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5. Final arguments are heard from both the parties and record perused.
6. Section 395 IPC provides punishment for dacoity. It was held in case titled State of Maharashtra v. Joseph Mingel Koli (1997) 2 Crimes 228 (Bom) that when robbery is either committed or an attempt to commit it is made by five or more person than all such persons, who are present or aiding in its commission or in an attempt to commit it, would commit the offence of dacoity. The said definition is laid down u/Sec. 391 IPC. It is laid down in case titled Ganesan v. State represented by Station House Officer in Crl. Appeal no. 903/2021 from Hon'ble Supreme Court of India dated 29.10.2021 at para no. 12.3 that as per Section 397 IPC if at the time of committing robbery or dacoity, the offender uses any deadly weapon, or causes grievous hurt to any person or attempts to cause death or grievous hurt to any person, the imprisonment with which such offender shall be punished shall not be less than seven years. It was further held at para no. 12.4 that the only difference between robbery and dacoity would be number of persons involved in co-jointly committing or attempt to commit a robbery. It was further held that the word used u/Sec. 390, 392 to 395, 397 and 398 of IPC is 'offender'. It was further held that for the aforesaid act the accused cannot be convicted on the basis of constructive liability and only the 'offender' who 'uses any deadly weapon......' can be punished. However u/Sec. 391 IPC 'dacoity' and Section 396 IPC which is dacoity and murder then the accused can be convicted on the basis of constructive liability. The necessary ingredients of dacoity u/Sec. 397 IPC were laid down at para no. 12.6 of the above judgment titled Ganesan v. State (supra) and the relevant para is reproduced hereasunder:
12.4 On conjoint reading of the aforesaid provisions, commission of 'robbery' is sine qua non. The 'dacoity' can be said to be an exaggerated version of robbery. If five or more persons conjointly commit or attempt to commit robbery it can be said to be committing the 'dacoity'. Therefore, the only difference between the 'robbery' and the 'dacoity' would be the number of persons involved in conjointly committing or attempt to commit a 'robbery'. The punishment for 'dacoity' and 'robbery' would be the same except that in the case of 'dacoity' the punishment can be with imprisonment for life. However, in the case of 'dacoity with murder' the punishment can be with death also. However, in a case where the offender uses any deadly weapon or causes grievous hurt to any person, or attempts to cause death or grievous hurt to any person the imprisonment with which such offender shall be punished shall not be less than seven years. Learned Counsel appearing on behalf of the appellants have rightly submitted that to bring the case within Section 397 IPC, the offender who uses any deadly weapon, or causes grievous hurt to any person shall be liable for minimum punishment under Section 397 IPC. Section 392 and Section 390 IPC are couched in different words. In Sections 390, 394, 397 and 398 IPC the word used is 'offender'. Therefore, for the purpose of Sections 390, 391, 392, 393, 394, 395, 396, 397, 398 IPC only the offender/person who committed robbery and/or voluntarily causes hurt or attempt to commit such robbery and who uses any deadly weapon or causes grievous hurt to any person, or commits to cause death or grievous death any person at the time of committing robbery or dacoity can be punished for the offences under Sections 390, 392, 393, 394, 395 and 397 and 398 IPC. For the aforesaid the accused cannot be convicted on the basis of constructive liability and only the 'offender' who 'uses any deadly weapon....' can be punished. However, so far as Section 391 IPC 'dacoity' and Section 396 IPC - 'dacoity with murder' is concerned an accused can be convicted on the basis of constructive liability, however the only requirement would be the involvement of five or more persons conjointly committing or attempting to commit a robbery - dacoity/dacoity with murder.
(c) to cause any person to part with property, or
(d) to cause any person to enter into an express or implied contract; or
(e) to commit fraud or that fraud may be committed.
Coming back to the facts of the present case, it is apparent that subsequent vendors sold their property to applicants Raghu Nath Singh, Salim Akhtar and Amir Ahmad. Subsequent vendor did not impersonate or play deception on the complainant or altered or tempered any document or played any deception on the complainant. There is no allegation on record much less evidence that execution of sale-deed by subsequent vendor in favour of applicant nos. 1 to 3 involved forgery of documents. Law is very simple even if a person executes a document transferring property, disclosing such property as his own, it can not be termed as forgery within the meaning of Section 463 IPC. Subsequent vendor and purchasers did not impersonate anybody. Subsequent vendors were selling property claiming ownership to applicant nos. 1 to 3. Even if any property is sold by a person claiming ownership, which is not his, without impersonating or falsely claiming that he has been authorized by someone else, the execution of such document can not be termed as false document in terms of Section 464 IPC. In such situations, there is no question of forgery as contemplated under section 463 IPC. If offence of forgery is not made out then, offences under sections 467, 468 and 471 IPC can not be sustained for the simple reason that forgery is an essential part of all the offences under aforesaid sections without which provisions of sections 467, 468, 471 IPC would not be attracted.
29. The burden of proof is on the prosecution that accused persons have committed forgery under Section 468 IPC. It was laid down in case Parshadi Lal Vs. State of Govt. of NCT of Delhi wherein it is held that who commits forgery must be intending that such documents shall be used for the purpose of cheating. Cheating is defined in Section 415 IPC. For cheating there must be intentional inducement of the person deceived to do or omit to do anything which he would not do or omit to do if he was not so deceived. A dishonest concealment of fact is deception. Hence there must be some act or omission on the part of accused and it is done fraudulently if the accused does that thing with intend to defraud. In the present case the accused person had not produced the driving licence to the police officers which was allegedly forged one. In fact the said driving licence as per the case of the prosecution was recovered during personal search of the accused. Hence the driving licence were not produced by the accused person and there was no act or omission on the part of accused person in respect of the alleged forged licence. Hence intend to cause damage or injury or to support any claim or title or to cause any person to part with property is absent in seizure of said driving licence from both the accused person. Hence ingredient of cheating as defined under Section 415 IPC is absent. Secondly, forgery is defined under Section 463 IPC and making of false document is defined under Section 464 IPC. Therefore prosecution has to show that accused person has made false electronic record with intention to cause damage or injury causing that such forged document was true. In the present case neither any handwriting or specimen signatures of accused person were taken and nor any FSL report was produced. It was laid down in the citation referred above that if the accused is acquitted for the offence punishable under Section 420 IPC then he cannot be convicted for offence punishable under Section 419 and 468 IPC because neither the accused has deceived any person fraudulently or dishonestly or induced the person so deceived to deliver any property to any person. Hence it is held that the prosecution has failed to prove that accused person has committed any forgery codified under Section 463 IPC. It is also not established that accused person have prepared any document and seal as the prosecution has neither proved specimen signature of the accused person nor proved any signature or any evidence thereto. The relevant para of the citation referred above is reproduced hereasunder: