Legal provisions regarding Aggravated Forms of Dacoity: Dacoity with Murder under section 396 of Indian Penal Code, 1860.
Aggravated Forms of Dacoity: Dacoity with Murder:
“If anyone of five or more persons, who are conjointly committing dacoity, commits murder in so committing dacoity, every one of those persons shall be punished with death, or [imprisonment for life], or rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine.”
ADVERTISEMENTS:
Section 396 provides for an aggravated form of dacoity in as much as it deals with the situation where the offender commits murder in the course of committing dacoity. Dacoity with murder creates coextensive responsibility of each participant for murder in the act of such a dacoity.
The following are ingredients of Section 396:
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1. The dacoity must be the joint act of the accused persons.
ADVERTISEMENTS:
2. Murder must have been committed in the course of the commission of the dacoity.
If any one of five or more persons who are conjointly committing dacoity commit murder in so committing dacoity then every one of them shall be liable for murder, even if the individuals concerned did not participate in committing the murder in order to bring home the offence of dacoity with murder under Section 396, it is not necessary to prove that murder was committed by any particular member of the gang or that it was a common intention of the gang expecting the murder to take place.
Nor is it necessary to prove that murder was committed jointly by all the members of the gang. All that is required to be established by the prosecution is that the murder had been committed while committing a dacoity. If that is established then all the members of the gang, who have committed dacoity, are also equally liable for the murder under Section 396.
However, if the dacoity has failed and the offenders are running away without any booty, while others are chasing them, one of the dacoits kill someone of the persons chasing them; other members of the gang cannot be guilty under Section 396, IPC.
ADVERTISEMENTS:
In K.V. Chacko v. State of Kerala [(2001) CrLJ 713 (SC)], it was observed that conviction for dacoity and murder based on merely circumstantial evidence has to satisfy that: (i) the circumstances from which the inference of guilt is sought to be drawn must be cogently and firmly established; (ii) those circumstances should be of definite tendency unerringly pointing towards guilt of the accused; (iii) the circumstances cumulatively should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else; (iv) the kind of evidence must be complete and incapable of any other hypothesis, and (v) it should not only be consistent with the guilt of the accused but should also be inconsistent with his innocence.
In Laliya v. State of Rajasthan [AIR 1967 Raj. 134], it was observed that the decision as to whether the murder is or is not a part of the transaction of dacoity has to be taken in the backdrop of facts and circumstances of the case at hand.
A Court, while deciding the question has to pay attention to: (i) whether the dacoits retreated without plunder and the murder was committed while retreating; (ii) the interval between the attempt of dacoity and the commission of the murder; (iii) the distance between the places where the attempt at dacoity was committed and the murder was committed; and (iv) whether the dacoities abandoned all the booty and the lapse of interval between the abandonment of the booty and the commission of the murder.
In Оm Prakash and others v. State of UP [1983 CrLJ 837 (SC)], the accused, who has enmity with the deceased, committed dacoity in the house of the deceased along with his companions on a moonlit night. At that time lantern was burning in the house of deceased.
During dacoity the deceased was killed, his wife and brother-in-law were seriously injured. The dacoity looted ornaments, cash, clothes also from the house. They also injured a villager. The wife and brother- in-law of the deceased identified the dacoits in the light of lantern and moon. The accused were held guilty of dacoity as an act of dacoity and murder was proved beyond reasonable doubt.
In Shyam Behari v. State of Uttar Pradesh [AIR 1957 SC 320], the appellant (robber) killed one of the victims, who had caught hold of the appellant’s associate in an attempt to commit robbery. The appellant was convicted under Section 396 for the offence of dacoity with murder.
The appellant contended that he could not be convicted under Section 396, IPC because any murder committed by the dacoits during their fight when they were running away without any booty could not be treated as murder committed in the commission of the dacoity.
The High Court negatived this contention and held that Section 396 would be attracted even where an attempt had been made to commit dacoity, and a murder was committed when the dacoits were trying to make a safe retreat and confirmed the sentence of death passed by the session’s judge. The appeal of the accused was similarly dismissed by the Supreme Court.
The essence of an offence under Section 396 is murder committed in commission of dacoity. It does not matter whether murder is committed in the immediate presence of a particular persons or persons. It is not even necessary that murder should have been within the previous contemplation of the perpetrators of the crime.
In State of Karnataka v. Rajan [1994 CrLJ 1041 (Kant)], the accused had gained confidence of the lady of the house and other inmates and visited them frequently. The committed dacoits after killing the lady and her grandson cold bloodedly also attempted to kill two others. Their guilt was proved duly by circumstantial and direct evidence. The offences were found to be both heinous and barbaric and it was a ‘rarest of rare cases’. Three of the accused here sentenced to death and two accused who had assisted them were awarded life imprisonment.
In Kalika Tiwari v. State of Bihar [1997 SC 455 SCC], the accused formed a group and committed dacoity. One of them murdered the inmate. The trial court punished all the members of the dacoity. The High Court imposed punishment only on the member who committed murder and acquitted the remaining members.
The Supreme Court held that the High Court erred in acquitting the remaining members. It held that under Section 396 read with Sections 302, 32 and 149, when a member of an unlawful assembly murders, all the members of that unlawful assembly shall be imposed with the same punishment.
Under Section 396 extreme penalty of death may be inflicted on a person convicted of taking part in a dacoity in the course of which a murder is committed, even though there is nothing to show that he himself committed the murder or that he abetted it.
The offence under Section 396 is cognizable, and warrant should, ordinarily, issue in the first instance. It is both non-bailable and non-compoundable, and is exclusively triable by the Court of Session.