S. 396 IPC | Prosecution Must Establish Dacoity Was First Intention, Murder Committed In Its Course: Allahabad High Court
The Allahabad High Court has held that to sustain a conviction under Section 396 IPC (dacoity with murder), the prosecution must establish that dacoity was the first intention and that the murder was committed in the course of committing the dacoity.
A bench of Justice Samit Gopal made the observation while allowing a criminal appeal and acquitting the surviving accused in a 1981 case. The Court found that the prosecution had failed to establish the necessary nexus between the alleged dacoity and murder.
Case In Brief
The case pertains to an incident that took place on December 30, 1981, when Atar Singh was killed near a culvert in front of the village of Chehka.
According to the prosecution's case, deceased-Atar Singh was traveling with his son, brother, and others after alighting from a bus when they encountered Accused-Mahavira and around 12 armed persons.
The prosecution alleged that Mahavira had previous enmity with the deceased-Atar Singh. Accused-Mahavira allegedly challenged him and immediately fired at him. Atar Singh, who was carrying his licensed SBBL gun, allegedly fired back, injuring two persons from Mahavira's group.
Thereafter, further firing allegedly took place from Mahavira's side, resulting in Atar Singh sustaining firearm injuries. He fell on the roadside and subsequently died.
The prosecution further alleged that one of the Accused, Chandrapal, took away Atar Singh's gun and cartridge belt after the firing.
Initially, the FIR invoked Sections 147, 148, 149, 302 and 404 IPC against six named accused and 12 unknown armed persons. The trial court, however, ultimately convicted the accused under Section 396 IPC and sentenced them to 10 years' rigorous imprisonment.
During the pendency of the appeal, Krishan Pal, Ram Lal, Munshi Singh and Chandrapal died, and the appeals qua them stood abated. The appeal consequently survived only qua Sattu, whose conviction was examined by the High Court.
High Court's Observations
The High Court examined whether the prosecution evidence established the ingredients of Section 396 IPC, which applies where one of five or more persons conjointly committing dacoity commits murder in the course of committing that dacoity.
The bench also referred to Section 391 IPC, under which five or more persons conjointly committing or attempting to commit robbery constitute dacoity.
The Court found that the prosecution's own version did not establish that the accused had gone to the spot with the intention of committing dacoity.
Rather, according to the prosecution, the parties had met all of a sudden and Mahavira challenged Atar Singh because of their previous enmity. Firing followed from both sides, resulting in Atar Singh's death.
Only after the firing and death, the prosecution alleged, Chandrapal took away Atar Singh's gun and cartridge belt.
Taking note of these circumstances, the bench observed:
"The prosecution story thus shows that the meeting of the first informant and the presence of Mahavira and his associates was all of a sudden. The intention of the accused thus as per the prosecution case cannot be said to be of dacoity with murder…In the present case the nexus between the act of committing dacoity and murder while committing so is not established".
The High Court noted that the prosecution story was "in no manner" consistent with the conviction under Section 396 IPC for dacoity with murder.
The Court explained that Section 396 contemplates five or more persons conjointly committing dacoity as the first act, followed by murder committed in the course of that dacoity. In the present case, however, the prosecution had failed to establish such a sequence.
The Court observed thus:
"As per the prosecution version the side of the first informant and the side of the accused met all of a sudden and were challenged due to the enmity between Atar Singh and Mahavira. There is no evidence brought on record to show that Mahavira had a gang of dacoits including the surviving appellant".
The Court therefore concluded that the prosecution failed to establish that dacoity was the first intention and in committing dacoity murder was committed.
The Court additionally found it relevant that, despite the alleged firing by several persons, no other person from the informant's side was injured. It was also noted that no incriminating material was recovered from surviving appeallant-Sattu's possession or by pointing out.
The High Court accordingly allowed his appeal and set aside the judgment dated November 2, 1982, passed by the Additional District & Sessions Judge (Special Court), Etah. It acquitted him of the charges.
Case Title - Krishna Pal and others vs State 2026 LiveLaw (AB) 635
Case Citation: 2026 LiveLaw (AB) 635