A Bench of the Supreme Court consisting of Justice DY Chandrachud and Justice MR Shah has held that for conviction of offence under Section 391 (Dacoity) of IPC, what is required to be considered is the involvement and commission of the offence of robbery by five persons or more and not whether five or more persons were tried.
The Bench was hearing appeals filed by two appellants who were convicted and sentenced for seven years rigorous imprisonment under Section 397 of IPC. The Court set aside the conviction under Section 397 while observing that the appellants had not used deadly weapons at the time of committing of the offence and convicted them for seven years imprisonment under Section 391 IPC punishable under Section 395 IPC.
The Bench held that commission of 'robbery' is sine qua non. The 'dacoity' can be said to be an exaggerated version of robbery. If five or more persons conjointly commit or attempt to commit robbery it can be said to be committing the 'dacoity'. Therefore, the only difference between the 'robbery' and the 'dacoity' would be the number of persons involved in conjointly committing or attempt to commit a 'robbery'.
"The punishment for 'dacoity' and 'robbery' would be the same except that in the case of 'dacoity' the punishment can be with imprisonment for life. However, in the case of 'dacoity with murder' the punishment can be with death also. However, in a case where the offender uses any deadly weapon or causes grievous hurt to any person, or attempts to cause death or grievous hurt to any person the imprisonment with which such offender shall be punished shall not be less than seven years."
The Bench noted that the accused cannot be convicted on the basis of constructive liability and only the offender who uses any deadly weapon can be punished.
"Section 392 and Section 390 IPC are couched in different words. In Sections 390, 394, 397 and 398 IPC the word used is 'offender'. Therefore, for the purpose of Sections 390, 391, 392, 393, 394, 395, 396, 397, 398 IPC only the offender/person who committed robbery and/or voluntarily causes hurt or attempt to commit such robbery and who uses any deadly weapon or causes grievous hurt to any person, or commits to cause death or grievous death any person at the time of committing robbery or dacoity can be punished for the offences under Sections 390, 392, 393, 394, 395 and 397 and 398 IPC. For the aforesaid the accused cannot be convicted on the basis of constructive liability and only the 'offender' who 'uses any deadly weapon….' can be punished."
However, the Bench clarified that "So far as Section 391 IPC 'dacoity' and Section 396 IPC – 'dacoity with murder' is concerned an accused can be convicted on the basis of constructive liability, however the only requirement would be the involvement of five or more persons conjointly committing or attempting to commit a robbery – dacoity/dacoity with murder."
Referring to the judgment in the case of Shri Phool Kumar vs. Delhi Administration and Dilawar Singh vs. State of Delhi, the Bench observed thus:-
"As per the law laid down by this Court in the aforesaid two decisions the term 'offender' under Section 397 IPC is confined to the 'offender' who uses any deadly weapon and use of deadly weapon by one offender at the time of committing robbery cannot attract Section 397 IPC for the imposition of minimum punishment on another offender who has not used any deadly weapon. Even there is distinction and difference between Section 397 and Section 398 IPC. The word used in Section 397 IPC is 'uses' any deadly weapon and the word used in Section 398 IPC is 'offender is armed with any deadly weapon'. Therefore, for the purpose of attracting Section 397 IPC the 'offender' who 'uses' any deadly weapon Section 397 IPC shall be attracted".
It further stated,"The allegation of use of any weapon was against Benny and Prabhakaran (both the co-accused). Therefore, in absence of any allegations of use of any deadly weapon by the appellants herein – Accused Nos.1 and 3 Section 397 IPC shall not be attracted and to that extent the Learned Counsel appearing on behalf of the appellants – accused are right in submitting that they ought not to have been convicted for the offence punishable under Section 397 IPC."
The Bench ruled that merely because some of the accused absconded and less than five persons came to be tried in the trial, it cannot be said that the offence under Section 391 IPC punishable under Section 395 IPC is not made out.
The Bench also rejected a submission that the appellants should be given the benefit of the acquittal of the accused Benny, who was caught after 15 years of incident and tried separately.
"At the outset, it is required to be noted that the accused are to be tried and convicted on the basis of evidence made in the trial in which they are convicted. It is also 38 required to be noted that Benny came to be tried after a period of 15 years as his trial was split as he absconded. From the judgment and order of acquittal passed in the case of Benny, it appears that PW1 during the trial in case of Benny turned hostile. In the case of Benny only five witnesses came to be examined and for whatever reasons other witnesses have not been examined. In the present case PW1 not only supported the case of prosecution but as many as 15 witnesses came to be examined. Therefore, merely because in the subsequent split trial the Benny came to be acquitted the benefit of such acquittal cannot be in favour of the present appellants – accused as the prosecution has been successful in proving the case against the present accused."