PROJECT ON

STUDY ON UNLAWFUL ASSEMBLY AND DACOITY

Submitted By: - Akanksha Chandak

3rd Year (5th Semester)

Mats Law School, Mats University

Submitted To: - Mr. Pankaj Umbarkar

Assistant Professor

Mats Law School, Mats University

Mats Law School, Mats University, Arang, Chhattisgarh

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CERTIFICATE

This is to certify that this project report entitled “Project On study on unlawful assembly and dacoity” submitted to Mats Law School, Mats University, is a bona-fide record of work done by “Akanksha Chandak” of 5th Semester of Mats Law School, Mats University under my supervision from“09/09/15” to “25/10/15”.

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DECLARATION

I, Akanksha Chandak, of ‘Mats Law School, Mats University, Raipur, of BA.LLB [Semester Vth] 3rd year hereby declare that I have completed my project, titled ‘Project On Study on unlawful assembly and dacoity’. The information submitted herein is true and original to the best of my knowledge.

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ACKNOWLEDGEMENT

I take this opportunity to express my profound gratitude and deep regards for his guide and his exemplary guidance, monitoring and constant encouragement to my director Dr. G. P Tripathi sir throughout the course of this project. The blessing, help and guidance given by him time to time shall carry me a long way in the journey of life on which I am about to embark.

I also take this opportunity to express a deep sense of gratitude to my subject teacher Mr. Pankaj Umbarkar for his cordial support, valuable information and guidance, which helped me in completing this project through various stages.

I am obliged to all my teachers of Mats Law School, Mats University, for the valuable information provided by them in their respective fields. I am grateful for their cooperation during the period of my assignment.

Lastly, I thank almighty, my parents, brother, sisters and friends for their constant encouragement without which this assignment would not be possible.

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STUDY ON UNLAWFUL ASSEMBLY AND DACOITY

Chapterization –

Unlawful assembly

1. Being a member of unlawful assembly (s 141, 142, 143).

2. Joining an unlawful assembly armed with deadly weapons (s144).

3. Joining or continuing in an unlawful assembly knowing it has been commanded to

disperse (s 145).

4. Every member of unlawful assembly guilty of offence committed in prosecution of

common object (s 149).

5. Hiring of persons to join unlawful assembly (s 150).

6. Harbouring persons hired for an unlawful assembly (s 157).

7. Being hired to take part in an unlawful assembly (s 158).

Dacoity

8. Dacoity (s 391).

9. Punishment of dacoity (s 395).

10. Dacoity with murder (s 396).

11. Dacoity with attempt of cause grevious hurt (s 397).

12. Attempt to commit dacoity when armed with deadly weapon (s 398).

13. Making preparation to commit dacoity (s 399).

14. Punishment for belonging to gangs of dacoity (s 400).

15. Assembly for the purpose for committing dacoity (s 402).

Unlawful assembly

Chapter 1

Section 141 - An assembly of five or more persons is designated an “unlawful assembly”, if

the common object of the persons composing that assembly is—

First - To overawe by criminal force, or show of criminal force, 1[the Central or any State

Government or Parliament or the Legislature of any State], or any public servant in the

exercise of the lawful power of such public servant; or

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Second - To resist the execution of any law, or of any legal process; or

Third - To commit any mischief or criminal trespass, or other offence; or

Fourth - By means of criminal force, or show of criminal force, to any person, to take or

obtain possession of any property, or to deprive any person of the enjoyment of a right of

way, or of the use of water or other incorporeal right of which he is in possession or

enjoyment, or to enforce any right or supposed right; or

Fifth - By means of criminal force, or show of criminal force, to compel any person to do

what he is not legally bound to do, or to omit to do what he is legally entitled to do.

Explanation:

An assembly which was not unlawful when it assembled, may subsequently become an

unlawful assembly.

Section 142 - Being member of unlawful assembly

Whoever, being aware of facts which render any assembly an unlawful assembly, intention-

ally joins that assembly, or continues in it, is said to be a member of an unlawful assembly.

Section 143 - Punishment

Whoever is a member of an unlawful assembly, shall be punished with imprisonment of

either description for a term which may extend to six month, or with fine, or with both.

The essence of the offence under this section is the combination of five or more persons,

united in the purpose of committing a criminal offence, and the consensus of purpose is itself

an offence distinct from the criminal offence which these persons agree and intend to

commit. This was held in the case of Matti Venkanna1.

Ingredients –

An unlawful assembly is and assembly of five or more persons, if their common object is –

1. To overawe by criminal force

(a) The central govt., or

(b) The state govt., or1 (1992) 46 Mad 257

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(c) The legislature, or

(d) Any public servant in the exercise of lawful power;

2. To resist the execution of the law or legal process;

3. To commit mischief, criminal trespass, or any other offence;

4. By criminal force;

(a) To take or obtain possession of any property, or

(b) To deprive any person of any incorporeal right, or

(c) To enforce any right or supposed right;

5. By criminal force to compel any person –

(a) To do what he is not legally bound to do, or

(b) To omit what he is legally entitled to do.

1. Five or more – the assembly must consist of five or more persons having one of the

five specified objects as their ‘common object’.2 Their must be more than four

persons having common object before the constructive guilt under this section can

arise. Even if fifth person was present and did nothing to show that he shared the

common object of the others, he would not become guilty by merely remaining in an

unlawful assembly.3 The SC has endorsed the view that the number of injuries caused

and the number of persons who were inflicted with those injuries, (in this case three

persons were attacked and they sustained 13, 12, and 17 injuries respectively) can

give a clue to the fact that more than three persons must necessarily have participated

in the attack.4

2. Common object – the common object firstly depends on whether such object can be

classified as one of those described in s. 141; secondly, such common object need not

to be product of prior concert but may form on spur of the moment, finally, nature of

such common object is a question of fact to be determined by considering the nature

of such common object is a question of fact to be determined by considering the

nature of arms, nature of assembly, behaviour of members, etc.5 the essence of

offence is the common object of the person forming the assembly. Whether the object

2 Koura khan (1868) PR No. 34 of 18683 Gajraj Singh, (1946) 21 Luck 527.4 Suresh Pal v State of UP, AIR 1981 SC 1161 : 1981 All LJ 562 : 1981 Supp SCC 6.5 Bhanwar Singh v State of M.P. (2008) 16 SCC 657 : Air 2009 SC 768 : (2008) 67 AIC 133.

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is in their minds when they come together of whether it occurs to them afterwards, is

not material. But it is necessary that the object should be common to the persons who

compose the assembly, i.e. they should all be aware of it and concur in it. It seems

also that their must be some present and immediate purpose of carrying into the effect

of common object; and that a meeting for deliberation only, and to arrange plans for

future action, is not an ‘unlawful assembly’.6 Mere presence in an assembly does not

make a person the member of an unlawful assembly unless it is shown that he had

done something or omitted to do something which would make him a member of an

unlawful assembly or unless the case falls under s 142.7

The SC observed on the facts of a case that given the circumstances in which the

assembly came together and given that all parties were aware that among them,

certain members carried weapons like gun and spear, even if it was held that common

object of assembly was not to cause death, it would not be an unreasonable inference

that all accused knew that the offence of culpable homicide was likely to be

committed in prosecution of such an armed assault on another group which was not

prepared to withstand such an attack, bringing about application of second portion of

s. 149. Therefore, it was held that any of the accused found to have participated in the

assault should be guilty under s 141 and 149.8

3. Second clause – resisting law of legal process – where a number of persons resisted

an attempt to search a house which was being made by officers, who had not the

written order investing them with the power to do so, it was held that the persons

resisting the attempted search were not guilty of this offence.9 Assembling together

for a common object or rescuing a friend from unlawful police detention has been

held by the SC as not constituting as unlawful assembly.10

4. Third clause - committing criminal trespass, mischief, other offence – 200-250

people of a political party had gathered together under the chairmanship of the

petitioner. They obstructed traffic by sitting dharna on the road. The court said that it

was not a lawful exercise of the right of the processionists. It amounted to public

nuisance, rioting and illegal resistant of the freedom of others to use the road. Thus

6 M&M 119.7 Baladin, AIR 1956 SC 181 : 1956 Cr LJ 345.8 Bhanwar Singh v State of M.P. (2008) 16 SCC 657 : Air 2009 SC 768 : (2008) 67 AIC 133.9 Narain, (1875) 7 NWP 209.10 State of UP v Niyamat & Others. (1987) 1 SCC 434 : AIR 1987 SC 1652 : 1987 Cr LJ 1881.

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prima facie reason for proceeding against the petitioner was there. The complaint

against him was not quashed.11

5. Fourth clause – application of criminal force – the act falling within the purview of

this clause is made punishable owing to the injurious consequences which it is likely

to cause to the public peace. This clause does not take away the right of private

defence of property. It does not affect cl. 2 of s 105, which allows a person to recover

the property carried away by theft. It is meant to prevent the resort to force in

vindication of supposed rights. It makes a distinction between an admitted claim or an

ascertained right and a disputed claim.

The expression ‘right or supposed right’ would seem to make a division into (1) rights

in actual enjoyment when interfered with, (2) rights claimed though not in actual

enjoyment when interfered with.12

6. Fifth clause - compelling person to act or omission – this clause is very

comprehensive and applies to all the rights a man can possess, whether they concern

the enjoyment of property or not. There is no reference to ‘any right or supposed

right’ as in preceding clause.

Explanation – an assembly which is unlawful in its inception may become unlawful

by the subsequent act of its member.13 It may turn unlawful all of a sudden and

without previous concert among its members.14 But illegal acts of one or two

members, not acquiesced in by the others, do not change the character of unlawful

assembly.15 The law on the point is stated above is approved by SC in Moti Das

case.16

A lawful assembly does not become unlawful merely because the members know that

their assembly would be opposed and a breach of the peace would be committed.17

Being member of unlawful assembly – for being a member of unlawful assembly it is

not necessary that a person must commit some overt act towards the commission of

11 Vijay Singh Mankotia v State of H.P. 2002 Cr LJ 3165 (HP).12 Ganouri Lal Das (1889) 16 Cal 206, 21913 Khemee Singh (1864) 1 WR (Cr) 18; Lokenath Kar, (1872) 18 WR (Cr) 2.14 Ragho Singh (1902) 6 CWN 507.15 Dinobundo Rai, (1868) 9 WR (Cr) 19.16 AIR 1954 SC 657.17 Beatty v Gillbanks (1882) 9 QBD 308.

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the crime. The test is whether he knows of its common object and continues to keep

its company due to his own free will.18 Thus where a large procession of kanadigas

taken out to voice protest against Maharasthrians turned violent, started pelting stones

and attacked police officers, the procession turned into an unlawful assembly the

moment it develop the common object of causing damage to property and injuries to

police officers. Thereafter every person who continued of the member of the assembly

became liable for the offence committed by the processionists by virtue of s 149 of

the Indian Penal Code.19 If some unidentified members of the unlawful assembly

behaved in an unruly manner, the other members in the procession cannot be held

guilty of the offence by foisting vicarious liability, merely because they were in the

assembly.

Chapter 2

Section 144 – joining unlawful assembly armed with deadly weapons –

Whoever, being armed with any deadly weapon, or with anything which, used as a weapon of

offence, is likely to cause death, is a member of an unlawful assembly, shall be punished with

imprisonment of either description for a term which may extend to two years, or with fine, or

with both.

Comment – armed with deadly weapon – this is an aggravated form of the offence mentioned

in the last section. The risk to public tranquillity is aggravated by the intention of using force

evinced by carrying arms. The enhanced punishment under this section can only be inflicted

on that member of an unlawful assembly who is armed with a weapon of offence.

Chapter 3

Section 145 - Joining or continuing in unlawful assembly, knowing it has been commanded

to disperse –

Whoever joins or continues in an unlawful assembly, knowing that such unlawful assembly

has been commanded in the manner prescribed by law to disperse, shall be punished with

imprisonment of either description for a term which may extend to two years, or with fine, or

with both.

18 Apren Joseph, 1972 Cr LJ 1162 (Kerala).19 Kutubuddin Hasansab Mahat 1977 Cr LJ NOC 155 (Karnataka).

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Comment – joining or continuing with unlawful assembly – this section is connected with s

151. S 188 IPC provides for the disobedience of any lawful order promulgated by a public

servant. S 145 and 151 deals with special cases as the disobedience may cause serious breach

of the peace.

Chapter 4

Section 149 - Every member of unlawful assembly guilty of offence committed in

prosecution of common object

If an offence is committed by any member of an unlawful assembly in prosecution of the

common object of that assembly, or such as the members or that assembly knew to be likely

to be committed in prosecution of that object, every person who, at the time of the

committing of that offence, is a member of the same assembly, is guilty of that offence.

Classification of offence

Punishment—The same as for the offence—According as offence is cognizable or non-

cognizable—According as offence is bailable or non-bailable—Triable by court by which the

offence is triable—Non-compoundable.

Comments –

Scope and applicability

(i) When the charge is under section 149, the presence of the accused as part of

unlawful assembly is sufficient for conviction even if no overt act is imputed to

him20

(ii) Conviction by taking recourse to section 149 cannot be made out unless five

specified objects enumerated in section 141 are not proved.21

(iii) Even if no overt act is imputed to a particular person, when the charge is under

section 149, the presence of the accused as part of unlawful assembly is sufficient

for conviction.22

Joint liability of members of unlawful assembly

20 Yunis alias Kariya v. State of Madhya Pradesh, AIR 2003 SC 539.

21 Ramashish v. State of Bihar, 1999 (6) JT 560: 1999 (2) JCC (SC) 471.

22 Yunis alias Kariya v. State of Madhya Pradesh, AIR 2003 SC 539.

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(i) It is well settled that once a membership of an unlawful assembly is established, it

is not incumbent on the prosecution to establish whether any specific overt act has

been assigned to any accused. Mere membership of the unlawful assembly is

sufficient.23

(ii) Every member of an unlawful assembly is vicariously liable for the acts done by

others either in the prosecution of the common object of the unlawful assembly or

such which the members of the unlawful assembly knew were likely to be

committed.24

Chapter 5

Section 150 - Hiring, or conniving at hiring, of persons to join unlawful assembly

Whoever hires or engages, or employs, or promotes, or connives at the hiring, engagement or

employment of any person to join or become a member of any unlawful assembly, shall be

punishable as a member of such unlawful assembly, and for any offence which may be

committed by any such person as a member of such unlawful assembly in pursuance of such

hiring, engagement or employment, in the same manner as if he had been a member of such

unlawful assembly, or himself had committed such offence.

Comment – this section brings within the reach of the law those who are really the originators

and instigators of the offences committed by hired persons. It deals with the case of those

who are neither abettors of nor participators in the offence committed by an unlawful

assembly. The section creates a specific offence. It intends to embrace to all those who hires,

promote or connive at the employment of persons and render them punishable as principal

participators. Under the section, a person, though not actually a member of an unlawful

assembly himself, my be guilty of being a member of the assembly and may be held liable for

the offence which may be committed by the assembly to the same extent as if he had himself

committed that offence. But this is possible only when it is found that he hired or engaged or

employed or promoted or connived at the hiring, engagement or employment by any other

person to join or become a member of the assembly. There must have been an unlawful

assembly which was composed of persons so hired etc. and an offence committed in the

23 State of Maharashtra v. Joseph Mingel Koli, (1997) 2 Crimes 228 (Bom).

24 State of Maharashtra v. Joseph Mingel Koli, (1997) 2 Crimes 228 (Bom).

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course of that assembly for which he becomes equally liable. The word ‘promotes’ denotes

acceleration or inducement. Though the word ‘employ’ or ‘employment’ is used, it does not

mean a recruitment. It would mean calling of the service of the hired person without any

recruitment as a servant or agent to commit the offence.

Chapter 6

Section 157 - Harbouring persons hired for an unlawful assembly

Whoever harbours, receives or assembles, in any house or premises in his occupation or

charge, or under his control any persons, knowing that such persons have been hired, engaged

or employed, or are about to be hired, engaged or employed, to join or become members of

an unlawful assembly, shall be punished with imprisonment of either description for a term

which may extend to six months, or with fine, or with both.

Comment – s 150 makes the hiring of persons to join an unlawful assembly punishable,

whereas, this section makes punishable the harbouring of such hired persons. It has wider

application.

The section clearly refers to some unlawful assembly in the future and provides for an

occurrence which may happen, not which has happened. An act of harbouring a person, with

the knowledge that, in some time past, he had joined or was likely to have been a member of

an unlawful assembly, is not an offence under this section.

Chapter 7

Section 158 – Being hired to take part in an unlawful assembly or riot

Whoever is engaged, or hired, or offers or attempts to be hired or engaged, to do or assist in

doing any of the acts specified in Section 141, shall be punished with imprisonment of either

description for a term which may extend to six months, or with fine, or with both,

or to go armed – and whoever, being so engaged or hired as aforesaid, goes armed, or

engages or offers to go armed, with any deadly weapon or with anything which used as a

weapon of offence is likely to cause death, shall be punished with imprisonment of either

description for a term which may extend to two years, or with fine, or with both.

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Comment – this section is intended to punish those persons who hire themselves out as

members of an unlawful assembly or assist any such members. It is divided into to two parts.

Higher penalty is awarded where the accused is armed with a deadly weapon.

Dacoity

Chapter 8

Section 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”.

Comment – dacoity is robbery committed by five or more persons, otherwise there is no

difference between robbery and dacoity. The gravity of 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 numbers.

Dacoity is perhaps the only offence which the legislature has made punishable at four stages.

When five or more persons assemble for the purpose of committing a dacoity, each of them is

punishable under s 402 merely on the ground of joining the assembly. Another stage is that of

the preparation and if anyone makes preparation to commit a dacoity, he is punishable under

s. 399. The definition of dacoity in this section shows that the other two stages, namely, the

stage of attempting to commit and the stage of actual commission of robbery, have been

treated alike, and come within the definition. In other words, attempt to commit dacotiy is

also dacoity.

Cases –

Where a large body of Hindus acting in concert, and apparently under the influence of

religious feelings, attacked certain Mohamedans, who were driving cattle along a public road,

and forcibly deprived them of the possession of such cattle under circumstances which did

not imply any intention of returning the cattle to them, it was held that they were guilty of

dacoity.25

25 Ram Baran (1893) 15 All 299.

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Where there were only five name accused who committed the dacoity and out of the five two

were acquitted holding the only three took part in the offence, it was held that the remaining

three could not be convicted of dacoity, as the offence of dacoity could not be committed by

less than five persons.26 Where in spite of the acquittal of a number of persons, it is found as a

fact that along with the persons convicted there were other unidentified persons who

participated in the offence, bringing the total number of participants to five or more, it was

held that the conviction of eth identified persons, thought less than five, was perfectly

correct.27

Fear of instant death, or hurt, or wrongful restraint – imminent fear of death, hurt, etc will be

sufficient to bring the section into operation. Where several persons attacked a house and

took away property, it was held that the fact of the inmates running away was sufficient proof

of the fear of hurt or wrongful restraint and the accused were guilty of dacoity.28

Chapter 9

Section 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.

Comments – Witness

Where the presence of informant and other witnesses at the time and place of incident was

established and their positive evidence regarding the way in which the dacoity was

committed found reliable having no previous enmity with accused, no case of false

implication established therefore, conviction of accused under section 395 was just and

proper.29

Chapter 10

Section 396 – dacoity with murder

If any one of 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

26 Debi (1952) 2 Raj 177; Lingayya AIR 1958 AP 51027 Ghamandi 1970, Cr LJ 386.28 Lachman Ram v State of Orissa AIR 1985 SC 486 : 1985 Cr LJ 753 : 1985 SCC (Cri) 263.29 Chhedu v. State of Uttar Pradesh, 2000 Cr LJ 78 (All)

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imprisonment for life, or rigorous imprisonment for term which may extend to ten years, and

shall also be liable to fine.

Comments – under this section extreme penalty of death may be inflicted on a person

convicted of taking part in the dacoity in the course of which a murder is committed, even

though there is nothing to show that he himself committed the murder or that he abetted it.

The section declared the liability of other person as co-extensive with one who has already

committed murder. When in the course of dacoity one man was shot dead, and the accused

person was tried had a gun and others of the dacoits also had guns, and there was no evidence

that the accused was the man fired the fatal shot, the sentence was altered from one of death

to one of transportation for life.30

Ingredients – the offence under this section requires two things –

(a) The murder must be joined act of the persons concerned.

(b) Murder must have been committed in the course of commission of the dacoity.31

For recording conviction for dacoity, there must be five or more persons. In the absence of

such findings, an accused cannot be convicted for dacoity. In a given case, however, it may

happen that there may be five or more persons and the factum of five or more persons is

either nor disputed or clearly established, but the court may not be able to record a finfing as

to identify of all the persons said to have committed the dacoity and may not be able to

convict them and order their acquittal observing that their identity is not established. In such

case, conviction of less than five persons – or even one – can stand. But in the absence of

such finding, less than five person be cannot be convicted for dacoity.

Presence of all not necessary – this section says that if “any one of five or more persons, who

are conjointly committing dacoity, commits murder in so committing dacoity” then everyone

of those persons shall be liable to the penalty prescribed in the section. It is not necessary that

the murder should be committed in the presence of all. When in the commission of dacoity a

murder is committed, it matters not whether the particular dacoit was inside the house where

the dacoity is committed, or outside the house, or whether the murder was committed inside

or outside the house, so as long as the murder was committed in the commission of the

30 Lal Singh (1938) All 875.31 To bring an offence under section 396, the prosecution has to establish that murder was committed during dacoity. Hence, when prosecution alleges commission of murder during dacoity, the offence traverses from section 395 to 396. Any person committing the offence of dacoity with murder cannot be convicted and sentenced under both the sections, Rahimad v state of U.P. 1992 Cr LJ 3819 (All).

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dacoity.32 The essence of an offence under this section is murder committed in commission of

dacoity. It does not matter whether murder is committed in the immediate presence of a

particular person or persons. It is not even necessary that murder should have been within the

previous contemplation of the perpetrators of the crime.33

Common intention – where the murder was committed by one or more of the accused persons

only, it was not necessary to prove that all shared a common object or common intention.

Everyone of them was liable to be punished under the section through all of them had not

participated in the murder.34

Cases – one of eth accused fire two shots at a man with a country made pistol. The other

accused inflicted an injury with a sharp edged weapon. The accused causing gun shot injuries

which proved fatal, was sentenced to life imprisonment under s 302 and the other accused

punished only under s 324.35

Where the accused threatened the inmates of a house at the point of knifes by closing the

door and succeeded in looting the entire house, the offence was squarely covered under s

395.36 In a dacoity on a bus and murder of one of the passangers, the accused persons were

convicted under s 396. It was found that the identification parade and the evidence of the

witness did not inspire confidence. Accordingly their conviction was set aside.37

Rarest of the rare – in a dacoity with double muder, the accused had gained confidence of the

lady of the house and other inmates and visited them frequently. They committed dacoity

after killing the lady and her grandson cold-bloodedly and attempted to kill others. Their guilt

was proved duly circumstantial and direct evidence. The offences were found to be both

heinous and barbaric and it was a ‘rarest of the rare case’. Three of the accused were

sentenced to death and two accused who had assisted them were awarded life imprisonment.38

Chapter 11

32 Teja (1895) 17 All 86.33 Samunder Singh, AIR 1965 Cal 598.34 Kalika Tiwari v Vijay Bahadur Rai AIR 1997 SC 2186 : 1997 Cr LJ 2531.35 State of U.P. v Jamshed 1994 Cr LJ 635 : 1994 Supp (1) SCC 310 : 1994 Cr LJ 635.36 Pallepu Venkati v State of A.P. 1996 Cr LJ 1459 (AP).37 Tahir Mohammad v State of M.P. AIR 1993 SC 1207 : 1993 Cr LJ 193 conviction was also set aside in Ram Karan v State of Rajasthan 1996 Cr LJ 3521 (Raj) because there was no evidence to connect the accused persons with offence and the investigation was also mishandled, the person from whom property was recovered was held liable under the presumption of receiving stolen property sentencing him to the period already undergone.38 State of Karnataka v Rajan 1994 Cr LJ 1042 (Kant.)

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Section 397 - dacoity, with attempt to cause death or grievous hurt

If, at the time of committing robbery or dacoity, the offender uses any deadly weapon, or

causes grievous hurt to any person, or 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.

Comment – section 397 and 298 do not create any offence but merely regulate the

punishment already provided for dacoity.39 This section fixes a minimum term of

imprisonment when the commission of dacoity has been attended with certain aggravating

circumstances, viz. (1) the use of deadly weapon; (2) the causing of grievous hurt, or (3)

attempting to cause death or grievous hurt.

Accused must armed with deadly weapon – it is necessary to prove that at the time of

committing dacoity, the accused was armed with a deadly weapon and not merely that one of

the dacoits, who was with him at the time carried one.

Uses any deadly weapon – this words are wide enough to include a case in which a person

levels his revolver against another person in order to overawe him. It is not correct to say that

a person does not use revolver unless he fires it.40

Deadly weapon – in Babulal Jairam Maurya v State of Maharashtra41 it was held that the

word deadly weapon as used here has to be a real deadly weapon and not just assumed or

mistaken to be a deadly weapon. A toy-pistol cannot be said to be a deadly weapon whatever

be its impact on persons who were frightened with it. Bamboo sticks or lathis, which were

possessed and held by the accused, were held by the SC to be not deadly weapon. There was

no evidence of any grievous hurt or attempt to inflict it.42

Recovery of property – the SC in Lachhman Ram v State of Orissa43 “ the factum of

recovery of articles at the instance of the accused person in the presence of police officers and

punch witness is itself sufficient to bring the case not only under s 412 but also under s 391.”

Following this it has been held that catching the bank robbers within a short distance from the

39 Gaya Bhakta v State of Orissa 1988 Cr LJ 1576 (Ori), the charge should, therefore be under s 395 read with s. 397.40 Chandra nath (1931) 7 Luck 543.41 1993 Cr LJ 281 (Bom).42 Dhanai Mahto v State of Bihar 2001 Cr LJ 147 (SC), the court said that in such a case the maximum punishment provided by s 397 need not be imposed. Four years were held to be sufficient.43 1993 Cr LJ 753 : (1985) 2 SCC 533.

18

bank building and recovery of currency notes from them was sufficient evidence to fix the

identity of the accused persons.44

Chapter 12

Section 398 – attempt to commit dacoity when armed with deadly weapon

If, at the time of attempting to commit robbery or dacoity, the offender armed with any

deadly weapon, the imprisonment with which such offender shall be punished shall not be

less than seven years.

Comments – it applies to such of the offenders as are armed with deadly weapons though

they do not use them in attempt to commit dacoity. It does not apply to the other offenders

who in combination with such persons have committed dacoity.

Chapter 13

Section 399 – making preparation to commit dacoity

Whoever makes, any preparation for committing dacoity, shall be punished with rigorous

imprisonment for a term which may extend to ten years, and shall also be liable to fine.

Comment – this section makes preparation to commit dacoity punishable. ‘Preparation’

consists in devising or arranging means necessary for the commission of an offence.

Under the Code preparation to commit is punishable in three cases –

Preparation to wage war against the GOI (s 122).

Preparation to commit depredation on territories of a power at peace with the GOI (s

126).

Preparation to commit dacoity.

In a popular sense assembling to commit dacoity may be an act of preparation for it, but a

mere assembly, without further preparation, is not ‘preparation’ with in the meaning of this

section. S 402 applies to mere assembling without proof of preparation. A person may not be

guilty of dacoity yet guilty of preparation \, and not guilty of preparation, yet guilty of

assembling.45

44 Jasmer Singh v Sate of Haryana 1988 Cr LJ 683 (P&H).45 Ramesh Chandra Banerjee (1913) 41 Cal 350.

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Distinction between s 399 and 402 –

Case – where a number of persons were sitting in a Railway waiting hall at about 9:30 at

night and a country made without any cartridge, a whistle and a torch of five cells were

recovered from their possession, it could not be said without any other evidence that they had

made preparation to commit dacoity within meaning of this section nor would it amount to an

offence of assembling within the meaning of this section nor would it amount to an offence of

assembling for the purpose of committing dacoity under s 402.46

Chapter 14

Section 400 – punishment for belonging to gang of dacoits

Whoever, at any time after the passing of this Act, shall belong to a gang of persons

associated for the purpose of habitually committing 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.

Comment – this section provides for the punishment of those who belong to a gang of

persons who make it their business to commit dacoity. Its object is to break up gangs of

dacoits by punishing persons associated for the purpose of committing dacoity. The mere fact

that women lived as wives or mistresses with men who were dacoits was held not sufficient

to prove that they belonged to a gang of persons associated for the purpose of habitually

committing dacoity within the meaning of this section, unless it be proved that the women

themselves were associated with the husbands or protectors for purpose of themselves

habitually committing dacoits.47

The expression ‘belong’ implies something more than casual association for the purpose of

committing one or two dacoities by a person who was ordinarily living by honest means. It

refers to those people who are habitually associate with a gang of dacoits and actively assist

them in their operations. But if a person with a bad past record participants in the commission

of dacoity even on one occasion in association with a well known gang of habitual dacoits

knowing them to be such a gang, it may be reasonably inferred that he belongs to that gang

unless there is some other material on record to justify an inference that the association was

of a casual nature.48

46 Brijlal Mandal 1978 Cr LJ 877 (Pat).47 Yella (1896) Unrep Cr C 863.48 Bhima Shaw (1956) Cut 195; Bai Chaturi AIR 1960 Guj 5.

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The word ‘gang’ means any band or company of persons who go about together or act in

concert. The essence of the word is that the persons should act in concert. Evidence that

persons concerned were associated for the purpose of committing dacoities in a manner of

cases during a short period of time is good enough evidence to prove association within the

meaning of section even if such evidence was not considered for conviction under s 395 IPC

in specified cases.49

Chapter 15

Section 402 – assembling for purpose of committing dacoity

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.

Comment – an unlawful assembly of persons meeting for a common purpose to commit

dacoity is subject to the servere punishment provided in this section even though no step is

taken in the prosecution of the common object. Several persons were found at eleven o’clock

at night on a road just outside the city of Agra, all carrying arms (guns and swords) concealed

under their clothes. None of them had license to carry arms, and none of them could give any

reasonable explanation of his presence at the spot under the particular circumstances. At that

period the district of Agra was notorious as the scene of frequent and recent dacoities. It was

held that they were guilty under this section.50

49 State of Assam v Hetep Boro 1972 Cr LJ 1074 (Assam).50 Bholu (1900) 23 All 124.

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Bibliography

1. Ratanlal and Dhirajlal’s the Indian Penal Code (Act XLV of 1860), thirty third edition

2010.

2. S.C. Sarkar, Indian Penal Code 1860 (abridged edition), third edition, 2014

3. Lexis Nexis, Indian Penal Code 1860, 2014

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Thank23

You

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