"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."
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
