Jharkhand High Court

Tapan Kumar Layak vs The State Of Jharkhand on 10 April, 2023

                                       1

IN THE HIGH COURT OF JHARKHAND AT RANCHI
                  (Criminal Appellate Jurisdiction)
                  Cr. Appeal (SJ) No. 1021 of 2003
( Against the judgment of conviction and the order of sentence both dated
16.07.2003, passed by the learned Additional District & Sessions Judge 3rd,
Dhanbad, in S.T. Case No. 188 of 1977)

Tapan Kumar Layak                                         .....   Appellant
                                 Versus
The State of Jharkhand                                     ..... Respondent
                         ---------

CORAM: HON'BLE MR. JUSTICE DEEPAK ROSHAN

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For the Appellant        : Mr. Sunil Singh, Advocate
For the Resp.-State      : Mr. Rajneesh Vardhan, APP
                         --------
22/ 10.04.2023      Heard learned counsel for the parties.

2. The instant appeal is directed against the judgment dated

16.07.2003, passed by the learned Additional District & Sessions Judge 3rd,

Dhanbad, in S.T. Case No. 188 of 1977, whereby the appellant has been

convicted and sentenced to undergo rigorous imprisonment for five years

under Section 395 of the Indian Penal Code.

3. The prosecution case in brief is that on 31.08.1976, while the

informant was going on Rickshaw with Rs.60,000/- in cash for making

draft in the Bank, he was apprehended by a person having revolver who

snatched away his bag containing Rs. 60,000/- and fled away in one Auto

Rikshaw (Tempo) bearing No. BHR 1955. The tempo was found outside

factory and the driver of tempo i.e., the appellant was arrested from inside

the factory.

4. Learned counsel for the appellant submits that the informant-

P.W-1 has not identified the appellant on the dock. P.W.-3-Muslim Sah &

P.W.4- Nakul Prasad has been declared hostile by the prosecution. P.W.5-

Bhanu Prasad Sao has also not supported the prosecution case. P.Ws. 7, 8 &

9 have also not stated anything against the appellant. As a matter of fact,

neither there is any allegation of committing overt act by the appellant, nor

there is any allegation of assisting the other accused persons in commission

of dacoity. The appellant was allegedly driving the tempo at the relevant

time and his tempo was found standing near K.E.W factory and was

apprehended from there. Nothing has been recovered from the possession

of the appellant. Only three persons faced trial, in which two persons,

namely, Bhaskar Layak & Ram Prasad Sao were acquitted by the said

judgment and the appellant has only been convicted for the offence under

Section 395 of the IPC. As per settled law, one person could not be

convicted for an offence of dacoity, being less than five persons, which is

an essential ingredient for commission of dacoity.

5. Learned APP for the State supported the judgment and submits

that there is no error in the findings given by the courts below; as such, the

conviction cannot be set aside.

6. Having heard learned counsel for the parties and after going

through the lower courts records it appears that on 31.08.1976 the

informant was going on rickshaw with Rs.60,000/- in cash for making draft

where he was apprehended by a person having revolver who snatched

away his bag containing Rs.60,000/- and fled away in Tempo bearing No.

BHR 1955. The said Tempo was found outside one factory and the driver

of the Tempo, who is the appellant, was arrested from inside the Factory.

Altogether 11 witnesses were examined in which P.W-1 was the informant,

P.W.2 was accompanying the informant to Bank. P.W. 3 was the Rickshaw

driver who did not support the case, P.Ws.-4 and 5 also did not support the

case. P.W. 6 is the I.O who arrested Jagat Narayan and searched the house

of Harihar Sao from where Rs.870 and bag was recovered. He further

searched the house of Kishori Sao where one revolver, dagger &

Rs.41,000/- was recovered for which seizure list was prepared. The I.O.

also arrested accused Ramsharan Mahto and Rakho Hari and seized Rs.270

from Ramsharan Mahto.

The record further transpires that the case was instituted

against Bhaskar Layak aged about 42 years, Ram Prasad Sao aged about 54

years and the appellant aged about 44 years at the time of judgment passed

by the learned trial court. However, there were other four accused against

whom chargesheet were submitted; however, during pendency of this

appeal the other co-accused fled away and the case was bifurcated and the

impugned judgment was delivered acquitting Bhaskar Layak and Ram

Prasad Sao; however, the appellant was convicted, who is at present aged

about 64 years. P.W-9 who was initially accused, subsequently agreed to

become witness for the State but he did not support the prosecution story.

P.W.-10 is a hearsay witness who was the proprietor of the company where

the informant was working as Munim. P.W-11 is an independent witness,

who did not say anything against the appellant.

7. At this stage, it is relevant to mention here that nothing was

recovered from the conscious possession of this appellant nor anything

found from his house. It is further important to point out that this appellant

was not identified on the dock by the informant. Here, reference may be

made to the relevant portion of the order where the learned trial court has

given a finding to the extent that though the appellant was not identified on

the dock but it is not important as the Tempo was standing in front of the

factory and he was the driver/owner of the Tempo.

Relevant portion of para 9 is quoted herein below:

ß-------bl lk{kh us lk{; ds le; U;k;ky; esa vfHk;qDr riu yk;d dh igpku ugha dh gSA ijUrq ;g egRoiw.kZ ugha jg tkrkA D;ksfs d ftl O;fDr dks VsEiks ds pkyd ds :i esa fxj¶rkj fd;k x;k Fkk vkSj ftlus viuk uke riu yk;d crk;k Fkk ----- ß

After going through the aforesaid finding, it is clear that none

of the prosecution witnesses had identified the appellant on the dock and he

has been convicted only for the reason that the said Tempo was used in the

offence was standing in front of the factory and the appellant was driver of

that Tempo.

8. The law has been reiterated several times that in order to

convict any person for such a grievous offence like of dacoity, the

prosecution should not act casually. Only for the reason that the used

Tempo in the dacoity was standing in front of the factory and the appellant

was apprehended as driver of the tempo does not prove that at that time, he

himself was driving the Tempo.

It is also not proved by the deposition of prosecution witnesses

that the appellant was knowing about all these facts because from the place

of occurrence it transpires that the appellant has been alleged to have

sitting in the Tempo but he was not involved in doing the act of dacoity. No

pre planned or meditation has been proved so far as this appellant is

concerned. In other words, no allegation of committing overt act has been

alleged against this appellant and no allegation of assisting the other

accused persons in committing the dacoity has been proved.

The learned trial court on the one hand initiated the trial

against five persons but two of them fled away and two of them has been

acquitted by the learned trial court on the same set of evidence.

9. Here it is relevant to note that for the offence of dacoity which

is enshrined under Section 391 of the IPC, no conviction under Section 395

of the IPC can be made. Section 391 and 395 of the IPC are quoted herein

below:

"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, ever person so committing, attempting or aiding, is said to commit "dacoity".

395. Punishment for dacoity. - Whoever commits dacoity shall be punished with imprisonment for life, or with rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine."

From the conjoint reading of the two definition it appears that

the first and foremost ingredient for committing dacoity is that when five

or more persons conjointly commit or attempt to commit robbery. Thus, in

the instant case, apart from three accused persons, namely, Bhaskar Layak,

Ram Prasad Sao and the appellant there were other four accused persons;

thus, there were altogether seven persons as per the prosecution story. But

later on, the trial was bifurcated and out of three, the other two accused

persons were acquitted, thus, out of seven persons two were acquitted and

the trial of other four could not be continued as they became absconder.

Thus, even admitting that out of seven persons only two have been

acquitted, but the fact remains that the other absconders have not been

convinced. So, in such situation convicting only one person for the offence

of Dacoity is not sustainable in the eye of law.

In the case of Ram Lakhan versus State of Uttar Pradesh

reported in (1983) 2 SCC 65 the Hon'ble Apex Court has held that

appellant's alone conviction under Section 395 of the IPC cannot stand.

Relevant portion of the judgment is quoted herein below:

"The trial court had acquitted five persons and convicted four. But on appeal the High Court acquitted the remaining three persons and convicted Ram Lakhan the present appellant. The position now is that out of nine persons named in the FIR who are alleged to have participated in the dacoity Ram Lakhan is alone left. Before an offence under Section 395 can be made out there must be an assembly of five or more persons. On the findings of the courts below it is manifest that only one person is now left. In these circumstances therefore the appellant cannot be convicted for an offence under Section 395. The High Court has not found that Ram Lakhan was guilty of any overt act so as to bring his case within any other minor offence."

Reference in this regard may also be made to the judgment passed in

the case of Raj Kumar @ Raju versus State of Uttaranchal reported in

(2008) 11 SCC 709 where it has been held that at para 35 as under:

"35. In the instant case, as observed earlier, there were six accused. Out of those six accused, two were acquitted by the trial court without recording a finding that though offence of dacoity was committed by six persons, identity of two accused could not be established. They were simply acquitted by the court. In our opinion, therefore, as per settled law, four persons could not be convicted for an offence of dacoity, being less than five which is an essential ingredient for commission of dacoity. Moreover, all of them were acquitted for an offence of criminal conspiracy punishable under Section 120-B IPC as also for receiving stolen property in the commission of dacoity punishable under Section 412 IPC. The conviction of the appellant herein for an offence punishable under Section 396 IPC, therefore, cannot stand and must be set aside."

The above two rulings of the Hon'ble Apex Court clearly laid

down the law that a single person cannot be convicted for the offence of

dacoity.

10. At this stage, it is also relevant to mention that admittedly;

there is no allegation of any overt act by this appellant and only for being

the driver of the Tempo he has been convicted though he was not even

identified on the dock neither by the informant nor by the other P.W.2 who

was assisting the informant in taking him to the Bank. Thus, it can be

inferred that the trial court has convicted this appellant only on the

surmises and conjecture.

Thus, on the one hand, the appellant has not been identified in

the dock nor any TI parade was conducted which goes to show that the