Point of Law: The definition of dacoity under Section 391 of IPC clearly states that when five or more persons conjointly commit or attempt to commit a robbery, every person so committing or attempting or aiding is said to commit “dacoity”.

JUDGMENT :

Prayer: Criminal Appeal has been filed under Section 374(2) of Cr.P.C., against the judgment of the learned Assistant Sessions Court (Principal Sub Court), Gobichettipalayam in S.C.No.36 of 2007 dated 04.04.2008.)

The trial in S.C.No.36 of 2007 before the Principal Assistant Sessions Judge, Gopichettipalayam was against 7 accused. The appellant herein is the first accused. On the base of the material placed, the trial Court framed the following charges:-

First Charge against Accused 2 to 7: On 12/05/2006, night at about 7.15 p.m., A-2 to A-7 along with A-1, gathered together with Yamaha motorcycle bearing Registration Number TN 33 Z 4477, Bajaj Pulsar bearing Registration No:TN 37 F 7467 and TVS Star City on Bhavanisagar – Mettupalayam Road near Sreerangarayan Bridge, with an intention to commit dacoity. When the defacto complainant passed through the road, they restrained him and extorted Rs.1350/-, a Nokia cell phone worth about Rs.20,000/-, a ladies watch and 8 gold coins. Thereby committed offence punishable under Section 395 IPC.

Second charge against Accused 1: In the course of the transaction mentioned above, for extorting the properties mentioned above, A-1 showed a country made gun and threatened to kill the defacto complainant, thereby committed offence under Section 395 r/w 397 IPC.

Third Charge against Accused 1 and 4: A-4 possessed the country gun without license and in the course of the above transaction, A-1 took the country gun from A-4 and used it to put the defacto complainant under fear of death and thereby, A-1 and A-4 committed offence punishable under Section 25 (1B)(a) of Arms Act, 1959.

2. The prosecution examined 10 witnesses. 30 documents and 8 material objects were marked as prosecution side exhibits and material objects respectively.

3. The trial Court, based on the deposition of the defacto complainant, their confession leading to recovery of the stolen goods from the possession of the accused persons, identification parade and the corroboration of independent witnesses, held the charges proved and sentenced A-1 (the appellant herein) to undergo imprisonment for 8 years Rigorous Imprisonment for the offence under Section 395 r/w 397 IPC; sentenced to undergo one year Rigorous Imprisonment for the offence under Section 25 (1-B) (a) of Arms Act, 1959. The period of imprisonment was ordered to run concurrently and the period of imprisonment already undergone was ordered to be set off under Section 428 of Cr.PC.

4. The other accused [A-2 to A-7], who were found guilty of the charge under Section 395 were sentenced to undergo 7 years Rigorous Imprisonment and to pay a fine of Rs.1000/- in default, to undergo 6 months Simple Imprisonment; and for the offence under Section 25 (1-B)(a) of Arms Act, 1959, A-4, was sentenced to undergo one year Rigorous Imprisonment.

5. The appeal by the first accused challenging the conviction and sentences is based on the following grounds:

(a) The crime alleged to have taken place on 12/05/2006 at about 7.15 pm. The written complaint [Ex.P-1] was given by PW-1(Madhu), the victim of the crime only on the next day (i.e) 13/05/2006 at 18.30 hrs and the delay of 22 hours in lodging the complaint is not satisfactorily explained by PW-1. In his cross examination, PW-1 admits that on his way to the house at Mettupalayam from the alleged place of occurrence, there were three police stations but he did not give complaint .

(b) PW-1 admits in the cross examination that when he went to the police station, he saw 3 or 4 accused under custody of the police. Thus, it is obvious that the complaint [Ex P-1] was obtained only after securing the accused persons.

(c) The alleged confession statements of the accused is not admissible, since it was obtained after taking them into custody. The trial Court failed to see that the confession leading to recovery of M.O’s are cooked up by the prosecution.

(d) The prosecution case that the accused persons were arrested on 14/05/2006 and on 16/05/2006