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2008 Supreme(UK) 154
2008 N.C.C. 761
SUPREME COURT OF INDIA
Hon’ble Mr. Justice C.K. Thakker and Hon’ble Mr. Justice D.K. Jain
Criminal Appeal No. 855 of 2007
RAJ KUMAR @ RAJU – Appellant
Versus
STATE OF UTTARANCHAL (NOW UTTARAKHAND) – Respondent
Decided on : 07.04.2008
For the Respondent:Mr. B.N. Jha and Mr. J.K. Bhatia, Advocates
Headnote:I.P.C., 1860, Sec. 396 — An offence of Dacoity — An essential ingredient for commission of dacoity, there must be five or more persons as accused — If number of persons being less than five could not be convicted for an offence of dacoity — In a given case, however it may happen that there may be five or more persons and the factum of five or more persons is either not disputed or is clearly established, but the Court may not be able to record a finding as to identity of all the persons said to have committed dacoity and may not be able to convict them all and order their acquittal for their identity not having been established — In such case, conviction of less than five persons or even one can stand — But in absence of such finding less than five persons cannot be convicted for an offence of dacoity — In the instant case out of six accused two were not identified as per law, four persons could not be convicted for an offence of dacoity — More over, all of them acquitted for an offence of criminal conspiracy and for receiving stolen property punishable u/s 120B IPC and Sec. 412 IPC respectively. (Paras 19, 34)
Hkkjrh; n.M lafgrk] 1860] /kkjk&396 & MdSrh dk tqeZ & MdSrh ds tqeZ dks ?kfVr gksus ds okLrs vko';d rRo ;g gS fd vfHk;qDrksa ds :i esa ik¡p ;k vf/kd O;fDr;ksa dk gksuk vko';d gS & ;fn vfHk;qDrksa dh la[;k ik¡p ls de gksxh rks MdSrh ds vkjksi esa nks"kflf) ugha gks ldrh & izLrqr dsl esa ;g laHkkouk gks ldrh gS fd vfHk;qDrksa dh la[;k ik¡p vFkok vf/kd gks vkSj ik¡p vFkok vf/kd O;fDr;ksa dk rF; uk rks fooknxzLr gS vkSj cfYd Li"V :i ls lkfcr gks pqdk gS ijUrq U;k;ky; }kjk mu lHkh O;fDr;ksa dh f'kuk[r ds lEcU/k esa] ftUgsa MdSrh Mkyus ds fy, vkjksfir fd;k x;k gS] dksbZ fu.kZ; ugha fn;k x;k vkSj uk gh mu lcdh nks"kflf) dh xbZ uk gh f'kuk[r iw.kZ uk gksus ds dkj.k fjgkbZ dk vkns'k ikfjr fd;k x;k & ,slh n'kk esa ik¡p vknfe;ksa ls de dh nks"kflf) vFkok ,d dh Hkh ekuh tk,xh & ijUrq ,sls fu.kZ; ds vHkko esa ik¡p vknfe;ksa ls de MdSrh ds tqeZ ds fy, nks"kfl) ugha fd;s tk ldrs & izLrqr dsl esa N% O;fDr;ksa es ls nks dh f'kuk[r dkuwuh nk;js esa ugha gks ldh rFkk pkj O;fDr;ksa dh nks"kflf) MdSrh ds tqeZ esa ugha dh tk ldrh & ;gk¡ rd fd /kkjk-120B] Hkk-n-la- ,oa /kkjk&412 Hkk-n-la- esa de'k% n.Muh; vijk/k] vijkf/kd lkft'k rFkk pksjh dk eky izkIr djuk] ds ckjs esa Hkh fjgkbZ dh xbZA ¼izLrj 19] 34½
C.K. Thakker, J.— This appeal is filed by Raj Kumar @ Raju-accused No. 1 in Sessions ‘Trial No. 14 of 1983. He was convicted for an offence punishable under Section 396 of the Indian Penal Code (IPC) along with three other accused and ordered to undergo rigorous imprisonment for ten years and to pay fine of Rs. 2,000, in default of payment of fine, to undergo additional imprisonment for one year. The said order was passed by the II Addl. Sessions Judge, Nainital on August 9, 1985. The appellant preferred an appeal against the said judgment and order which was registered as Criminal Appeal No. 2128 of 1985 in the High Court of Allahabad and was re-numbered as Criminal Appeal No. 315 of 2001 in the High Court of Uttaranchal at Nainital and was dismissed by the High Court on December 16, 2006.
2. The case of the prosecution was that on September 24, 1982 one Tilak Raj-PW1 submitted a written report at Police Station, Khatima stating therein that when he reached his house for taking lunch at about 12.30 p.m., he saw Raj Kumar @ Raju, Pushpendra Singh, Swadesh Chandra @ Gappu and Nirankar in his house. All the accused were dragging his wife who was soaked in blood. According to Tilak Raj, on seeing him, the accused fled away. Though he tried to catch hold of them, Pushpendra Singh pushed at his chest due to which he fell down. He raised hue and cry. According to the complainant Raj Kumar, Swadesh Chandra @ Gappu and Nirankar were holding knives. All the accused committed loot of articles from his house and also committed murder of his wife Kamlesh Kumari. Rajendra Kumar-PW6, Purshottam Lal-PW3, Prem Kumar-PW5 and other persons who came there, also saw the accused running away. The first information was recorded and investigation was conducted. Accused were arrested and certain articles were also recovered from them. On completion of investigation, charge-sheet was submitted by the Investigating Officer against four accused referred to above and two others, namely, Mohan Lal and Balram Singh for offences punishable under Section 396 and 412 read with Section 120B, IPC. The case was committed by the Magistrate to learned II Addl. Sessions Judge. Charge was framed and the accused were asked whether they pleaded guilty upon which they denied to have committed any offence and claimed to be tried.
3. In order to prove the case against the accused, the prosecution examined 13 witnesses. Out of them Tilak Raj-PW1, informant and husband of deceased Kamlesh Kumari was an eyewitness who supported the case of the prosecution. According to him, he saw all the accused dragging dead body of his wife Kamlesh Kumari from kitchen. He wanted to catch hold of the accused but could not do so as Pushpendra Singh pushed him and resultantly he fell down. It was also his case that on hearing his cries, PW3-Purshottam Lal, PW5-Prem Kumar and PW6-Rajendra Kumar reached at the scene of offence and saw all the accused running away. After the arrest of accused, looted property and weapons of offence, namely, knives were recovered.
4. It was also the case of the prosecution that there was a conspiracy to commit dacoity by all the accused on the previous day i.e. September 23, 1982. To prove conspiracy, the prosecution examined PW7-Kishan Lal-real brother of PW1-Tilak Raj, PW11-Dr. J.K. Goel who performed post-mortem of deceased Kamlesh Kumari on September 25, 1982 was examined to prove injuries sustained by the deceased and to establish that she died due to those injuries.
5. The case of the accused under Section 313 of the Code of Criminal Procedure, 1973 was of total denial. In support of their case, the accused examined DW1-Dr. Joshi and DW2-Laxmi Datt.
6. The trial Court, after appreciating the evidence on record, held that it was not proved by the prosecution that there was conspiracy between the accused to commit dacoity. So far as charge for committing an offence punishable under Section 120B, IPC is concerned, the trial Court acquitted them. Lik
