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This appeal has been filed by Dharminder Singh alias Sonu against the judgment and order dated 29.03.2011 passed by the learned Additional Sessions Judge (Ad hoc) Fast Track Court, Hoshiarpur whereby the appellant has been convicted for the offence punishable under Section 395 read with Section 397 of the Indian Penal Code ('IPC' - for short). By a separate order passed on the same day, he has been sentenced to undergo rigorous imprisonment for seven years; besides, pay a fine of Rs.5000/- for the offence under Section 395 read with Section 397 IPC.

The FIR (Ex.PD/1) has been registered on the statement (Ex.PC) of Bansi Lal (PW-4), Cashier of the Sugar Mill at Mukerian. The complainant stated that he was working as a Cashier at the Amit Khanchi Sugar Mill, Mukerian. The previous night i.e. on 30.11.2004, he was on duty in the shift from 12 midnight till 8.00 am with Mukhtiar Singh (PW-5) an Assistant and Sewa Singh (PW-1) a Guard. At about 2- 2.30 am at the dawn of the day, he (complainant) sent the guard (Sewa Singh PW-1) for getting tea from the canteen. The guard (PW-1) while leaving bolted the cash cabin from outside. Bansi Lal complainant (PW-4) was about to bolt the cash cabin from inside and at that time all of a sudden three young men in the age group of about 24-25 years wearing caps on their head, with trimmed beards and one of them clean shaven and of medium height speaking in Punjabi stormed into the cabin. On getting in the cabin, two of them held their revolvers towards the complainant and the Assistant. They in a forceful voice threatened them to remain quite. The third person cut off the telephone cables and opened the trunk which was lying there and containing cash. They put cash amount of about Rs.10 lacs in a white colour bag lying nearby after taking it out from the trunk. They further held out threats for not raising an alarm or else they would be killed. After robbing the cash, they ran out. The complainant Bansi Lal (PW-4) and Mukhtiar Singh (PW-5), Assistant raised an alarm that a robbery had been committed. On this other workers of the mill and the farmers who had come there and were standing for collecting payment and the Security Guards chased the culprits but it was quite dark at that time. On an alert being sent, all the outer gates of the Mill were closed by the Security Guards. The complainant and Mukhtiar Singh (PW-5) Assistant then informed Shri Anil Kumar Sharma, Personnel Manager of the Mill who further informed the police. A heavy force rushed to the spot immediately and after cordoning the Mill from all sides with the help of the complainant side, started a search of the Mill. The statement (Ex.PC) of the complainant was recorded by SI Swaran Singh, SHO of Police Station, Mukerian (PW-6). It was signed by Bansi Lal complainant (PW-4) in English and he asked for action being taken. Police proceedings (Ex.PD) were recorded by SI/SHO Swaran Singh (PW-6) at 5.10 am on 1.12.2004 which are to the effect that he was present at the Police Station and DSP, Mukerian informed him on telephone that payment for the sugarcane produce was being disbursed at the Sugar Mill, Mukerian and in the office a robbery had been committed. He (PW-6) was asked to immediately reach there along with a heavy force and cordon the Mill from all the sides and a search of the Sugar Mill yard be started because it had been informed that the robbers were amongst the farmers in the yard of the Mill. SI/SHO Swaran Singh (PW-6) on receipt of the said information gathered the force and along with Police officials in Government vehicles left for the place of occurrence. MHC at the Police Station was directed to send more force at the spot. On reaching the Mill, the place was cordoned and a search started. SI/SHO Swaran Singh (PW-6) himself inspected the place of occurrence and recorded the statement (Ex.PC) of Bansi Lal (PW-4) and as per his description of the incident, his statement was recorded which was read over to him and heard by him. He on accepting his statement signed the same in English, which was attested by SI/SHO Swaran Singh (PW-6). From the said statement, offence under Sections 395/397 IPC; besides, Section 25 and 27 of the Arms Act were found to be made out. The writing containing the statement of Bansi Lal for registration of a case (FIR)was sent to the Police Station through Head Constable Gurdev Singh. On registering the case, the number of the case was asked to be informed. Special reports were asked to be sent to the officers concerned. The control room was also asked to be informed; besides, finger print expert and the dog squad were asked to reach the spot. SI/SHO Swaran Singh (PW-6) was busy at the spot in connection with the investigations. In terms of endorsement (Ex.PD/2) recorded by ASI Surinder Kumar, P.S. Mukerian FIR No.216 dated 01.12.2004 (Ex.PD/1) was registered for the offences under Section 395 read with Section 397 IPC; besides, Sections 25 and 27 of the Arms Act.

The learned trial Court after considering the evidence and material on record by its impugned judgment and order dated 29.03.2011 convicted the appellant Dharminder Singh alias Sonu for the offence under Section 395 read with Section 397 IPC. He was sentenced to imprisonment for seven years.

Mr. Chanan Singh, Advocate appearing for the appellant has submitted that the appellant along with the other accused was tried for the offence under Section 395 IPC but he alone had been convicted while the others have been acquitted. Therefore, conviction of the appellant alone was unsustainable as assembly of five persons is necessary to make out the offence under Section 395 IPC. In support of his contention he has placed strong reliance on Ram Lakhan versus State of U.P., AIR 1983 Supreme Court 352(1), Raj Kumar alias Raju versus State of Uttaranchal, 2008 (3) RCR (Criminal) 604 and State of Haryana versus Balvinder Singh and another, 2003 (4) RCR (Criminal) 645 (P & H). It is also submitted that the other accused having been acquitted the conviction of the appellant for the offence under Section 397 I.P.C. is also not sustainable.

Section 395 IPC provides for punishment for dacoity. However, the definition of dacoity shows that when five or more persons conjointly commit or attempt to commit a robbery, or where the whole number of persons conjointly committing or attempting to commit a robbery and persons present and aiding such commission or attempt, amount to five or more, every person so committing, attempting or aiding, is said to commit dacoity. Therefore, if the other accused as mentioned above have been acquitted for the offence of dacoity, the appellant indeed cannot be held liable for dacoity. In, Ram Lakhan versus State of UP (supra), the position was that nine persons named in the FIR were alleged to have participated in dacoity. Ram Lakhan was left alone and the others had been acquitted. Five accused had been acquitted by the trial Court and three by the High Court. It was held that before an offence under Section 395 IPC can be made out, there must be an assembly of five or more persons. On findings of the Courts below it was manifest that only one person was left. In the said circumstances, the appellant therein, it was held, could not be convicted for an offence under Section 395 IPC. The judgment in Ram Lakhan's case (supra) was followed by the Supreme Court in Raj Kumar alias Raju versus State of Uttaranchal (supra) wherein it was held that in case of dacoity with murder by six accused persons where two of them were acquitted by the trial court, the remaining four could not be convicted for an offence of dacoity being less than five which is an essential ingredient for commission of dacoity. It was also held that moreover all the six accused were acquitted for the offence of conspiracy under Section 120-B IPC as also for receiving stolen property in the commission of dacoity punishable under Section 412 IPC. The conviction of the accused for the offence punishable under Section 396 IPC, therefore, would not stand and must be set aside. In State of Haryana versus Balvinder Singh and another (supra), robbery of Rs.3-4 lacs was committed. The description of the accused was not given in the FIR nor the police collected their description during investigation. The police arrested three accused persons and recovered part of the robbed money. The police could not link the accused with the robbery and they were acquitted.