Sheik Halim vs State of Orissa

P.K. Mohanti, J.—Appellant is one of the five accused persons who were convicted u/s 396, Indian Penal Code and sentenced to undergo imprisonment for life.

The facts which gave rise to the prosecution are that on the night of 13-12-1972 or strictly speaking at about 1 a.m. on 14-12-1972 a gang of 8 or 9 dacoits carrying torchlights, hand bombs and small lathis raided the residential house of Chintamani Sahu of village Kaimatia Patna under Jatni Police Station and bated the articles including cash and jewellery. They assaulted the inmates of the house and terrorised them by showing hand-bombs. They snatched away the ornaments which the female members were wearing. They broke open the boxes and almirahs and removed the valuables. The alarm raised by the inmates of the house attracted the attention of the villagers who assembled outside the house. The culprits retreated after taking the articles which they had removed from the house, and while going away they attacked the villagers who had gathered outside. In order to facilitate their escape one of the convicts named Hirmal Das threw a hand-bomb at Ramachandra Sahu, the eldest son of IL Chintamani which hit him on his chest and he fell down and died within a few hours. The villagers chased the dacoits and one of the dacoits named Babaji alias Alekh was caught red-handed. The others decamped with the booty. The accused Babaji who is a resident of the locality made a confessional statement before the villagers admitting that he had brought dacoits from Calcutta, Cuttack and Bhadrak for committing the crime.

F.I.R. was lodged by P.W. 1 Chintamani Sahu at Jatni Police Station on the same day at 7 a.m. The accused Babaji was taken to custody by the police on the morning of 14-12-1972. The Appellant who is a resident of Bhadrak was arrested on 18-12-1972 at village Tulasipur under Khurda Police Station while he was negotiating with the villagers to dispose of some of the stolen ornaments. On 22-12-1972 Babaji made a judicial confession implicating himself as well as his co-accused persons in the crime. In course of investigation the other accused persons were arrested at different places. Some of the stolen articles were recovered from accused Sunil and Sambhu at Calcutta. A.T.I. parade was held on 27-12-1972 and the accused persons were identified by the witnesses. Another T.I. parade was held on 4-1-1973 and some of the stolen articles were identified by the inmates of the house as belonging to them. In due course the five accused persons were charge-sheeted by the police, but the other culprits remained untraced.

The plea taken by the Appellant was that he was a dealer in goats and that on 18-12-1972 he had gone to village Tulasipur in connection with his goat business. The Gramarakhi (P.W. 22) and others demanded a sum of Rs. 200/- from him as a donation for their village library. He refused to pay and told them that he would report the matter to the police. Thereupon the Gramarakhi and others brought him to the police station and got him arrested. He also alleged that his photograph was taken and he was shown to the identifying witnesses before the T.I. parade. He denied his alleged complicity in the crime.

At the trial, prosecution examined 31 witnesses of whom P.Ws. 1 to 5, 8, 13, 25 and 29 are the inmates of the house of P.W. 1 and are eye-witnesses to the actual commission of dacoity. P.Ws. 6, 20, 21 and 34 are the co-villagers of P.W. 1 who rushed to the spot on hearing the alarm raised by P.W. 1 and his sons and they claimed to have witnessed the dacoits coming out of the house and the events that followed thereafter including the murder of Ramachandra Sahu. P.Ws. 7. 9, 10 and 11 are the witnesses who testified that the Appellant was found in the company of the other accused persons at Bhubaneswar on 13-12-1972. P.Ws. 14, 15 and 28 are the witnesses to the arrest of accused Sunil at Calcutta and to the seizure of stolen articles from his possession.

The trial Court on a consideration of the evidence led by the prosecution held the accused persons guilty and inflicted the sentences as indicated above. It is urged on behalf of the Appellant that the order of conviction is not borne out by the evidence on record.

The charge u/s 396, Indian Penal Code comprises of two ingredients: (1) The commission of the dacoity and, (2) the commission of the murder in so committing dacoity. The first ingredient is clearly established by the direct evidence of the eye-witnesses, the circumstantial evidence about recovery of the stolen articles and the confessional statement of accused Babaji. That there was a daring dacoity in the house of Chintamani Sahu was not challenged by the learned Counsel for the Appellant. The only question is whether the participation of the Appellant has been duly established.

It is true that no stolen property has been recovered from the Appellant, but he has been identified by a large number of witnesses who were in a position to recognise the culprits and who are in no way inimically disposed towards the Appellant. P.Ws. 1, 3, 4, 6, 20, 21 and 29, identified the Appellant in the T. I. parade as well as in Court as one of the culprits and described the role played by him in course of the dacoity. P.Ws. 2, 5, 8, and 25 identified the Appellant in Court as one of the culprits. P.Ws. 1 to 5 and 29 are the inmates of the house who received injuries at the hands of the accused persons. Their injuries ''were examined by the doctor P.W. 17 who proved the injury certificates. 8 to 13 issued by him. P.W. 1 stated that in course of dacoity the Appellant forcibly removed gold necklaces from the necks of his wife Padmabati and daughter-in-law Susama. Padmabati and Susama, who are P.Ws. 2 and 5 respectively, testified that the Appellant snatched away necklaces from their necks after assaulting them. Their evidence also shows that the Appellant showed a bomb and threatened that he would throw it at them if they shouted. According to P.W. 5 the Appellant was shouting as "Mar Dega, Mar Dega." P.W. 29 who is the second son of Chintamani Sahu stated that the Appellant assaulted him with a small lathi when he raised an alarm as "Chor", "Chor". This evidence was supported by P.Ws. 2, 3, 4 and 5. The evidence of the above witnesses disclosed that there were six burning lanterns at the spot and that torchlights were focussed by the dacoits as well as by the inmates of the house at the time of occurrence. The witnesses claimed to have clearly marked the features of the Appellant as they had several opportunities or seeing him at the time of occurrence. Their evidence has not been materially shaken. P.Ws. "6. 20. 21 and 24 are the neighbours who had assembled at the spot. They stated to Rave seen the Appellant coming out of the house along with the other culprits after the occurrence. P.W. 22 is a Gramarakhi of village Tulasipur. His evidence is that the Appellant told hall that he was a resident of Cuttack and that as the price of gold had gone down at Cuttack he had gone there to sell ornaments. On suspicion he took the Appellant to the village library and detained him there for the night. On the next morning he took him in a bus and handed over to the police at Khurda Police Station. His evidence also shows that the Appellant gave evasive replies when questioned by him as to what he did with the ornaments. The evidence of the above witnesses leaves no room for doubt that the Appellant along with his co-accused persons conjointly committed dacoity. The Appellant''s plea that his photograph was taken and that he was shown to the identifying witnesses before the T. I. parade has not been, substantiated by any evidence. The evidence of identification is entirely above board and commands confidence.

The convict Babaji alias Alekh made an extra-judicial confession before the villagers immediately after he was caught as deposed to by P.Ws. 3, 4, 6, 24 and 29. According to these witnesses Babaji confessed before them that he had brought dacoits from Calcutta, Cuttack and Bhadrak and committed the dacoity. Accused Babaji also made a judicial confession (Ext. 16) before the Magistrate (P.W. 19) implicating himself as welt as the Appellant as having participated in the dacoity. The confession has been proved to be true and voluntary

On a careful consideration of the direct evidence of the eye-witnesses along with the retracted confessions of the convict Babaji alias Alekh we have no hesitation in holding that the Appellant participated in the dacoity.

P.Ws. It 3, 4, 6, 20, 21, 24 and 29 have uniformity stated that when Ramachandra rushed to catch the dacoits, the accused Sunil throw a bomb at him which hit the left side of his chest and exploded .and he fell down and died within a few hours thereafter. The doctor P.W. 16 who held postmortem examination over the dead body of the deceased Ramachandra opined that the death was due to shock resulting from the injuries caused by the explosion of the hand-bomb.

It is contended that the murder was not committed in course of commission of the dacoity and as such the conviction u/s 396, Indian Penal Code cannot be sustained. We are unable to accede to this contention. The evidence of the witnesses leaves no doubt that the culprits were engaged in carrying of their booty and when the deceased obstructed them at a distance of about 2 to 4 cubits away from the scene of occurrence, he was killed. In view of the definition of ''robbery'' contained in Section 390. Indian Penal Code, it must be held that the culprits were still engaged in committing dacoity. The murder committed by the dacoits while carrying away the stolen property is "murder committed in the commission of dacoity" within the meaning of Section 396, Indian Penal Code. No doubt, the murder was committed by accused Sunil and there is no evidence that the Appellant participated in the murder. But the legal position appears to be clear that if a dacoit commits murder in course of commission of dacoity all of his associates who participated in the commission of dacoity may be convicted u/s 396, Indian Penal Code, although they may have no participation in the murder beyond the fact of participation in the dacoity. It is not necessary that murder should have been within the contemplation of all or some of them when the dacoity was planned, nor is it necessary that they should have actually taken part in or abetted its'' commission. Mere commission of murder in course of dacoity is enough to invoke the provisions of Section 396, Indian Penal Code against all the persons who conjointly committed dacoity. It is, therefore, manifest that the Appellant cannot escape the liability u/s 396, Indian Penal Code.

In view of our foregoing findings we uphold the conviction and the sentence and dismiss the appeal.

R.N. Misra, J.

I agree.

Appeal dismissed.