Document Fragment View

Matching Fragments

Hon'ble Ram Manohar Narayan Mishra,J.

(Delivered by Hon'ble Siddhartha Varma,J.)

1. Heard Sri Sandeep Dubey, learned Amicus Curiae for the appellant, Sri Amit Sinha, learned A.G.A. for the State-respondent and perused the material available on record.

2. Instant Criminal Appeal has been preferred against the judgment and order dated 31.3.1983, passed by IIIrd Additional Sessions Judge, Fatehpur in S.T. No. 624 of 1981, convicting and sentencing the appellant for charge under Section 396 IPC and sentencing him to undergo imprisonment for life.

9. After the prosecution evidence was over, the evidence of the accused persons were recorded under Section 313 Cr.P.C.. They denied having committed the crime.

10. When the judgment in the case was pronounced by the IIIrd Additional Sessions Judge, Fatehpur on 31.3.1983, wherein he had acquitted Narad and Beni and had convicted the appellant Kallu under Section 396 IPC, the instant criminal appeal was filed.

11. Sri Sandeep Kumar Dubey, learned Amicus Curiae appearing for the appellant argued that the appellant Kallu was innocent. He made the following submissions:-

(V) Learned counsel for the appellant still further relied upon a judgment of our High Court reported in 2019 AIR (ALD) 1796, Lokai Chamar vs. Sate of U.P. and relying upon paragraph Nos.20, 25, 34 and 35 has submitted that a conviction under Section 396 IPC could be done only if there was (i) 'murder' within the meaning of Section 300 IPC (ii) there were five persons atleast who had joined together to commit dacoity, and (iii) the murder must have been committed in the course of commission of such dacoity. Learned counsel for the appellant states that in the instant case, in fact, there was involvement though alleged of five individuals but only three accused persons were put to trial and, therefore, it could be simply said that the trial court erred in convicting the appellant under Section 396 IPC. Since learned counsel for the appellant relied upon paragraph Nos.20, 24, 34 and 35 of the above judgment, they are being reproduced as under:-

16. Also we are of the view that when a court is to convict a person for an offence under Section 396 IPC, then just a single person cannot be convicted for that offence. There is no specific finding in the impugned judgment that five persons actually participated in the offence. The basic ingredients which make out an offence under Section 396 IPC had to be there. In the instant case, there was a murder as is conceived under Section 300 IPC. There was, however, lack of presence of four other individuals to constitute an offence under Section 396 IPC.