# Balbir & Ors. (In Jail) v. State of U.P

- **Citation:** (2020) 10 ILRA 3
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-07-09
- **Case number:** Criminal Appeal No. 648 of 1983
- **Bench:** Saurabh Shyam Shamshery
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/balbir-ors-in-jail-v-state-of-u-p-45205
- **Pages:** 6

## Headnote

Criminal Law - Indian Penal Code, 1860 -
Section 391- Dacoity- Sections 395 and
397 IPC- Conviction of less than five
persons- Finding has to be recorded about
involvement of five or more persons- In
case there is a conviction of less than five
persons under Sections 395/ 397 IPC,
Trial Court must arrive to a finding that
there was involvement of five or more
persons. In absence of such finding no
conviction could be made out under
aforesaid Sections. Trial Court has not
recorded any such finding in this regard-
Prosecution has completely failed, in the
present
case,
either
to
prove
the
participation of five or more persons in
commission of offence or establish their
identity. The conviction and sentence of
appellants is being repugnant to letter and
spirit of Sections 391 and 396 IPC, the
same cannot be sustained.

It is settled law that for recording the
conviction for an offence u/s 391IPC, a
finding has to be recorded by the trial court of
the presence or participation of five or more
persons and in absence of such a finding less
than five persons cannot be convicted for an
offence of dacoity.

Criminal Appeal allowed.(Para 13, 14) (E-3)

Case law relied upon/ Discussed:-

## Text

10 All. Balbir & Ors. Vs. State of U.P.
3
aforesaid finding of acquittal and thereby
acquitted the accused-respondents nos.2 to
4 under the aforesaid sections of I.P.C. and
the POCSO Act, respectively.

15. Consequently, this appeal by the
victim.

16. I have considered the line of
argument set up by Sri Atul Kumar, learned
counsel for the appellant-informant. Insofar
as the meritorial aspect of this appeal is
concerned, no doubt the victim has clarified
about the incident in her examination-inchief. However, insofar as the cross
examination of the victim is concerned, it is
evident that the prosecution story as was set
up in the first information report that the
prime concern of the accused was to tease
and harass the girl/victim, was not, in fact,
so. However, it so happened that there was
a collision between the motorcycle of the
accused-respondents and the bicycle of the
victim and exchange of hot words followed
by some altercation took place and due to
which, a false case was cooked up against
the accused-respondent nos. 2, 3 and 4.

17. Now the legal import of the force
of contention that the finding of acquittal is
per se erroneous and perverse as staked by
the appellant is concerned, the same
argument does not carry substance for the
reason that the finding of acquittal is well
grounded on record and the outcome of
acquittal cannot be termed as perverse or
illegal. There may be various alternatives to
the situation in consideration but it is to be
seen whether the alternative adhered to by
the trial judge is supported by material on
record and in case it is found to be
supported on record, then the same is to be
sustained.
Merely,
because
another
hypothesis was possible in the same
situation which might have worked for
finding of conviction would not work for
the reason that the finding which favours
the accused is to be adopted and given
preference. Advantage, in such situation of
two equally available alternatives always
and legally goes to the accused and this is
inviolable law of criminal jurisprudence.

18. Here, in this case, the conclusion
of acquittal drawn is based on the
evidenciary analysis and scrutiny of the
prosecution evidence and it cannot be
faulted with in view of fact that on page 6
of the testimony of the victim, she herself
has testified in her cross examination,
categorically that some accident took place
and this led to some altercation between the
parties, due to which the parents of the
victim lodged this report. This generates
doubt about the occurrence as set up by the
prosecution. Consequently, it cannot be
said that there is any perversity in the
judgment of acquittal as recorded by the
trial court.

19. The leave to appeal is refused.

20. Consequently, this appeal sans
merit and the same is dismissed.
----------
(2020)10ILR A3
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 09.07.2020

BEFORE

THE HON'BLE SAURABH SHYAM
SHAMSHERY, J.

Criminal Appeal No. 648 of 1983

Balbir & Ors. ...Appellants(In Jail)
Versus
State of U.P. ...Opposite Party

Counsel for the Appellants:
4 INDIAN LAW REPORTS ALLAHABAD SERIES
Sri Tej Pal Singh, Sri A. Saran, Sri
Armardan Singh, Sri Arimardan Yadav, Sri
J.N. Singh, Sri Jadu Nandan Yadav, Sri O.P.
Kulshrestha, Sri Rohit Tiwari, Sri Mahendra
Kumar, Sri Pranvesh

Counsel for the Opposite Party:
A.G.A.

Criminal Law - Indian Penal Code, 1860 -
Section 391- Dacoity- Sections 395 and
397 IPC- Conviction of less than five
persons- Finding has to be recorded about
involvement of five or more persons- In
case there is a conviction of less than five
persons under Sections 395/ 397 IPC,
Trial Court must arrive to a finding that
there was involvement of five or more
persons. In absence of such finding no
conviction could be made out under
aforesaid Sections. Trial Court has not
recorded any such finding in this regard-
Prosecution has completely failed, in the
present
case,
either
to
prove
the
participation of five or more persons in
commission of offence or establish their
identity. The conviction and sentence of
appellants is being repugnant to letter and
spirit of Sections 391 and 396 IPC, the
same cannot be sustained.

It is settled law that for recording the
conviction for an offence u/s 391IPC, a
finding has to be recorded by the trial court of
the presence or participation of five or more
persons and in absence of such a finding less
than five persons cannot be convicted for an
offence of dacoity.

Criminal Appeal allowed.(Para 13, 14) (E-3)

Case law relied upon/ Discussed:-

1. Raj Kumar @ Raju Vs. St. of Uttaranchal
(Now Uttarakhand), (2008) 11 SCC 709

2. Manmeet Singh @ Goldie Vs. St. of Punj.,
(2015) 7 SCC 167.

(Delivered by Hon'ble Saurabh Shyam
Shamshery, J.)

1. Heard Sri Pranvesh, Advocate
holding brief of Sri Jadu Nandan Yadav,
learned counsel for appellants, at length, on
facts and law both, and learned A.G.A. for
State.

2. This Criminal Appeal under
Section 374 of Criminal Procedure Code
(hereinafter referred to as "Cr.P.C.") has
been filed by three appellants, namely,
Balbir, Mohar Pal alias Chhakauri and Lala
Ram against judgment and order dated
11.03.1983 passed by Sri D.C. Srivastava,
Judge Special Court (Dacoity), Kanpur
Dehat in Session Trial No. 467 of 1981
(State vs. Balbir and others) convicting
appellants, Balbir and Lala Ram under
Section 395 IPC and appellant, Mohar Pal
alias Chhakauri under Sections 395 read
with 397 IPC and sentencing appellants,
Balbir and Lala Ram to five years rigorous
imprisonment and appellant, Mohar Pal
alias Chhakauri to seven years rigorous
imprisonment.

3. As per first Informant, PW-1, Raj
Kumar, the prosecution story is, that, in the
intervening
night
of
26/27.06.1981
appellants alongwith four others committed
dacoity in three houses in Village Badra
Majra Bakauthia, Police Station Kakwan,
District Kanpur Dehat. At about 11.00
O'clock four dacoits jumped into the
Courtyard of First Informant and opened
door, which allowed other six dacoits to
enter into the house. They started beating
the inmates and looted belongings. PW-1
ran
away
and
raised
alarm.
After
committing dacoity in the house of First
Informant all of them looted houses of
Ochhey Lal and Ganga Ram in the same
village. They also used firearm in the
course of dacoity. As per prosecution story
in the light of lantern, torches and fire of
Pual, the witnesses saw the features of
10 All. Balbir & Ors. Vs. State of U.P.
5
known dacoits and also recognized three
known dacoits, who are appellants. In
support of their case prosecution examined
PW-1, Ram Kumar, scriber of complaint;
PW-2, Sheo Singh, an eye witness of
dacoity; PW-3, G.P. Thapalyal, Executive
Magistrate, who conducted identification
parade; PW-4, S.O. R.K. Verma; PW-5,
Head Constable, Sri Krishan, who are
formal witnesses and PW-6, SI, Ram Bilas,
who was Investigating Officer of the case.

4. After filing of charge sheet charges
were framed against appellants, who
pleaded not guilty and and claimed to be
tried on merits.

5. Trial Court after considering the
evidence and other material on record
convicted appellants, as mentioned above.
Relevant finding of Trial Court are as
follows:

"35. Thus, after considering the
statements of these two witnesses an
irresistible conclusion can be drawn that
the three accused facing trial before me,
were also amongst the decoits, who had
committed
dacoity
in
the
night
of
occurrence, in the house of Raj Kumar.
Since the evidence on record, does not
justify two views, the view in favour of the
accused in the circumstances of the case
cannot be taken. The case of Kali Ram vs.
State of H.P. AIR 1973 (S.C.) 2773 is thus
distinguishable on facts.

36. To sum up, it can be said that
the prosecution has successfully established
that the three accused committed dacoity in
the house of Raj Kumar in the night of
occurrence. It appears that after disclosure
of a material fact by Raj Kumar in his
cross-examination that accused Mohar Pal
alias Chhakauri fired from his gun at the
time of leaving his house, the charges
under Section 395 IPC was amended
against
accused
Mohar
Pal
alias
Chhakauri and was regulated with charge
under Section 397 IPC. I do not find any
reason to disbelieve Raj Kumar on the
point that Mohar Pal alias Chhakauri had
used fire-arm, during the course of dacoity.
The situation would have been different if
the witness would have given voluntary
statement on the point. On the other hand,
the fact was brought on record by the effort
of the defence counsel and to my mind,
such statement, cannot be called as belated
nor it can be rejected on ground of being
un-reliable.
Thus,
to
my
mind,
the
prosecution
has
been
successful
in
establishing the charge under Section 395
IPC against accused Balbir and Lala Ram
and the charge under Section 395 read with
Section 397 IPC against accused Mohar
Pal alias Chhakauri. They have, therefore,
to be convicted." (emphasis supplied)

6. Learned counsel for appellants
submits that, even on merit, the prosecution
is not able to prove its case beyond
reasonable doubt as the witnesses are
interested witnesses and no independent
witness was examined. He submits that
Trial Court has erroneously convicted
appellants, who are three in numbers, under
Sections 395 and 397 IPC, as they are less
than five persons, which is against the
essential ingredients of Section 391 IPC. In
support of submission he placed reliance on
Supreme Court's decisions in Raj Kumar
alias Raju vs. State of Uttaranchal (Now
Uttarakhand) : (2008) 11 SCC 709 and
Manmeet Singh alias Goldie vs. State of
Punjab : (2015) 7 SCC 167.

7. Opposing the submission of
learned counsel for appellants, learned
A.G.A. appearing for State, has also relied
on the above judgments to submit that in
6 INDIAN LAW REPORTS ALLAHABAD SERIES
the present case Trial Court has convicted
appellants by mentioning that they were
part of the persons who committed dacoity.
On the merit of case, he submits that PWs1 and 2, who are eye witnesses, have
supported prosecution case in its entirety
and Trial Court has rightly convicted
appellants.

8. Heard learned counsel for parties
and perused the record.

9. Appellants are convicted under
Sections 395 and 397 IPC which are
reproduced as under:

"395. Punishment for dacoity.--
Whoever commits 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."

"397. Robbery, or dacoity, with
attempt to cause death or grievous hurt.--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."

10. "Dacoity" is defined in Section 391
IPC, which is reproduced as under:

"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".

11. Supreme Court in Raj Kumar alias
Raju (supra) has considered the issue in
question in paras 21 and 35 of the judgment,
which is relevant for present case and
reproduced as under:

"21. It is thus clear that for
recording conviction of an offence of robbery,
there must be five or more persons. In
absence of 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 not disputed
or is clearly established, but the court may
not be able to record a finding as to identity
of all the persons 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."

"35. 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 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 conspiracy punishable
under Section 120B 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
10 All. Balbir & Ors. Vs. State of U.P.
7
396 IPC, therefore, cannot stand and must
be set aside."(emphasis supplied)

12. The above judgment has been
followed by Supreme Court in subsequent
judgment in Manmeet Singh alias Goldie
(supra) and relevant paras 32, 33 and 34 of
the judgment are as under:

"32. With reference to the offence
of dacoity under section 391, IPC in
particular and the import of section 149,
IPC, this Court in Raj Kumar vs. State of
Uttaranchal 2008 (11) SCC 709 had
propounded that in absence of a finding
about the involvement of five or more
persons, an accused cannot be convicted
for such an offence. Their Lordships,
however, clarified that in a given case it
could happen that there might be five or
more persons and the factum of their
presence either is not disputed or is clearly
established, but the Court may not be able
to record a finding as to their identity
resulting in their acquittal as a result
thereof. It was held that in such a case,
conviction of less than five persons or even
one can stand, but in the absence of a
finding about the presence or participation
of five or more persons, less than five
persons cannot be convicted for an offence
of dacoity.

33. The above pronouncements
do acknowledge the extension of the
concept of collective culpability enshrined
in Section 149 IPC in Section 396 IPC
contemplating murder with dacoity. An
assembly
of
five
or
more
persons
participating in the offence is thus the sine
qua non for an offence under Section 396
IPC permitting conviction of any one or
more members thereof even if others are
acquitted for lack of their identity. In
absence of such an assembly of five or
more persons imbued with the common
object of committing dacoity with murder,
any member thereof cannot be convicted
for the said offence irrespective of his/her
individual
act
of
murder
unless
independently and categorically charged
for that offence.

34. As adverted to hereinbefore
above, the prosecution has completely
failed in the instant case to either prove the
participation of five or more persons in the
commission of the offence or establish their
identity. In that view of the matter having
regard to the above principle of law as
authoritatively laid down by this Court and
in absence of a singular charge under
Section 302 IPC against the appellant sans
the assembly, we are of the unhesitant
opinion that his conviction for dacoity with
murder punishable under Section 396 IPC,
in the facts and circumstances of the case,
cannot be sustained in law. The attention of
the courts below we understand had not
been drawn to this vital and determinative
facet of the case."(emphasis supplied)

13. From the above mentioned
judgments, it is clear that in case there is a
conviction of less than five persons under
Sections 395/ 397 IPC, Trial Court must
arrive to a finding that there was
involvement of five or more persons. In
absence of such finding no conviction
could be made out under aforesaid
Sections. As rightly pointed out by the
counsel for appellants that Trial Court has
not recorded any such finding in this regard
and it simply mentioned in the judgment
that "three accused, facing trial before me,
were
also
alongwith
dacoits
who
committed dacoity in the house of Raj
Kumar" and "prosecution has successfully
established
that
the
three
accused
committed dacoity in the house of Raj
Kumar in the night of occurrence". In my
opinion, the above mentioned finding is not
8 INDIAN LAW REPORTS ALLAHABAD SERIES
sufficient to conclude that five or more
persons were involved in the offence and
not sufficient to convict appellants, who are
three in numbers under the offence of
dacoity.

14. In view of above, prosecution has
completely failed, in the present case,
either to prove the participation of five or
more persons in commission of offence or
establish their identity. Therefore, in my
considered
view
the
conviction
and
sentence of appellants is being repugnant to
letter and spirit of Sections 391 and 396
IPC, the same cannot be sustained.

15. In the result, appeal is allowed.
Judgment and order dated 11.03.1983
passed by Sri D.C. Srivastava, Judge
Special Court (Dacoity), Kanpur Dehat in
Session Trial No. 467 of 1981 (State vs.
Balbir and others), is hereby set aside. The
appellants are acquitted of the charges and
are hereby ordered to be set at liberty
forthwith. The bail bonds stand discharged.

16. Lower Court record alongwith a
copy of this judgment be sent back
immediately to District Court concerned for
compliance and further necessary action.

17. Before parting, this Court
appreciates the assistance given by Sri
Pranvesh,
Advocate
appearing
for
appellants, though he was initially hesitant
to argue this appeal, being his first criminal
appeal before this Court.
----------
(2020)10ILR A8
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 15.10.2020

BEFORE

THE HON'BLE RAMESH SINHA, J.
THE HON'BLE SAMIT GOPAL, J.

Criminal Appeal No. 1581 of 2002

Safat ...Appellant (In Jail)
Versus
State of U.P. ...Opposite Party

Counsel for the Petitioner:
Sri S. Alim Shah, Sri M.J. Akhtar, Sri Tiwari
Abhishek Rajesh, Sri V.M. Zaidi

Counsel for the Opposite Party:
A.G.A., Sri Siddharth Sinha, Sri Siddharth
Srivastava

Evidence Law - Indian Evidence Act, 1872-
Section 134 - The trustworthy evidence
given by a single witness would be
enough to convict the accused whereas
the
evidence
given
by
half-a-dozen
witnesses which is not trustworthy, would
not be enough to sustain conviction.

It is the quality and not the quantity of evidence
that is important and the court can record
conviction on the basis of a solitary witness
provided the evidence is trustworthy and
credible.

Evidence Law - Indian Evidence Act, 1872-
Section
134
-
Solitary
witness-
Contradictions- Absence of corroboration-
Other witnesses hostile- The presence of
P.W.-1 at the shop of the deceased-No
convincing reason for his presence at the
place of occurrence coupled with the fact
that he claims that his pant had sustained
blood stains which were not disclosed by
him to the Investigating Officer and even
the Investigating Officer did not see the
same on his clothes with the further fact
that the two eye witnesses mentioned by
him in the F.I.R., P.W.-2 and P.W.-3, have
not supported the prosecution case and
have been declared hostile, the presence
of P.W.-1 at the place of occurrence is
highly doubtful. Recovery as shown of a
country-made pistol of 12 bore and one
empty cartridge embedded in the same,
no charge under the Arms Act has been
framed, the charge sheet also has not