RAJ KUMAR@ RAJUversusSTATE OF UTTARANCHAL

                         [2008] 5 S.C.R. 1216


A                      RAJ KUMAR@ RAJU
                                 v.
                     STATE OF UTTARANCHAL
                 (Criminal Appeal No. 855 of 2007)
                           APRIL 7, 2008
B
              (C.K. THAKKER AND D.K. JAIN, JJ.)
         Penal Code, 1860; Ss.302, 396 and 412 rlw s.1208:
        Dacoity, murder and conspiracy - Accused persons
c armed with weapons allegedly committed dacoity, looted
  articles and also committed murder of wife of PW1 - Fl.R. -
  Investigation - Investigating Officer submitted charge-sheet
  against six accused persons for committing the offences
  punishable ulss. 396 and 412 rlw s.120-B, /PC - Acquitting
0 accused Nos. 5 & 6, trial Court found accused Nos. 1 to 4
  guilty for committing the offence of dacoity punishable u/s. 396,
   /PC but acquitted them of the charges for committing the
  offence punishable uls.412 and also uls.120-8, and sentenced
  them accordingly - Conviction and sentence affirmed by
  Division Bench of the High Court - Correctness of - Held:
E Incorrect - In case, factum of five or more pers.ons is either
  not disputed/clearly established and the Court acquitted some
  of them as their identity not established, the conviction of even
  less than five accused could stand - But in the absence of
  such a finding, less than five accused persons can not be
F convicted for committing an offence of dacoity- In the instant
  case, though charges were framed against six accused
  persons, but even the trial Court was not convinced with
  prosecution evidence about complicity of all the accused and
  granted benefit of doubt to two of them - Once the Court doubts
G presence and participation of two out of six accused and
  granted benefit, there would be less than five persons, and
  therefore, no conviction could be recorded against them for
  committing an offence punishable uls.396, /PC - Moreover,
  in the absence of the finding that the identity of two accused
H                                1216
     RAJ KUMAR @ RAJU v. STATE OF UTTARANCHAL             1217


    not established, conviction of appellant for committing the   A
    offence of dacoity cannot stand - Hence, set aside.
          According to the prosecution, .PW1 filed a complaint
    at the Police Station informing that on the fateful day, when
    he reached his house in the afternoon, he found four
    persons armed with weapons dragging the body of his B
~   wife soaked in blood. On seeing him, the accused fled
    away. The accused had allegedly looted the household
    articles and committed the murder of his wife. PW3, PWS
    and PW6 also witnessed the accused running away.
    Police registered an F.l.R. , started investigation, arrested c
    the accused and recovered certain articles from them.
    After completion of the investigation, charge-sheet was
    submitted by the Investigating Officer against six accused
    persons for committing the offence punishable u/Ss. 396
    and 412 r/w·S.120-B, IPC. Trial Court acquitted the D
    accused persons of the charge for committing an offence
r   punishable u/s.120-B and also u/s.412, IPC since
    prosecution has failed to prove the charges. However, the
    trial Court found accused Nos. 1 to 4 guilty of committing
    the offence of dacoity punishable u/s.396, IPC, convicted E
    them and ordered to undergo rigorous imprisonment for
    ten years and to pay fine, but acquitted accused Nos. 5 &
    6 as the charge was not established against them. Appeal
    preferred thereagainst by the convicts was dismissed by
    the High Court. Hence, the present appeal.                    F
         Accused-appellant contended that both the Courts
'   below have committed an error in convicting the appellant
    for an offence punishable under s.396, IPC; that charge
    was framed for an offence punishable under s.396, IPC
    against the appellant along with other five accused. When G
    the trial Court acquitted two of them, no conviction could
    have been recorded of the remaining accused for an
    offence punishable under s.396, IPC; that in view of
    acquittal of two out of six persons, both the Courts were
    w~ong in invoking and applying s.396, IPC. On that ground H
    1218     SUPREME COURT REPORTS                 (2008] 5 S.C.R.


A alone, the order of conviction and sentence deserves to
   be set aside; that all the accused were charged for criminal
   conspiracy but they were acquitted for an offence
  punishable under s.1208, IPC and the said order was not
  challenged by the State; that all the accused were charged
B for an offence of dishonestly receiving property stolen in
  the commission of dacoity, punishable under s.412, IPC,
  but even on that count, the trial Court acquitted them and
  the said order also has attained finality; and that the
  appellant was never charged for commission of an
c offence   of murder of deceased punishable under s.302,
  IPC and the Courts went wrong in convicting him under
  s.396, IPC.
        State submitted that it is true that all the accused were
  acquitted by the trial Court for committing an offence
D punishable under s.1208, IPC and also acquitted of an
  offence punishable under s.412, IPC; that out of six
  accused, two were acquitted by the trial Court by giving           .,
  benefit of doubt and hence there were less then five
                                                                          t
  accused before the Court. But from the prosecution
E evidence   and particularly from the evidence of PW1-1,
  PW3, PW5 and PW6, the Courts below were convinced
  that there was dacoity in the house of PW1 and during
  the course of committing dacoity, the accused killed the
  wife of PW1 and convicted the appellant under s.396, IPC.
F That the impugned order cannot be said to be illegal or
  unlawful. Alternatively, the accused had committed murder
  of the deceased and they can independently be convicted            y
  for an offence punishable under Section 302, IPC
  simpliciter.
G       Allowing the appeal, the Court
         HELD: 1.1 The appeal deserves to be allowed. It is
    not in dispute that charges were framed against six
    persons but even the trial Court was not convinced with
    the prosecution evidence about complicity of all the
H
       RAJ KUMAR@ RAJU v. STATE OF UTTARANCHAL              1219


       accused and granted benefit of doubt to two of them. The A
       trial Court did not record a finding that there were six
       persons who committed dacoity and out of them, two
       accused could not be identified but the remaining four
       were identified, and came to the conclusion that it was
       proved that there were six accused and all of them B
       committed the offence of dacoity but in view of insufficient
-\     evidence as to identity, two of them were required to be.
       acquitted. In such case, conviction of less than five
       accused can be sustained in accordance with law. But,
     . once the Court doubts the presence and participation of C
       two out of six accused and grants benefit to them, there
       are less than five persons and no conviction can be ·
     . recorded for an offence under Section 396, IPC against
       them. (Para -13) [1225-A, B, C, D]
           1.2 For recording conviction of an offence of robbery,   D
      there must be five or more persons. In absence of such
      finding, an· accused cannot be convicted for an offence
      of dacoity. (Para -19) [1227-D, E]
            Ram Lakhan vs. State of Uttar Pradesh, (1983) 2 SCC
      65 and Saktu & Anr. vs. State of UP, (1973) 1 SCC 202 - E
      relied on.
           2. In the instant case, there were six accused. Out of
      those six accused, two were acquitted by the trial Court
      without recording a finding that though offence of dacoity F
      was committed by six persons, identity of two accused
      could not be established. They were simply acquitted by
      the Court. Therefore, as per settled law, four persons could
      not be convicted for an offence of dacoity, being less than
      five which is an essential ingredient for commission of G
      dacoity. Moreover, all of them were acquitted for an offence
      of criminal conspiracy punishable under Section 1208,
      IPC as also for receiving stolen property in the
      commission of dacoity punishable under Section 412, IPC.
      The conviction of the appellant for an offence punishable H
    1220       SUPREME COURT REPORTS                (2008] 5 S.C.R.

                                                                      •
A under Section 396, IPC, therefore, cannot stand and must
  be set aside. Hence, the conviiction of the appellant for an
  offence punishable under Section 396, IPC is set aside
  and he is ordered to be acquitted. Since the appellant is
  in jail, he is ordered to be released forthwith if his presence
B is not required in any other case. (Paras - 34 and 35) [1233-
  F, G; 1234-A, BJ                                                    ~


         Dalip. Singh & Ors. vs. State of Punjab (1954) SCR 145;
    Mohan Singh vs. State of Rajasthan, (1962) Supp 3 SCR 848;
    Krishna Govind Patil vs. State of Maharashtra, (1964) 1 SCR
c   678; Ram Bi/as Singh vs. State of Bihar, (1964) 1 SCR 775;
    Maina Singh vs. State of Rajasthan, (1976) 2 SCC 827; Ram
    Dular Rai vs. State of Bihar, (2003) 12 SCC 352 : JT (2003) 9
    SC 301 and Shyam Behari vs. State of Uttar Pradesh, AIR
    (1957) SC 320 - relied on.
D
         Ramdeo Rai Yadav vs. State of Biliar, (1990) 2 SCC 675:
    JT 1990 (1) SC 356 and Anshad & Ors. vs. State of Karnataka,
    (1994) 4 SCC 381 : JT 1993 (3) SC 324 - distinguished.
      CRIMINAL APPELLATE JURISDICTION : Criminal
E Appeal No. 855 of 2007.
         From the Judgment and order dated 16/10/2006 of the
    High Court of Uttaranchal at Nainital in Crl. Appeal No. 315/
    2001

F        Sushil Kumar, Praveen Kumar Rai, Vinay Arora and
    Abhisth Kumar for the Appellant.
                                                                      y
           B.N. Jha and J.K. Bhatia for the Respondent.
           The Judgment of the Court was delivered by
G       C.K. THAKKER, J. 1. This appeal is filed by Raj Kumar
  @ Raju-accused No.1 in Sessions Trial No. 14 of 1983. He
  was convicted for an offence punishable under Section 396 of
  the Indian Penal Code (IPC) along with three other accused
  and ordered to undergo rigorous imprisonment for ten years
H and to pay fine of Rs.2,000. in default of payment of fine, to
               RAJ KUMAR @ RAJU v. STATE OF UTTARANCHAL                 1221
                           [C.K. THAKKER, J.]
        ~-
              undergo additional imprisonment for one year. The said order      A
              was passed by the II Addi. Sessions Judge, Nainital on August
              9, 1985. The appellant preferred an appeal against the said
)
              judgment and order which was registered as Crimial Appeal
              No. 2128 of 1985 in the High Court of Allahabad and was re-
              numbered as Criminal Appeal No. 315 of2001 in the High Court      8
              of Uttaranchal at Nainital and was dismissed by the High Court
        ..\
              on December 16, 2006.

                    2. The case of the prosecution was that on September 24,
              1982 one Tilak Raj-PW1 submitted a written report at Police
              Station, Khatima stating therein that when he reached his house   c
              tor taking lunch at about 12.30 p.m., he saw Raj Kumar@Raju,
              Pushpendra Singh, Swadesh Chandra@ Gappu and Nirankar
              in his house. All the accused were dragging his wife who was
              soaked in blood. According to Tilak Raj, on seeing him, the
              accused fled away. Though he tried to catch hold of them,         D
              Pushpendra Singh pushed at his chest due to which he fell down.
              He raised hue and cry. According to the complainant Raj Kumar,
              Swadesh Chandra@Gappu and Nirankarwere holding knives.
              All the accused committed loot of articles from his house and
              also committed murder of his wife Kamlesh Kumari. Rajendra        E
              Kumar-PW6, Purshottam Lal-PW3, Prem Kumar-PW5 and
              other persons who came there, also saw the accused running
              away. The first information was recorded and investigation was
              conducted. Accused were arrested and certain articles were
              also recovered from them. On completion of investigation,         F
              charge-sheet was submitted by the Investigating Officer against
              four accused referred to above and two others, namely, Mohan
              Lal and Bairam Singh for offences punishable under Sections
              396 and 412 read with Section 1208, IPC. The case was
              committed by the Magistrate to learned II Addi. Sessions Judge.


-   ~
              Charge was framed and the accused were asked whether they
              pleaded guilty upon which they denied to have committed any
              offence and claimed to be tried.

                   3. In order to prove the case against the accused, the..,
                                                                                G




              prosecution examined 13 witnesses. Out of them Tilak Raj-PW1, H
    1222       SUPREME COURT REPORTS                  [2008] 5 S.C.R.


A informant and husband of deceased Kamlesh Kumari was an
  eye-witness who supported the case of the prosecution.
  According to him, he saw all the accused dragging dead body
  of his wife Kamlesh Kumari from kitchen. He wanted to catch
  hold of the accused but could not do so as Pushpendra Singh ·
B pushed him and resultantly he fell down. It was also his case
  that on hearing his cries, PW3-Purshottam Lal, PW5-Prem
                                                                         ~
  Kumar and PW6-Rajendra Kumar reached at the scene of
  offence and saw all the accused running away. After the arrest
  of accused, looted property and weapons of offence, namely,
c knives were recovered.
        4. It was also the case of the prosecution that there was a
  conspiracy to commit dacoity by all the accused on the previous
  day i.e. September 23, 1982. To prove conspiracy, the
  prosecution examined PW7-Kishan Lal-real brother of PW1-
D Tilak Raj. PW11-Dr. J.K. Goel who performed post-mortem of
  deceased Kamlesh Kumari on September 25, 1982 was
  examined to prove injuries sustained by the deceased and to
  establish that she died due to those injuries.
         · 5. The case of the accused under Section 313 of the Code
E   of Criminal Procedure, 1973 was of total denial. In support of
    their case, the accused examined DW1-Dr. Joshi and DW2-
    Laxmi Datt.

         6. The trial Court, after appreciating the evidence on
F record, held that it was not proved by the prosecution that there
  was conspiracy between the accused to commit dacoity. So far
  as charge for committing an offence punishable under Section           y

  1208, IPC is concerned, the trial Court acquitted them. Likewise,
  the trial Court held that since recovery effected by the prosecution
  was not in consonance with law, it could not be said that stolen
G
  articles of dacoity were found from the accused and
  consequently charge for an offence punishable under Section
  412, IPC also could not be said to be established. All the accused
  were, therefore, acquitted.                                            •
                                                                             -
                                                                             ~

H          7. The Court, however, held that as far as commission of
 RAJ KUMAR@ RAJU v. STATE OF UTTARANCHAL                    1223
            [C.K. THAKKER, J.] .

an offence punishable u·nder Section 396 was concerned, from         A
the evidence of PW1-Tilak Raj and PW3-Purshottam Lal, PW5-
Prem Kumar and PW6-Rajendra Kumar, it was clearly
established. According to the Court, however, an offence
punishable under Section 396, IPC was established against
accused Nos. 1 to 4 Raj Kumar@ Raju-A 1, Pushpendra Singh-           B
A2, Swadesh Chandra @ Gappu-A3 and Nirankar-A4. It was
not established that Mohan Lal-A5 and Bairam Singh-A6 were
also present and party to the crime. They were, therefore,
ordered t0 be acquitted.

     8. All the four convicted accused preferred appeal and the      C
High Court, as stated above, confirmed the order of conviction
and sentence recorded by the trial Court and dismissed the
appeal.

      9. Notice was issued by this Court in the present appeal
                                                                     0
instituted by accused No.1-Raj Kumar @ Raju on February 9,
2007. On July 9, 2007, leave was granted. Bail, however, was
refused. In view of the said fact, the matter was placed for final
hearing and that is how the matter is before us.

     10. We have heard learned counsel for the parties.              E
      11. The learned counsel for the appellant contended that
both the Courts have committed an error in convicting the
appellant for an offence punishable under Section 396, IPC. It
was submitted that charge was framed for an offence punishable
under Section 396, IPC against the appellant along with other F
five accused. When the trial Court acquitted two of them, no
conviction could have been recorded of the remaining four
accused for an offence punishable under Section 396, IPC. It
was submitted that for conviction of accused under Section 396,
IPC, there must be five or more persons and in view of acquittal G
of two out of six persons, both the Courts were wrong in invoking
and applying Section 396, IPC. On that ground alone, the order
of conviction and sentence deserves to be set aside. It was
also submitted that all the accused were charged for criminal
conspiracy but they were acquitted for an offence punishable H
    1224      SUPREME COURT REPORTS                     [2008] 5 S.C.R.


A   under Section 1208, IPC and the said order was not challenged
    by the State. Again, all the accused were charged for an offence
    of dishonestly receiving property stolen in the commission of
    dacoity, punishable under Section 412, IPC, but even on that
    count, the trial Court acquitted them and the said order also has
8   attained finality. In the light of the above facts, conviction of the
    appellant under Section 396, IPC is clearly illegal and requires
    to be set aside .. It was stated by the learned counsel that the
    appellant was never charged for commission of an offence of
    murder of deceased Kamlesh Kumari, punishable under Section
c   302, IPC and the Courts went wrong in convicting him under
    Section 396, IPC. The counsel submitted that the appeal
    deserves to be allowed by setting aside the order of conviction
    and sentence recorded by the trial Court and confirmed by the
    High Court.

D        12. The learned Government Pleader, on the other hand,
  supported the order of conviction and sentence by both the
  Courts. He submitted that it is true that all the accused were
  acquitted by the trial Court for committing an offence punishable
  under Section 1208, IPC (criminal conspiracy). It is also true
E that they were acquitted of an offence punishable under Section
  412, IPC (for dishonestly receiving or retaining property stolen
  in commission of dacoity). It is equally true that out of six
  accused, two were acquitted by the trial Court by giving benefit
  of doubt and hence there were less then five accused before
F the Court. But from the prosecution evidence and particularly
  from the evidence of PW1-Tilak Raj, PW3-Purshottam Lal, PW5-
  Prem Kumar and PW6-Rajendra Kumar, the Courts below were
  convinced that there was dacoity in the house of PW1-Tialk Raj
  and during the course of committing dacoity, the accused killed
G Kamlesh Kumari, wife of PW1-Tilak Raj and convicted the
  appellant under Section 396, IPC. That order cannot be said to
  be illegal or unlawful.Alternatively, the learned counsel contended
  that the accused had committed murder of Kamlesh Kumari
  and they can independently be convicted for an offence
  punishable under Section 302, IPC simpliciter. He, therefore,
                                                                            ,
                                                                            '
H
 RAJ KUMAR@ RAJU v. STATE OF UTTARANCHAL                     1225
            [C.K. THAKKER, J.]

submitted that the appeal deserves to be dismissed.                   A

      13. Having heard learned counsel for the parties, in our
opinion, the appeal deserves to be allowed. It is not in dispute
that charges were framed against six persons but even the trial
Court was not convinced with the prosecution evidence about
complicity of all the accused and granted benefit of doubt to         B
two of them. It may be stated that the trial Court did not record a
finding that there were six persons who committed dacoity and
out of them, two accused could not be identified but the
remaining four were identified and came to the conclusion that
it was proved that there were six accused and all of them             C
committed the offence of dacoity but in view of insufficient
evidence as to identity, two of them were required to be acquitted.
 In such case, conviction of less than five accused can be
sustained in accordance with law. But, once the Court doubts
the presence and participation of two out of six accused and          D
grants benefit to them, there are less than five persons and no
 conviction can be recorded for an offence under Section 396,
 IPC again$t them. Let us consider the legal position on this
 aspect.

      14. Chapter XVII (Sections 378 to 462) deals with offences
                                                                      E'
against property. Sections 378 to 382 relate to theft. Sections
383 to 389 concern offences of extortion. Sections 390 to 402
deal with robbery and dacoity. Section 391 defines dacoity and
it reads thus:
                                                                      F
      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 commissior:i or             G
      attempt, amount to five or more, every person so
      committing, attempting or aiding, is said to commit
      "dacoity".

      15. Whereas Section 395 provides punishment for dacoity,        H
    1226       SUPREME COURT REPORTS                 [2008] 5 S.C.R.


A   Section 396 prescribes penalty for an offence of dacoity with
    murder. The said section reads thus:
           396. Dacoity with murder
           If any one- of five or more persons, who are conjointly
B          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.

C       16. In Ram Lakhan v. State of Uttar Pradesh, (1983) 2
  SCC 65, this Court held that conviction for an offence of dacoity
  of less than five persons is not sustainable. In that case, the
  appellant was convicted for an offence punishable under Section
  395, IPC and sentenced to seven years rigorous imprisonment.
D FIR was registered against nine persons. The trial Court,
  however, acquitted five persons and convicted four. On appeal,
  the High Court acquitted three persons out of four and conviction
  of one of the accused, appellant before this Court, was upheld.
  This Court, while allowing the appeal and acquitting the
E accused, held that before an offence under Section 395 can be        r

  made out there must be an assembly of five or more persons.
  On the findings of the courts below, it was manifest that only one
  person was left, who could not be convicted for an offence under
  Section 395.
F       17. In Saktu & Anr. v. State of U.P., (1973) 1 SCC 202, the
  case of the prosecution was that 15-16 persons entered the
  house of one Jwala Prasad and looted the property. First
  Information Report was lodged by the informant-Jwala Prasad.
  All the accused were charged for offences punishable under
G Sections 395, 397 and 412, IPC. The trial Court acquitted one
  of the accused. In appeal, the High Court of Allahabad acquitted
  some other accused but convicted three accused (Nos. 1, 6 &
  7).
           18. It was contended before this Court that as the High
H
          RAJ KUMAR @ RAJU v. STATE OF UTTARANCHAL                      1227
                      [C.K. THAKKER, J.]
    I
         Court found that only three persons had participated in the             A
         occurrence, there was an error in convicting them for dacoity,
         since the offence of dacoity could not be committed by less
         than five persons. This Court, however, negatived the contention
         observing as under:

              "The charge in the instant case is that apart from the named       B
    -\        seven or eight persons, there were five or six others who
              had taken part in the commission of the dacoity. The
              circumstance therefore that all except the three accused,
              have been acquitted by the High Court will not militate
              against the conviction of those three for dacoity. It is           c
              important that it was at no time disputed that more
              than thirteen or fourteen persons had taken part in
              the robbery. The High Court acquitted a large number
              of the accused because their identity could not be
              established. The High Court, however, did not find that D
              the group which committed robbery in the house of Jwala
              Prasad consisted of less than five persons". (emphasis
              supplied)
               19. It is thus clear that forrecording conviction of an offence
         of robbery, there must be five or more persons. In absence of           E
         such finding; an accused cannot be convicted for an offence of
         dacoity. In a given case, however, it may happen that there may
         be five or more persons and the factum of five or more persons
         is either notdisputed or is clearly established, but the Court
         may not be able to record a finding as to identity of all the persons   F
    ·;   said to have committed dacoity and may not be able to convict
         them and order their acquittal observing that their identity is not
         established. In such case, conviction of less than five persons-
         or even one- can stand. But in absence of such finding, less
         than five persons cannot be convicted for an offence of dacoity.        G
                 20. A similar situation arises in dealing with cases of
'        'unlawful assembly' as defined in Section 141, IPC and the


'        liability of every member of such unlawful assembly for an offence
         committed in prosecution of common object under Section 149,
                                                                                 H
    1228       SUPREME COURT REPORTS                   (2008] 5 S.C.R.


A IPC. Section 141 indicates that an assembly of five or more
  persons can be said to be 'unlawful assembly', if common object
  of the persons comprising such assembly is as mentioned in
  the said section. Section 149 declares that if an offence is
  committed by any member of unlawful assembly in prosecution
B of common object of that assembly, every member of such
  assembly is guilty of that offence.
        21. In Dalip Singh & Ors. v. State of Punjab, 1954 SCR
  145, it was held that if the prosecution fails to establish that the
  appellants were five or more in number, Section 149, IPC cannot
C be applied. But the Court held that it is not essential that five
  persons must always be convicted for invocation of the said
  provision. Where it is possible to conclude that though five or
  more persons were 'unquestionably' at the place of offence
  and the identity of one or more was in doubt, conviction of less
D than five persons with the aid of Section 149, IPC would be
  legal and lawful.
           22. Speaking for the Court, Bose, J. stated:
           "Before section 149 can be called in aid, the court must
E          find with certainty that there were at least five persons
           sharing the common object. A finding thatthree of them
           "may or may not have been there" betrays
           uncertainty on this vital point and it consequently
           becomes impossible to allow the conviction to rest
F          on this uncertain foundation.
        · This is not to say that five persons must always be convicted
          before section 149 can be applied. There are cases and
          cases. It is possible in some cases for Judges to
          conclude that though five were unquestionably there
G         the identity of one or more is in doubt. In that case,
          a conviction of the rest with the aid of section 149
          would be good. But if that is the conclusion it behaves a
          court, particularly in a murder case where sentences of
          transportation in no less than four cases have been
                                                                          I
H         enhanced to death, to say so with unerring certainty. Men
      RAJ KUMAR@ RAJU v. STATE OF UTTARANCHAL                     1229
                 [C.K. THAKKER, J.]

          cannot be hanged on vacillating and vaguely uncertain            A
          conclusions".                    (emphasis supplied)
           23. Again, in Mohan Singh v. State of Rajasthan, (1962)
     Supp 3 SCR 848, two of the five persons who were tried together
     for offences punishable under Section 302 read with Sections
     147 and 149, IPC were convicted. In the charge, those five            8
•.   accused persons and none others were mentioned as forming
     unlawful assembly and the evidence led in the case was confined
     to them. The question was whether two persons could be
     convicted by applying Section 149, IPC. The Court, referring to
     Dalip Singh, stated:                                                  C

          "Cases may also arise where in the charge, the
          prosecution names five or more persons and alleges that
          they constituted an unlawful assembly. In such cases, if
          both the charge and the evidence are confined to the
                                                                           0
          persons named in the charge and out of the persons so
          named two or more are acquitted leaving before the court
          less than five persons to be tried, then Section 149 cannot
          be invoked. Even in such cases, it is possible that though
          the charge names five or more persons as composing an
          unlawful assembly, evidence may nevertheless show that           E
          the unlawful assembly consisted of some other persons
          as well who were not identified and so not named. In such
          cases, either the trial court or even the High Court in appeal
          may be able to come to the conclusion that the acquittal
          of some of the persons named in the charge and tried will        F
           not necessarily displace the charge under section 149
          because along with the two or three persons convicted
          were others who composed the unlawful assembly but
          who have not been identified and so have not been named.
          In such cases, the acquittal of one or more persons named        G
          in the charge does not affect the validity of the charge
          under section 149 because on the evidence the court of
          facts is able to reach the conclusion that the persons
          composing the unlawful assembly nevertheless were five
          or more than five".                                              H
    1230        SUPREME COURT REPORTS                     [2008] 5 S.C.R.


A        24. Similarly, in Krishna Govind Patil v. State of
    Maharashtra, (1964) 1 SCR 678, after referring to Mohan
    Singh, the Court observed:

           "It may be that the charge discloses only named persons;
           it may also be that the prosecution witnesses named only
8          the said accused; but there may be other evidence, such
           as that given by the court witnesses, defence witnesses
           or circumstantial pieces of evidence, which may disclose
           the existence of named or unnamed persons, other than
           those charged or deposed to by the prosecution witnesses,
c          and the court, on the basis of the said evidence, may
           come to the conclusion that others, named or unnamed,
           acted conjointly along with one of the accused charged.
           But such a conclusion is really based on evidence".
          25. In yet another decision in Ram Bi/as Singh v. State of
0
    Bihar, (1964) 1 SCR 775, this Court said:
           "The decisions of this Court quoted above thus make it
           clear that where the prosecution case as set out in the
           charge and as supported by the evidence is to the effect
E          that the alleged unlawful assembly consists of five or more
           named persons and no others, and there is no question of
           any participation by other persons not identified or
           identifiable it is not open to the court to hold that there was
           an unlawful assembly unless it comes to the definite
F          conclusion that five or more of the named persons were
           members thereof. Where, however, the case of the
           prosecution and the evidence adduced indicates that a
           number in excess of five persons participated in the
           incident and some of them could not be identified, it would
           be open to the court to convict less than five of the offence
G
           of being members of the unlawful assembly or convict
           them of the offence committed by the unlawful assembly
           with the aid of Section 149, l.P.C. provided it Gomes to the
           conclusion that five or more persons participated in the
           incident"·'
H
              RAJ KUMAR @ RAJU v. STATE OF UTTARANCHAL                       1231
                          [C.K. THAKKER, J.]
        ,(


                   26. In Maina Singh v. State of Rajasthan, (1976) 2 SCC A
             827, the appellant was charged along with four others under
             Section 302 read with Section 149, IPC. Only the appellant was
             convicted and the rest were acquitted. He was convicted under
             Section 302 read with Section 34, IPC. There was no indication
             either in the FIR or in the evidence that any other person unnamed B
             or unidentified other than the five charged, to have participated
             in the crime. The appellant challenged his conviction.
                   27. Setting aside the conviction for an offence punishable
             under Section 302 read with Section 34, IPC, this Court held
             that if in a given case, the charge discloses only the named c
             persons as co-accused and the prosecution witnesses confine
             their testimony to them, even then it would be permissible to
             come to a conclusion that others, named or unnamed, besides
             those mentioned in the charge or the evidence of the prosecution
             witnesses, acted conjointly with one of the charged accused if D
        r    there is other evidence to lead to that conclusion, but not
             otherwise.
                  28. In Ram Dular Rai v. State of Bihar, (2003) 12 SCC
             352 : JT 2003 (9) SC 301, this Court said;
                                                                                      E
                  "Coming to the question whether Section 149 has
                  application when presence of more than five persons is
                  established, but only four are identified, Section 149 does
                  not require that all the five persons must be identified what
                  is required to be established is the presence of five               F
                  persons with a common intention of doing an act. If that is
                  established merely because the other persons present
                  are not identified .that does not in any way affect applicability
                  of Section 149, IPC".
                    29. The learned counsel appearing for the State, however, G
             referred to Ram Shankar Singh & Ors. v. State of Uttar Pradesh,

l   l
             AIR 1956 SC 441. In that case, six accused were placed on
             trial for an offence of dacoity. Three of them belonged to
             complainant's village whereas remaining three belonged to
             adjoining village. The trial Court convicted all the six accused. H
    1232      SUPREME COURT REPORTS                   [2008] 5 S.C.R.
                                                                         •
A The High Court, however, acquitted three accused and convicted
  the remaining three under Section 395, IPC. This Court held
  that the High Court erred in making a distinction between the
  three accused belonging to the complainant's village while the
  remaining three belonged to an adjoining village. This Court
B observed that the High Court, having come to the conclusion
  that three out of six accused were not guilty, should have gone
  into the question whether there was satisfactory evidence to
  show that the three remaining accused could be convicted under
  Section 395, IPC on the charge as framed. This Court further
c held that the charge was framed against six persons and they
  were placed on trial. It did not indicate that those six persons
  along with other unknown persons committed dacoity. On the
  finding arrived at by the trial Court that all the six persons
  committed the offence of dacoity punishable under Section 395,
  IPC, nothing more was necessary. When the High Court set
0
  aside conviction of three accused and acquitted them out of six
  persons jointly tried, it was left only with three appellants as the
  persons concerned with the crime. The High Court, in the
  circumstances, according to this Court, ought to have
  considered whether there was satisfactory evidence to show
E that the three appellants could be convicted of the lesser offence
  of robbery under Section 392, IPC if there was evidence to show
  that they had committed acts of theft and used violence while
  committing the theft.
F      30. In the case on hand, both the Courts below have
  considered the case of the prosecution and acquitted two
  accused completely. Moreover, all the accused were acquitted
  for commission of offence of criminal conspiracy as also of
  receiving stolen property in commission of dacoity and the said
G acquittal has attained finality.
        31. Shyam Behari v. State of Uttar Pradesh, AIR 1957
  SC 320 also does not carry the matter further. There, a finding
  was recorded that the accused and his companions, who were
  more than five, attempted to commit dacoity but they failed in
H their attempt as the villagers raised hue and cry. Residents of
            RAJ KUMAR @ RAJU v. STATE OF UTTARANCHAL                   1233
                        [C.K. THAKKER, J.]
     J,
           village reached at the place and the miscreants ran away without A
           collecting booty. They were chased by some persons and
           caught one of the dacoits. He fired a pistol shot which hit a
           villager who subsequently died. This Court held that the offence
           of dacoity was complete and it ended the moment the dacoits
           took to their heels and another and a separate transaction took B
           place when one of the accused shot at a villager. Hence, even
           though he could not be convicted of having committed an
           offence under Section 396, IPC, he could be convicted for an
           offence under Sections 395 and 302, IPC.
                 32. Ramdeo Rai Yadav v. State of Bihar, (1990) 2 SCC         c
           675: JT 1990 (1) SC 356 is clearly distinguishable. In that case,
           charge was framed against the accused for commission of
           offence punishable under Section 396, IPC but alternative
           charge was also framed for an offence punishable under Section
           302, IPC. In the light of framing of alternative charge, this Court D
           held that conviction of the appellant-accused for an offence
     ':r   punishable under Section 302, IPC can be sustained.
                 33. Similar is the ratio in Anshad & Ors. v. State of
           Karnataka, (1994) 4 SCC 381 : JT 1993 (3) SC 324. There five
           accused were tried for offences punishable under Sections 396, E
           449, 395 and 307, IPC and were convicted. In the light of the
           factual position, the Court held that conviction of accused Nos.
           1, 2 and 3 could be altered to one under Section 302 read with
           Section 34, IPC, Section 394 read with Section 34, IPC and
           Section 379 read with Section 34, IPC.                           F

                 34. In the instant case, as observed earlier, there were six
           accused. Out of those six accused, two were acquitted by the
           trial Court without recording a finding that though offence of
           dacoity was committed by six persons, identity of two accused
                                                                              G
           could not be established. They were simply acquitted by the
           Court. In our opinion, therefore, as per settled law, four persons

,,         could not be convicted for an offence of dacoity, being less than
           five which is an essential ingredient for commission of dacoity.
           Moreover, all of them were acquitted for an offence of criminal
                                                                              H
    1234       SUPREME COURT REPORTS                 [2008] 5 S.C.R.


A   conspiracy punishable under Section 1208, IPC as also for
    receiving stolen property in the commission of dacoity
    punishable under Section 412, IPC. The conviction of the
    appellant herein for an offence punishable under Section 396,
    IPC, therefore, cannot stand and must be set aside.
B        35. For the foregoing reasons, the appeal is allowed. The
    conviction of the appellant for an offence punishable under
    Section 396, IPC is set aside and he is ordered to be acquitted.
    Since the appellant is in jail, he is ordered to be released
    forthwith if his presence is not required in any other case.
c
           36. The appeal is accordingly allowed.

    S.K.S.                                          Appeal allowed.




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