Allahabad High CourtRama Shanker And Anr. vs State Of U.P. on 19 July, 2022Bench: Samit GopalHIGH COURT OF JUDICATURE AT ALLAHABAD\n \n \n\n\n \nReserved on 18.05.2022\n \nDelivered on 19.07.2022\n \n\n \nCourt No. - 91\n \n\n \nCase :- CRIMINAL APPEAL No. - 2269 of 1982\n \n\n \nAppellant :- Rama Shanker And Anr.\n \nRespondent :- State of U.P.\n \nCounsel for Appellant :- M.C. Agarwal,Bhavya Sahai,Keshav Sahai,Praveen Kumar Pandey,Sagar Vaish,Satish Kumar Tiwari\n \nCounsel for Respondent :- A.G.A.\n \n\n \nHon'ble Samit Gopal,J.1.	The present criminal appeal has been preferred underSection 374Cr.P.C. by Rama Shanker son of Ram Soorat and Asghar son of Akbar Ali against the judgment and order dated 25.08.1982 passed by 5th Additional District and Sessions Judge, Ghaziabad in Sessions Trial No. 204 of 1981 convicting and sentencing the appellants underSection 395IPC to five years rigorous imprisonment along with fine of Rs. 2,000/- each and in default of payment of fine, six months further rigorous imprisonment. The trial court has given the set off to the accused under Section 428 Cr.P.C.The appellant no.1/Rama Shanker was acquitted of the charges levelled against him underSection 397IPC andSection 25/4of the Arms Act. The appellant no.2/Asghar was acquitted of the charges levelled against him underSections 397and412IPC.2.	The First Information Report of the present case was lodged on 26.02.1981 at about 10:05 pm at Police Station Sihani Gate, District Ghaziabad by Gyan Chand PW-1 who gave Tehrir which is Exb: Ka-1 for the same.3.	The First Information Report was lodged as Case Crime No. 114 of 1981, underSection 395IPC against Rama Shanker, Santram, Nanhey, Hari Shanker, Asghar, Yunus and Bhagat Majdoor and Asghar and Case Crime No. 115 of 1981, underSection 25/4of the Arms Act against Rama Shanker stating therein that the first informant is an Accountant in Sri Prabhu Dayal Singh & Sons Adhti. The material of the firm used to go to Delhi for which he used to go to take money on Thursday. On 26.02.1981, he relised Rs. 86,500/- from Delhi Sharda Nand Market Paharganj Sabji Mandi and had come to Ghaziabad on train. At about 09:00 pm as soon as he reached near the house of Prabhu Dayal Singh in Mohallah Mukund Nagar, House No. 241, around 150 yards away from the said place, seven persons came, from whom, one person put a knife on his neck and the packet from his hand containing Rs. 86,500/- was snatched forcibly. He raised a shout on which Surjeet Singh, Jodh Singh, Jogendra Singh, Sukh Dayal Singh and many other persons reached the place. All the persons collectively apprehended one miscreant along with a knife but the other persons ran away along with money who have been identified by them in the light of electricity present in the lane who can be identified if brought before him. A person was apprehended who disclosed his name as Rama Shanker. He further discloses the names of his companions who ran away as Santram, Nanhey, Hari Shanker, Asghar, Yunus and Bhagat Singh Majdoor and stated that they all are labourers in Delhi. The First Information Report be thus lodged. A person apprehended along with a knife has been brought to the Police Station. Tilak Ram Verma is the scribe of the said First Information Report.4.	G.D. No. 53 dated 26.02.1981 Police Station Sihani Gate, District Ghaziabad was transcribed at about 22:05 hrs with regards to the apprehended accused. Since, he was apprehended along with a knife, a First Information Report was lodged under theArms Actsimultaneously. The said G.D. entry is Exb: Ka-7 to the records.5.	A recovery memo of the alleged recovered knife was prepared on 26.02.1981 by Tilak Ram Verma Head Constable of which Prabhu Dayal Singh, Jodh Singh, Jogendra Singh and Gyan Chand were the witnesses. The same is Exb: Ka-2 to the records.6.	Further, on 05.03.1981 accused Asghar was taken for recovery and it is alleged that the some currency notes wrapped in a polythene, were got recovered on his pointing out from a pit in the field of Hasib son of Durjan. The said alleged recovered notes were 3 notes of Rs. 100/-, 2 notes of Rs. 50/-, 33 notes of Rs. 20/-, 139 notes of Rs. 10/-, 106 notes of Rs. 5/- and 60 notes of Rs. 2/- thereby aggregating to Rs. 3,100/-. A recovery memo to the same was prepared by Constable 731 Deep Narayan Tiwari which is Exb: Ka-3 to the records. The witnesses to the said recovery were Raghunath Singh S.H.O., Gauri Shanker of village Benipur, P.S. Mankapur, District Gonda, J.P. Singh, Sub-Inspector, Head Constable 667 Hari Nath Pandey and Constable 731 Deep Narayan Tiwari who transcribed the said recovery memo.7.	The investigation concluded and a charge sheet no.26 dated 09.04.1981 was submitted against Rama Shanker only in Case Crime No. 114 of 1981, underSection 395IPC. The same is Exb: Ka-12 to the records.Further, a charge sheet no.27 dated 09.04.1981 was submitted against Rama Shanker in Case Crime No. 115 of 1981, underSection 25/4of the Arms Act. The same is Exb: Ka-13 to the records.8.	The Investigating Officer further submitted a charge sheet no.27-A dated 25.04.1981 in Case Crime No. 114 of 1981, underSection 395IPC against the accused-Nanhey and underSection 395/412IPC against accused Asghar. The same is Exb: Ka-14 to the records.9.	Vide order dated 02.12.1981 passed by the Additional Sessions Judge, Ghaziabad charges were framed against the accused Rama Shanker, Nanhey and Asghar, underSection 395IPC read withSection 397IPC.Further, against the accused Asghar charges were framed underSection 412IPC. The Court concerned further framed charges against Rama Shanker underSection 25/4of the Arms Act. The charges were read over to the accused who pleaded not guilty and claimed to be tried.10.	In so far as, Nanhey is concerned, he was acquitted of the charges levelled against him underSection 395IPC read withSection 397IPC andSection 412IPC. The remaining accused named in the First Information Report being Santram, Hari Shanker, Yunus and Bhagat Majdoor were exonerated during investigation.11.	A test identification parade was conducted in so far as the accused Nanhey and Asghar were concerned and they were put to test identification. The memo of the said test identification parade is Exb: Ka-16 to the records. They are said to be correctly identified by Sitaram Goswami PW-6.12.	Before the trial court, the prosecution examined total eight witnesses. Amongst them, Gyan Chand the first informant and the victim was examined as PW-1, Surjeet Singh who along with other persons is said to have apprehended Rama Shanker, was examined as PW-2, Raghunath Singh who is alleged to be an eye witness of arrest of Asghar was examined as PW-3, Gauri Shanker who is also said to be a witness of arrest of Asghar and recovery made on his pointing out, was examined as PW-4 and Sitaram Goswami an eye witness of the said incident, one of the persons who apprehended Rama Shanker and also a witness to the test identification parade was examined as PW-6, J.P. Singh Sub-Inspector was examined as PW-5 who arrested Asghar and the test identification parade is said to have been conducted in his presence, Head Constable Tilak Ram Verma was examined as PW-7 who transcribed the Chik FIR and Ram Kishan Verma Sub-Inspector was examined as PW-8 who was the Investigating Officer of the case and also was present at the time of the test identification parade.13.	Amongst the witnesses, Raghunath Singh PW-3 and Gauri Shanker PW-4 did not support the prosecution case and were declared hostile.14.	The accused Rama Shanker in his statement recorded underSection 313Cr.P.C. denied the prosecution case. He stated to have been falsely implicated in the present case. He further stated that he did not disclose any name of anyone.15.	The accused Asghar in his statement recorded underSection 313Cr.P.C. stated that the police had previously shown him to the witnesses at the Police Station and as such has challenged the credibility of the test identification parade. He has stated to produce his defence evidence.16.	The accused Mohd. Asghar produced Khalil Ahmad in his defence who was examined as DW-1. He stated that the money being Rs. 3,100/- was recovered from the house of Habeeb the maternal grandfather of Asghar. He proved the receipt books which is Exb: Kha-1 to 5, application given to the Superintendent of Police Exb: Kha-6, receipt of the same Exb: Kha-7 and the postal registration receipt Exb: Kha-8 of the same.17.	Heard Sri Praveen Kumar Pandey, learned counsel for the appellants and Sri B.B. Upadhyay, learned counsel for the State and perused the material on records.18.	Learned counsel for the appellants argued that the appellants have been falsely implicated in the present case. It is argued that the appellants have been convicted underSection 395IPC only which is illegal. It is argued that the trial court has erroneously convicted the appellants under the said sections as only two persons have been convicted which is illegal. It is argued that two persons cannot be convicted for the offence of dacoity which is being less than five persons which is an essential ingredients for the commission of dacoity.In support of his contention, he has relied upon the judgment of the Apex Court in the case of Manmeet Singh @ Goldie Vs. State of Punjab : (2015) 7 SCC 167, Raj Kumar @ Raju Vs. State of Uttranchal : (2008) 11 SCC 709 and Balbir and others Vs. State of U.P. : Criminal Appeal No. 648 of 1983 judgment and order dated 09.07.2020 passed by this Court. It is argued that in the said judgments, it has been in specific terms held that for attracting an offence underSection 395IPC the requirement is of five persons or more to have participated in the incident. It is argued that although in the present case, the First Information Report was lodged against seven persons, out of whom, three persons were put to trial whereas four persons were exonerated during investigation and even at this stage of trial, one accused namely Nanhey was acquitted of the charges levelled against him, the remaining accused were only two in number and as such they could not have been convicted underSection 395IPC as is the situation in the present case. It is argued that as such the conviction and sentence is illegal and the appeal deserves to be allowed and the appellants be acquitted of the charges levelled against them.19.	Learned counsel for the State on the other hand opposed the submission of learned counsel for the appellants and argued that the trial court after meticulous examination of evidence on record passed the judgment and order of conviction. In so far as, the appellant Rama Shanker is concerned, he was apprehended at the spot and then brought to the police station and as such his identity cannot be disputed as an accused in the matter. Further, in so far as, the accused Nanhey and Asghar are concerned, there has been a recovery of a part of the looted money on the pointing out of co-accused Asghar. Both the said persons were identified by Sitaram PW-6 in the test identification parade and as such even their identity also cannot be disputed. The appeal lacks merit and be dismissed.20.Section 391IPC defines "Dacoity", the same reads as under:-"391. Dacoity.--When 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 or attempt, amount to five or more, every person so committing, attempting or aiding, is said to commit "dacoity".21.Section 395IPC provides the punishment for dacoity which is reads as under:-"395. Punishment for dacoity.--Whoever commits dacoity shall be punished with imprisonment for life, or with rigorous imprisonnment for a term which may extend to ten years, and shall also be liable to fine."22.	The two judgments of the Apex Court as have been relied upon by the learned counsel for the appellants have been considered and relied upon in the judgment and order dated 09.07.2020 of this Court. This Court in the case of Balbir and others (supra) has held as follows:-"11. Supreme Court in Raj Kumar alias Raju (supra) has considered the issue in question in paras 21 and 35 of the judgment, which is relevant for present case and reproduced as under:"21. It is thus clear that for recording conviction of an offence of robbery, there must be five or more persons. In absence of such finding, an accused cannot be convicted for an offence of dacoity. In a given case, however, it may happen that there may be five or more persons and the factum of five or more persons is either not disputed or is clearly established, but the court may not be able to record a finding as to identity of all the persons said to have committed dacoity and may not be able to convict them and order their acquittal observing that their identity is not established. In such case, conviction of less than five persons--or even one--can stand. But in absence of such finding, less than five persons cannot be convicted for an offence of dacoity.""35. In the instant case, as observed earlier, there were six accused. Out of those six accused, two were acquitted by the trial court without recording a finding that though offence of dacoity was committed by six persons, identity of two accused could not be established. They were simply acquitted by the court. In our opinion, therefore, as per settled law, four persons could not be convicted for an offence of dacoity, being less than five which is an essential ingredient for commission of dacoity. Moreover, all of them were acquitted for an offence of criminal conspiracy punishable underSection 120BIPC as also for receiving stolen property in the commission of dacoity punishable underSection 412IPC. The conviction of the appellant herein for an offence punishable underSection 396IPC, therefore, cannot stand and must be set aside."(emphasis supplied)12. The above judgment has been followed by Supreme Court in subsequent judgment in Manmeet Singh alias Goldie (supra) and relevant paras 32, 33 and 34 of the judgment are as under:"32. With reference to the offence of dacoity undersection 391,IPCin particular and the import ofsection 149,IPC, this Court inRaj Kumar vs. State of Uttaranchal2008 (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.33. The above pronouncements do acknowledge the extension of the concept of collective culpability enshrined inSection 149IPC inSection 396IPC contemplating murder with dacoity. An assembly of five or more persons participating in the offence is thus the sine qua non for an offence underSection 396IPC 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.34. 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 underSection 302IPC against the appellant sans the assembly, we are of the unhesitant opinion that his conviction for dacoity with murder punishable underSection 396IPC, in the facts and circumstances of the case, cannot be sustained in law. The attention of the courts below we understand had not been drawn to this vital and determinative facet of the case."(emphasis supplied)13. From the above mentioned judgments, it is clear that in case there is a conviction of less than five persons underSections 395/397IPC, Trial Court must arrive to a finding that there was involvement of five or more persons. In absence of such finding no conviction could be made out under aforesaid Sections. As rightly pointed out by the counsel for appellants that Trial Court has not recorded any such finding in this regard and it simply mentioned in the judgment that "three accused, facing trial before me, were also alongwith dacoits who committed dacoity in the house of Raj Kumar" and "prosecution has successfully established that the three accused committed dacoity in the house of Raj Kumar in the night of occurrence". In my opinion, the above mentioned finding is not sufficient to conclude that five or more persons were involved in the offence and not sufficient to convict appellants, who are three in numbers under the offence of dacoity."23.	From the above facts and the legal position as is emerging out the requirement of conviction underSection 395IPC after reading the definition of dacoity as perSection 391IPC is not made out.24.	In the result, the appeal is allowed.25.	The judgment and order dated  25.08.1982 passed by 5th Additional District and Sessions Judge, Ghaziabad in Sessions Trial No. 204 of 1989, underSections 395,397,412IPC andSection 25/4of the Arms Act is set aside. The appellants are acquitted of the charges levelled against them.26.	The appellants are on bail. Their bail bonds are cancelled and sureties discharged.27.	Office is directed to transmit the lower court records along with the copy of this judgment to the trial court forthwith for its compliance and necessary action.Order Date :- 19.07.2022\n \nM. ARIF\n \n(Samit Gopal, J.)