Page 1

1

                                                                                                   [ REPORTABLE ]

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL No…505…/2015 (arising out of SPECIAL LEAVE PETITION (Crl) No. 1873/2011)

Manmeet Singh Alias Goldie ……..Appellant

Vs.

State of Punjab        ……Respondent

J U D G M E N T

Amitava Roy,J.

Leave granted.

2. The instant appeal launches a challenge to the conviction of  

the appellant herein under section 396 of the Indian Penal Code  

(for short hereinafter referred to as the “Code”)  for committing  

dacoity  as  well  as  murder  of  one  Mohinder  Singh  and  the  

consequential  sentence  of  imprisonment  for  life  and  fine  of  

Rs.3,000/-,  in  default  of  further  rigorous  imprisonment  for  two  

months  held  out  by  the  judgment  and  order  dated  17.1.2007  

passed in Sessions Case No.RT-4/15.3.05/17.5.05 by the learned

Page 2

2

Additional  Sessions  Judge,  Rupnagar  and  affirmed  by  the  

judgment and order dated 1.11.2010 rendered by the High Court  

of Punjab and Haryana at Chandigarh in CRLA No.133/2007.

3. We have heard the learned counsel for the parties.

4. Stated briefly, the prosecution case is traceable to the First  

Information Report (for short the “FIR”) lodged with Morinda Police  

Station  on  28.05.2004.   The  FIR  disclosed  that  the  informant,  

Gursatinder Singh had lodged it on the date of the incident i.e.  

28.0.5.2004  contending  that  he  along  with  Mohinder  Singh,  

Cashier,  Surinder  Pal,  Accountant  City  Sub-Division,  PSEB  and  

Balbir  Singh,  Cashier  at  about  11.00  a.m.  had  travelled  in  a  

Matador  vehicle  No.PB-11-6119  driven  by  Gurcharan  Singh  to  

collect the salary of the employees from the State Bank of Patiala,  

Kharar Branch and that in due course an amount of Rs. 7,78,156/-  

was  collected  from  the  bank  and  put  in  a  green  colour  bag.  

According to the informant, an amount of Rs. 7,18,715/- towards  

salary of the City Sub-Division was put in another bag and both  

the bags were taken in the Matador vehicle.  At 2.30 p.m. when  

the  party  reached  the  Suburban  Sub  Division  Office,  Morinda,

Page 3

3

Mohinder Singh, Cashier alighted from the vehicle with the bag  

containing Rs.7,78,156/-.  It was then, according to the informant,  

that a gentleman aged about 25/30 years with Mulla looks and  

wearing a cap confronted him (Mohinder Singh) with a pistol like  

article in his hand and tried to snatch the bag of money from him.  

It was stated further that as Mohinder Singh resisted, the intruder  

fired from his pistol for which he (Mohinder Singh) fell down.  The  

shot had injured him on the left side of his chest.  The assailant  

then carried the bag of money on a Bajaj Chetak Scooter No.5648  

along with another young man of the same age who was standing  

nearby.  The informant mentioned that both the persons then in  

the scooter  drove towards Kurali.   That  he raised an alarm on  

which people gathered and thereafter Mohinder Singh was taken  

to the Government Hospital, Morinda where he was declared dead  

was also stated.  In the FIR the informant did not name any of the  

offenders but claimed that he would be able to identify the two  

persons.

5. On the basis of the recorded statement of Gursatinder Singh  

son  of  Jit  Singh,  Accountant,  Sub  Division,  Morinda,  the  

information was registered as FIR No.69 dated 28.05.2004 under

Page 4

4

section  302/397/34  IPC  and  24/25/29  of  Arms  Act  and  on  the  

completion of the investigation,  a charge sheet was laid under  

Section 173 of the Cr.P.C..  On the completion of the committal  

proceedings, five accused persons including the appellant were  

sent up for trial.   At the trial before the learned Addl. Sessions  

Judge,  Rupnagar  in  the  aforementioned sessions  case,  charges  

were framed as hereunder:

“That you Satnam Singh, Sukhwinder Singh,  Malkiat Singh, Manmeet Singh, Balwinder Singh  along with Gurcharan Singh (Proclaimed offender  vide Order  dt.30.11.2004)  on 28.5.2004 in  the  area of Morinda agreed to do an illegal act i.e. to  commit  dacoity  or  to  commit  murder  and  in  pursuance of that agreement you all the above  said  accused  committed  the  dacoity  of  Rs.  7,78,156/-  and  committed  the  murder  of  Mohinder Singh and thereby you all committed  an  offence  punishable  under  Section  120-B  of  the IPC and within my cognizance.

Secondly, on the same date and time you all  the accused namely Satnam Singh, Sukhwinder  Singh, Malkiat Singh, Manmeet Singh, Balwinder  Singh and Gurbachan Singh  were present near  Suburban Office PSEB Morinda and you accused  Malkiat Singh in furtherance of common object  of  you  co-accused  committed  the  murder  by  intentionally  causing  the  death  of  Mohinder  Singh  and  thereby  you  accused  Malkiat  Singh  committed an offence punishable under section  302 of the IPC whereas your co-accused Satnam  Singh,  Sukhwinder  Singh,  Manmeet  Singh,

Page 5

5

Balwinder Singh and Gurbachan Singh (P.O) have  committed an offence punishable under section  302 of IPC read with section 149 of the IPC, and  within my cognizance.

Thirdly,  on the same date,  time and place  you  all  the  accused  namely  Satnam  Singh,  Sukhwinder  Singh,  Malkiat  Singh,  Manmeet  Singh,  Balwinder  Singh  and  Gurbachan  Singh  (P.O) committed dacoity by using deadly weapon  i.e.  revolver  32  bore  and  snatched  a  sum  of  Rs.7,78,156/-  from the possession  of  Mohinder  Singh  and  thereby  you  all  the  above  said  accused have committed an offence punishable  under  section  397  of  the  IPC  and  within  my  cognizance.”

6. All the persons who had been sent up for trial, namely the  

appellant Manmeet Singh alias Goldie, Satnam Singh, Sukhwinder  

Singh,  Malkiat  Singh  and  Balwinder  Singh  denied  the  charges.  

The prosecution examined 27 witnesses including the Doctor who  

had conducted the post-mortem examination on the dead body of  

Mohinder  Singh  and  the  investigating  officer.  It  projected  PW1  

Gursatinder Singh the informant, PW3 Gurcharan Singh the driver  

of  the  vehicle  and  PW4  Balbir  Singh,  Cashier,  to  be  the  eye  

witnesses of the incident.  The incriminating evidence brought on  

record  by  the  prosecution  was  then  explained  to  the  accused  

persons who in their statements under Section 313, Cr.P.C. stood

Page 6

6

by their denial of the charges and the accusations made against  

them.   They  thereafter  examined  13  witnesses  in  defence  

principally  trying to explain the varying sums of  money seized  

from  them  by  the  police  in  course  of  the  investigation.   The  

learned trial court on the evidence on record and after hearing the  

learned  counsel  for  the  parties  convicted  and  sentenced  the  

appellant  as above but  acquitted the four  co-accused persons.  

The appeal filed by the appellant from the decision however stood  

dismissed,  as  herein  before  mentioned.   The  appellant  in  his  

relentless pursuit for redress is thus before this Court.   

7. Mr.  Huzefa  Ahmadi,  the  learned  senior  counsel  for  the  

appellant  has  emphatically  argued  that  having  regard  to  the  

charges framed and the evidence adduced by the prosecution,  

conviction of the appellant in no way is permissible under Section  

396 of the IPC and thus he is entitled to be acquitted.  According  

to  the  learned  senior  counsel,  in  the  face  of  the  essential  

ingredients of an offence under section 396, IPC, in absence of  

any  evidence  or  finding  that  the  alleged  offence  had  been  

committed on the basis of a conspiracy and perpetrated   by five

Page 7

7

or more persons as charged, the appellant could not have been  

convicted of the said offence in the teeth of the acquittal of the  

four co-accused persons.  Mr. Ahmadi has urged that not only the  

prosecution has failed to identify the perpetrators of the alleged  

offence  through  an  identification  test  parade  or  otherwise,  it  

having failed to adduce any direct  and convincing evidence to  

establish that the appellant was the assailant, his conviction, if  

allowed to stand, would result in travesty of justice.  The learned  

senior counsel maintained that it being apparent from the findings  

recorded by the learned trial court that the prosecution had failed  

to  connect  the  other  four  co-accused  persons  with  the  crime  

involved,  it  was  impermissible  in  law  to  convict  the  appellant  

under section 396, IPC as no independent charge under section  

302 had been framed against him. Having regard to the state of  

evidence on record, the learned trial court has grossly erred in law  

and on facts in convicting the appellant under the said provision  

of the Code, he urged.  Without prejudice to these, the learned  

counsel insisted as well that the prosecution had failed to adduce  

any  cogent  or  reliable  evidence  to  prove  any  of  the  charges  

against the persons on trial and thus the impugned conviction of

Page 8

8

the appellant and the sentence awarded ought to be interfered  

with in the interest of justice.  Reliance has been placed on the  

decisions of this Court in endorsement of the above on Ram Bilas  

Singh & Ors. Vs. The State of Bihar 1964 (1) SCR 775 and Raj  

Kumar vs. State of Uttaranchal 2008(11) SCC 709.

8. Per contra, the learned counsel for the State has argued that  

the complicity of the appellant having been unmistakably proved  

by  the  witnesses  PW1,  PW3  and  PW4,  his  conviction  is  

unassailable in law.  While contending that the evidence on record  

does prove the charges against all the five persons including the  

appellant,  he  has  urged  that  in  any  view  of  the  matter,  the  

participation of all of them in the offence can, by no means, be  

ruled out.  According to him therefore, in view of the concurrent  

findings recorded by the learned trial court and the High Court of  

Punjab and Haryana, no interference is warranted.

9. We  have  carefully  weighed  the  rival  submissions.   In  the  

normal course, in the face of concurrent findings, this Court would  

have been disinclined to advert to the evidence bearing on the  

essential factual aspects, but having regard to the grounds urged

Page 9

9

on  behalf  of  the  appellant,  it  construed  it  to  be  expedient  to  

undertake the exercise to the extent necessary.  This is more so  

as the appellant has been sentenced to undergo imprisonment for  

life.

10. The  testimony  of  PW1 Gursatinder  Singh  is  in  substantial  

reiteration of his account of the incident, as narrated in the FIR.  

He, however, did add in his deposition at the trial that he did not  

know the name of the two accused persons, but would be able to  

identify  them.   In  Court,  he indeed identified  the appellant.  In  

cross-examination this witness, inter-alia, stated that he had been  

shown the bag and the pistol but denied to have been shown any  

cartridge/bullet.  He stated that at the time of the preparation of  

the memo pertaining to the pistol,  Sukhwinder  Singh was also  

present.   He too affirmed that  in  the Matador  vehicle,  he had  

travelled  along  with  Mohinder  Singh,  Darshan  Singh  and  

Gurcharan Singh, the driver. He stated as well that there was no  

scuffle between the assailant and the deceased and admitted that  

the occurrence took place near the front window of the matador  

vehicle.  

Page 10

10

10 A. The statement of PW2 Sukhwinder Singh is to the  

effect  that  on the same day,  when he was  coming back from  

different villages, where he had gone for distribution of electricity  

bills, he at about 2.45 p.m. had seen one white Maruti car  with  

three persons standing nearby of whom one was wearing a cap  

and  the  others  were  sikh  gentlemen.   According  to  him,  the  

scooter on which he was travelling developed a snag for which he  

stopped and that  in  course of  his  halt  there he overheard the  

conversation of the persons over some delay.  The witness stated  

that then one Bajaj scooter did come from the Morinda side and  

two persons alighted whereafter all left in the car towards village  

Rangian.   This  witness  at  the  trial  did  identify  four  accused  

persons but was doubtful about the fifth, Malkiat Singh.  

10 B. PW3 Gurcharan  Singh  stated  that  he  had  driven  the  

vehicle to the State Bank of Patiala, Kharar Branch to collect the  

salary  amount  therefrom  about  11.00  a.m.  on  the  date  of  

incident.  According to him, they started from the bank with the  

cash put in a bag.  He stated that Mohinder Singh was sitting on  

the  back  seat  of  the  vehicle  and  that  one  bag  was  with

Page 11

11

Gursatinder  and the other  with Balbir  Singh.   According to the  

witness, he stopped the van at the office of the Suburban Sub  

division of main Morinda Kharar road.  Mohinder Singh alighted  

from the vehicle and Gursatinder gave him one bag containing  

cash and at that point of time two persons made an attempt to  

snatch the bag from Mohinder Singh and as the latter resisted  

there was a scuffle and he fell down.  The witness stated that the  

two  persons  then fired  from a  revolver  which  struck  Mohinder  

Singh on the left side of the chest.  Though this witness identified  

the appellant in Court, he could not identify the others.  He stated  

further that he did not know as to what had happened with the  

bag which Mohinder Singh had been carrying.  

11. PW4 Balbir Singh who at the relevant time was the Cashier,  

City Sub Division PSEB, stated on oath that he was a member of  

the party that had travelled in the Matador vehicle bearing No.PB-

11-6119 of which Gurcharan Singh was the driver.  He similarly  

stated that when the vehicle returned after carrying the cash for  

the salary of the employees and had stopped at the Suburban Sub  

Division  at  about  2.30 p.m.,  Mohinder  Singh alighted from the  

vehicle with a bag containing money.  According to this witness,

Page 12

12

Gursatinder Singh did also disembark and that at that point of  

time one person tried to snatch the bag from Mohinder Singh and  

when he resisted he was fired at by the assailant.  This witness  

stated that the assailant was alone.  He however stated that after  

the  assault  he  along  with  another  person  drove  away  on  the  

scooter  Kurali  side.   In  the  course  of  the  trial,  the  witness  

identified  the  appellant  but  failed  to  recognize  the  others.   In  

cross-examination,  this  witness  admitted  that  he did  not  know  

accused Manmeet Singh by name and that he had not seen him  

before the incident. He admitted as well  that he had seen him for  

the first time in Court.

12. Though as many as 27 witnesses in all had been examined  

by the prosecution, except the evidence of PW14, the Doctor who  

had conducted the autopsy,  PW18 SI Gurbachan Singh, PW19 ASI  

Tara Singh and PW21 SI Balwant Singh, the investigating officer,  

that of others is not of any decisive significance.

13. PW14  in  his  testimony,  referring  to  the  post-mortem,  did  

opine that there was “a punctured wound on the left side of the  

sternum, 2 cm away with margin inveterate charred black in 4

Page 13

13

and 5th intercosted space”. According to him, the cause of death  

was  bullet  injury  causing  haemorrhage  shock  and  death  with  

heart failure and that the injury was ante mortem in nature.

14. PW18 S.I. Gurbachan Singh, is the witness to the disclosure  

statements made by the appellant and Malkiat Singh on the basis  

whereof certain amounts were recovered from the possession of  

the accused persons.

15. PW21 S.I. Balwant Singh, the investigating officer, mentioned  

about the report made to him by Sanjiv Joshi on 30.07.2004 that  

he had overheard one person talking on telephone at  the Bus  

Stand Morinda that whenever he would give a missed call,  the  

other side should understand that the car carrying cash of the  

Electricity Board had started from Kharar.

16. According  to  this  witness  acting  on  this  information,  

Gurbachan Singh and thereafter Satnam Singh and Sukhwinder  

Singh were arrested.  Further on 5.8.2004 from Balwinder Singh  

an  amount  of  Rs.20,000/-  was  recovered.  This  witness  further  

stated that  on 8.8.2004,  Sanjiv  Joshi  identified all  the accused  

persons.  He  further  stated  that  on  11.8.2004  a  scooter  and a

Page 14

14

revolver was seized.  He also stated that the accused Balwinder  

Singh,  Satnam  Singh,  Manmeet  Singh  and  Malkiat  Singh  had  

admitted their involvement in various similar such incidents.

16 A. Sanjiv  Joshi,  PW25,  in  his  testimony  however  

stated that on 28.5.2004 while he was standing near the State  

Bank of Patiala, Kharar Branch, one Maruti car bearing No.PB-10X  

1665 was parked nearby and one sikh gentleman having beard  

was  present  there  and  was  talking  on  a  mobile  phone.  This  

witness  stated  that  the  sikh  gentleman  conveyed  through  his  

phone that  he would  give  three missed calls  once the vehicle  

carrying the money of PSEB would start.  This witness deposed  

that when he came to know about the incident after 2/3 months,  

he passed on this information to the Police Station.  Noticeably,  

this  witness  did  omit  to  give  the  identification  of  the  accused  

persons.

17. The learned trial court to reiterate, after a due appraisal of  

the  evidence  on  record  concluded  that  the  recovery  of  the  

different amounts of money from the accused persons was not  

only not in consonance with the disclosure statements but also

Page 15

15

did not establish any nexus with the offence in absence of the  

identification of the currency notes with those delivered by the  

bank.   The  evidence  of  the  defence  witness  explaining  the  

circumstances  under  which  these  amounts  had  remained  

deposited  with  them  was  also  taken  note  of  in  reaching  this  

conclusion.  The  learned  trial  court  rightly  discarded  the  

statements of the accused persons to the effect that the amount  

recovered had been the booty of the dacoity being inadmissible  

under section 27 of the Indian Evidence Act, 1872. It rejected as  

well  the  test  identification  parade  conducted  in  course  of  the  

investigation being flawed for various legal infirmities. It recorded  

too  that  the  witnesses  had  not  been  able  to  disclose  the  

registration numbers of the scooter or the car referred to in their  

evidence and also noticed the contradictions in the registration  

number of  the scooter  used in  the commission of  the offence.  

The seizure of the revolver was also rejected to be of no probative  

value vis-à-vis the offence alleged.

18. The testimony of PW2 was also disregarded as not believable  

to connect the accused persons with the crime. It, however, acted  

on the testimony of PW1, PW3 and PW4 at the trial to conclude

Page 16

16

that the appellant had entered into a scuffle with the deceased  

and had eventually shot at him.  The trial court thus returned a  

finding that the prosecution could connect only the appellant with  

the offence and none other.  It thus, as a corollary, recorded that  

conspiracy had not been made out.  The appellant was convicted  

and sentenced in this background. The High Court affirmed in toto  

the analysis of the evidence as undertaken by the learned trial  

court and its ultimate conclusions in all respects.

19. A plain perusal  of  the charges framed would demonstrate  

that whereas all the accused persons had been indicted for the  

offence  of  conspiracy  under  section  120-B,  IPC  and  of  murder  

under Section 302,IPC read with section 149 of the Code, accused  

Malkiat Singh was exclusively charged for murder under section  

302  IPC.   All  of  them,  additionally  were  arraigned   for  having  

committed the offence punishable under section 396 as well.

20. It  is  thus  patent  that  the  accused  persons  including  the  

appellant, in terms of the charge so framed could be convicted, if  

proved, for the offences under section 120B, 302, 396 IPC.

Page 17

17

21. Both the courts below have concluded that the prosecution  

had  failed  to  prove  the  charge  of  conspiracy  and  had  in  fact  

unreservedly  recorded  that  the  other  four  co-accused  persons  

could  not  be  connected  with  the  offences  charged.   On being  

queried  by  us  the  learned  counsel  for  the  State  has  fairly  

conceded that the State of Punjab has not preferred any appeal  

against the acquittal of the four co-accused persons.  It has thus  

accepted the verdict of the learned courts below in this regard.  

The  acquittal  of  these  four  co-accused  persons  for  lack  of  

evidence  about  their  identification  and  participation  in  the  

commission of the alleged offence has thus become final.

21 A. On  an  assessment  of  the  entire  gamut  of  the  

evidence  on  record,  the  inescapable  conclusion  is  that  the  

prosecution has failed to prove either the identification of the four  

co-accused  persons  or  their  involvement  in  the  offences  as  

members of the assembly for the offence of dacoity with murder.  

The evidence of PW1, PW3 and PW4 if read together also does not  

unimpeachably  prove that  the appellant  was the assailant  and  

that he had fired from the pistol in his possession at Mohinder  

Singh.  Their evidence in fact is contradictory in material terms.

Page 18

18

Not only the informant, at the time of the incident, did not know  

the appellant by his name, admittedly it was for the first time that  

he claimed to identify him in Court at the trial.  The same is the  

state of PW3 and PW4 as well.   

21 B. To reiterate, the test identification parade held by the  

investigating  agency  had been discarded and rightly  for  being  

vitiated by contraventions of procedural safeguards mandated by  

law.  There  is  thus  no  direct  evidence  as  well  to  establish  the  

culpability of the appellant qua any of the offences.  As a matter  

of fact, the evidence of the above eye witnesses does not indicate  

the involvement of five or more persons in the perpetration of the  

crime. With the failure of the State to prefer an appeal against the  

acquittal of the four co-accused persons, the finding to this effect  

has  also  become final  and  binding.  There  is  no  overwhelming  

evidence to the contrary to overturn the concurrent findings of  

the courts below on the failure of the prosecution to prove for  

participation of  five or  more persons in  the commission of  the  

alleged offences.

Page 19

19

22. Section 391,IPC defines dacoity to be an offence, if five or  

more persons conjointly commit or  attempt to commit a robbery  

or where the whole number of persons conjointly committing or  

attempting to commit a robbery and persons present and aiding  

such commission of attempt, amount to five or more.  In terms of  

section  391,IPC  in  such  an  eventuality  every  person  so  

committing,  attempting  or  aiding  is  said  to  commit  dacoity.  

Section  396  which  comprehends  dacoity  with  murder  is  a  

contingency  where  one  of  the  five  or  more  persons  who  are  

conjointly committing dacoity, commits murder in so committing  

dacoity.  In  such  a  case,  every  one  of  those  persons  shall  be  

punished  with  death  or  imprisonment  for  life  or  rigorous  

imprisonment for a term which may extend to 10 years and would  

also be liable to pay fine.

23. A combined reading of section 391 and 396, IPC would bring  

to the fore, the essential pre-requisite of joint participation of five  

or more persons in the commission of the offence of dacoity and if  

in  the  course  thereof  any  one  of  them  commits  murder,  all  

members of the assembly, would be guilty of dacoity with murder  

and would be liable to be punished as enjoined thereby.

Page 20

20

24. Axiomatically,  thus,  the  indispensable  pre  condition  to  

perceive  an  offence  of  dacoity  with  murder  is  a  participating  

assembly  of  five  or  more  persons  for  the  commission  of  the  

offence.   In  absence of  such  an  assembly,  no  such  offence is  

made  out  rendering  the  conviction  therefor  of  any  person  in  

isolation  for  murder,  even  if  proved,  impermissible  in  law.   To  

convict  such a person of the offence only of murder,  if  proved  

otherwise, there ought to be specific charge to that effect.

25. This Court in  Ram Bilas Singh & Ors. Vs. The State of  

Bihar 1964 (1) SCR 775 while dilating on the scope and purport  

of Section 149 of the IPC had held:

“What has been held in this case would apply  also to a case where a person is convicted with the  aid  of  s.149,  Indian  Penal  Code  instead  of  s.34.  Thus  all  the  decisions  of  this  court  to  which  we  have referred make it clear that it is competent for  a court to come to the conclusion that there was an  unlawful assembly of five or more persons, even if  less than that number have been convicted by it if  (a) the charge states that apart from the persons  named,  several  other  unidentified  persons  were  also  members  of  the  unlawful  assembly  whose  common object was to commit an unlawful act and  evidence led to prove this is accepted by the court;  (b)  or  that  the  first  information  report  and  the

Page 21

21

evidence shows such to be the case even though  the charge does not state so, (c) or that though the  charge and the prosecution witnesses named only  the acquitted and the convicted accused persons  there  is  other  evidence  which  discloses  the  existence of named or other persons provided, in  cases (b) and (c), no prejudice has resulted to the  convicted  person  by  reason  of  the  omission  to  mention  in  the  charge  that  the  other  unnamed  persons had also participated in the offence.”

26. Their Lordships thus enunciated, on an exhaustive survey of  

the judicial renderings  on the issue that it is competent for a  

Court to come to the conclusion that there had been an unlawful  

assembly  of  five  or  more  persons  and  yet  convict  a  lesser  

number  of  persons  if  the  charge  stated  that,  apart  from  the  

persons  named,  several  other  unidentified  persons  were  also  

members of the unlawful assembly whose common object was to  

commit an unlawful  act and that the evidence led to prove the  

same is accepted by the Court or if  the FIR and the evidence  

shows such to be the case even though the charges does not  

state  or  if  though  the  charge  and  the  prosecution  witnesses  

named only the acquitted  and convicted persons, there is other  

evidence  which  disclosed  the  existence  of  named  or  other  

persons  provided,  that  in  the  last  two  contingencies,   no

Page 22

22

prejudice would result to the convicted persons by the reason of  

omission  to  mention in  the  charge  that  the  other   unnamed  

persons had also participated in the offence.

27. With reference to the offence of dacoity under section 391,  

IPC in particular and the import of section 149, IPC, this Court in  

Raj Kumar vs. State of Uttaranchal 2008 (11) SCC 709 had  

propounded that in absence of a finding about the involvement of  

five or more persons, an accused cannot be convicted for such an  

offence.  Their Lordships, however, clarified that in a given case it  

could happen that there might be five or more persons and the  

factum  of  their  presence  either  is  not  disputed  or  is  clearly  

established, but the Court may not be able to record a finding as  

to their identity resulting in their acquittal as a result thereof.  It  

was held that in such a case, conviction of less than five persons  

or even one can stand, but in the absence of a finding about the  

presence or participation of five or more persons, less than five  

persons cannot be convicted for an offence of dacoity.

27 A. The  above  pronouncements  do  acknowledge  the  

extension of the concept of collective culpability   enshrined in

Page 23

23

section 149, IPC in section 396, IPC contemplating murder with  

dacoity.  An assembly of five or more persons participating in the  

offence is thus the sine qua non for an offence under section 396,  

IPC permitting conviction of any one or more members thereof  

even if others are acquitted for lack of their identity.  In absence  

of such an assembly of five or more persons imbued with the  

common object of committing dacoity with murder, any member  

thereof cannot be convicted for the said offence irrespective of  

his/her  individual  act  of  murder  unless  independently  and  

categorically charged for that offence.

28. As  adverted  to  hereinbefore  above,  the  prosecution  has  

completely  failed  in  the  instant  case  to  either  prove  the  

participation of five or more persons in the commission of the  

offence  or  establish  their  identity.  In  that  view  of  the  matter  

having regard to the above principle of law as authoritatively laid  

down by this Court and in absence of a singular charge under  

section 302, IPC against the appellant sans the assembly, we are  

of  the  unhesitant  opinion  that  his  conviction  for  dacoity  with  

murder  punishable  under  section  396,  IPC,  in  the  facts  and  

circumstances  of  the  case,  cannot  be  sustained  in  law.   The

Page 24

24

attention of the courts below we understand had not been drawn  

to this vital and determinative facet of the case.   

29. Be that as it may, in our considered view, the conviction and  

sentence of the appellant being repugnant to letter and spirit of  

section 391 and 396 of the IPC, the same is liable to be interfered  

with.  We order accordingly.

30. The appeal is thus allowed and the impugned judgments and  

orders are hereby set aside.  The appellant is acquitted of the  

charges and is hereby ordered to be set at liberty forthwith.  The  

lower courts records be transmitted immediately for necessary  

follow up steps.      

…………………………………J. (M.Y.Eqbal)

…………………………………J. ( Amitava Roy)

New Delhi, Dt. March 24, 2015