To convict under Section 396 IPC, prosecution must establish involvement of five or more persons in committing dacoity; failure to prove this essential requirement leads to acquittal.

JUDGMENT :

Babita Rani, J.

1. Heard Sri Kunwar Mukul Rakesh assisted by Sri Kunwar Sushant Prakash, Sri Harish Chandra, learned Amicus Curiae, and Ms. Smriti, learned counsels for the appellants, Sri Umesh Verma along with Sri G.D. Bhutt, learned Additional Government Advocates, in Criminal Appeal Nos. 84 of 2010, 2695 of 2009 and 212 of 2010 respectively.

2. This common judgment will dispose of the Crl. Appeal Nos. 2695 of 2009 in re: Chhatra Pal v. State of U.P., 84 of 2010 in re: Rajkumar @ Kallu v. State of U.P. and 212 of 2010 in re: Omkar v. State of U.P. which have been directed against the judgment and order dated 30.10.2009 passed by learned Additional Sessions Judge, Court Number 5, Unnao in trial number 181/2005, in re: State v. Chhatra Pal and others bearing crime number 1022/2004 wherein charges were framed under Sections 396 and 412 of Indian Penal Code, 1860, Police Station Kotwali, District Unnao and whereby the appellants/accused have been convicted for the commission of offence punishable under Section 396 of the Indian Penal Code, 1860 and have been sentenced for life imprisonment and a fine of Rs. 20,000/- each and two years simple imprisonment in case of non-payment of fine. However, the appellants were acquitted from the charges of section 412 of Indian Penal Code, 1860. Accused Omkar was acquitted of all charges levelled against him. Hence, instant appeals have been filed by accused Chhatra Pal, Kallu, Mannilal and Khushi Ram, against conviction recorded under Section 396 of Indian Penal Code.

3. The First Information Report (Exhibit Ka.2), in the instant case was lodged by the informant PW3 Balwant Singh on 25.7.2004 at 3:15 AM on the basis of Tahrir (Exhibit Ka.1), written by him with the thumb impression of Krishna Sharma, at Police Station Kotwali, District Unnao.

4. Brief facts of the case relevant for the purpose of disposal of these appeals are that on 24/25.7.2004, at 2:30 AM, when Smt. Krishna Sharma and her family members were sleeping on the rooftop of their house, some unknown criminals illegally entered their house and reached on the rooftop with lathis and dandas (Exhibit Ka8 and Ka9). Upon being resisted by her son, namely Ved Prakash, and husband, Shivkumar, the unknown criminals attacked all of them with lathis and danda and inflicted several serious and fatal injuries on Krishna Devi, Kalpana, Ved Prakash, and Shiv Kumar and fled away from the scene. While the injured victims were being taken to the hospital, one of the injured namely Ved Prakash succumbed to injuries on the way and Kalpana and Shivkumar were referred to District Hospital, Kanpur for further treatment as they were in critical condition. Meanwhile, Krishna Sharma was admitted in Civil Hospital, Unnao.

5. On the basis of the above tehrir (Exhibit Ka.1), a case under Section 460 of