Can Conviction for Dacoity Stand if Fewer Than Five Accused Are Tried? Uttarakhand High Court Clarifies the Mandatory Ingredients of Section 395 IPC

The Uttarakhand High Court has held that conviction under Section 395 IPC (dacoity) is legally unsustainable when only four persons are charge-sheeted and tried and no evidence establishes the participation of a fifth person as required by Section 391 IPC. This judgment reaffirms the mandatory statutory threshold for the offence of dacoity and serves as binding authority for subordinate courts on the interpretation and application of Sections 391 and 395 IPC.

Summary

Practical Impact

What’s New / What Lawyers Should Note

• Clarifies that the conviction for dacoity under Section 395 IPC cannot be sustained unless it is proved that five or more persons conjointly committed or attempted to commit robbery, as required by Section 391 IPC.
• Establishes that failure to present evidence regarding the participation of a fifth person is fatal to the application of Section 395 IPC.
• Highlights that delayed test identification parades without explanation and lack of independent witnesses significantly weaken prosecution evidence.
• Affirms that mechanical or perfunctory investigation and trial cannot substitute strict compliance with statutory and evidentiary requirements for conviction in serious offences.

Summary of Legal Reasoning

• The High Court examined the essential statutory ingredients of Sections 391 and 395 IPC and held that proof of five or more persons acting together is mandatory for the offence of dacoity.
• The court found that only four individuals were charge-sheeted and there was no material in the record showing the involvement of any fifth person, whether identified, unknown, or shown as absconding.
• The court reasoned that adverse inference must be drawn where this foundational fact is not established; therefore, conviction under Section 395 IPC could not legally be sustained.
• The court also found identification evidence unreliable due to the unexplained delay in the Test Identification Parade and lack of safeguards to ensure the integrity of the process.
• Recovery evidence was found weak as all seizure memos were attested only by police officials, not independent public witnesses, and the items recovered were not conclusively connected to the offence.
• The procedural delay in forwarding the FIR to the Magistrate further cast doubt on the overall fairness and transparency of the investigation.
• The combined deficiencies in evidence and law warranted setting aside the convictions and sentences.

Arguments by the Parties

Petitioner

• Identification of the accused was unreliable due to a delayed Test Identification Parade and lack of distinct identifying features.
• No independent public witnesses to the occurrence or recoveries; reliance solely on inconsistent police testimony.
• Recoveries were uncorroborated and not convincingly linked to the alleged offence.
• Delay in forwarding the FIR to the Magistrate under Section 157 CrPC cast serious doubt on the prosecution version.
• No evidence proving the basic requirement of five persons participating in the offence, making conviction under Section 395 IPC legally untenable.
• Separate FIRs and trials for the same transaction were engineered to create an artificial multiplicity of offences.

Respondent (State)

• The prosecution established identification through a lawfully conducted Test Identification Parade and in-court identification.
• Minor delay in TIP without resulting prejudice does not vitiate the process.
• Non-association of public witnesses in recoveries is not fatal if police witness testimony is credible.
• Evidence, when viewed as a whole, indicated the appellants’ participation in the dacoity and use of deadly weapons.
• Delay in forwarding the FIR is not in itself sufficient to vitiate the proceedings where investigation commenced promptly.
• Trial court’s appreciation of evidence was adequate and not perverse.

Factual Background

On the evening of 13 September 2014, a dacoity was reported in which the complainant was allegedly assaulted and robbed of cash, a mobile phone, and personal belongings. FIRs were registered at Police Station Khatima. Investigations led to the arrest of four individuals, and recoveries of stolen items and weapons were claimed. Charge-sheets were filed against the accused under Sections 395 and 397 IPC, and under Section 4/25 of the Arms Act. Multiple trials resulted in convictions, which were appealed. The High Court found significant legal and evidentiary deficiencies when reviewing the appeals.

Statutory Analysis

• Section 391 IPC: Defines “dacoity” as robbery committed or attempted conjointly by five or more persons. This is a mandatory requirement, and the court emphasised that this threshold cannot be inferred or presumed—it must be proven by evidence.
• Section 395 IPC: Punishes dacoity. The statutory foundation for this section is not established unless the requirement in Section 391 is fulfilled.
• Section 397 IPC: Requires evidence of use of a deadly weapon; the judgment noted that no such specific evidence was present.
• Section 4/25 Arms Act: Involves offences related to possession of arms; the judgment found the recovery evidence unsatisfactory and lacking independent corroboration.
• Section 157 CrPC: Pertains to the forwarding of FIR promptly to the Magistrate; delay in compliance was noted to diminish the credibility of the investigation.

Alert Indicators

• ✔ Precedent Followed – Affirms and reiterates the statutory requirement for proof of participation of five or more persons for conviction under Section 395 IPC.