PROJECT OF

INDIAN PENAL CODE

ON THE OFFENCE
DACOITY

SUBMITTED TO SUBMITTED BY
PROF. ABHIJIT ANAND ZAIBA REHMAN
GU16R0272
L.LB (III SEM)

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TABLE OF CONTENT

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 TABLE OF CASE LAWS

INTRODUCTION:

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 Section 391 defines Dacoity. It is a most heinous crime considered by the people all
over the world. Where robbery is committed by five or more persons, the offence committed is
dacoity. It is one of the oldest forms of crimes in India and is committed purely for the purpose
of looting or extortion. Every dacoity is robbery. There is only slight difference between robbery
and decoity.

Sec. 391- Dacoity:

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.

A. Ingredients of Sec. 391:

1. Where robbery is committed by five or more persons, the offence is dacoity : - Under this
section, the number of persons committing robbery must be five or more. Where the evidence
showed that there were six robbers but at the trial three were acquitted, it was held that the
conviction under this section is not sustainable. In Om Prakash v state of Rajasthan 1, the
Supreme Court ruled that where the charge of dacoity is against five named persons and out of
them two are acquitted, the remaining three cannot be convicted for dacoity.

2. Even if their attempt is failed, it is also considered as dacoity:- Robbery becomes dacoity
when it is committed by five or more persons. Even an attempted robbery by five or more
persons amounts to an offence of dacoity and the fact that the dacoits failed to remove any booty
is irrelevant.

3. Conjointly commit or attempt to commit:- There should be conjointly committing of

offence of dacoity word conjointly used in section 391 I.P.C means jointly. All the five persons
should act in a concerned manner participating in the transaction.

CASE- State of H.P. vs. Jagar Singh2

Nine accused attacked the complainant at a place and threatened to hand over them all he
had. They had beaten him. The complainant gave his money, wrist-watch, cycle, etc. All the
accused were punished under Sec. 395 dacoity.

CASE- Saktu vs. State of U.P.3

The Supreme Court held that when it is established that more than five persons
1 Om Prakash v state of Rajasthan, AIR 1998 SC 1220

2 State of H.P. vs. Jagar Singh (1989 CrLJ 12 H.P.)

3 Saktu vs. State of U.P. (AIR 1973 SC 760)

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committed the dacoity the fact that conviction of all of them is not possible for want of evidence,
the remaining accused can be convicted even if the number of them is less than five.

B. Punishment for dacoity:

Sec. 395 imposes punishment imprisonment for life or with rigorous imprisonment for a
term which may extend to ten years and also be liable to fine. In a case, nine persons had
participated out of which only four were convicted by the High Court and remaining were
discharged, in these circumstances conviction of only one cannot be justified because in a
dacoity at least five persons are required.4 In a case the appellants were alleged to have
committed dacoity in relation to certain railway property. No direct evidence was available. Only
a truck as standing near the railway track on which 63 pieces of C.S.T. 9, plates were found and
when asked by policemen to stop, the truck inmates refused to stop. It was held that the
prosecution case must fail because; firstly, the fact that what was being carried by the truck were
the stolen goods belonging to the railway was not established. Secondly, stoppage of truck by
policeman and resistance offered by the inmates of the truck cannot by a piece of evidence of
dacoity.5

C. Burden of proof:

A decoity begins as soon as there is an attempt to commit robbery. It is not necessary that
the force or menace should be displayed by any overt act and it may be implied in the conduct of
the mob. As a matter of fact, it is very difficult to identify the accused in the offence of dacoity.
The prosecution must establish-

(i) that five or more persons jointly committed the offence;

(ii) that one or more of the attempted or committed to commit robbery

(iii) that others were present and aiding such commission or attempt. If the dacoity is
committed by unknown persons, wearing veils in the dark nights it is highly difficult to
establish their identity. Without identity of the accused, the Courts could not impose
punishment. However there are three kinds of evidence generally available in robbery or
dacoity.

First occasion, when the offenders are caught red-handed on the spot by the villagers. It is
somewhat difficult in majority dacoities. The reason is that the villagers or residents do not wear
the weapons. The accused wear deadly weapons and attack the complainants with courage and
preplan.

Second occasion, when the wrong-doers are arrested in some other cases and they d

4 Ram Lakhan v. State of U.P., 1983 Cri. L.j. 691 (S.C.)

5 D.C. Sidha Ganesh and others v. State of Maharashtra, 1984 Cri. L.J. 193 (S.C)
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isclose their previous offences during the interrogation and investigation by the police in other
cases.

Third occasion arises when the offender or offenders sell the stolen property after dacoity
in another place. Such property and those accused are red-handedly caught.

CASE- Barendra Kumar Ghosh vs. King Emperor6

The accused formed a group and did 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 murdered 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
Sees. 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.

D. Dacoity with murder:

According to Section 396, if any one 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.

CASE- Kalika Tiwari vs. State of Bihar7

CASE- Shyam Behari v. state of Uttar Pradesh on 5 October, 1956

Facts of the case

In an attempt to commit robbery the appellant killed one of the victims who had caught
hold of the appellants associate. the appellant was convicted under section 396 for the offence of
dacoity with murder. The appellants 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 held that high court negative 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 safe retreat and confirmed the sentence of
death passed by the session judge. The appeal of the accused was similarly dismissed by the
apex court. In order to bring home the offence of dacoity with murder under section396 it is not
necessary to prove that in under was committed by any particular member of the gang or that it

6 Barendra Kumar Ghosh vs. King Emperor (AIR 1925 PC 1)

7 Kalika Tiwari vs. State of Bihar (1997 SC 445 SCC)

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was a common intention of the gang to commit the murder or that other members of the gang
expected the murder to take place. Nor it is necessary to prove that murder was committed
jointly by all the members of the gang. All that is require to be established by the preoccupation
is that the murder had been committed while committed dacoity are also equally liable for the
murder under this section.

(1) when prosecution failed to establish any nexus between death and commission of
dacoity charger under section 396 will fail.

CASE- Wakil Singh state of Bihar, (1981) BLJ 462

The fact of the case arose out of a dacoity said to have been committed in the house of
the complainant, PW-Darbari Sao on the night of 24th May, 1965 at about 8.45 P.M. some
unknown persons including the appellants entered the house, assaulted inmates, killed one of
them and looted away properties worth thousands of rupees. There is no clear evidence to show
that the deceased Kameshwer Sao was actually killed by one of the dacoits in the course of the
dacoity. Although his dead body was found but the prosecution has not been able to establish any
nexus between his death and the commission of the dacoity or even his injuries. In these
circumstances it is obvious that charge under Section 396 must fail.

Held- The trial court refused to act on the evidence of PW 2 also because this appellant was
identified only before the committing court and not before the Sessions Court. Thus the only
evidence against Wakil Singh consisted of PW (PROSECUTION WITNESS). In the instant case
mentioned that none of the witnesses in their earlier statements or in oral evidence gave any
description of the dacoits whom they have alleged to have identified in the dacoity, nor did the
witnesses give any identification marks viz., stature of the accused or whether they were fat or
thin or of a fair color or of black color. In absence of any such description, it will be impossible
for us to convict any accused on the basis of a single identification, in which case the reasonable
possibility of mistake in identification cannot be excluded. The High Court however has chosen
to rely on the evidence of a single witness, completely over-looking the facts and circumstances.
The High Court also ignored the fact. Since the High Court was reversing an order of acquittal, it
failed to take into consideration the fact that having regard to there being only one witness who
identified the accused concerned, the view taken by the trial court could not be said not to be
reasonably possible. For these reasons, therefore, we are clearly of the opinion that the appellant
who had been identified by only one witness must be acquitted. Thus fully satisfied that this was
not a case which called for the interference of the High Court against the order of the acquittal
passed by the Sessions Judge. The appeal is accordingly, allowed and the appellants acquitted of
the charges framed against them. Krishnan Dan Singh who was on bail will now be discharged
from his bail bonds and other appellants are directed to be set at liberty forthwith. The witnesses
identified the dacoits in test identification had not given any description of the miscreants in their
case diary statements. Only one witness was able to identify the accused and this was a
reasonable ground for non-acceptance of the evidence as possibility of mistake in identification
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could not be excluded. When the presence of accused persons recoveries of different items of an
incriminating nature from each of them are sufficient to establish that all of them conjointly
participated in the offence of dacoity with murder, therefore their conviction under section 396 is
liable to be confirmed; K.M.lbrahim alias Bava v. State of Karnataka, 8 On considering special
facts of the case. i.e. the age of accused and their status in life as also their antecedents, Sentence
of 10 years R.I in place of sentence of life imprisonment would meet the ends of justice.

E. Robbery or dacoity, with attempt to cause death or grievous hurt:

According to Section 397, if, at the time of committing robbery or dacoity, the offender
uses any deadly weapon, or causes grievous hurt to any person, or attempts to cause death or
grievous hurt to any person, the imprisonment with which such offender shall be punished shall
not be less than seven years. This section does not create any substantive offence but only
regulate the punishment already provided for robbery and dacoity. This section fixes a minimum
term of imprisonment when the commission of dacoity or robbery is accompanied with certain
aggravating circumstances, viz., use of deadly weapons or causing of grievous hurt or attempt to
cause death or grievous hurt is present. Section 34 of the code has no application in the
construction of this section.9 The accused himself must possess the deadly weapon. The liability
is neither co-extensive nor constructive as in Section 149.10

CASE: Shravan Dashrath Dartange v. State of Maharashtra11

Ss.452, 392 and 397 r/w s. 34-Test Identification parade not conducted- Effect of-Accused armed
with pistol and knives-Entered the house of complainant and using threat of weapons took away
cash and other belongings of the persons present in the house-Conviction and sentence by trial
court- Affirmed by High Court-Appeal by two of the accused contending that identification of
accused in court without conducting a test identification parade renders prosecution case
unreliable- S.397-Robbery- 'Offender uses deadly weapon'-Connotation of- Plea that since it was
not shown by evidence that deadly weapon was actually used or put into any use, s. 397 cannot
be resorted to- S. 397 r/w s. 34-Out of the four accused one armed with pistol and others with
knives-Plea that since one accused alone was in possession of pistol, others could not have been
vicariously held liable u/s 397 with the aid of s.34-

(i) There can be no quarrel that knife is a deadly weapon within the meaning of section 397;

F. Attempt to commit robbery or dacoity when armed with deadly weapon:

8 K.M.lbrahim alias Bava v. State of Karnataka, 2000 Cr LJ 197

9 Ali Mirza, (1923) 51 Cal. 265.

10 Hazara Singh, (1946) 25 Pat. 277

11 Shravan Dashrath Dartange v. State of Maharashtra, (1997)2 Crimes 47 (Bom)

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 According to Section 398, if, at the time of attempting to commit robbery or dacoity, the
offender is armed with any deadly weapon, the imprisonment with which such offender shall be
punished shall not be less than seven years. This section punish the cases of attempt to commit
robbery as distinguished from actual accomplished robbery. It applies where the offenders are
armed with deadly weapons though they do not use them in the attempt to rob or commit
robbery. It does not apply to other offenders who in combination with such person have
committed robbery or dacoity.

The essential of this section are as follows-

a) An offence of robbery or dacoity must have been committed.

b) The offender should be taken part in the said offence.

c) The offender should have used a deadly weapon or cased grievous hurt or attempted to cause
death or grievous hurt to any person at the time of committing a dacoity.

CASE: Phool Kumar v Delhi administration12

The facts of the case is that the accused had entered a petrol pump. The first accused was
armed with a knife while the second accused had small fun in his hand. The first accused asked
the employees of the petrol pump to hand over the keys. To terrorize the employees the second
accused fired three shots in the air. One shot struck the window and two hit the ground.
Thereafter they ransacked the office and decamped with the money, the question threat arose for
consideration was whether the first accused that was carrying a knife with him but did not use it
for committing any over act would be covered under se 397.The Supreme Court held that in
section 397 the words used were the offender uses whereas in section 398 the expression is
armed with deadly weapons. Both the section provides minimum sentences of seven years. The
court held that first accused was carrying a knife which was deadly weapon open to the view of
the victims sufficient to frighten or terrorize them. Any other overt act such as brandishing of the
knife or causing of grievous hurt with it. It was not necessary to bring the offender under this
section.

G. Making preparation to commit dacoity:

According to Section 399, whoever makes any preparation for committing dacoity, shall
be punished with rigorous imprisonment for a term which may extend to ten years, and shall also
be liable to fine. This section punishes preperation which consists in devising or arranging means
necessary for the commission of an offence. Only 3 cases of preparation are punishable in the
code:

1. Preparation to wage war against the Government of India. (S. 122)

12 Phool Kumar v Delhi administration on 13 March, 1975 AIR 1975 SC 905

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 2. Preparation to commit depredation on territories of a power at peace with the
Government of India(S.126)

3. Preparation to commit dacoity.(S.399)

CASE: Malkiat Singh v. state of Punjab13

It is held that the preparation in devising or arranging the means or measures

necessary for the commission of the offence. On the other hand, an attempt to commit

H. Punishment for belonging to gang of dacoits:

According to Section 400, whoever, at any time after the passing of this Act, shall belong
to a gang of persons associated for the purpose of habitually committing dacoity, shall be
punished with imprisonment for life, or with rigorous imprisonment for a term which may extend
to ten years, and shall also be liable to fine. This section punishes those who associate with
habitual gangs of dacoits. Its object is to break gangs of dacoits. The fact that women lived with
dacoits as their wives or mistresses is not enough to prove that they belonged to a gang of
dacoits. It is essential to prove that the women themselves were associated with the husband or
protectors for the purpose of themselves habitually committing dacoities. 14The expression
belong implies something more than casual association for the purpose of committing one or
two dacoities by a person who was ordinarily lived by honest means. It refers to those persons
who habitually associate with a gang of dacoits and actively assist them in their operations. But
if a person of a bad pasts record participation the commission of dacoity even on one occasion in
association with a well-known gang of habitual gang dacoits knowing them to be such a gang it
may reasonably be inferred that he belongs to a gang unless there is some other material on
record to justify an interference that the association was of a casual nature.15

I. Punishment for belonging to gang of thieves:

According to Section 401, whoever, at any time after the passing of this Act, shall belong
to any wandering or other gang of persons associated for the purpose of habitually committing
theft or robbery and not being a gang of thugs or dacoits, shall be punished with rigorous
imprisonment for a term which may extend to seven years and shall also be liable to fine. This
section punishes those who constitute a gang of thieves or robbers. It is not necessary to prove
that each individual member of the gang has habitually committed theft or has committed any
particular theft in company with the other members.16 being a member of the gang is enough for

13 Malkiat Singh v. state of Punjab AIR 1970 SC 713

14 Yella, (1896) Unreported Cr. C. 863.

15 Bhama Shaw, A.I.R. 1956 Cal. 195.

16 Beia, (1914) P.R. No. 13 of 1914

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punishment.

J. Assembling for purpose of committing dacoity:

According to Section 402, whoever, at any time after the passing of this Act, shall be one
of five or more persons assembled for the purpose of committing dacoity shall be punished with
rigorous, imprisonment for a term which may extend to seven years and shall also be liable to
fine.

CASE: Chaturi Yadav v. State of Bihar17

The fact of the case is that accused had assembled at a lonely spot in the school premises
when they were detected by the patrol squad. One of the accused was found to be in possession
of a gun and a live cartridge, and others had merely one live cartridge in their pockets. There was
absolutely no evidence to establish that the accused had assembled there for the purpose of
committing dacoity. The court held that in the absence of such evidence, it was held that since
one of the ingredients of the offence had not been established by the prosecution, no offence
under this section was made out.

Difference between Robbery and Dacoity.

The offence of robbery is defined in section 390 IPC and as is clear from a perusal of the
said section that even a theft is robbery If during its commission the offender voluntarily causes
or attempts to cause to any person death or hurt or wrongful restrain or fear of instant death or of
instant hurt or of instant wrongful restrain. Whereas robbery is punishable under section 392 IPC
and dacoity is punishable under sec 395 of IPC.

(I)Number of Persons:

In Robbery the numbers of persons are less than five. It may be committed by a single person.

In dacoity, the number of persons is five or more.

(II)Seriousness:

Robbery is less serious in nature whereas Dacoity is more serious offence than robbery because
of the terror caused by the presence number of offenders.

(III)Position of Abettors:

In Robbery, the abettors are liable independently whereas In dacoity abettors who are present and
aiding when the crime is committed are counted in the number.

(IV)Jurisdiction of Court:

17 Chaturi Yadav v State of Bihar AIR 1979 SC 1412

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Robbery may be triable by the illegal magistrate. dacoity shall be triable by the Court of Session.

(V)Position in Highway:

If robbery is committed on the highway, the imprisonment may be extended to fourteen years
whereas the fact that the dacoity is committed on the highway does not change the position or
punishment.

CONCLUSION:
To conclude, that the definition of dacoity contemplates that an accused should from very
beginning have the intention to deprive another person of the property and to achieve that end,
either hurt is caused or a person is placed. Under wrongful restraint, or it must be actually found
that victim was put in fear of instant death, hurt or wrongful confinement when the same offence
is committed by five or more serious in nature.

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