Section 302/397/34 IPC -When other four accused were acquitted and in the absence of appeal - his conviction for dacoity with murder punishable under section 391 and 396, IPC, in the facts and circumstances of the case, cannot be sustained in law as the four accused were acquitted and as there is no identification this accused - there is no independent charge under sec.302 of I.P.C. -2015 S.C. MSKLAWREPORTS

 "That you Satnam  Singh,  Sukhwinder  Singh,  Malkiat  Singh,  Manmeet
Singh, Balwinder Singh along with Gurcharan Singh (Proclaimed offender  vide
Order dt.30.11.2004) on 28.5.2004 in the area of Morinda  agreed  to  do  an
illegal act i.e. to commit dacoity or to commit murder and in  pursuance  of
that agreement you all the above said accused committed the dacoity  of  Rs.
7,78,156/- and committed the murder of Mohinder Singh and  thereby  you  all
committed an offence punishable under Section 120-B of the  IPC  and  within
my cognizance.

      Secondly, on the same date and time you all the accused namely  Satnam
Singh, Sukhwinder Singh, Malkiat Singh, Manmeet Singh, Balwinder  Singh  and
Gurbachan Singh were present near  Suburban  Office  PSEB  Morinda  and  you
accused Malkiat Singh in furtherance of  common  object  of  you  co-accused
committed the murder by intentionally causing the death  of  Mohinder  Singh
and thereby you accused Malkiat Singh committed an offence punishable  under
section 302 of the IPC whereas  your  co-accused  Satnam  Singh,  Sukhwinder
Singh, Manmeet  Singh,  Balwinder  Singh  and  Gurbachan  Singh  (P.O)  have
committed an offence punishable under section 302 of IPC read  with  section
149 of the IPC, and within my cognizance.

      Thirdly, on the same date, time and place you all the  accused  namely
Satnam Singh, Sukhwinder Singh,  Malkiat  Singh,  Manmeet  Singh,  Balwinder
Singh and Gurbachan Singh (P.O) committed dacoity  by  using  deadly  weapon
i.e. revolver  32  bore  and  snatched  a  sum  of  Rs.7,78,156/-  from  the
possession of Mohinder Singh and thereby you  all  the  above  said  accused
have committed an offence punishable  under  section  397  of  the  IPC  and
within my cognizance."

  Both the courts below have concluded that the prosecution  had  failed
to prove the charge of conspiracy and  had  in  fact  unreservedly  recorded
that the other four co-accused persons  could  not  be  connected  with  the
offences charged. 
 The  acquittal  of
these  four  co-accused  persons  for   lack   of   evidence   about   their
identification and participation in the commission of  the  alleged  offence
has thus become final.
The evidence of PW1, PW3 and PW4 if read together  also
does not unimpeachably prove that the appellant was the assailant  and  that
he had fired from the pistol in his possession  at  Mohinder  Singh.   Their
evidence  in  fact  is  contradictory  in  material  terms.   Not  only  the
informant, at the time of the incident, did not know the  appellant  by  his
name, admittedly it was for the first time that he claimed to  identify  him
in Court at the trial.
A combined reading of section 391 and 396,  IPC  would  bring  to  the
fore, the essential pre-requisite of joint participation  of  five  or  more
persons in the commission of the offence of dacoity and  if  in  the  course
thereof any one of them commits murder, all members of the  assembly,  would
be guilty of dacoity with murder and would  be  liable  to  be  punished  as
enjoined thereby.

 In absence of such an  assembly,
no such offence is made out rendering the conviction therefor of any  person
in isolation for murder, even if proved, impermissible in law.
To  convict
such a person of the offence only of  murder,  if  proved  otherwise,  there
ought to be specific charge to that effect.
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.
 Be that as  it  may,  in  our  considered  view,  the  conviction  and
sentence of the appellant being repugnant to letter and  spirit  of  section
391 and 396 of the IPC, the same is liable to be interfered with.  We  order
accordingly.
 The appeal is thus allowed and the impugned judgments and  orders  are
hereby set aside.  -2015 S.C. MSKLAWREPORTS