Appellant/Petitioner vs The State Of Assam
2022 Latest Caselaw 1894 Gua

                                                                         Page No.# 1/15

GAHC010179522018




                    THE GAUHATI HIGH COURT
       (The High Court of Assam, Nagaland, Mizoram and Arunachal Pradesh )

                    Case No: CRL.A 272 of 2018

          Sri Dimbeswar Nath

          S/O Someswar Nath

          Village Guhagaon,

          Po Gosaigaon, Ps Kheroni,
          Dist West Karbi

          Anglong, Assam, 782446

                                      .................................Appellant/Petitioner

                   VERSUS
          The State of Assam
          Represented by Addl. P.P, Assam.                       :



                               ..........................................Respondents


                                      :: BEFORE ::
               HONOURABLE MR. JUSTICE SUMAN SHYAM
                   HON'BLE MRS. JUSTICE MALASRI NANDI

              For the Appellant/Petitioner      :       Mr. U. K. Das.

              For the Respondents                   :   Ms. S. Jahan

              Date of Hearing                       :    17.05.2022
                                                                             Page No.# 2/15

                    Date of delivery of
                    Judgment and Order          :     31.05.2022


                          JUDGMENT & ORDER (CAV)
Malasri Nandi, J.

1. Heard Mr. U. K. Das, learned counsel appearing on behalf of the appellant.

Also heard Ms. S. Jahan, learned Addl. P.P., Assam appearing for the State.

2. This appeal is directed against the Judgment and order dated 05/05/2018

passed by learned Sessions Judge, Karbi Anglong, Diphu in Sessions Case no 19/1997,

whereby the appellant Dimbeswar Nath has been convicted u/s 396 IPC and

sentenced to undergo rigorous imprisonment for life and to pay a fine of Rs. 5000/- in

default rigorous imprisonment for six months.

3. The facts of the case as unfolded by the prosecution are that one Kishori

Chauhan lodged an Ejahar before the IC Mailoo Petrol Post under Kheroni Police

Station stating inter alia that on 17/07/1994 at about 12:30 A.M. (at night) about 14/15

persons armed with guns, bhujalis (dagger like weapon), spears and ropes entered

into his house. They first tied him up with a rope and also tied the other persons who

were sleeping outside. Thereafter, they started assaulting his wife Tejia Devi, asking her

as to where the money was kept. They also asked her to open the door. When the

door was opened, they entered into the house and started to assault his sons. Then his

wife requested them with folded hands not to assault his sons. The dacoits looted the

articles i.e. three silver necklace worth Rs. 9000/- and golden nose ring/lockets

amounting to Rs. 1400/-. He could recognize some of the dacoits namely Dimbeswar

Nath and Sote Lal Chauhan since they were called by their names. They shot Page No.# 3/15

Ramanand Chauhan and Suresh Chauhan resulting into their death.

4. On the basis of the said compliant, a case was registered vide Kheroni PS case

no 68/1994 u/s 396 IPC on 18/07/1994. During investigation, both the deceased were

taken to the hospital, inquest was done and thereafter, both the dead bodies were

sent for post mortem examination. The site plan was prepared and statements of the

witnesses were recorded. During investigation, the investigating officer arrested

accused Dimbeswar Nath and seized some articles from his house. The other

accused Sote Lal Chauhan was absconding since the date of incident. It also

appears from the record of Sessions Case no 19/1997 that in course of investigation,

some other persons namely Sudama Rajbhar , Bishnu Gour, Sukra Manki @ Mura,

Sambhu Thakur, Buddhi Kant Pandey, Dharma Chauhan and Baralal Chauhan were

arrested but due to insufficient materials they were not sent up for trial. On

completion of investigation charge sheet was submitted against the present

accused/appellant Dimbeswar Nath and Sote Lal Chauhan, showing him as an

absconder, u/s 395/397 IPC. Subsequently, as the offence was exclusively triable by

the court of Sessions, the case was committed to the Trial Court. On appearance of

the accused/ appellant Dimbeswar Nath before the Trial Court, charge was framed

u/s 396 IPC on 04/04/1998.

5. To bring home the guilt of the accused/appellant, the prosecution examined

as many as five witnesses and marked 7 (seven) exhibits and two material objects. On

the other hand, the defence also examined two witnesses in support of their case.

6. On completion of the prosecution evidence, statement of the accused/ Page No.# 4/15

appellant Dimbeswar Nath was recorded u/s 313 Cr.pc and incriminating evidence

was put to him to which he denied.

7. After hearing the arguments of both the sides and after considering evidence

on record, the learned Trial Court had found the appellant guilty u/s 396 IPC and

sentenced him, vide Judgment and order dated 05/05/2018, as aforesaid.

8. Being highly aggrieved and dissatisfied with the impugned Judgment and

order dated 05/05/2018, the appellant has preferred the present appeal.

9. Assailing the Judgment of the Learned Trial Court, Mr. U.K Das, learned counsel

for the appellant, contended that the offence of dacoity was not made out in as

much as the basic ingredients of five persons conjointly committing the offence of

robbery and murder was not established by the prosecution. The learned counsel also

argued that no recoveries either from the appellant or any other person were made

as regards the alleged articles looted in the occurrence and therefore, neither the

offence of robbery nor dacoity was made out.

10. According to learned counsel for the appellant, the police foisted a false case

against the appellant by arresting him from his residence and that the appellant was

not involved in the crime. The learned counsel for the appellant further contended

that P.W-2, the so called eye witness, never deposed that any jewellery or other

properties were stolen on that day and that identification of the appellant in the

court without holding proper test identification parade cannot form the basis for

convicting the appellant for the serious offence like dacoity with murder. The learned

counsel for the appellant summed up his submissions by stating that there was no test Page No.# 5/15

identification parade, that there was no recovery of stolen goods and the basic

ingredient of conjoint effort of five persons in the involvement of the offence was not

proved which are fatal to the prosecution case.

11. Per contra, the learned counsel for the state Ms. S. Jahan contended that the

P.W-2 was an eye witness to the occurrence, who after hearing the cries of her son

namely the deceased Suresh Chauhan, had noticed the appellant and the other

persons brutally assaulting her and her sons and when she started shouting for help

the dacoits moved towards her and caused her injuries. The learned Additional PP

also argued that since P.W-2 got opportunity to see the persons who attacked the

inmates of her house, she was able to identify the appellant in the court without any

hesitation. Learned Additional P.P. has also submitted that the trial Court has rightly

convicted the appellant after analyzing the entire evidence and the conviction

cannot be interfered with.

12. We have given our anxious thought to the submissions advanced by the

learned counsel for the appellant as well as learned Additional PP appearing for the

state. We have also perused the materials available on record.

13. To examine the culpability of the appellant before us, it is worthwhile to look at

the evidence of the witnesses recorded by the Trial Court.

14. P.W-1 is Pathe Bahadur Chauhan. He deposed in his evidence that his father

Kishori Chauhan has already died. His father had five sons namely Chandrina

Chauhan, Ramnanand Chauhan, Fate Bahadur Chauhan, Suresh Chauhan and

Rudal Chauhan. Except him, all his brothers lived in the same house along with his Page No.# 6/15

father. On the date of incident, he was sleeping. Hearing the cries/shouts coming

from his father's house, his wife asked him to wake up. Immediately he rushed to his

father's house. On the way to his father's house, someone threw torch on them and

fired. He returned back to his house. He told his children to hide in a safe place and

he would go to the village to seek help. Then he rushed towards village shouting

"Dacoit Dacoit". Villagers immediately assembled and shouted and the dacoits fled

away. He returned to his father's house and saw his two brothers Ramanand and

Suresh Chauhan were shot dead by the dacoits. He did not see his father there. Later

on, his father returned and told that 10-12 persons dressed in Khaki attire came to his

house. He told that Dimbeswar Nath and Sote Lal Chauhan were also there in the

said group. Both of them live in their village. His father told them that all of them were

armed with weapons and shot his brothers. His mother was also present; she was also

beaten up by the dacoits.

This witness also stated that next morning, his father lodged the FIR. Police came and

conducted inquest over the dead bodies of his brothers vide exhibit-1 and 2 inquest

reports wherein he put his signatures. The dacoits had taken away cash and

snatched nose ring and lockets from his mother which he came to know from his

father. The accused used to do Hajira in their house.

The cross examination of P.W-1 was declined.

15. P.W-2 is Tejia Devi, wife of the informant and mother of the deceased persons.

She deposed in her evidence that about 4/5 years back at about 12 mid night when

they were sleeping in the Varandha of their house, some people entered into their Page No.# 7/15

house and started to assault the inmates. She could not say the exact number of

people, but four of the people caught her and forced her to enter into the house

and commanded her to open the box and took away the money from it and

assaulted her. They also checked her clothes to find out whether she had money with

her. Some of them took out her son Suresh from their house and she had seen them

assaulting her son. He went crying and told them to leave him, as he had no money.

Her son Suresh fell down. She was dragged near her another son Ramanand, who

was sleeping outside. He was also mercilessly beaten up. Then she became

unconscious. She could not say what had happened thereafter. Two of her sons died

on the spot.

16. In her cross examination, P.W-2 replied that on the night of the incident there

was no light when the people entered into their house. She did not recognize all of

them but she recognized Dimbeswar and Sote Lal. These two persons used to visit

their house.

17. PW3 is Lakhi Prasad Lashkar, ASI of police, Bokajan PS. From his deposition, it

reveals that on 19/07/1994 he was working as in-charge of Mailo Outpost under

Kheroni PS. He was informed by some people that there was dacoity in a village. He

went to the place of occurrence and found that two dead bodies were lying there

with some bullet injuries. After some time, the OC, Kheroni PS came to the spot. The

OC conducted the inquest on the dead bodies of the deceased persons and

examined some other persons present there. He searched the houses of the accused

persons alongwith the O.C, Kheroni PS. They arrested the accused Dimeswar Nath

from his residence. Some objectionable documents/papers were found in the house Page No.# 8/15

of accused Dimbeswar Nath and seized as per seizure list vide exhibit 4 wherein he

put his signature.

In his cross examination P.W-3 replied that the seized documents did not

establish any link with the dacoity.

18. P.W-4 is Constable Badan Bora of Bokajan PS. He deposed in his evidence that

on 19/07/1994 he was at Mailo P.P under Kheroni PS. On that day, he accompanied

O.C, Kheroni PS to investigate a case. They proceeded to Hawaipur and found the

accused Dimbeswar Nath at his residence. The O.C Kheroni PS searched the house of

the accused Dimbeswar Nath and found some objectionable documents relating to

ULFA and seized the same vide exhibit-4 seizure list, wherein he put his signature.

19. This witness also stated in his deposition that on 18/07/1994 he also

accompanied the O.C Kheroni PS to Mailo basti to inquire about the incident of

murder which took place at the residence of Kishori Chauhan. He had noticed two

dead bodies lying at the courtyard of Kishori Chauhan covered with clothes.

Thereafter, inquest was conducted on the dead bodies of Ramanand and Suresh

Chauhan who were identified by their father. Then both the dead bodies were

forwarded to Diphu Civil Hospital for post mortem examination.

20. In his cross examination, P.W-4 replied that he did not know the accused

present in the dock. The residence of Suresh Chauhan is at Mailo. The residence of

accused is at Hawaipur. Distance between Mailo and Hawaipur is about 3 km.

21. P.W-5 is Bodheswar Khaklari, the investigating officer. From his deposition it

discloses that on 18/07/1994 he was working as O/C at Kheroni Police Station. On that Page No.# 9/15

day he received an Ejahar relating to dacoity followed by murder at the residence of

the complainant Kishori Chauhan. It is alleged in the FIR that the dacoits fired at the

inmates of the house of the complainant, as a result of which Ramanand Chauhan

and Suresh Chauhan died on the spot due to firing. Out of them two dacoits were

identified i.e. Dimbeswar Nath and Sote Lal Chauhan. They had robbed golden and

silver ornaments valued at Rs. 10,400/-. On receipt of the Ejahar, a case was

registered and he started investigation. During investigation, he visited the place of

occurrence i.e. the house of the complainant Kishori Chauhan. He had noticed two

dead bodies lying in the courtyard of the complainant. Inquest was conducted on

the dead bodies of the deceased. Thereafter, the dead bodies were sent to Diphu

Civil Hospital for post-mortem examination. He examined the witnesses and recorded

their statements. After 2/3 days he arrested the accused Dimbeswar Nath from his

residence. During search in the house of Dimbeswar Nath, he found some

incriminating documents relating to ULFA and accordingly seized those documents

vide exhibit-4 seizure list. During investigation, he also arrested Sudama Rajbhar,

Bishnu Gaur, Sukra Manki, Sambhu Thakur, Buddhi Kant Pandey and Boralal Chauhan.

He was unable to arrest accused Chote Lal Chauhan as he was absconding since

the date of incident. In the course of investigation, he also collected the PM reports

of both the deceased persons. After completion of investigation, he found sufficient

materials against the accused Dimbeswar Nath and Sote Lal Chauhan who was

shown as absconder and submitted charge sheet u/s 395/397 IPC. As there was no

prima facie material found against the other arrested persons, hence, a prayer was

made to release them.

Page No.# 10/15

22. In the instant case, the defence also adduced two witnesses.

23. D.W-1 Horo Kanta Laskar deposed in his evidence that his residence is about 3

and half km away from the place of occurrence. It is his presumption that the

accused was not such a person who was involved in the incident. He is now actively

involved in religious matters.

24. D.W-2 is Raj Mohan Nath. He deposed in his evidence that he came to know

that in a neighboring village a dacoity was committed wherein the accused

Dimbeswar had been involved. In his cross examination D.W-2 replied that he was not

aware of the fact who was involved in the said dacoity.

25. After going through the evidence of aforesaid witnesses, it is seen that P.W-2

claimed to be the eye witness to the incident. According to her, on the date of

incident some miscreants entered into their house at dead of night and committed

dacoity in their house. During the course of dacoity, her two sons received bullet

injuries on their person and died on the spot. P.W-2 in her examination in chief

nowhere stated that she had identified the accused/appellant among the people

who had entered their house but in her cross examination she replied that she

identified two persons amongst the dacoits who had entered into the house; one is

the present appellant Dimbeswar Nath and the other was Sote Lal who was

absconding since the date of incident.

26. P.W-1 admittedly was not present when the incident took place. According to

him, he had come to know about the incident of dacoity from his father. His father

also told that Dimbeswar Nath and Sote Lal Chauhan were involved in the alleged Page No.# 11/15

incident. It is interesting to note that P.W-1 was not cross examined by the learned

defence counsel. P.W-1 stated in his deposition that the dacoits had taken away

cash and nose ring/lockets from his mother but the looted articles were not

recovered during the period of investigation or at the subsequent period. The

informant was not examined as he died when the case was pending in the Trial court.

27. Section 391 IPC defines dacoity which reads as follows -

" 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."

Section 395 of the IPC provides punishment for dacoity. Section 396 IPC prescribes

penalty for an offence of dacoity with murder. The same reads thus -

28. " 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."

29. From a conjoint reading of section 391 and 396 of IPC, it is manifestly clear that

the essential pre-requisites 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 Page No.# 12/15

and would be liable to be punished as enjoin thereby. Thus, the essential pre-

condition of an offence of dacoity with murder is a participating assembly of five or

more persons for commission of the offence. In absence of such an assembly, no

such offence is made out rendering the conviction therefore of person in isolation for

murder, even if proved, would be impermissible in law. To convict such a person only

of murder, if proved otherwise, there ought to be specific charge to that effect.

30. An immediate feature of section 396 IPC which strikes one at first reading

thereof, is that it is a self contain provision. In other words, contributory liability,

thereafter, does not depend, in order to stand erect on the crutches of any other

provision. Section 396 IPC, 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,

any one of the said persons, commits murder. All five persons, thereby, becomes

liable, by statutory prescription, to the offence of dacoity with murder and expose

themselves to the punishment stipulated in the said provision.

31. The three essential ingredients for invoking section 396 IPC are that:-

(i) One of the persons must commit murder i.e. his act must amount to murder within the meaning of section 300 IPC.

(ii) The said person must be one of the five or more persons who have joined together to commit dacoity.

(iii) The murder must be committed in the course of commission of such dacoity.

32. If these conditions are fulfilled, then section 396 of IPC would come into play and

blight all other persons, involved in the act of dacoity, even if one of them was aware

that murder was about to be committed. In other words, so far as the remaining Page No.# 13/15

persons are concerned, the prosecution is required to prove in order for section 396

IPC to apply, their intention to commit dacoity.

33. In the case of Ram Lakhan v. State of UP reported in (1983) 2 SCC 65, the

appellant was convicted for an offence punishable u/s 395 of the IPC and sentenced

to rigorous imprisonment for seven years. The FIR 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 the 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 less

than five persons is not sustainable. It was also held that before an offence under

Section 395 of the IPC can be made out, there must be an assembly of five or more

persons. On the findings of the Trial court and the High Court, it was manifest that only

one person was left who could not be convicted for an offence u/s 395 IPC.

34. Reverting back to the present case, the appellant Dimbeswar Nath was not

arrested at the spot. From the evidence of the witnesses, it discloses that when police

visited the house of appellant, he was found there and accordingly police arrested

him along with some objectionable documents relating to writings/notifications of

ULFA. Admittedly, no TIP was held during investigation. It is relevant to note that PW2

in her examination in chief nowhere stated that she had identified the accused/

appellant Dimbeswar Nath while committing dacoity in their house. It is also seen that

P.W-2 stated before the I.O while recording her statement u/s 161 Cr.P.C that she had

identified the accused/appellant from some distance. In the cross examination P.W-2 Page No.# 14/15

replied that on the date of incident the night was dark. It is unbelievable that at

about 12 in the mid night when it was pitch dark, the P.W-2 who was frightened could

have seen the faces of the accused appellant or the absconding accused Sote Lal

Chauhan ( the source of light which the witness did not mention either in her

statement before the I.O or evidence before the court). Furthermore, there were

15/16 dacoits armed with lathi, gun etc who had entered the house of the informant

at dead of night, it cannot be believed that the informant or P.W-2 standing at a

distance could have correctly identified the dacoits or the accused/appellant

without there being any proper source of light.

35. According to P.W-1, he came to know from his father Kishori Chauhan i.e. the

informant that the present accused/appellant and absconder accused Sote Lal

Chauhan were present among the group of dacoits who entered into their house but

the informant was not examined in this case to prove the fact in question as he died

when the case was pending before the trial court. Moreover, the weapon of offence

alleged to have been used in the commission of offence has not been recovered. No

article, which was subject matter of dacoity, has been recovered. Though P.W-1

deposed in his evidence that the dacoits looted away cash and snatched away

nose ring and locket from his mother but P.W-2 was totally silent as to what were the

articles taken away by the dacoits on the date of the incident from their house while

committing dacoity. The documents seized from the house of the present

accused/appellant vide exhibit-4 seizure list and material exhibit-1 and 2 are not

related to the articles alleged to have been taken away from the house of the

informant on the date of commission of the dacoity. There is no other incriminating Page No.# 15/15

evidence to connect the appellant with the offence.

36. On an assessment of the entire gamut of the evidence on record, the

inescapable conclusion is that the prosecution has failed to prove either the

identification of the appellant or five or more persons or their involvement in the

offences as members of the assembly for the offence of dacoity with murder. To

reiterate, there is no direct evidence as well to establish the culpability of the

appellant for the offence as alleged. As a matter of fact, the evidence of the above

eye witness i.e. P.W. 2 does not indicate the involvement of five or more persons in

the offence of commission of dacoity and murder. Be that as it may, in view of the

requirement of Section 396 IPC as discussed hereinabove, we are of the opinion that

the prosecution has failed to establish the offence under Section 396 IPC as against

the present appellant.

37. In the result, the appeal is allowed. The impugned Judgment and order dated

05/05/2018 passed by the Learned Sessions Judge, Karbi Anglong, Diphu, in Sessions

Case no 19/1997 is set aside. The accused/appellant be released forthwith if he is not

wanted in any other case.

38. Send down the LCR along with the copy of this Judgment.

JUDGE JUDGE

Comparing Assistant