Supreme Court: In a case where two accused absconded and hence, the trial was split and three accused came to be tried for dacoity under Section 391 IPC, the bench of Dr. DY Chandrachud and MR Shah*, JJ has held 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 under Section 391 IPC punishable under Section 395 IPC is not made out.
In the case at hand in the FIR there was a reference to five persons involved in committing the crime. 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
It was, however, argued that since only three accused were tried and subsequently one another accused Benny came to be tried, the condition precedent for bringing the case under Section 391 IPC (Dacoity) has not been satisfied as the involvement of five or more persons in commission of the offence has not been established and proved and only four accused were tried.
Rejecting the aforementioned submission, the Court noted that as such all the accused were charged by the trial Court for the offences under Section 395 IPC as well as 397 IPC. With the aforesaid offences parties went for trial.
“Therefore, once a case under Section 391 IPC punishable under Section 395 IPC is made out, they can be convicted for the offence under Section 391 IPC punishable under Section 395 IPC as no prejudice shall be caused to the accused.”
The Court, further, stated that 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.
“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 under Section 391 IPC and would fall within the definition of ‘dacoity’.”
Therefore, in the facts and circumstances, it was held that the accused can be convicted for the offence under Section 391 IPC punishable under Section 395 IPC.
[Ganesan v. State, 2021 SCC OnLine SC 1023, decided on 29.10.2021]
Counsels
For State: Senior Advocate Dr. Joseph Aristotle S
*Judgment by: Justice MR Shah
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