Dacoity Charge Fails After One Of Five Accused Acquitted, Gujarat High Court Sustains Robbery Conviction

The Gujarat High Court set aside dacoity conviction after charge against one of the five co-accused was not proved and hence the offence, which requires a minimum of five persons, could not be proved by the prosecution. 

Partly allowing the appeals, the Division Bench comprising Justice Ilesh J. Vora and Justice R. T. Vachhani observed:

"The Trial Court convicted the accused under Section 395 which provides a punishment for dacoity. Dacoity has already been defined under Section 391 of the Indian Penal Code, which says that when five or more persons conjointly commit or persons conjointly committee or attempting to commit robbery, and the persons present and aiding such commission or attempt, amount to five or more, every person so committing, attempting or aiding, is said to commit dacoity. In the facts of the case, as discussed in the preceding para of the judgment, the charge under Section 395 qua accused no.5 Lata @ Muskan has not been believed and she has been acquitted of all the charges. In such circumstances, the offence under Section 395 can be committed only if the number of persons in the robbery is not less than five, and therefore, so far as the appellants are concerned, they cannot be held guilty for the offence of dacoity because number of accused is less than five". 

The court however held that though the charge against the accused under Section 395  was not proved, but as robbery was already there thus the charge under Section 392 (punishment of robbery) had been established by the prosecution "beyond all reasonable doubt". 

Facts Of The Case

According to the prosecution, the complainant Prakash Patel was travelling from Ahmedabad to Nadiad on his motorcycle when accused Lata @ Muskan sought a lift. The complainant alleged that after being lured to a secluded place near Hari Om Ashram, four other accused arrived in an Indica car. They impersonated officers of the Local Crime Branch, accused him of forcing Lata to have sex with him, assaulted him with a stick, and demanded ₹50,000 for “settlement.” They allegedly took ₹300, his driving licence and mobile phone.

While proceeding towards Ahmedabad to arrange the balance amount of the “settlement”, the car was intercepted by real LCB police officials during vehicle checking, leading to registration of the FIR.

After the chargesheet and during the trial, original accused no.1 – Vishal Somchandra Shah and original accused no.3 – Mehmud Pathan passed away. The trial of the case proceeded against original accused nos.2, 3 and 4 namely Mahendrapratap Rajput, Kehul Kantilal Shah and Lata @ Muskan Laxmandas Santvani. 

The Sessions Court convicted three accused under Sections 170 (personating a public servant), 419 (cheating by personation) and 395 (dacoity) read with Section 114 (abetment) IPC and sentenced them to five years' rigorous imprisonment for dacoity. The woman accused was convicted only under Section 395 (dacoity) IPC.

Submissions

Appearing for the accused,  Ashish M. Dagli, J.K. Parmar and Jigar Salvi contended that the prosecution case rested primarily on the testimony of the complainant. Further, no Test Identification Parade (TIP) was conducted, and the essential ingredients of dacoity were not satisfied. It was further argued that the woman accused had no prior association with the co-accused and that her mere presence did not establish common intention or participation.

The defence also pointed to alleged delay in lodging the FIR and contended that the investigation was defective, including failure to produce relevant papers under Section 41(1)(d) CrPC.

Opposing the appeals, APP Mr. Bhargav Pandya submitted that the complainant was an injured witness whose testimony was corroborated by police officials who caught the accused red-handed. He argued that the impersonation, assault and extortion attempt clearly made out offences under Sections 170 and 395 IPC, and sought enhancement of sentence considering the seriousness of the crime.

High Court's Findings

The Court found the complainant's version reliable and corroborated by independent police witnesses who intercepted the vehicle. It held that the accused had clearly impersonated public servants and thereby committed an offence under Section 170 IPC.

However, regarding the woman accused, Lata, the Court observed, “…there is nothing brought on record by the prosecution to establish that she was in any manner associated with the co-accused for the purpose of robbery. In such circumstances, the evidence on record… create(s) a doubt o(n) her involvement in commission of the offence of robbery… the charge against the accused no.5 has not been proved beyond reasonable doubt by acceptable and convincing evidence.”

There was no material such as call records or other evidence to show that she had lured the complainant as part of a conspiracy. Accordingly, the Court acquitted her of the charge of abetting the dacoity.

Further, on the issue of dacoity, the Court noted that after acquitting Lata, the number of persons involved fell below five, which is the statutory minimum as provided under Section 391 IPC for dacoity. Consequently, conviction under Section 395(punishment for dacoity) IPC could not be sustained.

The Court also rejected the argument regarding absence of Test Identification Parade, observing that identification in court was reliable in the facts, as the complainant had remained in the company of the accused for 2–3 hours in broad daylight.

On sentence, the Court declined to extend the benefit of probation, noting the seriousness of impersonating police officials and robbing members of the public. However, it reduced the sentence from five years under Section 395 IPC to two years' rigorous imprisonment under Section 392 (robbery) IPC.

The court also dismissed the State's appeal for enhancement of sentence. 

Appeals filed by co-accused Mahendra Rajput and Kehul Kantial Shah were partly allowed. 

Case Title: State of Gujarat v. Vishalkumar Somchandra Shah & Ors. and Batch

Case No.: Criminal Appeal No. 1345 of 2013 and connected appeals

Appearance:

Mr. Ashish M. Dagli for the Appellant in Criminal Appeal No. 1345 of 2013

Mr. J.K. Parmar for the Appellant in Criminal Appeal No. 1516 of 2013

Mr. Jigar Salvi for the Appellant in Criminal Appeal No. 1160 of 2013

Mr. Bhargav Pandya, APP for the Respondent–State of Gujarat

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