter referred to as "the impugned judgment") passed by the court of Ms. Charu Aggarwal, ASJ Central District, Tis Hazari Court, Delhi (hereinafter referred to as "the convicting court") whereby the appellants along with the accused Kanhaie Jha were convicted for the offence under section 395 of the Indian Penal Code, 1860 (hereinafter referred to as "IPC") and the appellant Bharat Kumar Goswami was acquitted for offence under section 397 IPC after being given the benefit of doubt; and the order on sentence dated 04.06.2022 passed by the court of Mr. Dheeraj Mor, ASJ Central District, Tis Hazari Court, Delhi (hereinafter referred to as "the sentencing court") whereby the appellants along with convict Kanhaie Jha @ Kishan were sentenced to rigorous imprisonment for five years for the offence punishable under section 395 IPC and were also directed to pay a fine of Rs.25,000/- individually for the offence punishable under Section 395 IPC and in default to undergo further simple imprisonment of two months. It was further directed to pay Rs.90,000/- to the complainant as per section 357 of the Code of Criminal Procedure, 1973 (hereinafter referred to as "the Code") towards the loss suffered by him and remaining Rs.10,000/- was ordered to be paid to the State towards the expenses incurred in the prosecution of the case. Fine was not paid.

2. Section 391 IPC defines dacoity. It reads as under:

391. Dacoity.-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.

Dacoity is commission of robbery by five or more persons otherwise there is no difference between dacoity and robbery. The essential ingredients of Section 391 are:

i. Five or more persons must act in association,

ii. Such act must be robbery or attempt to commit robbery,

iii. The five persons must consist of those who themselves commit or attempt to commit robbery or those who are present and aid the principal actors in the commission or attempt of such robbery.

The commission of robbery in association by five or more persons is an essential ingredient of the offence under Section 391 IPC. The gravity of the offence consists in the terror it causes by the presence of a number of offenders. Abettors who are present and aiding when the crime is committed are counted in the number. For the application of Section 391 IPC it is necessary that all the persons should share the common intention of committing robbery. The accused must be shown to have committed robbery or aided in the commission of it and they must be among the body of persons who extorted money or aided them in extorting money. Section 395 IPC provides punishment for committing dacoity. It reads as under:

395. Punishment for dacoity.-Whoever commits 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.

3. The relevant facts as mentioned in the impugned judgment are reproduced as under:

1. The prosecution, in this case, has filed the chargesheet against four accused persons alleging commission of offence U/s 395/398/464/471 IPC. As per the chargesheet, total five accused were involved in the alleged incident but one of the accused Sanjeet during investigation was declared Proclaimed Offender and has not been arrested till now.

2. The case of the prosecution summed up in the chargesheet is that the only victim of the incident namely Manish Aggarwal is doing the business of mattresses in the name of