# Lokai Chamar v. State of U.P. 918 INDIAN LAW REPORTS ALLAHABAD SERIES

- **Citation:** (2019) 3 ILRA 917
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-11-01
- **Bench:** Ved Prakash Vaish, Mohd. Faiz Alam Khan
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/lokai-chamar-v-state-of-u-p-918-indian-law-reports-allahabad-series-44877
- **Pages:** 17

## Headnote

A. Criminal Law-Indian Penal Code,1860
- Section 396 of I.P.C. (Dacoity with
murder)
-
Neither
intention,
nor
knowledge,
that
murder
would
be
committed
in
the
course
of
the
commission of such dacoity, is required
to
be
proved
to
exist
in
the
contemplation of any of the said other
persons - They would all nevertheless,
be exposed to the rigor of Section 396 of
the I.P.C.- The provision is, therefore, sui
generis, in that it seeks to hold all
participants to the crime liable for an
offence (of murder) never even intended
by them, individually - No article which
was subject matter of dacoity has been
recovered
-
no
other
incriminating
evidence to connect the appellant with
the offence - The trial court did not
record a finding that there were more
than
five
persons
who
committed
dacoity - the prosecution failed to either
proof the participation of five or more
persons in the commission of the offence
or establish their identity- the conviction
and sentence of the appellant being
repugnant to letter and spirit of Sections
391
and
396
of
the
I.P.C.(Para
3,5,8,15,21,47,49,50,52)

B. Distinction between Section 34 and
396 of the I.P.C - Section 396 of the I.P.C.
makes all persons liable for the offence of
dacoity with murder even though murder is
actually committed only by one of the said
"dacoits", and may not even have been in the
contemplation, much less knowledge, of any
of the others. Section 34 of the I.P.C. renders
the persons liable for any offence only if all
the persons shared a common intention to
commit the offence and the offence was
committed by all of them together. (Para-23)

C. Section 9 of the Evidence Act (Facts
necessary
to
explain
or
introduce
relevant
facts)
-
The
T.I.P.
(Test
identification parade) is not a substantive
evidence. The substantive evidence is the
evidence of identification in Court - The facts,
which establish the identity of the accused
persons, are relevant under Section 9 of the
Evidence Act- They do not constitute evidence
and these parades are governed by Section
162 of the Cr.P.C. (Para 34,35,38,45,46)
Appeal allowed (E-7)

Chronological list of cases cited: -

## Text

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3 All. Lokai Chamar Vs. State of U.P.
917
special reasons to be recorded in writing,
it does not consider it proper to do so.

(2) Where the offender ordered
to be released under sub-section (1) is
under twenty-four years of age, the court
may make a supervision order directing
that such offender shall be under the
supervision of such probation officer as
may be named in the order during the
period specified therein and imposing
such other conditions for securing such
supervision as may be specified in the
order :

Provided that the period so
specified shall not extend beyond the date on
which, in the opinion of the court, the offender
will attain the age of twenty-five years.

(3) A court making an order under
sub-section (2) shall require the offender,
before he is released to enter into a bond, with
or without sureties, to observe the condition
with respect to residence, abstention from
intoxicants and any other matters as the court
may, having regard to the particular
circumstances of the case, consider fit to
impose for preventing a repetition of the same
offence or a commission of other offences by
the offender.

(4) A court making an order
under sub-section (2) shall furnish to the
offender and the sureties, if any, a notice
in writing stating in simple terms the
conditions of the bond."

14. After considering the provision
of Section 4 of the aforementioned act
and considering the mandate of Section
360 and 361 of Cr.P.C., which indicates
that in any case where the court could
have dealt with an accused under Section
360 of the Code and yet does not want to
grant the benefit of the said provision
then it shall record in its judgemnt the
specific reasons for not having done so.
This has apparently not been done,
inasmuch as the trial court overlooked the
provisions of Sections 360 and 361 of the
Code of Criminal Procedure and it was
mandatory duty cast on the trial court
which ought to have been performed.

15. Looking to the facts and
circumstances of the present case, this
Court see no reasons not to apply the
provisions of Section 360 of the Code of
Criminal Procedure.

16. Accordingly, this Court while
maintaining the conviction of the appellant ,
direct that he will be dealt with under Section
4 of The United Provinces First Offenders
Probation Act, 1938 and direct that the
appellant be released on probation of good
conduct instead of sentencing him, and he
should enter into a bond with one surety to
appear and receive the sentence when called
upon during the period of one year for the
purpose in question. The bond for a year shall
be executed before the learned Chief Judicial
Magistrate, Bulandshahar within one month
after receiving certified copy of this order.

17. The appeal is accordingly
disposed of.
----------

(2019)11ILR A917

APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 01.11.2019

BEFORE
THE HON'BLE VED PRAKASH VAISH, J.
HON'BLE MOHD. FAIZ ALAM KHAN, J.

Criminal Appeal No.- 395 of 1987

Lokai Chamar ...Appellant
Versus
State of U.P. ...Respondent
918 INDIAN LAW REPORTS ALLAHABAD SERIES
Counsel for the Appellant:
Sri S.P. Shukla, Sri Pradeep Kumar
Tripathi, Sri Rajendra Prasad, Sri Sajid
Raza Rizvi, Sri Satish Shukla.

Counsel for the Respondent.:
G.A.

A. Criminal Law-Indian Penal Code,1860
- Section 396 of I.P.C. (Dacoity with
murder)
-
Neither
intention,
nor
knowledge,
that
murder
would
be
committed
in
the
course
of
the
commission of such dacoity, is required
to
be
proved
to
exist
in
the
contemplation of any of the said other
persons - They would all nevertheless,
be exposed to the rigor of Section 396 of
the I.P.C.- The provision is, therefore, sui
generis, in that it seeks to hold all
participants to the crime liable for an
offence (of murder) never even intended
by them, individually - No article which
was subject matter of dacoity has been
recovered
-
no
other
incriminating
evidence to connect the appellant with
the offence - The trial court did not
record a finding that there were more
than
five
persons
who
committed
dacoity - the prosecution failed to either
proof the participation of five or more
persons in the commission of the offence
or establish their identity- the conviction
and sentence of the appellant being
repugnant to letter and spirit of Sections
391
and
396
of
the
I.P.C.(Para
3,5,8,15,21,47,49,50,52)

B. Distinction between Section 34 and
396 of the I.P.C - Section 396 of the I.P.C.
makes all persons liable for the offence of
dacoity with murder even though murder is
actually committed only by one of the said
"dacoits", and may not even have been in the
contemplation, much less knowledge, of any
of the others. Section 34 of the I.P.C. renders
the persons liable for any offence only if all
the persons shared a common intention to
commit the offence and the offence was
committed by all of them together. (Para-23)

C. Section 9 of the Evidence Act (Facts
necessary
to
explain
or
introduce
relevant
facts)
-
The
T.I.P.
(Test
identification parade) is not a substantive
evidence. The substantive evidence is the
evidence of identification in Court - The facts,
which establish the identity of the accused
persons, are relevant under Section 9 of the
Evidence Act- They do not constitute evidence
and these parades are governed by Section
162 of the Cr.P.C. (Para 34,35,38,45,46)
Appeal allowed (E-7)

Chronological list of cases cited: -

1. Jai Bhagwan & ors. Vs St. of Har. (1999) 3
SCC 102

2. Ram Lakhan Vs St. of U.P. (1983) 2 SCC 65

3. Saktu & anr. Vs St. of U.P., (1973) 1 SCC 202

4. Dalip Singh & ors. Vs St. of Pun. AIR (1953)
SC 364

5. Mohan Singh & anr Vs St. of Pun. AIR
(1963) SC 174

6. Krishna Govind Patil Vs St. of Mah. AIR
(1963) SC 1413

7. Ram Bilas Singh & ors. Vs St. of Bihar
(1964) 1 SCR 775

8. Maina Singh Vs St. of Raj. (1976) 2 SCC 827

9. Ram Dular Rai & ors. Vs St. of Bihar (2003)
12 SCC 352

10. State of Maharashtra Vs Suresh (2000) 1
SCC 471

11. Harbajan Singh Vs St. of J&K. (1975) 4
SCC 480

12. Hari Nath & anr. Vs St. of U.P., (1988)1
SCC 14

13. Manoj Giri Vs St. of Chhatisgarh (2013) 5
SCC 798
3 All. Lokai Chamar Vs. State of U.P.
919
(Delivered by Hon'ble Ved Prakash
Vaish, J.)

1. Heard Sri Pradeep Kumar
Tripathi, learned counsel for the appellant
and Ms. Ruhi Siddiqui, learned Addl.
G.A. for the State.

2. This is an appeal filed by the
appellant, Lokai Chamar against the
judgment and order dated 14.04.1987
passed by learned VIIth Additional
District & Sessions Judge, Sitapur, in
Sessions Trial No.160 of 1986, whereby
the appellant has been convicted for the
offence under Section 396 of Indian Penal
Code (hereinafter referred to as "I.P.C.")
and sentenced to undergo imprisonment
for life. However, the co-accused, Munna
has been acquitted.

3. The facts of the case as unfolded
by the prosecution are that on 12.09.1985,
the complainant, namely, Sundar Lal S/o
Gaya Prasad lodged a complaint that
bhajan kirtan was going on till about 1:30
AM, thereafter, they slept and the other
persons of the village went to their
respective houses, in the meantime, about
10-12 bad elements armed with lathi,
ballam, addhi (handmade pistol) and gun
came and tried to open the door, when
they did not open the door then one of the
bad elements jumped the wall, came
inside the house and opened the kundi and
the other persons accompaning him also
entered in the house, and gave beatings
with danda to his mother and enquired
about the valuable articles. When those
bad elements were putting the looted
articles on the door of the house, the gas
was burning in the house; and on getting
an occasion, he went to the southern
window and made a noise, on this
villagers, Chhanga S/o Preetam, Sobaran
S/o Maikoo Chamar, Fakeeray S/o
Sukkha Chamar, Surendra S/o Jagannath,
Sripal S/o Sirdar and other persons came
with lathi and torch and challenged the
said persons, and on this the bad elements
fired 3-4 times with a view to put them on
fear, he (complainant) put fire on leaf of
sugarcane and jhakar and the villagers
fired from their licensed guns, on this the
said bad elements along with looted
articles started to go to western side, one
bad element was apprehended by his
father then the other bad elements fired
from the gun by which injury was caused
at chest and right hand of his father and
some bullet shots (chharre) hit on the hip
of his wife. The said bad elements were
seen and identified by him, his family
members and other villagers in the light
of gas and fire. They can identify them if
bad elements appeared before them, he
and his wife can also identify the looted
articles, which were taken by bad
elements. The looted articles, which were
taken by bad elements are as under:-

(i) Gas, which was burning in
the house Prabhat Marka.

(ii) Old used batua, which is
made of kaskut, weighted about 12 kg. to
which Puran Badhai name is printed.

(iii) 2 boxes made of tin.

(iv) Rs.400/- cash.

(v) Three new sarees.

(vi) Two old plates made of
kaskut.

(vii) Two old bilwa.

(viii) One lota and lotiya which
made of kalayi and a white silver glass.

On the basis of said complaint,
First Information Report (hereinafter
referred to as "F.I.R."), Case crime No.
147 of 1985 was registered for the offence
920 INDIAN LAW REPORTS ALLAHABAD SERIES
under Sections 395 and 397 of I.P.C. at
Police Station- Pisawa, District- Sitapur at
08:25 AM on 12.09.1985.

4. On 12.09.1985, the injured,
namely, Gaya Prasad, Chhutanni W/o
Gaya Prasad and Vindeswari Devi W/o
Sundarlal were medically examined in
District Hospital, Sitapur. The father of
complainant, namely, Gaya Prasad died,
his body was inspected, inquest papers
were prepared, on 14.09.1985 the dead
body of the deceased, Gaya Prasad was
inspected, the delivery deed of gas and
torch along with bloodstained soil, plain
soil, empty cartridges, gun shots and ash
was prepared, which were recovered from
the spot. The site plan was prepared and
statements
of
the
witnesses
were
recorded. The accused, Lokai Chamar
was arrested on 31.10.1985 and Munna
was
arrested
on
18.11.1985.
Test
identification parade (hereinafter referred
to as "T.I.P.") was got conducted. On
completion of investigation, chargesheet
for the offence under Section 396 of I.P.C.
was filed against accused, Lokai Chamar
and Munna.

5. After complying with the
provisions of Sections 207 of the Code of
Criminal Procedure (hereinafter referred
to as "Cr.P.C."), the chargesheet was
committed to learned trial court.

6. After hearing arguments on
charge, learned trial court found a prima
facie case to try the accused, Lokai
Chamar and Munna for the offence under
Section 396 of I.P.C. and, accordingly,
charge for the offence under Section 396
of I.P.C. was framed on 16.06.1986.

7. To bring home the guilt of the
accused
persons,
the
prosecution
examined as many as five witnesses. PW1, Sundar Lal, who is the complainant, he
has deposed his complaint as Ex. KA-1.
He has also deposed that the injured were
taken to hospital and got medically
examined, his father was sent to Sitapur
Hospital where he died. Thereafter, he
came to know that the accused persons
had been arrested and he went to jail to
identify them. PW-2, Sobaran, who is the
neighbour and eye witness, he has proved
the delivery deed of torch and gas as Ex.
KA-2. He has also deposed that when
accused persons were arrested, he went to
the jail for identifying the accused
persons, he identified both the accused
persons as the persons who were
identified by him in jail. PW-3, Chhanga
Lal, who is also neighbour and witness to
T.I.P., he has deposed that he identified
the accused persons and he knew them
earlier, one of them was Munna and the
other was Lokai. PW-4, S.I. B.R. Singh,
who is the Investigating Officer has
deposed about the various steps taken by
him during investigation. He has proved
the site plan as Ex. KA-3, seizure memo
of plain soil and bloodstain soil as Ex.
KA-4, seizure memo of empty cortages,
tikli and bullet shots (chharre) as Ex. KA5, seizurre memo of ash as Ex. KA-6 and
delievery deed of gas and torch as Ex.
KA- 7; he further deposed that on
14.09.1985, injury report was received
and on 16.09.1985, postmortem report
was received, on the basis of which,
Section 396 of I.P.C. was added after that
further investigation was held by S.O. Tej
Bahadur
and
the
chargesheet
was
prepared by him and deposed the
chargesheet
as
Ex.
KA-8.
PW-5,
Constable Bhola Singh is the person who
recorded F.I.R., he has deposed that he
recored Case Crime No.147 of 1985
under Sections 395 and 397 of I.P.C. and
made entry in the roznama at Serial
3 All. Lokai Chamar Vs. State of U.P.
921
No.10 at 08:05 A.M. and deposed copy of
roznama as Ex. KA-9 and also deposed
G.D. as Ex. KA-10.

8. On completion of the prosecution
evidence,
statement
of
the
appellant/accused, Lakai Chamar and
Munna under Section 313 of Cr.P.C. was
recorded and incriminating evidence was
put to them to which the accused persons
denied. The accused persons did not
choose to lead any defence evidence.

9. After hearing the arguments and
considering evidence on record learned
trial court found the appellant guilty for
the offence under Section 396 of I.P.C.
and sentenced him vide judgment and
order dated 14.04.1987. However, the coaccused, Munna was acquitted.

10. Being aggrieved by the
impugned judgment and order dated
14.04.1987, the appellant has preferred
the present criminal appeal.

SUBMISSION ON BEHALF
OF THE PARTIES

11. Learned counsel for the
appellant vehemently argued that learned
trial court erred in convicting the
appellant for the offence punishable under
Section 396 of I.P.C. It was submitted that
two persons were tried for the offence
under Section 396 of I.P.C., when the trial
court
acquitted
one
of
them,
no
conviction could have been recorded of
the remaining accused i.e., the appellant
for an offence punishable under Section
396 of I.P.C. It was also submitted that for
recording of conviction of an accused
under Section 396 of I.P.C., there must be
five or more than five persons and,
therefore, the trial court was wrong in
invoking and applying Section 396 of
I.P.C. According to learned counsel for
the appellant, the judgment of conviction
and order on sentence deserves to be set
aside on this ground alone.

12. Learned counsel for the
appellant further contended that the
appellant was not identified by the
prosecution witnesses as he was shown to
the witnesses, namely, PW-1, Sundar Lal,
PW-2, Sobaran and PW-3, Chhanga Lal.

13. On the other hand, Ms. Ruhi
Siddiqui, learned Addl. G.A. for the State
supported the judgment of conviction and
order on sentence. She submitted that the
co-accused, Munna has been acquitted but
the appellant, Lokai Chamar has been
rightly convicted by the trial court after
analyzing the entire evidence. Learned
Addl. G.A. for the State submitted that
the prosecution has proved the guilt of the
appellant
by
examining
PW-1,
complainant, Sundar Lal, PW-2, Sobaran
and PW-3, Chhanga Lal.

14. We have given our anxious
thought to the submissions advanced by
learned counsel for the appellant and
learned Addl. G.A. for the State and also
carefully perused the material available
on record.

15. Before proceeding to examine
the culpability of the appellant before us,
in the conspectus of the facts and findings
recorded herein above, it would be
worthwhile to consider the relevant
provisions of Section 34, 149 and 300 of
I.P.C., thus:

"34. Acts done by several
persons in furtherance of common
intention.--When a criminal act is done
by several persons, in furtherance of the
922 INDIAN LAW REPORTS ALLAHABAD SERIES
common intention of all, each of such
persons is liable for that act in the same
manner as if it were done by him alone.

149.
Every
member
of
unlawful assembly guilty of offence
committed in prosecution of common
object.--If an offence is committed by any
member of an unlawful assembly in
prosecution of the common object of that
assembly, or such as the members of that
assembly knew to be likely to be
committed in prosecution of that object,
every person who, at the time of the
committing of that offence, is a member of
the same assembly, is guilty of that
offence.

300. Murder.--Except in the
cases
hereinafter
excepted,
culpable
homicide is murder, if the act by which the
death is caused is done with the intention
of causing death, or--

Secondly.--If it is done with the
intention of causing such bodily injury as
the offender knows to be likely to cause
the death of the person to whom the harm
is caused, or--

Thirdly.--If it is done with the
intention of causing bodily injury to any
person and the bodily injury intended to
be inflicted is sufficient in the ordinary
course of nature to cause death, or--

Fouthly.--If
the
person
committing the act knows that it is so
imminently dangerous that it must, in all
probability, cause death, or such bodily
injury as is likely to cause death, and
commits such act without any excuse for
incurring the risk of causing death or
such injury as aforesaid.

Exception 1.--When culpable
homicide
is
not
murder.--Culpable
homicide is not murder if the offender,
whilst deprived of the power of selfcontrol by grave and sudden provocation,
causes the death of the person who gave
the provocation or causes the death of
any other person by mistake or accident.

The above exception is subject
to the following provisos:

First.--That the provocation is
not sought or voluntarily provoked by the
offender as an excuse for killing or doing
harm to any person.

Secondly.--That the provocation
is not given by anything done in
obedience to the law, or by a public
servant in the lawful exercise of the
powers of such public servant.

Thirdly.--That the provocation
is not given by anything done in the
lawful exercise of the right of private
defence.

Explanation.--Whether
the
provocation was grave and sudden
enough to prevent the offence from
amounting to murder is a question of fact.

Exception
2.--Culpable
homicide is not murder if the offender, in
the exercise in good faith of the right of
private defence of person or property,
exceeds the power given to him by law
and causes the death of the person
against whom he is exercising such right
of defence without premeditation, and
without any intention of doing more harm
than is necessary for the purpose of such
defence.

Exception
3.--Culpable
homicide is not murder if the offender,
being a public servant or aiding a public
servant acting for the advancement of
public justice, exceeds the powers given
to him by law, and causes death by doing
an act which he, in good faith, believes to
be lawful and necessary for the due
discharge of his duty as such public
servant and without ill-will towards the
person whose death is caused.
3 All. Lokai Chamar Vs. State of U.P.
923

Exception
4.--Culpable
homicide is not murder if it is committed
without premeditation in a sudden fight in
the heat of passion upon a sudden quarrel
and without the offender having taken
undue advantage or acted in a cruel or
unusual manner.

Explanation.--It is immaterial in
such cases which party offers the
provocation or commits the first assault.

Exception
5.--Culpable
homicide is not murder when the person
whose death is caused, being above the
age of eighteen years, suffers death or
takes the risk of death with his own
consent.

16. Chapter XVII of the Cr.P.C.
deals with offenses against property.
Section 378 to 382 deal with theft.
Section 383 to Section 389 concern
offences of extortion. Section 390 to 402
deal with robbery and dacoity. Section
391 defines dacoity as:

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".

17. Section 395 of the IPC provides
punishment for dacoity. Section 396
prescribes penalty for an offence of
dacoity with murder. The same reads thus;

396. Dacoity with murder.--If
any one of five or more persons, who are
conjointly committing dacoity, commits
murder
in
so
committing
dacoity,
everyone 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."

18. From a conjoint reading of
Section 391 and 396 of I.P.C., it is
manifestly
clear
that
the
essential
prerequisite of joint participation of five
or more persons in the commission of the
offence of dacoity and if in the course
thereof anyone of them commits murder,
all members of the assembly, would be
guilty of dacoity with murder and would
be liable to be punished as enjoin thereby.
Thus, the pre-condition to perceive an
offence of dacoity of murder is a
participating assembly of five or more
persons for commission of the offence. In
the absence of such an assembly, no such
offence is made out rendering the
conviction, therefore, of any person in
isolation for murder, even if proved, in
permissible in law.

19. An immediate feature of Section
396 of I.P.C., which strikes one at first
reading thereof, is that it is a self contain
provision. In other words, contributory
liability, thereunder, does not depend, in
order to stand erect, on the crutches of
any other provision. The provision creates
vicarious liability sans mens rea, and is,
to that extent, sui generis in nature.
Section 396 of I.P.C., in its plain terms
applies to every situation in which five or
more persons commit dacoity and, in the
course of the commission of such dacoity,
anyone of the said persons, commits
murder. All five persons, thereby, become
liable, by statutory prescription, to the
offence of "dacoity with murder", and
expose themselves to the punishment
stipulated in the said provision.
924 INDIAN LAW REPORTS ALLAHABAD SERIES

20. The three essential ingredients
for invoking Section 396 of I.P.C. are that
(i) one of the persons must commit
murder, i.e., his act must amount to
"murder" within the meaning of Section
300 of I.P.C., (ii) the said person must be
one of the five or more persons who have
joined together to commit dacoity, and
(iii) the murder must be committed in the
course of commission of such dacoity.

21. If these conditions are fulfilled,
then Section 396 of I.P.C. would kick in
and blight all the other persons, involved
in the act of dacoity, even if one of them
was even aware that murder was about to
be committed. In other words, so far as
the remaining persons are concerned, all
the prosecution is require to prove, in
order for Section 396 of the I.P.C. to
apply, is their intention to commit dacoity.
Neither intention, nor knowledge, that
murder would be committed in the course
of the commission of such dacoity, is
required to be proved to exist in the
contemplation of any of the said other
persons. All persons must, therefore,
possess the mens rea, therefore, may be
attributable only to one of the said
persons. They would all nevertheless, be
exposed to the rigour of Section 396 of
the I.P.C. The provision is, therefore, sui
generis, in that it seeks to hold persons
liable for an offence never even intended
by them.

22. Thus, Section 396 and 34 of the
I.P.C. are mutually incompatible. Section
34 of the I.P.C., by its very title, covers
"acts done by other persons in furtherance
of common intention". It proceeds to refer
expressly to "a criminal act done by other
persons in furtherance of the common
intention of all". In such a situation, each
of the persons is made liable by the said
persons "for that act". In other words, if,
under Section 34 of the I.P.C. more than
one person are tried to be mulcted with
the offence of having committed "dacoity
with murder" it would have to be shown
that the act of "dacoity with murder" is
done by all the persons and that all the
persons had a common intention to
commit
dacoity
with
murder.
The
possibility of their having to commit
murder, in the course of committing
dacoity must, therefore, be shown to have
been in the contemplation of all the said
persons. In such a situation, Section 34 of
the I.P.C. would make each of such
persons liable for committing dacoity
with murder.

23. The clear distinction between
Section 34 and 396 of the I.P.C. is,
therefore, that while Section 396 of the
I.P.C. makes all persons liable for the
offence of dacoity with murder even
though murder is actually committed only
by one of the said "dacoits", and may not
even have been in the contemplation,
much less knowledge, of any of the
others, Section 34 of the I.P.C. renders the
persons liable for any offence only if all
the persons shared a common intention to
commit the offence of dacoity with
murder, and the offence was committed
by all of them together.

24. Therefore, Section 34 of the I.P.C.
could never apply to any of the persons to
whom the intention to commit murder could not
be attributed; consequently, such an accused
could never be committed under Section 302
read with Section 34 of the I.P.C. In this regard
reliance with advantage may be made to the
judgment in the case of 'Jai Bhagwan and
others vs. State of Haryana', (1999) 3 SCC
102. In the said case it was held:
3 All. Lokai Chamar Vs. State of U.P.
925

"10. To apply Section 34 IPC
apart from the fact that there should be
two or more accused, two factors must be
established: (i) common intention and (ii)
participation of the accused in the
commission of an offence. If a common
intention is proved but no overt act is
attributed to the individual accused,
Section 34 will be attracted as essentially
it involves vicarious liability but if
participation of the accused in the crime
is proved and a common intention is
absent, Section 34 cannot be invoked. In
every case, it is not possible to have direct
evidence of a common intention. It has to
be
inferred
from
the
facts
and
circumstances of each case."

25. In the case of 'Ram Lakhan vs.
State of U.P', (1983) 2 SCC 65, the
appellant was convicted for an offence
punishable under Section 395 of the I.P.C.
and sentenced to rigorous imprisonment
for seven years. The F.I.R. was registered
against nine persons. The trial court,
however, acquitted five persons and
convicted four accused persons. On
appeal, the High Court acquitted three
persons out of said four persons and
convicted one of the accused, who filed
an appeal before the Hon'ble Supreme
Court. The Hon'ble Supreme Court held
that conviction for an offence of dacoity
of
less
than
five
persons
is
not
sustainable. It was also held that before an
offence under Section 395 of the I.P.C.
can be made out there must be an
assembly of five or more persons. On the
findings of trial court and the High Court,
it was manifest that only person was left,
who could not be convicted for an offence
under Section 395 of the I.P.C.

26. In the case of 'Saktu and
another vs. State of U.P.', (1973) 1 SCC
202, the F.I.R. was lodged by the
informant, Jwala Prasad. The case of
prosecution was that 15-16 persons
entered in the house of complainant and
looted the property. All the accused
persons were charged for the offences
punishable under Sections 395, 397 and
412 of the I.P.C. The trial court acquitted
one of the accused. In an appeal, the High
Court of Allahabad acquitted some other
accused persons but convicted three
accused persons. In appeal before the
Hon'ble Supreme Court it was contended
that as the High Court found that only
three persons had participated in the
occurrence, there was an error in
convicting them for dacoity, since the
offence
of
dacoity
could
not
be
committed by less than five persons. The
Hon'ble
Supreme
Court,
however,
negatived the contention and observed as
follows:-

"6.
The
last
contention
advanced on behalf of the appellants is
that as the High Court found that only
three persons had participated in the
occurrence it was an error to convict
them of dacoity, because the offence of
dacoity cannot be committed by less than
five persons. In support of this submission
counsel relies on the decision in Ram
Shankar Singh v. State of Uttar Pradesh
[AIR 1956 SC 441 : 1936 Cri LJ 822] .
We are unable to accept this submission.
In Ram Shankar Singh case six known
persons were charged with dacoity and as
the High Court acquitted three out of the
six, it was held by this Court that the
remaining three could not have been
convicted for dacoity. The charge in the
instant case is that apart from the named
seven or eight persons, there were five or
six others who had taken part in the
commission
of
the
dacoity.
The
926 INDIAN LAW REPORTS ALLAHABAD SERIES
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
important that it was at no time disputed
that more than 13 or 14 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 the group which committed
robbery in the house of Jwala Prasad
consisted of less than five persons."

27. Similarly Section 149 of the
I.P.C. provides for common assembly.
The Hon'ble Supreme Court considered
the provisions of Section 149 of the I.P.C.
in the case of 'Dalip Singh and others
vs. State of Punjab', AIR 1953 SC 364.
In the said case, it was held that if the
prosecution failed to establish that the
appellants were five or more, Section 149
of the I.P.C. cannot be invoked. But the
Hon'ble Supreme 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
persons was in doubt, conviction of less
than five persons with the aid of Section
149 of the I.P.C. would be legal and
lawful. In the said case, it was observed
as under:-

"19. Before Section 149 can be
called in aid, the court must find with
certainty that there were at least five
persons sharing the common object. A
finding that three 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 on this uncertain
foundation.

20. 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 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 behoves a court,
particularly in a murder case where
sentences of transportation in no less than
four cases have been enhanced to death,
to say so with unerring certainty. Men
cannot be hanged on vacillating and
vaguely uncertain conclusions."

28. The aforesaid judgment in Dalip
Singh's case (supra) was referred in the
case of 'Mohan Singh and another vs.
State of Punjab', AIR 1963 SC 174. In
the said case, two of the five persons were
tried for the offences punishable under
Section 302 read with Section 147 and
149 of the I.P.C. were convicted. In the
charge, said five accused persons and
none others were mentioned as forming
unlawful assembly and the evidence led
was confined to them. The question was
whether two persons could be convicted
by applying Section 149 of the I.P.C. It
was stated:

"9...................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 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
3 All. Lokai Chamar Vs. State of U.P.
927
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 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 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 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................."

29. The aforesaid judgment in
Mohan
Singh's
case
(supra)
was
considered in the case of 'Krishna
Govind Patil vs. State of Maharashtra',
AIR 1963 SC 1413, and it was held:

"7.....................It may be that
the charge discloses only named persons;
it may also be that the prosecution
witnesses named only 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, 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................."

30. In another case 'Ram Bilas
Singh and others vs. State of Bihar',
(1964) 1 SCR 775, the Hon'ble Supreme
Court observed as under:

"15..........................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 the effect
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 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 identified, it,
would be open to the court to convict less
than five of the offence of being members
of the unlawful assembly or convict them
of the offence committed by the unlawful
assembly with the aid of Section 149 IPC
provided it comes to the conclusion that
five or more persons participated in the
incident....................."

31. In 'Maina Singh vs. State of
Rajasthan', (1976) 2 SCC 827, the
appellant along with four other persons
were charged for the offence under
Section 302 read with Section 149 of the
928 INDIAN LAW REPORTS ALLAHABAD SERIES
I.P.C. Only the appellant was convicted
for the offence under Section 302 read
with Section 34 of the I.P.C. and the other
accused persons were acquitted. There
was no indication either in the F.I.R. or in
the evidence that any other person
unnamed or unidentified other than the
five persons charged, to have participated
in the crime. The conviction was
challenged by the appellant. The Hon'ble
Supreme Court while setting aside the
conviction for an offence punishable
under Section 302 read with Section 34 of
the I.P.C. held that if in a given case, the
charge discloses only the named persons
as co-accused and prosecution witnesses
confine their testimony to them, even then
it would 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 there is other
evidence to lead to that conclusion, but
not otherwise.

32. In yet another decision, the
Hon'ble Supreme Court in the case of
'Ram Dular Rai and others vs. State of
Bihar', (2003) 12 SCC 352, it was stated:

"6. 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 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."

33. Thus, it is clear that for
recording conviction for an offence of
dacoity, there must be five or more
persons. In the absence of such finding,
an accused cannot be convicted for an
offence of dacoity. However, it may be
that there are five or more persons and the
factum of five or more persons is either
not disputed or is 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, returning a finding that their
identity is not established. In such a case,
the conviction of less than five persons
can be maintained. But in the absence of
such finding, less than five persons
cannot be convicted for an offence of
dacoity.

34. It is settled rule of law that the
T.I.P. is not a substantive evidence. The
substantive evidence is the evidence of
identification in Court. The same is clear
from the provisions of Section 9 of the
Indian Evidence Act, 1872 as well as
catena of decisions. The facts, which
establish the identity of the accused
persons, are relevant under Section 9 of
the
Evidence
Act.
Generally,
the
substantive evidence of a witness is the
statement made in the Court. The
evidence of mere identification of the
accused person at the trial for the first
time is from its very nature inherently of a
weak character. The purpose of T.I.P. is to
test and strengthen the trustworthiness of
the said evidence. The T.I.P. belongs to
the stage of investigation and there is no
provision in the Cr.P.C. which obliges the
investigating agency to hold, or confers a
right upon the accused to claim a T.I.P.
They do not constitute evidence and these
parades are governed by Section 162 of
3 All. Lokai Chamar Vs. State of U.P.
929
the Cr.P.C. Failure to hold a T.I.P. would
not make in admissible the evidence of
identification in Court. However, the
weight
to
be
attached
to
such
identification should be a matter of for the
Courts depending upon the facts, in
appropriate cases it may accept the
evidence of identification even without
insisting on corroboration. Thus, it is
considered a safe rule of prudence to
generally look for corroboration of the
testimony of witnesses in Court as to the
identity of the accused who are not
known to them, in the form of earlier test
identification proceeding. The said rule,
however, is subject to the exceptions,
when the Court is impressed by a
particular witness on whose testimony it
can safely rely, without such or other
corroboration.

35. The purpose of T.I.P.