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2026 Supreme(Online)(All) 97730

IN THE HIGH COURT OF JUDICATURE AT ALLAHABAD
Hon'ble Samit Gopal,J.
Krishna Pal And Others – Appellant
Versus
State – Respondent
CRIMINAL APPEAL No. - 2921 of 1982

Advocates:
Petitioner: A.B.L.Gaur and Shashi Kumar Mishra
Respondent: A.G.A.

For conviction under Section 396 IPC, the prosecution must establish that dacoity was the primary intention and murder occurred during its commission; a sudden encounter due to personal enmity does not satisfy this.

Headnote:(A) Indian Penal Code, 1860 - Section 396 - Dacoity with murder - Necessity of establishing that dacoity was the first intention and murder committed in the course of dacoity - Prosecution story of sudden meeting on road due to enmity does not constitute dacoity - Conviction under Section 396 cannot be sustained without nexus between dacoity and murder. (Paras 24-27)

(B) Criminal Appeal - Appeal against conviction - Scope - Court to examine if prosecution proved case beyond reasonable doubt - Acquittal if no overt act, no recovery, and no evidence of common intention for dacoity. (Paras 22-24)

Facts of the case:
The deceased Atar Singh, his son (P.W.-1), and others were walking to their village after alighting from a bus when they encountered Mahavira and his associates at a culvert. Mahavira challenged Atar Singh due to previous enmity and fired upon him. Atar Singh fired back, injuring two miscreants. The miscreants then fired again, hitting Atar Singh who died. Co-accused Chandra Pal took away Atar Singh’s gun and belt with cartridges. The trial court convicted all accused under Section 396 IPC. On appeal, the surviving appellant (Sattu) contended that the meeting was accidental, no specific role was assigned to him, and the case did not fall under Section 396 IPC.

Findings of Court:
The court found that the prosecution failed to establish that five or more persons conjointly committed dacoity as the first act and then committed murder in the course of that dacoity. The evidence showed a sudden encounter due to personal enmity, not a planned dacoity. The taking of the gun occurred after the murder, and there was no intention to commit robbery at the outset. Therefore, the conviction under Section 396 IPC cannot stand.

Issues: The main issue was whether the conviction under Section 396 IPC was sustainable given the prosecution's version of a sudden encounter and the absence of evidence that dacoity was the initial intention.

Ratio Decidendi: For an offence under Section 396 IPC, it must be shown that the accused were conjointly committing dacoity (robbery by five or more persons) and that a murder was committed during the commission of that dacoity. If the initial meeting was accidental and due to personal enmity, and the taking of property occurred after the murder, the essential nexus between dacoity and murder is missing, and the conviction cannot be sustained.

Result: Appeal allowed. Conviction and sentence under Section 396 IPC set aside. The surviving appellant Sattu is acquitted. He is on bail; need not surrender. Bail bonds cancelled and sureties discharged. (Paras 27-29)

1. This appeal under Section 374 (2) Cr.P.C. has been preferred by the appellants- Krishan Pal, Santu, Ram Lal, Chandrapal and Munshi Singh against the judgment and order dated 02.11.1982 passed by the Additional District & Sessions Judge (Special Court), Etah in Special Sessions Trial No. 11 of 1982 (State Vs. Krishan Pal and 04 others) convicting and sentencing the accused-appellants for offence under Section 396 I.P.C. for 10 years rigorous imprisonment.

2. During the pendency of this appeal the appellant no.1- Krishan Pal, appellant no.3, Ram Lal and appellant no.5 Munshi Singh died and thus their appeal stood abated vide order dated 19.08.2016. The appeal of the appellant no.4 Chandrapal also stood abated vide order dated 16.09.2021.The appeal thus survives with regard to the appellant no.2- Sattu only now.

3. An application dated 30.12.1981 was given by Dhirendra Pal Singh s/o Atar Singh of which Chandrabhan Singh s/o Tilak Singh was the scribe alleging therein that his village is near Swargdwari. Mahavira Ahir of Swargdwari is a miscreant since before and for his arrest by the police Atar Singh the father of the informant had helped the police due to which he had an enmity with his father and family members. Since the last some days Mahavira has formed a gang due to which his father mostly used to live in Etah. Today he, his father Atar Singh, chacha Raghunath Singh and persons of village namely Jwala Prasad, Badam alighted a bus and were going towards village on foot wherein at about 4 pm when they reached a culvert in front of Chehka village then from the side of Chehka village Mahavira along with 12 miscreants who were armed with firearms came and told his father that they were in search of him since long and today they have met him and fired on his father immediately on which his father who was carrying his licensed SBBL Gun No. K432 fired on them due to which two miscreants received injuries and there was commotion on their side after which they took shelter and challenged miscreants and moved toward Dariyabganj on its road near a place where mud was collected then the fire from the miscreants side hit his father who fell down and as soon as they picked him up and started running the miscreants resorted to more fire and his father fell on the roadside. Amongst the miscreants Mahavira, Munish Lal, Chandrapal, Ram Lal, Kishan Pal and Sattu were seen by them and identified but they can identify the other miscreants if they come in front. Amongst the miscreants Chandrapal Ahir took away the gun of his father and the other miscreants dragged the two other injured miscreants and went towards Chehka side. On the sound of fire people of nearby came there. A report be lodged and action be taken. The said application is Exb:Ka-1 to the records.

4. On the basis of the said application a first information report as Case Crime No. 224 / 1981, under Sections 147, 148, 149, 302/404 I.P.C., Police Station Patiyali, District Etah was lodged on 30.12.1981 at about 17:45 hours against Mahavira, Munshi Lal, Chandrapal, Ram Lal, Kishan Pal and Sattu and 12 armed unknown miscreants. The chik FIR is Exb:Ka-15 to the records.

5. Blood stained mud and plain earth was recovered on 31.12.1981. The memo of the same is Exb:Ka-9 to the records.

6. Four 12 bore empty cartridges were recovered lying near the dead body of Atar Singh. The same were taken into possession by the Investigating Officer on 31.12.1981. The memo is Exb:Ka-16 to the records.

7. The postmortem examination of Atar Singh was conducted on 31.12.1981 at 3:00 pm by Dr. S.K. Sharma. He found the following injuries on his person:-

"1. Fire am wound of entry 2 cm x 2 cm x through on left side of face just in front of ear. Direction inward and upward.

2. Fire arm wound of exit whole of front half of head blasted off with skull fractured into many pieces.

3. Fire arm wound of entry 1 1/2 cm x 1 1/2 cm x through on left front side of neck 5 cm below ear.

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2026 Supreme(Online)(All) 97730

IN THE HIGH COURT OF JUDICATURE AT ALLAHABADHon'ble Samit Gopal,J.Krishna Pal And Others – AppellantVersusState – RespondentCRIMINAL APPEAL No. - 2921 of 1982

For conviction under Section 396 IPC, the prosecution must establish that dacoity was the primary intention and murder occurred during its commission; a sudden encounter due to personal enmity does not satisfy this.

IN THE HIGH COURT OF JUDICATURE AT ALLAHABAD
Hon'ble Samit Gopal,J.
Krishna Pal And Others – Appellant
Versus
State – Respondent
CRIMINAL APPEAL No. - 2921 of 1982