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Showing contexts for: penal code section 396 in Gobinda Saha & Anr vs The State Of West Bengal on 14 August, 2025Matching Fragments
140. Section 396 of the Indian Penal Code, 1860, under which, GS has been convicted, falls under Chapter XVII of the Indian Penal Code, 1860 which deals with offences against property. Section 378 has laid down that, whoever intending to take dishonestly any movable property out of the possession of any person without that person's consent, moves that property in order to such taking, is said to commit theft. Section 390 of the Indian Penal Code, 1860 has stipulated that, in all robbery there is either theft or extortion. It has specified that, if, in order to committing of theft, or in attempting to commit the theft, or in carrying away or attempting to carry away property obtained by theft, the offender, for that end voluntarily causes or attempts to cause to any person death or hurt or wrongful restraint, or fear of instant death or of instant hurt, or of instant wrongful restraint then theft is robbery.
143. Murder used in Section 396 has the same meaning as that of Section 300 of the Indian Penal Code, 1860. Under Section 396 of the Indian Penal Code, 1860, if anyone of the five persons involved in dacoity, commits murder, while committing the dacoity, then every person involved in the dacoity is to be punished in accordance with the provisions of such section.
144. Section 396 of the Indian Penal Code, 1860 has created a legal fiction that when in the commission of the dacoity, which necessarily involves five or more persons, anyone of such persons involved, commits a murder, then, the legal liability for commission of such murder, shall befall all of the persons involved in the dacoity and be punished in accordance with Section 396 of the Indian Penal Code, 1860.
145. Therefore, under Section 396 of the Indian Penal Code, 1860, the prosecution has to establish there is a murder within the meaning of Section 300 of the Indian Penal Code, 1860 and that, the murder was committed is an incident involving dacoity. In other words, prosecution has to establish that the murder occurred during dacoity and that they are not two separate incidents.
146. The test, therefore, which a Court needs to apply under Section 396 of the Indian Penal Code, 1860 is whether the murder occurred during a dacoity or are the two incidents separate.
151. Notably learned Trial Judge has not sentenced any of the appellants for murder under Section 302 of the Indian Penal Code, 1860 in view of Section 71 thereof.
152. Learned Trial Judge has discussed the quantum of punishment to be imposed after taking note of the fact that, Section 396 of the Indian Penal Code, 1860 permitted death sentence also. Learned Trial Judge has noted the aggravating circumstances as against the appellants including, the existence of criminal cases against some of the appellants. Learned Trial Judge has however found mitigating circumstances so as not to impose the death penalty.