Chapter XVII of the Indian Penal Code deals with offences against property and it can be classified into different heads as depicted through the flow chart. This article deals with the offence of dacoity covered broadly under Sections 391-402.
Section 391 of the Indian Penal Code, 1860 defines dacoity. Section 395 of the Indian Penal Code prescribes the punishment for dacoity which may be either imprisonment for life or rigorous imprisonment up to 10 years and fine. Section 391, IPC defines dacoity to be an offence, if 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 of attempt, amount to five or more.
- The accused commit or attempt to commit robbery.
- The Persons committing or attempting to commit robbery and persons present and aiding must not be less than five.
- All such persons should act conjointly. The word conjointly refers to the united or concerted action of 5 or more persons participating in the act of committing the offence. In other words, 5 or more person should be concerned in the commission of the offence and they should commit or attempt to commit robbery.
There is no difference between robbery and dacoity accept in the number of offenders. Robbery is Dacoity if the persons committing robbery are five or more than 5 in number. Section 390 of the Indian Penal Code, 1860 says that in all robbery there is either extortion or theft. When theft is robbery: Theft is a robbery when in order to commit theft, the offender voluntarily causes or attempts to cause to any person death, subject him to wrongful restraint, cause hurt or induce fear of instant death, instant wrongful restraint or cause instant hurt. Theft has been defined under Section 378 as “whoever intends to take dishonestly any movable property out of the possession of any person without that person’s consent and moves it”
When extortion becomes robbery: Extortion becomes robbery when the person committing the offence of extortion put the other person in fear and commits extortion by putting that person in fear of death, instant wrongful restraint to that person or to some other person and by doing so induces the person so put in fear then and there deliver the thing that has been extorted.
The commission of robbery in association by five or more persons is an essential ingredient of the offence under Section 391. The gravity of the offence consists in the terror it causes by the presence of a number of offenders. Abettors who are present and aiding when the crime is committed are counted in the number. For application of Section 391 it is necessary that all the persons should share the common intention of committing robbery. The accused must be shown to have committed robbery or aided in the commission of it and that they must be among the body of persons who extorted money or aided them in extorting money.
Dacoity has been made punishable at four stages that is when 5 or more persons assemble for the purpose of committing a dacoity, each of them is punishable under section 402 merely on the grounds of joining the assembly. Another stage is preparation to commit a dacoity, the person is punishable under section 399. The third stage is the stage of attempting to commit and lastly the stage of the actual commission of a dacoity. In terms of section 391, IPC in such an eventuality every person so committing, attempting or aiding is said to commit dacoity. The offence under Section 395 of The Indian Penal Code, 1860 is cognizable, non-bailable, non-compoundable and triable by Court of Session.
DACOITY WITH MURDER:
Section 396 which comprehends dacoity with murder is a contingency where one of the five or more persons who are conjointly committing dacoity, commits murder in so committing dacoity, every one of those persons shall be punished with death or imprisonment for life or rigorous imprisonment for a term which may extend to 10 years and would also be liable to pay fine. Section 396 of the Code fixes joint liability on all the persons who conjointly commit dacoity. The offence under Section 396 of The Indian Penal Code, 1860 is cognizable, non-bailable, non-compoundable and triable by Court of Session.
The three essential ingredients for invoking Section 396 of I.P.C. are :
- 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.,
- the said person must be one of the five or more persons who have joined together to commit dacoity, and
- the murder must be committed in the course of commission of such dacoity.
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 none of them was even aware that murder was about to be committed. In other words, so far as the remaining persons are concerned, all that prosecution is required 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. They would all nevertheless, be exposed to the rigour of Section 396 of the I.P.C.
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. Axiomatically, thus, the indispensable pre condition to perceive an offence of dacoity with murder is a participating assembly of five or more persons for the commission of the offence. 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.
An immediate feature of Section 396 of I.P.C. is that it is a self-contain provision, 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 in that it seeks to hold persons liable for an offence never even intended by them. 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.
Section 396 and 34 of the I.P.C. – mutually incompatible. Section 34 refers expressly to “a criminal act done by other persons in furtherance of the common intention of all”, where each of the persons is made liable by the said persons “for that act”. If, under Section 34 more than one person are tried with the offence of having committed “dacoity with murder” it should 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. Thus, Section 34 would make each of such persons liable for committing dacoity with murder.
The distinction between Section 34 and 396 of the I.P.C. is, therefore, that while Section 396 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 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.
ROBBERY OR DACOITY, WITH ATTEMPT TO CAUSE DEATH OR GRIEVOUS HURT:
Section 397 provides that, if, at the time of committing robbery or dacoity, the offender uses any deadly weapon, or causes grievous hurt to any person, so 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. The offence under Section 397 of The Indian Penal Code, 1860 is cognizable, non-bailable, non-compoundable and triable by Court of Session.
- Robbery or Dacoity was committed;
- The accused used deadly weapons or caused grievous hurt or attempted to cause death;
- During Commission of Robbery or Dacoity such weapons were used.
ATTEMPT TO COMMIT ROBBERY OR DACOITY WHEN ARMED WITH DEADLY WEAPON:
Section 398 of the Indian Penal Code says that if, at the time of attempting to commit robbery or dacoity, the offender is armed with any deadly weapon, the imprisonment with which such offender shall be punished shall not be less than seven years. It is not necessary that the accused must make a show of using the weapon, it is sufficient if he carries a dangerous weapon in such a manner that a person feels that it can be used at any moment against him.The offence under Section 398 of The Indian Penal Code, 1860 is cognizable, non-bailable, non-compoundable and triable by Court of Session.
MAKING PREPARATION TO COMMIT DACOITY:Section 399 punishes anyone who makes any preparation for committing dacoity, with rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine. Preparation implies devising, planning, arranging for the purpose of committing dacoity. The offence u/s 399 is cognizable, non-bailable, non-compoundable and triable by Court of Session.
- The act of accused person amounted preparation;
- The presence of five or more persons making preparation
- The preparation was to commit robbery
PUNISHMENT FOR BELONGING TO GANG OF DACOITS:
Section 400 provides punishment for anyone who, at any time after the passing of this Act shall belong to a gang of persons associated for the purpose of habitually committing dacoity, with imprisonment for life, or with rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine. The offence under Section 400 of The Indian Penal Code, 1860 is cognizable, non-bailable, non-compoundable and triable by Court of Session.
- Existence of a gang of dacoits;
- The Accused belong to that gang; and
- The members of the gang were associated for the purpose of committing dacoity.The main ingredient of the section is the association of persons for the purpose of habitually committing dacoities and the agreement may be inferred from the circumstance. The offence under this section is the association of persons with the knowledge that a gang is formed for the purpose of committing dacoities; conviction can be made even though no actual commission of dacoity by a particular person is proved. 
ASSEMBLING FOR PURPOSE OF COMMITTING DACOITY (SECTION 402):
Whoever, at any time after the passing of this Act, shall be one of five or more persons assembled for the purpose of committing dacoity, shall be punished with rigorous imprisonment for a term which may extend to seven years, and shall also be liable to fine.
- Five or more persons are assembled;
- That the persons are assembled for committing dacoity
- That the accused was one of the five or more persons assembled
The offence under Section 402 of The Indian Penal Code, 1860 is cognizable, non-bailable, non-compoundable and triable by Court of Session.
This section seeks to punish an assemblage of 5 or more persons for the purpose of committing dacoity though they may not have proceeded even one step towards the accomplishment of their object. Mere meeting in an assembly is not illegal or criminal. The intention or agreement to commit dacoity must be proved from circumstances. 
1. MANMEET SINGH ALIAS GOLDIE v. STATE OF PUNJAB
The instant appeal challenged the conviction of the appellant under section 396 of IPC for committing dacoity as well as murder of one Mohinder Singh and the consequential sentence of imprisonment for life and fine of Rs.3,000/-, in default of further rigorous imprisonment for two months held by the Trial Court and affirmed by the High Court of Punjab and Haryana. That the informant, Gursatinder Singh, along with others went to collect the salary of the employees from the Bank and that in due course an amount of Rs. 7,78,156/- and Rs. 7,18,715/- were put in different bags. Later when Mohinder Singh, alighted from the vehicle with the bag containing Rs.7,78,156/-, a man confronted him with a pistol and snatched the bag of money from him. When Mohinder Singh resisted, the intruder fired from his pistol on the left side of his chest and Mohinder Singh fell down and later died. The assailant then carried the bag of money on a Scooter along with another young man who was standing nearby. FIR was registered under section 302/397/34 IPC and 24/25/29 of Arms Act against unknown persons and after committal, five accused persons including the appellant were sent up for trial.
The appellant contended that in the face of the essential ingredients of an offence under section 396, IPC, in absence of any evidence or finding that the alleged offence had been committed on the basis of a conspiracy and perpetrated by five or more persons as charged, the appellant could not have been convicted of the said offence in the teeth of the acquittal of the four co-accused persons. 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.
The Court held that the prosecution has completely failed to either prove the participation of five or more persons in the commission of the offence or establish their identity and in absence of a singular charge under section 302, IPC against the appellant sans the assembly, 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 conviction and sentence of the appellant being repugnant to letter and spirit of section 391 and 396 of the IPC, were set aside and the appellant was acquitted of the charges.
2. LOKAI CHAMAR VS STATE OF U.P.
That on the intervening night of 12 -13 September 1985, about 10-12 people armed with lathi, ballam, addhi (handmade pistol) and gun tried to open the door of complainant’s house, and gave beatings with danda to his mother and enquired about the valuable articles. They looted the articles and fired 3-4 times and started running along with looted articles, one of them was apprehended by the complainant’s father then other dacoits fired from the gun causing injury at his chest and right hand and some bullet shots (chharre) hit on the hip of his wife.
The Court held that 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. 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. The charge discloses only the named persons i.e., Lokai and Munna as accused and the prosecution witnesses confine their testimonies to them, so it would not be permissible to come to the conclusion that others, named or unnamed, besides the two accused named in the charge or the evidence of prosecution witnesses, acted conjointly with one of the charged accused if there is no other evidence to lead to that conclusion. The trial court did not record a finding that there were more than five persons who committed dacoity and out of them two accused could be identified but the remaining accused persons could not be identified. Thus, the Court held that the conviction for the offence of dacoity with murder punishable under Section 396 of the I.P.C., in the facts and circumstances of the case cannot be sustained in the eyes of law, the conviction and sentence of the appellant being repugnant to letter and spirit of Sections 391 and 396 of the I.P.C., is liable to be set aside as only 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.
Authored by: VANSHIKA SHARMA, UILS
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