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1. The appellant Dukhi has been convicted of offences punishable under Section 395 read with Section 397 IPC and Section 25 of the Arms Act by the VII Additional Sessions Judge, Allahabad vide his judgment and order dated 03.11.1983 passed in Sessions Trial no.69 of 1982, State vs. Dukhi and others, under Sections 395, 397 IPC and connected Sessions Trial no.70 of 1982, State vs. Dukhi, under Section 25 of the Arms Act, both relating to Police Station Manjhanpur, District Allahabad (now Kaushambi). For the offence under Section 395 read with Section 397 IPC, the appellant has been awarded rigorous imprisonment of seven years, and, for the offence under Section 25 of the Arms Act, he has been awarded a term of one year, with a direction that all sentences shall run concurrently.

All injuries are simple, caused by blunt object. The duration is less than one day in duration.

15. Heard Sri Ved Mani Tiwari, learned counsel for the appellant, Sri Vinod Kant, learned Additional Advocate General, assisted by Sri Nikhil Chaturvedi, learned Additional Government Advocates, appearing on behalf of the State.

16. Learned counsel for the appellant has sought to demolish the prosecution bastion on a point that gives rise to a mixed question of fact and law. He submits that the definition of the offence of dacoity, which is the sine qua non for the offence under Section 395 read with Section 397 IPC, is to be found in Section 391 of the Indian Penal Code, 1861, and, hereinafter referred to as the 'IPC'. The definition of dacoity postulated under Section 391 IPC requires, five or more persons conjointly committing, or attempting to commit, a robbery, or where the whole number of persons, conjointly committing or attempting to commit a robbery, together with the persons present and aiding them in the commission of the offence, or the attempt, make for a figure of five, everyone of them is said to commit dacoity. He has urged that in the present case only one person has been convicted, whereas the other four have been acquitted. The Trial Court, in his submission, has committed an error in convicting the appellant for an offence punishable under Section 395 read with Section 397 IPC, inasmuch as, the charge was one framed against the appellant under the aforesaid Section, along with the four other acquitted accused. The submission proceeds on the reasoning that the Trial Court having acquitted four of the five charged along with the appellant, no conviction could have been recorded against the appellant alone, for an offence punishable under Section 395/ 397 IPC. He submits with much emphasis that the conviction of the appellant, under Section 395/397 IPC, is manifestly illegal as there had to be five or more persons found involved, even if not guilty, and, that in view of acquittal of four out of the five arraigned, the Trial Court went wrong in law in convicting the sole appellant under Sections 395/ 397 IPC. It is submitted that on this short ground alone, the conviction and sentence of the appellant is liable to be set aside.

20. In the understanding of this Court, the decision relied upon by the learned counsel for the appellant, carries an answer to the point urged by the learned counsel here. The decision in Ram Shankar (supra) turned on facts, where their Lordships have said in the opening part of paragraph 10 of the report, that the charge framed against the six, put on trial, did not indicate that those six persons along with other unknown persons had committed dacoity. The charge was precisely against six persons, who went to trial in that case. In the background of the aforesaid figure of six who were convicted by the learned Sessions Judge, of whom three were acquitted by the High Court, their Lordships held that for the remainder of the three, whose conviction was upheld could not be sustained, the High Court not having gone into the question whether there was satisfactory evidence against the three remaining appellants before their Lordships, making out a case under Section 395 IPC.

Secondly, that you on said date, time and place committed decoity, an offence punishable u/s 395 I.P.C in the house of Dadoo situate in village Kaima P.S. Manjhanpur district Allahabad and that at the time of committing decoity you used pistol and caused hurt to the members of the family of Dadoo and thereby committed an offence punishable u/s 397 I.P.C and within my cognizance."

28. There is, thus, in this case a clear mention in the charge that apart from the appellant, 12 other dacoits committed dacoity, which brings the case in the category, where less than five persons can be convicted for an offence of being members of an unlawful assembly mentioned, as the contingency denoted by (a) in Ram Bilas Singh (supra). The fact that in the First Information Report, there is a mention of 10 nominated besides 6 - 7 unnamed accused, and, in the evidence, 12/ 13/ 14 dacoits, brings the case within the category denoted by (b) in Ram Bilas Singh (supra). The fact that the appellant's case is covered by the contingencies referred to in the first two categories mentioned in Ram Bilas Singh (supra), where lesser number than five can be convicted for an unlawful assembly, does not necessitate any reference to the third contingency, mentioned there. The principle regarding number vis-a-vis their liability for an offence under Section 149 IPC, squarely applies to an offence under Section 395/397 IPC or Section 396 IPC, or so to speak, to any offence where the basic offence is dacoity, hardly brooks doubt. The said proposition has been accepted, as in many other decisions, in Ram Bilas Singh (supra).