If five or more persons conjointly committed offence of robbery, such case would fall within definition of ‘dacoity’: SC

Read Judgment: Ganesan & Ors. vs. State Rep. By Station House Officer & Ors. 

Pankaj Bajpai

New Delhi, November 3, 2021: The Supreme Court has ruled that ‘Dacoity’ is nothing but an exaggerated version of ‘robbery’ with a difference in number of accused, and therefore, even in a case where the accused is not convicted for the offence u/s 397 IPC, still he can be punished u/s 395 IPC and no prejudice shall be caused to him as ultimately the prosecution has to prove the ‘robbery’ and ‘dacoity’ either for the offence punishable u/s 395 IPC or under Section 397 IPC. 

However, to bring the case against the accused u/s 397 IPC, the prosecution has to prove one additional fact that the offender has used any deadly weapon or has caused grievous hurt to any person, or has attempted to cause death or grievous hurt to any person, added the Court.

A Division Bench of Justice Dr. D.Y. Chandrachud and Justice M.R. Shah observed 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 u/s 391 IPC punishable u/s 395 IPC is not made out.

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, added the Bench.  

The background of the case was that initially a charge-sheet was filed against five persons for the offences punishable u/s 395 r/w/s 397 of IPC, who at the relevant time were absconding. 

As per the case of the prosecution, with the intention of joint robbery, all the accused proceeded in a car from Cuddalore with knife and iron pipe and reached Panruti. Ganesan (1^st accused) stayed in the car and rest others committed a robbery of Rs.60,000. As per the case of the prosecution, Duraisamy (prosecution witness) came with the bicycle near Vallalar Street, Panruti where the accused pushed him and Prabhakaran (3^rd accused) attacked with iron rod on the head and right-hand finger and injured him. Other accused plucked the bag hanging in the handle bar of cycle of witness Duraisamy containing Rs.60,000/- and 16 gram jewellery and ran away. 

When Palanivel (other prosecution witness) prevented the accused from escaping, Benny assaulted him on the head and hand with the rod he was having and all escaped. As Benny and Shajahan absconded, the trial was split and the trial proceeded against Ganesan, Prabhakaran and Shanmugam. 

The Trial Court convicted the accused for the offence punishable u/s 397 IPC and sentenced them to undergo 7 years rigorous imprisonment (RI) to each and in default to further undergo one year RI. The Sessions Court as well as the High Court also confirmed the order of conviction. 

Subsequently after a period of 15 years from the occurrence of the offence original accused Benny was apprehended and he came to be tried separately. However, he was acquitted. 

After examining the prosecution and on reading the entire evidence, the Top Court opined that the contradictions are not such material contradictions which affect the case of the prosecution as a whole, as the witnesses were examined after almost 14 years have passed and therefore there may be some contradictions. 

The Top Court also highlighted that there is no difference between Section 391/395 and Section 397 IPC so far as sentence/punishment except the difference in case of Section 397 IPC the punishment shall not be less than seven years. Otherwise, the ‘robbery’ and ‘dacoity’ are sine qua non. 

“In the present case only four persons are tried and the prosecution has failed to prove the involvement of five or more persons. However, it is required to be noted that as such in the FIR there was a reference to five persons involved in committing the robbery. Even the charge-sheet was filed against five persons. However, as two accused absconded, the trial was split and three accused came to be tried. One accused Benny came to be tried subsequently and one person is still absconding. Even there are concurrent findings recorded by all the courts below that five persons were involved in committing the offence of robbery”, observed the Court. 

Speaking for the Bench, Justice Shah observed that once it is found on evidence that five or more persons conjointly committed the offence of robbery or attempted to commit the robbery a case would fall u/s 391 IPC and would fall within the definition of ‘dacoity’. 

“It is also 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”, found Justice Shah. 

The Apex Court therefore concluded that merely because in the subsequent split trial, 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.