AW OFCRIMIS&CRMINOLOGY

Sentenees can be dirccted to n consccntively only vhcn transactionst

ottenees commmited at diffcrent pomts of t c . It will niot be proper and l c p t e
scninees of the said commicts to un consecutively. "ln spite of thhc fact that Satio
ditfrnt
n has
an appeal betore us. still we can not allow him to be trcatcd differently from
from Met fi
sentenees immposed on Mohan Lal and Satish. thereforc, are dirccted to run colc
Mohan Ia The
. Presumption
The nature of presumption under illustration (a) to Section 411, Evidcncc Act m..
upon the nature of thc evidence adduced. No fixed time limit can be laid down to pnd
whether possession is recent or othenvise and each case must be Judged on its
own facthe
question as to mhat amounts to rccent possession sufficient to justify the
anes accordingly as the stolen article is or is not calculated to
presumption ce
pass readily from hand tolt
If the stolen articles wcre such as were
not likely to pass read1ly from hand to
of one ycar that elapsed cannot be said to be too hand the n
long when the particularly appellant had hoo
absconding during that period. There was no lapse of time between the date of his
the recovery of the stolen property. 36 arrest and
8. Identification -

Special mark (bald head)

It has been contended
by the learned Counsel that the
cidence whatsoever to prove that from the date on which prosecution
had not adduced
he was arrested and
an
period he was kept in the hospital for undergoing treatment and thereafter was during the
Court from the police lock-up and brought to the
thereafter again was taken, to the jail, this accused was
escorted Baparda (under the cover
of a curtain) or was kept Baparda all along). Moreover
admittedly this accused was bald headed and in the evidence there is
during the T.I. Parade other similar bald headed persons were mixed upnothing
to show that
with this accused or
that the heads of all persons
placed in the T.I. Parade were covered by caps or cloths and
under such circumstances if the witnesses
that accused, then the
all of whom belonged to the same family identify
possibility cannot be eliminated that the witness to whom he was shown
by the I.0. in the hospital would divulge to the others the
accuscd to enablc them to identify the accused in the TI.
special mark of identification of this
Parade.37
9. In the Course of the
dacoity
Where murder is committed in the course of
effecting a safe retreat after dacoity it is
committed *in the course of the dacoity", as the safe retreat is
an essential part of the common
criminal purposc of the dacoits.5 Murder committed
their escape with their
by one of the dacoits while making good
booty is murder committed in committing the dacoity and all the dacoits
would be liable for it.39 The dacoits were
running away without collecting any booty and
they had proceeded a considerable distance from the house where the dacoity had wne
committed one of the accused killed a chaser Mendai
bee
while he was crossing the ditch of
PiptuIn
Fam in order to effect the
release of other accused who had been caught by the
chascid
Satish
3. State
of Subhash Chander Subhash Yaspal @Amarjcet, 2000(1) Crimes 330 (Del.)
vs.

arabhadrappa vs. State of Karnataka, AIR 1983 SC 446: 1983 D.

ScC (Cr.) 447: (1983) 2 SCC 330: 1983 s I 846:
1983 Cr. 1.R
37. Rakib Sk.
(SC) 268: 1983 Cr. App. R (SC) 232.
vs. State.
38,AlR 1925 Lah. 2000(2) Crimes 41 (Del.).
142: 1948 Bur LR
39State 425: 25 Cr. LJ 700: AIR
of U.P. vs. 1935 Oudh 190.
Jageshwar, 1983(1) Crimes
978; Gafur Shaikh vs.State, 1983(2) Ch **
 Scc. 396| INTHECOURSE OF"THE:DACOTY 3193

the facts and cireumstances of the prescnt case. the transaction of dacoity had cndcd the
moment the dacoits took to their heels and another and a separate transaction toxk place when
the appellant shot at Mendai while crossing the ditch of Pipra Farm and that. thercfor, the
offcncc under Scction 396. 1 PC.
appellant could not be convicted of having comnitted the
and that on the concurrcnt
Conviction of the appellant under Scction 396 1.P.C., should bc quashed
recorded by both the Courts below the conviction
should be altercd to onc under
findings of fact
Section 395. 1P.C.40 Where certain persons who had committcd dacoity were pursucd in hot
haste after the act of dacoity and being brought to bay, onc of the dacoits stabbed and murder
a man who was pursuing him, it was hcld by a full bench of the Calcutta High Court that thc act
was not a separate transaction but an
offcncc committed in 'committing thc dacoity
of murder
within the meaning of this section.4t Miurder commited by dacoits while carrying away stolen
property is 'murder committed in the commission' of dacoity.42 Murder committed to facilitate
the escape of the dacoits with the booty must be held to have becn committcd in committing the
dacoity within the meaning of this section.3 Where the deccased was beaten some time aftur
accused had started running avway leaving the subject-matter of the theft bchind them, and in
order to do away with the evidence that might appear against them as the deccased had
identified them, it was held that violence used by the thieves in order to destroy evidence
against them would not convert theft into the offence ofrobbery and therefore the theft committed
by the accused did not amount to robbery and the accused were not guilty of dacoity
Where the dacoits, by the pursuit immediately after commission ofthe loot where overtaken
at a short distance and there was an encounter between the dacoits and pursuits and the
dacoits had not abandoned the cntire booty before the murder was committed, it was held by
the Rajasthan High Court thatthe transaction of encounter and murder were not separate and
distinct from the dacoity and as such the "murder was committed while committing dacoity."4

10. Question of fact

The question whether murder was committed while committing dacoity is a pure question

of fact and a degree, not to be determined general rule, but by the special circumstances
by any
of cach case.46

11. Procedure
-Court of Session
Cognizable- Warrant- Non bailable - Not compoundable
12. Charge
I. (name and office of the Session Judge/A dditional Session Judge) hereby. charge
you (name of accused) as follows:
..., Committcd dacoity.
That you, on or aboutthe....day of.. . al.....

mcmber, and
and that, in the commission of such dacoity,
murder was committed by one of your
Indian Penal Code.
under section 396 of the
that you hcreby committed an offence punishable
Session.
and within the cognizance of the Court of 1138.
Santosh Maharashtra. 1994 SCC (Cr.)
1957 SC 320: & Prem alias
vs.
40. Shyam lBcharivs. State of U.P, AlR
33 Cri. LJ 722 (Cal.) (FB).
41. Monoranjan Bhattacharjea (1932) 1.ah. 329.
Vitti Thevan. (1996) 17 MLJ 118: (1904)
5 Cri. LJ 201 & Lashkar AIR 1923
42. Vitti Thevan vs.
43. Kaley (1954) ALJ 654.

44 Sheo Ratan (1955) ALJ 4555.

LJ 818.
45. AIR 1967 Raj. 134: 1967 Cr.
567: 1951 AWR HC 588.
46. AlR 1951 Al1. 834: 1951 ALJ
 IAWOCRINMIS&CRIMINOLOXGY
.

Section 397

Robbery or dacoity, with attempt to cause death or grievous hu

art.
the time of commiling robbery or dacoity the offenderler uses
uses any -If.
any dee
dea
11C7777 or causes
gricvous hurt to any persoN, Or alempis to Cause deall
SVOUS am person, the imprisonnent with Which
nurt to
such offender shshall
leath or
e punshed shall noi be less than seven
years.
Robbery (i) Uses- deadly weapon at the
or
(ii) Causes-grievous hurt
Dacoity time
(ii) With attempt to a) cause death
or of
(b) cause grievous hurt commiting
Imprisonmnent shall not be less than Seven years R.I.

1. Scope SYNOPSIS
2. Ingredients 8. Joint Trial
3. Joint Liability 9. Identification
4. Deadly ) Light
weapon- Lathi
5. Knife (ii) Moon-Light
6. Used (i) Torch-Light
7. Alternative charges 10. Procedure
11. Charge
Deadly Weapon Means
Aiming to destroy, aiming to kill,
dangerous to life, death-bringing, annihilating, attended with death, balefiul,
lethal, lethiferous, murderous, death-dealing, destructive, homicidal, killing.
ruinous, seriously
unhealthy, untending to cause death. dangerous, slaughterous
1. Scope
Section 397 of the Indian Penal
Code does not contain
prescribes the minimum punishment which any substantive offence, but
certain circumstances
mentioned therein.
can be
passed robbery or dacoity is attendedmerely
if
vwitn
This section is
It merely a rider to section 394. It does not
merely regulates the create any substantive offence
punishment already provided for
imprisonment when its commission
Vi2.,() use of a deadly had been attended withdacoity, by fixing a minimum term o
certain aggravating 2

death or weapon, or (2) causing of circumstances,

grievous hurt. grievous hurt, or (3) attempt1ng to cau
cause

.Rayar
2. Jai
1982 Cri. LJ
(NOC) 122
Parkash 1981 Cri. LI 1340 (Mad); Channa 1981 Cri. LJ
(Del). (NOC) 219 (AII); 1976 Raj. CR
0
Sec. 397] INGRIDNTS

ThercfoC. a conviction mcrely under Sectionn 397 has no mca1ing Thc Coniti a
Case of a dacoity should be under Sccton 395 rcad with Scction 397 of tlic Penal C l

2. Ingredicnts
(1) Accused committed robbery or dacoity
the accuscd
(2) While committing such robbery or dacoity
hurt to any pcrson, (c) attcmptcel to causo
(a) used a dcadly wcapon: (b) causcd gricvous
death or gricvous hurt to any' person.
This Section 397 requircs the offcnder to have uscd any dcadly wcapon. The word uses
means and connotes that the offender has put the deadly weapon in practice or has applicd or

emploved the same. While Section 398 requires that at the time of attempt to commit robbery
or dacoity, the offender is armed with deadly weapon. The word uses' in Section 397 and the
'armed with in Section 398 have been introduced by the legislature in these sections

visualizing differcnt circumstances and eventuality under which the robbers or dacoits commit
the offences
The word armed means- equipped with arms, fortified, well-armed, bristling wilh
arms, supplied with arms, having in position etc.
with an
Section 397 deals with an offence which is complete. While Section 398 deals
that the offender has used
attempt of that offence. The word uses 'in Section 397 contemplates
While the word armed with any
deadly weapon when he committed the offence of robbery.
to that the offender was having a
deadly weapon at the time of commiting the offence pertains
So, having and
deadly weapon with him at the time of attempting to commit robbery dacoity.the
or

are two different expressions for different

situations have been used by legislature in
using
these two sections Viz., "use in section 397 and is armed in section 398.
weapon to
case of a person who displays a deadly
Section 397, is intended to cover the
or who makes use of any deadly weapon
for other
frighten his victims or their neighbours for
to cases where the weapon is used actually
Similar purposes. Its operation is not confined
to cause an injury to another."
causing injury or for attempting
armed
One may be armed with a deadly weapon
but may not use. One may be innocently
case can be when a
or dacoity. The glaring
with deadly weapon and may commit a robbery sword on
directions) carries 'a kirpan or
staunch sikh (strictly observing the Sikh religion he is certa
in obedience to his religion, commits and offence of robbery or dacoity,
pcrsons but cannot be said to ha
at the time of commission of the offence
carrying a deadly wcapon armed with tha
of carrying such weapon and
used the same. However the intention or purpose
a licenscd fire arm
the offender has to prove. One may have
at the time of the commission,
same has been used for
time of the offence but it cannot be said that the
With him at the
commiting the robbery or dacoity
Kumar vs. Delhi Administration, AlR,
The Hon'ble Supreme Court in Phool
1975 Cri. LJ 778 :
'armed with any deadly weapon' ana
Para 6 Section 398 uses the expression

3. 1977 Cr. LJ 252 (MP). LJ 323; AIR 1938 Mad. 477.

Cr. LJ 253: (1975) 2 SCJ 490, 1938 MWN 215; 39 Cr.
4 AIR 1934 Lah 522: 36
 L A W O F C R I M E S & C R I M I N O L O C G Y

tf at thc
timc of atto. ing. to
provncd
ihcrem
is a l s O
/JcarS

deadly wcapon
This has crcatcd an cmmt
anoma rohher
punishnment

is
amed
with any
offendcr
who morcly
attempteed
ptcd to
Commit
mit
robber
oflender
the
to think
1hat if thc 1 punishmcnt cf

ycars
minimum
thc
unrecasonable

titg it au
il
attracts

hile
whil offender so under Secy 3.
did o t
succecd n
cOmmittmg

armed with any

adly wcap
dcadly wcapon,
er
an
201 armed
308 if he
mercly
is punishment
under
Section tho hc
Section 39 it will
hind the usc ofsuccceraa
minimum
of the the purport bchind
the liability what w a s
incur

the robbery. But thcn,

in Section 3o7
Section 397 and
the differo
committing
in the two sections,
viZ.
uses is:
words by the
Legislature
the anomaly
is resolved if the two tern armed
398. In o u r judgcment
explanation for tho gen
Section
There seems to
be a the use of Rhe
reasonable

identical meaning. When the oftence of robberv is

the t bbery
different expressions in the
sections.
was the
the visi which within committed tby
vision of the
with a deadly weapon
offender being armed victin
in his mind, the offender must he so
as to be capable
of creating a terror to
the robbery. On the otho ave
used that deadly weapon
in the commisSion of nd, f an
at the time of attempting to cor
offender was armed with a deadly weapon
then the weapon was not put to any fruitful use because it would have heen . roboer
when the offender succeeded in committ1ng the robbery.
Para 7 if the deadly weapon is actualy used by the offender in the commission af
robbery such as in causing grievous hurt, death or the like then it is clearly used la
cases of Chandra Nath vs. Emperor, AIR 1932 Oudh 103, Nagar Singh vs. Emperor A
1933 Lah 35 and Inder Singh vs. Emperor, AIR 1934 Lah 522 some overt act such
brandishing the weapon against another person in order to over-awe him or displaving the
deadly weapon to frighten his victim have been held to attract the provisions of Sectim
397 of the Penal Code. J.C. Shah and Vyas, JJ. of the
Bombay High Court have said n
the case of Govind Dipaji More vs. State, AIR 1956 Bom. 353 that
for the purpose of producing
if the knife "was used
such impression upon the mind of a person that he would
an
be compelled to part with his
property, that would amount to 'using' the weapon within te
meaning of Section 397." In that case also the evidence against the appellant was that te
carried a knife in his hand when he went
to the shop of the victim. In our
correct view of the law and the opinion this is
restricted meaning given to the word 'uses in the
Chand Singh, ILR
(1970) 2 Punj. and Har, 108: (AIR 1970 Punj. & Har. 532) (FB)Cas
correct.*5 S
So, the word "uses" in Section
397 must be given a much
stabbing or shooting; it includes wider meanng an cutting
And also carrying the weapon for the purpose of g theVIctun

include
Overawe him. The
a case in which a person levels overaw
a revolver in the hands of
0

scction does not another p the

persons who with the require the user of the deadly weapon to
frighten
are
Trighten the person with person robbed. Hence where the accusca
weapo
the deadlySection 39.
read with
Section 3978 person robbed the uss*
accused can be held guiny er
.Phool
(FB) Kumar
vs. Dclhi
6.
AIR
Administration,
overruled (AIR 1956 AR 1975 SC
905: AIR 1970Punj.-
332

1933
13 Cr.
L.J
1ah. 35: Bom.
140 IC 528: 353: 1956 Cr. LJ 700 1907 Cr. LJ 778: (19175) 1 SCC 797; LI
S67

.8 AIR 267: 6 LBR 41: 1443434 Cr. LJ approved).

Cr LI 45; AIR 1926 Sind, 367: 32
Cr
AIR 1932 Oudh IC 651. Sind. 150,
150: 27 AIR 17931
All
103:9 27CCr. LJ 334:
-

1941 Mad. 718: OWR 152: 33

42 Cr.
LI 868.
Cr. JJ 928.
Sec. 3971 JOINTLIABILITY 3197

3. Joint Liability
Section 397 cannot be applicd constructivcly. and rclatcs only to thc oftendcr who actuall,

uses the weapon himself.

rcfer to the offendcr who uses a deadl
The words "such offender" in Section 397 clcarly
who jointly commit robhery or
to any person and not to thosc
weapon or causes grievous hurt,
dacoity with him.10
thc provisions 397,
of Scction and an accused person
Section 394 has no application to
Section 397 only if the court finds that particular person used a deadly
can be convicted under
hcld that the words of Section 397 were not
wcapon.
11
In AIR 1925 Nag 136 it was, however,
of Section 114 and 34 ofthe Code.12 And also see (1976) 2
such as to exclude the operation
reason why S. 34 should not apply to S. 392/397 to the same
Malayan LJ 19 (19). There was no
extent as it applies to other offences.

4. Deadly weapon--Lathi
of Section 397 of the
A lathi cannot be described as deadly weapon within the meaning
like this where many murders, if not
Code.13 Some High Courts, however held that in a country
are deadly weapons within
the meaning of Sec. 397.
most, are committed with sticks, sticks
as a fatal injury.13 Lathi
is not a deadly
A lathi is capable of causing a simple as well A stick is a
Sticks in the hands of the PWs could hardly be called lethal weapons
weapon.o sticks or lathi, held it cannot be
A dang is not a deadly weapon.19 The plain
deadly weapon.8
said that deadly weapon were used.20
scooter driven by complainant.
On knife point asked him
The accused took three wheeler contradictions in
because of grave and serious infirmities and
to leave the scooter with money witnesses PW4
witnesses and the fact that the only independent
the testimony of prosecution not be safe to
the prosecution and turned hostile, so it would
Kuldip Singh has not supported of thse witnesses.21
statements
base conviction on the

5. Knife
not would depend upon the
weapon, but
whether it is deadly or
be
Knife per seis dangerour kitchen knife, pen knife
cannot
knife. The vegetables knife,
nature and the size of the
AIR 1933
132: 36 Cr. LJ 617;
1945 All LJ 184: AIR 1935 All 1926 Ran_
1945 All 344: Cri. LJ 156; AIR
AlR 1947 Pat 157;
25 Pat. 227: AIR 1927 Lah. 791; 28
9. Oudh 193: 28 Cr. LJ 520; AIR LJ 1759: AIR 197
252: 35 Cri. LJ 594; AIR
1927
48: 26 Cr. LJ 1144: (1971) 1 Cr.
Nag. AIR 1926 Lah
207: 27 Cr. LJ 1285:
27 Cr. LJ 1008 (Lah):
Rajdhani LR. 19(23).
C 18 (25); 1984 LJ 1024.
Manipur 43; 1978 Raj Cri. Cal 643: 25 Cr.
LJ 405; AIR 1924 28 Cr. LJ 17.
409: 72 IC 517: 24 Cr. AR 1927 Lah 149:
10. AIR 1924 Lah IC 267: 32 Cr. LJ 476:
29 Cr. LJ 449:
11. AIR 1931 Pat. 49: 130
Cr. LJ 1181.
12. AlR 1926 Nag 136; 25 1957 Cr. LJ 1457.
1957 Tripura 48: Cr. LJ 458 (DB).
13 IC 998: 13 Cr. LJ 182; AIR Pra. 361: 1965 (2)
13. AIR 1965 And. LJ 777.
82 1C 45: 25 Cr. LJ 1181; SCC 40o: 1992 Cr.
AIR 1925 Nag 136: 1992 SC 675: (1992) 2
14. Pradesh, AIR
vs. State of Madhya
15. Bhagwan Swaroop SC 34: 1994 Cr. LJ
21.
SCC 174: 1996 Cr.
LJ 323M
Kerala, AIR 1994 890: (1996) 5
16. Joseph vs. State of Pradesh, 1996
SCC (Cr.)
17. Bhaiya Singh
Bahadur vs. State of Madhya
25.
182: (1996) 3 Crimes
(1996) 6 SC
18. 82 Ind. Cas. 45.
LJ 17.
Cas. 49: 28 Cr.
19. 99 Ind. 1457.
48:1957 Cri. LJ DRJ 360.
20. AIR 1957 Tri. DLT 547: 1998 (45)
Sikander Kumar
vs. State, 72 (1998)
21.
 3198
LAWOFCRIMES& CRIMINOHXGY
considered as a deadly weapons. wh1ie flickering kn1fe.
butterfly kn1fe arc se dradi
they have been made or manufactured for being used as weapon of offenceper
knite. hitchen kaife arc uscd for domestic The vegtahi
purposcs Somebody may carry small
pcncil This has been general practice school tcachers. putwaris tren
knnfc) for sharpening the knife
munshis in viliagcs This is
general practice and
Lal
in
Punjab. Supreme Court has also held Jawahar in
is Punjab. AIR 1983 SC 284: 1983 4 SCC 159. *A
State
an unusual feature Punjabi carry ing knifc is not at all
nor can it be fumish an
indication that it was carried by them to
intliction of a fatal
injury" Supreme Court has used the word "formidablc facilitate
the length of
the blade is more than normal say 13-1/2" in length (Paramjit vs. weapon"
State of
wherever
JT(1996) 8 SCC 440. Same way in Sri Niwas Haryana
vs. Ram
LJ 1385. The nature Bharosey, AIR 1994 SC
of the injuries indicates that these injuries could have been1539 1994 Cr
ver tormidable cutting instrument and not by a knife." caused by a
AIR 1995 SC 2140 the
word vegetables
Again Chand Khan vs. State of UP.
in
has been cutting
drawing the distinction between knife, knife" has been used. So the
Supreme Court
State of dangerous weapon and
Himachal Pradesh vs. Wazir Chand, AIR 1978 SC 315 it was held deadly weapon in
a
dangerous weapon". Nowhere the deadly "Knifeis indisputabi
WOuld become weapon has been used. So to my mind the
deadly only wvhen its size is beyond the normal size and looks like a
knufe
A knife is a
deadly weapon.22 Knife is dagger
designed for cutting vegetables could not be indisputably dangerous weapon The knines
a

per se such as would considered deadly. Knives are not

ordinarily result in death by their use. What deadly wcapons
its design or the manner
of its use such as is would make a knife deadiv is
therefore a question of fact to be calculated to or is likely to produce death. It is
the accused was proved and prosecution should prove that the knife used
deadly one24 by
Knivers are not dcadly se such as would
weapon
ise. what would make a knife deadlyper ordinarily result in the death by their
is its design or the manner
o or is likely to produce death. It is, of its use such as is calculated
therefore, a
question of fact to be
by the accused was a deadly one. proved
hould prove that the knife used and prosecution

Where the victim did not state

anything about the kind of knife used to inflict injury or
out the size of the blade, etc. the accused could not be convicted
under Section 397 as the
apon used was not proved to be a deadly weapon25
The use of the
expression "dagger is unfortunate because each of the appellant had
fe Punjabi carrying a knife is not at all an unusual feature nor can it furnish an
A
indication
t it was carried by them to facilitate infliction of a fatal injury2
The weapon with which the
injuries were caused on the deceased is a sharpcdged knife
the blade
measuring 13" in length. It is a formidable weapon"
Phonl Kumar vs. Delhi Administration, AIR 1975 SC 905 (907): 1975 Cri. LJ 778.
tate of limachal Pradesh vs. Wazir Chand, AIR 1978 SC 315: 1978 SCC (Cr.) 58: (1978) 1 SCC 130: 1978 Cr. L
47 1977
Cr LR
(SC) 511: 1977 Cr. App. R
23 Delhi 1T (SC)9.
410 (418); 1983 Cr. LJ 1438
983 Cr 1J
1438 (1440): 1983 Rajdhani LR 395.
(Orissa).
 199
Sec397] KNIFE

werc uscd by accuscd thc in the

Where unimpcachable evidence that knives
there was
the knives uscd
bccause
but the knives could not be recovered, it was hcld that simply
roDbery under Section 392.2
Were not recovercd. the offecncc could not
be trcated as one only
in case Balak Ram vs. State,
1983(5) DRJ 12 has
Justice M.L. Jain of Delhi High Court se such as
Codc Section 397. Knife is not a deadly wcapon per
held that the Indian Penal make knife deadly is its design
or
its usc. What would
would ordinarily result in death by in Bishan vs.
to produce death. Again
such as is calculated to or is likely
manner of its usc
and 3-1/2" long but was designed
DRJ 78. The knife recovered had a blade of 6" cause of
State, 1984(6) held the manner of the use
was also not likely to
Court
for cutting vegetables. The be considered deadly
for cutting vegetables could not
And m o r e o v e r the knife designed 1978 SC
death. Pradesh vs. Wazir Chand (AIR
considered State of Himachal
The Learned Judge I.P.C. held that knife is indisputable
a case u/s. 304 Part-I
315) where the Court while considering
a dangerous weapon.
se such as would ordinarily result
in the death by
Knivers are not deadly weapons per such as is
as its design or
the manner of its use

their use what would make deadly

a knife
fact to be proved and
therefore, a question of
calculated to or is likely to produce
death. It is,
was a deadly one.
should that the knife used by the accused
prosecution prove victim could not
like knife and kukri. The
used deadly weapon
could not be convicted
Some of the accused kukri. The accused
who pointed out
narrate as to who pointed knife and
under Section 397.32 used deadly weapon.5
not sufficient. The offender must have
knife
Mere possession of the On seeing the police
from the complainant.
brandished knife demanding money upheld.34
Accused red-handed. Conviction
but caught of
the accused
started running away canbe drawn not only
Presumption
the prosecution. but also that
murder proved by committed robbery
Robbery and properties were
found
whose possession
the fact that person in
35
No adverse
committed murder
he to the deceased not proved.
in the court belonging
o r n a m e n t s produced
Silver
against the accused.* house and
can be drawn entered the farm
inference
on motorcycle two conviction made out
who came
held the
Out of three young
men
and tried to run away,
and fired a round
demanded Rs. 50,000; Section 397 simplicitor. for
but not under accused an

under Sections
397 and 511
this section
can try the
offence under this offence
cognizance of
an
a person
charged for
Court taking to prevent cannot be
A nothing in law The accused
Section 394.
There is 326.
under Section wcapon
offence under hurt only
of causing grievous
that he had used a dcadlv
convicted
evidence to prove
unless there is
of being

convicted this offence

of 577 (Bom).
Cri. LJ DRJ 78.
Shukla, 1997 1984(6)
Bishan vs. State,
Kailashchandra

29.
Pravinkumar
DRJ 12 &
vs. State,
1983(5)
30. Balak Ram
1438 (Orissa).
31. 1983 Cr. LJ
1995 Cri.
LJ 2485 (Bom.).
32. (Bom.).
Crimes 468
1994(2)
33 Cri. LJ
2172 (Bom.).
34. 1996

1997 Cri.
LJ 3182 (SC).
35.
Crimes 276. SCC 727.
36 1996(2) 1 9 9 4 Supp.(3)
 3200
LAWOFCRIMES& CRIMINOXY
or
causcd or attempted to causc death or grievous hurt. The mere fact that
ct that gricye
grievoi9
causcd does not render hm lhable for this offence 3 hurta
From the mere fact that the accuscd was tound having a gun in his possession at th.
of his arrest, it cannot unncccssarily be presumed that he had used the same Unlese
proved that he vas amed with a gun or dcadly weapon at the time of commission
f
dacoity to threatcn the person robbcd or their companions, he cannot bc convicted under See the
397. 1PC 39 ectn
6. Used

Theyhad gun-shot wounds on their

persons may lead to an inference that the Wr
concerned some transaction in which
in
the inference that
they received gun-shot injuries but that does not lead t
they were present in the village when dacoity was committed on the
night and that they received injuries on that particular
night while they were commtting the offence o
dacoity40
Where none of the witnesses able to
identify the accused at the test identification
was
parade but the articles which received at the instance of the accused were the
were
matter of dacoity and subjec
had been properly identified by the owner, it was held presumption would
arise that the accused was a receiver of the
property transferred to him in the course of
dacoity. The conviction of the accused from one under Section 397 was altered to that under
Section 412, I.P.C.41

This section does not create a substantive

offences and a Court, therefore, should not
frame a charge under it but under section 392 read with
Section 397, or Section 395 read with
Section 397, as the case may be.
However, while framing the charge for the substantive offence of robbery or dacoity the
following may be added with the charge "And that at the time of committing the robbery or
dacoity you used deadly weapon namely and/or caused grievous hurt to XY or attempted to
cause death or grievous hurt to XY to him or them and there by committed
offence..... .....(substantive offence punishable under Section 392 or under Section 395)
read with Section 397 ofthecourt and with in thc cognizance of this Session Court

Where for the offence of dacoity with deadly weapons i.e. revolvers, the court while
also charged him under
trying the accused for a charge under Section 395/397 of Penal Code,
to the prejudice of
Scction 27 of Arms Act, the said illegality has caused the failure of justice
accuscd. For unlawful possession of revolvers, accused can
be charged and tried separately
but not in a trial under Section 395/397, Penal Code.42
Criminal
Section 220 sub-clause 4 with illustration to sub-section (4), of The Code of
Procedure, 1973, are reproduced as under

Sub-clause 4 If several acts, of which one or more than one would by itselt or
Sec. 397] USED

nemselves constitute an offencc, constitute when combined a diffcrcnt offencc, the person
accused of them may be chargcd with, and tricd at onc trial for thoc offencc const1tutcd by such
acts when combincd. and for any offencc constitutcd by any onc, or morc, of such acts

Illustration- (m) A commits robbery on B, and in doing so voluntarily cauves hurt

to him. A may be separatelv charged with, and convicted of, offences under Sevsions
323, 392 and 394 of the Indian Penal Code.
Where there is evidence to show that simultancously dacoitics were committed in different
houses and criminal acts that were done were not isolated but were inspircd by integrity of
process and will be deemed to have been committed in one series so connected togcther as to
form the same transaction, joint trial of accused does not suffer from any defect.
The accuscd have committed different offences against different persons. The separate
offence of dacoities committed against separate persons though during the same night are to
distinct offences and are two be separately charged in terms of Section 218 of The Code of
Criminal Procedure. 44

The framing of a specific and distinct charge in respect of every distinct head of criminal
liability constituting an offence is the foundation for a conviction and sentence therefor.

7. Alternative charges
46
Alternative charges under this Section and Section 457 are not bad in law:
8. Joint Trial
An offence of dacoity (Penal Code, Section 395) includes theft and hence a joint trial of
several persons for offences under Section 395 and 412 is legal.47

9. Identification
Appreciation of evidence. The case rested on circumstantial evidence. Allegedly the
appellant and 3 co-accused planned to commit dacoity and attacked 3 persons and inflicted
fatal injuries. He has, however, further admitted has statement before police thatitwas a dark
witness,
night and he could not identify the assailants and could not see their faces properly. The
not told the
however, voluntarily added that due to the fear of the accused persons they had
names to the police. These admissions strike at the root of the
evidence. It may also be noted
that in the Chief examination he stated taht he had not of A-l, A-2 and he
known the names
one or two time with A-I
only saw A-3 and A-4 (namely the appellant) prior to the incident
this witness was
thereby admitting that he did not even know the name of A-4. That apart
was held. In any event
examined after two months by the Plice. No test identification parade
his admission, that he stated before the Police and it was a dark night and he could not identify
his evidence.
any body, is very significant and completely destroys
1986 All LJ 300 (303: 1986 All WC 41.
43
44 1992 Cr. LJ 2424 (2426) (DB) Kant.
AIR 1955 Cal. 89 (93): 1965 (1) Cri. LJ 160 (DB); 1957
Cri. LJ 674
45. AIR 1955 SC 419 (422): 1955 Cri. LJ 1004;
(675) (Orissa); AIR 1956 All 159 (160):
1956 Cri. LJ 194; ILR (1953) Mys (696)
696
AlR 1930 Cal. 139: 50 CLJ 467: (1930) 31 Cri. LJ 610.
46. Bikram Ali Pramanik,
Cri. LJ 158 (DB); AIR 1955 Cal. 177 (181): 1955 Cri. LJ 657 (DB), AIR
47. AIR 1962 Madh. Pra. 43 (44): 1962 (1)
1943 Bom. 458 (461): 45 Cri. LJ 221 (DB); AIR 1936 Oudh 108 (109): 36 Cri. LJ 1467.
 LAHOF
Ercepe Pi- s aadnoe. herE
(RINEs&(RIMn G
aad th positAon s nt
S nO Dther aidence
e The a Caut doubt. has dsmuted bi the to
kcarmead counsel connect the appellant
d at h roined 0n the \{rs S M
Jadhav.
e d nd ance t A- nas
bld curcumstanCE that a branchappear
theretore asSTaNOT stad and part ot t of Guimchar ca eid hat
Cuk be was alsO
a Tet cant amone them This is to Tecoveed from
btheppr AS wDolh nsu comnet the san the least
to
appellant with th tTime
The
and oonect
as anariei by the Courts the appelant wth the crimeevadence
aso jl He
shali be ricasai below aganst the in the tatememts made
appellant ar set and om rOdshe m
e d ccurrene cievant t necess
s abcut
30 to 35
a r ie bous pacs fom his
houe The ight
before be Poince
k to bzve 2 f Di Ram t s oot availabe was dntfica
e assailas ieof he cne of poss+ble to believe
that
Terefore. occurence fom car his hous a aso Kanharya Lal
I Ot
possibie Kanbaiya Lal does not to be abe The
to appear
dennn he ight of a kerusene to be an
bout 30 to 35 pacs ion ie place
eye-witness as
lamten which
of occurrence was at
the S depcston ha
s a s persn camx be
rcbgised n ckaress moon igh
beyond distance of
anam hanging n he Chhappar
of PW- as
ence The head-ighs of he ractor eNah Singh was
r e also on
shedding
There was. hus
s light on the COuid ot prope
suñiem hgh the Tnai Cor
t conT of he
vg n villages where elericiay has gt emanatng
he ig shed
not rached as
by the lantem Their eye-sight gas
y aaccustomed to
The
situzrion Thir power of
seting is thereTore, not diminished
condrtianad and bacomes
2e ncident is wimessed in the light shed by the )Mean-Ligh=
ication dad not pose of the lanterm and not electric ight It s amic
any serious problen a the accused
a he were embroded in a were known to the urban but also
s I was long-standing family feud As the culprits had not Court held that
possible to dentify them from their facial features.
=latern was enough to enable the witnesses to build gait, etc. un the court-ya
identif the culprits under the The nigh
2s to be satisficd thar there case that it wa
is but they had identufied only ample opportunity for the witnesses
was not
around & p m
them with the help of
present case. al he winesses have asserted that some light either n the bouse of occurrence

s n the road when the dzcoity was electric light was there m person to rece

n the house
committed The factum of there beang
and on the road was not The wi
challenged on behalf of the appellanS not have help
on gven that during the commission of the
was
part trom a dacoiny there was no suppiy
suggestion there is nothing on the record on the bas1s of wiCu
$3 Br oba
State of S4 Abil lse
Maharzshnra
MP AR 1979 SC 104199419rs
CAR 53 1993 ) S5Vithalvs
CrI Cries 1101.
Sec. 3971 LIGHT

connections and clcctric ight was in the

it can behcld that although the villagc had clectric clan of
there was a power failurc Thc
house. but just at the time of commission of the dacoity
cannot bc rejerctcd
identification of the culprits
in the cloctric light
the witnesses regarding in the
the first information rcport or
mentioncd in
this fact was not
mercly the ground that
on
It appcarsthat as the village
had clectricity in the houses
statcments made during investigation. that they
witnesses proceeded on the assunption
the informant as well as the
and on roads,
identification by them because
that was not at all a
disclose the means of
were not requircd to
information report or in their
statements
to be mentioned in the first
relevant fact nccessary and a claim is made regard1ng
Police. In villages where there is no electricity
before thc witnesses are expected to disclose
of the culprits during commission of dacoity,
identification
have identified the culprits during
the night.
the sourse light by which they
of lantern
The reason given by the complainant
for not mentioning the existence of petromax
and natural. The complainant has statedin
in the complaint before the Police is quite convincing
son and he was
wanton act of killing of his
that he was greatly shocked by the
his deposition not mention the
the complaint to the Police and, therefore, he did
also nervous when he lodged
presence of petromax light.54 weakened and she
cross-examination that her eye-sight was
PW-21 has admitted in of
distance of about one foot. As regards the source
properly see an object beyond
a
could not 55 ft. from the
has noticed that distance of
the street pole on the road was
light, the Trial Court from the
In that context it is difficult to hold that
of the central room of the house. PW-21 to
east corner
distance it could be possible for
police from such a
ight emanating fram thestreet when she had a defective vision.
more so
see the incident properly,

(il) Moon-Light
the colour of the
that Nachhattar could have made out not only
It is difficult to believe Kesar Singh even on a full
moon light. The
chadar and shirt of
on the
turban but also the strips persons were standing
been otherwise enought light as so many
Court held that there
must have
in the court-yard.35
ahead. It was not rainy season. It is nobody's
The night of full moon was only two nights took place
assumed that the occurrence

even if it is
cloudy night. Thus, its light on the scene
case that it was
a
moon shedding
around 8 p.m. on February 11,
1968, there would be bright it could not be
difficult for a
In that bright moon-light
was an open place. ft.37
of o c c u r r e n c e which distance of 45 or 50
known to him from a
person to recognise another howsoever clear, could
and the moon-light,
in both of his eyes
The witness had
cataract
was incapable
of seeing.38
he
see what, physically,
not have helped him to
1994 Cr. LJ 922.
1994 SC 739:
AIR 668: 1994 Cr. LR (SC) 113.

53. Brij Mohan vs.

State of Rajasthan,AIR 1994 SC
1910: 1994 SCC (Cr)
vs. State Gujarat,
of
Abdul Ise Suleman 2337.
54. AIR 1995 SC
of Maharashtra, 780.
Vithal vs. State 985: 1974 Cr. LJ
S5. AIR 1974 SC
Kesar Singh vs.
State Punjab,
of 1421: 1976 Cr. LJ
1162.
56. AIR 1976 SC
Punjab, 1378.
57. Jit Singh vs. State of AIR 1976 SC
1765: 1976 Cr. LJ
vs.
Pabudan Singh,
58. State of Rajasthan
 Even if it is LAWOF CRIMES &
may not be acccpted tlhat it was CRIMINOOGY
of the barrelsufficient
of the enough so that from
a
moomlit night, it
could safcly
(ii) Torch-Light gun when distance
Constable Gauri
a
thc respondcnts be
inferrel
that the Iu
Shanker fircd the conuld noticc the
Even shots dirortea.
assuming that Nakuldco
a
frightened state of mind he flashed
of their could identify ashis torch light, it is very tall
weapons. The appeal was many as cight claim to accept
PW-5 is the accepted 0 persons and that
furnished descriptioni
occurrence. He hadvillage
a

a torch
Chowkidar and he was
flashed hispatrolling
the deceased with him. He the arca at 2
with their torch and saw both a.m. on the night of
The four
respective weapons. The evidence was the accused
homeguards including PWs-1 and 2 relied upon assaulting
and to have been the two are stated
heard the alarm of the persons running away from the to have flashed their torch
injured Gul Bahar near the scene of lights
occurrence after they had
produced in evidence, and the Railway line. The torches have not
saw those torches Investigating
and returned them to Officer (PW-12) would say in his evidence becn
the that he
Officer (PW-12) thought it fit to homeguards. It is not known when the
stated to have seen the two return the torches with the aid of which
the
Investigating
vill be a relevant perSons running away from the scene of homeguards are
piece of material evidence in the occurrence though that
case.52
10. Procedure
This offence is cognizable, non-bailable and
y the Court of Sessions. non-compoundable, and is exclusively triable
1. Charge
I (name
and designation of the
Presiding Officer of the Court) do hercby charge yvou
2ame of the accused) as follows:

That you, on or about the.....day of... ,al.........., Committed dacoitv, an

fence punishable under Sec. 395 of the Indian Penal Code, and within the cognizance of the
urt of Session.

And that at the time ofcommitting the said robbery (or dacoity) you used adeadly weapon,
to
wit... ...mention the decadly weapon), (or caused grievous hurt to XY, or attempted
Ise death or grievous hurt to XY), and thereby committed an offence punishable under SeC
of tne
(or Scc. 395) read with Sec. 397 of the Indian Penal Code, and within the cognizance
urt of Session.

And I do hereby direct that vou be tried on the said charge

Sec. 398
SCOP
3205
Section 398

Attempt to commit robbery or dacoity when armed with deadly

weapon.lf. at the time of attempting to commit robbery or dacoiuy, the offender
is armed with any deadly weapon, the imprisonment with which such offender
shall be punished shall not be less than seven years.
SYNOPSIS
1. Scope 5. Punishment
2. Ingredients 6. Procedure
3. Offender 7. Charge
4. Abetment

1. Scope
Sec. 398 does not relate to a substantive offence. This section is applicable only to a case
of an attempt to commit robbery and has no application to a case in which the robbery has
while
actually been committed. In last section the words
'used' and "caused' are required
this section simply the offender should be armed with the deadly weapon. It is not necessary
in

7 Years
that the offender must make a show of using the weapon. The minimum punishment of
has been prescribed. The difference between tiwo sections lies in the fact while the previous
or robbery, whilc section is
section covers or contemplates the completed offence of dacoity
restricted only in cases of attempted roobery and dacoity.

2. Ingredients
) Accused attempted to commit robbery or dacoity.
armed with a deadly weapon
While attempting to do so, the accused
was
(i)
3. Offender
the persons who are proved
in the section refers only to
The word "offender" appearing combination with
and not to any other who, is
to have been armed
with any deadly weapon
Such person, may have
committed robbery
neither
and not others and
the actual helder of deadly weapon
This section punishes only
Sec. 34 nor Sec. 114 is applicable." the presence
is enough to make
feel at the sight of deadly
weapons
into use any
The terror which people it may be brought
but the fact that
formidable. He may not use it,
of a robber
has almost the
same effect.
moment

Bom. 52: 29
Cri. LJ 383.
1. AIR 1928
196
2. 137 IC (Lahore) 52 Bom.
Karimbux Mullaah, ILR
3. Nabibux
14 IC 651: 13 Cr. LJ 267.
206 LAWOF CRIMES &CRIMINOLOX;Y

This section does not ereates substantivc offcncc but providcs that if an
if any mcmbcr
gang is amcd with lethal weapon, would be liable to penaltics of 7 ycars RIS ocr of t

It is not neccssary 1hat the victim of intcnded robbery

dacoity should or
possession of weapon by the attacker. What is necssary is that the accused shoa
at the time of offence.
Cused should arc
be
armed
Offcnce of robbery or dacoity. Mere scattcring of articles in the house will not .

offence of dacoity or robbery

Accused No. 4 was not armed but he was forced to follow the other
accused
dacoity at the instance of A-1. Murder committed by A-2.It was held that A-4
under Sec. 302 but only under Sec. will not L
398 livabie
If an accused is
carrying a
dangerous weapon in such a manner that a person feels tho
can be used at any moment that t
against him, then the case falls under this section9
4. Abetment

A man cannot be convicted of abetting an offence under Sec. 398, IPC.10

5. Punishment
A sentence of five
years in a
dacoity case where a gun was fired to
from coming to the help of the complainant is keep villagers away
very inadequate."
6. Procedure

This offence is
cognizable, non-bailable and non-compoundable, and is
by the Court of Sessions. exclusively triable
7.Charge
I
(name and designation of the
name of the accused) as follows: Presiding Officer of the Court) do hereby charg you
That you, on or about the
day . of
attempted commit robbery (or dacoity) on AB' and (place of commission oj ofren
at.....

to
while so doing you were armed wun a
dcadly weapon (name of the weapon).. .and that you thereby committed an offence
punishable under Sec. 398 of the Indian Penal Code
and within the cognizance of the
oul
And 1 do hereby direct that you be tried on the said
charge.
5. AIR 1975 SC
905: 1975 Cr. LJ
6. 1901 ILR 23 778; AIR 1924 Cal. 643; AlR 1923 Lah.
(All) 78. 66; AIR 1928 Bom. >4.
7. AIR 1996
SC 546.
8. 1993
(4) JT 542: 1993
9. 1 Sau I.R
100.
Supp. (4) SCC 7.
10. AIR
1926 Rang. 207: 27 Cr. LJ
11. AIR 1924 udh 1285.
Sec. 399] SCOPE 3207

Section 399

dacoity.-Whoever makes any

Making preparation to commit
shall be punished with rigorous
preparation for committing dacoity,
extend to ten years, and shall also he liahle
imprisonment fora term which may
1o fine.
SYNOPSIS

1. Scope 5. Preparation
2. Ingredients 6. Procedure
3. Intention 7. Charge
4. Number of persons

399 LP.C. 402 LP.C

Preparation for Committing Dacoity Assembling for the purpose of Committing Dacoity
Sentence- May extend to 10 years, R.I. May extend to 7 years, R.I.
& fine & fine
(Preparation may include assembling (Mere assembling)
Preparation may be one or more)

1. Scope
is offence in this section. The other two
Mere preparation to commit dacoity an

sections are 122 and 126 IPC.

of persons who have collected for the purpose
Section 402 of this code makes an assembly
this section. So, mere assembly without
other preparation is
of committing dacoity, liable under course of
whereas Section 399 is attracted
if some addition step is taken in the
enough
preparation.
402 would probably
399 and offence falling under section
The offence falling under Section mere assembly
the only difference being that under section 402
involve almost similar ingredients, additional step
399 is attracted when some
without other is enough whereas section
preparation
is taken in the course of preparation.

2. Ingredients
were 5 or more in number,
(1) Accused persons

(i) They were making a preparation.

The preparation was to commit dacoity.

1i)
3. Intention
persons who had
conceived the design
must show iIs that there were
The prosecution has been established, then a
the existence of such conspiracy
a
Once the Co
committing dacoity. the of forwarding that design may justify
intention
the or for purpose
steps taken with
 LAWOFCRIMES&CRIMINOLOGY
3208
within the mcaning of thc scction
has becn prepaiation
in holding that there
bo an act of Dren.
In a popular sense assemblng to commit dacoity nay cparation ofit. hut
tor
is not preparation within the
the meaning
a mere assembh. without finther preparation,
othcr prepar
without proof of other
secton Secton 402 applies to
mere asscmbling
and not
preparation Apeperson
guilty of preparation Prin
be guilty of dacoity. yet guilty of preparation, tion. yct
may

assemblng
not
glty
There can be cases wherc there may be an assembly for the purpose of dace:
oity Nthout
Cven a fringe of preparation. The mere fact that the appellants are acquitted of
of acquitted the
under Section 399 is no ground to knock off the charge under Section 402, IPC 2 charg
In order to bring the case within purview of Sections 399 and 402, it is incumbent
prosecution to prove beyond reasonable doubt that accused persons were making prenara
for committing dacoity and that they assembled there for. Further underSection
Section 402,
402, IPc
IPC
number of dacoits should be five or more3 the
Preparation for committing dacoity may take place before or after the dacoits assem
emble
together. Preparation consists in devising or arranging means necessary for the commission s
an offence. Offence under Section 402 1s complete as soon as five or more
persons assembie e
together for the purpose of committing dacoity.

"Section 399 makes any preparation for committing dacoity an offence which means
that
preparation for committing a robbery by five or more persons is an offence which falls within
the purview of Section 399. If preparation by itself is an
offence, then I cannot see how the
counsel expects the actual causing of death, hurt or
wrongful restraint to be the essential
ngredient of the offence, as contemplated by section 399."" In this case the facts were that the
Sub-Inspector Shri Mehnga Ram flashed his torch and saw some persons standing thete, one
of them was,
however, sitting and trying to make a
hole in the wall of the house. Mehrnga Ram
fired shot in the air from his service revolver and
a
called upon the persons to stay where u
were and to raise their hands otherwise
them and found a loaded
they would be shot dead. The Sub-Inspector searc
pistol in the hand of Lachhman accused. It was immediately
and the cartridge was taken out.
Another pistol was found on the person of Mohar Singn
unloadtt
right dub along with six cartridges. They were also uhad a
taken possession of, Sital
jhola under his right arm and from his jhola another pistol with four cartridges accuscuovered
Near the place where Tara Chand was standing a
Raj accused had, however, only a lathi in his phali was found lying on the groun
hole I"
The Hon'ble Justice Dua hand. In the wall was found an
of Punjab High Court who
later
inco Cout
Court
on was elevated to
maintained the conviction of all the five accused >uton
dismissed the appeal and
Section 399
399

and 402 under

IPC, imposing on them a stentence to

mention that the of five years R.I. on cach counl

pertinent

accused
of the age of 17, theentences
ences
were sent
were not
reduced and held "In the 19, 19 20 and 22 years ana
yot ndluck
luck that
the
appellants, who were suddenly instant case it is iust a matter of tna
noticed by the chance au awares and

1.
Ramesh
2. Naushero 10nChandra Banerjee, (1913141 C
Sub-Inspector, were la
Sec. 3991 NUMBER OF PERSONS 3209

opportunity of actually using the dangcrou: wcapons

apprehended before they could get an

With which they were amcd, they were succcssfully callcd upon to surrcndcr by the police
numbcr of Undcr thc Circumstancc
of a fairly large pcrsons.
party because the latter consisted scntcnccs impOscd arc too scvcre
with the counscl that thc
I cannot persuadc myself to agrcc
plot aboul the
who
commisSsion of so enormous
The law assumes that persons
are not like ordinary criminals likely tn turn
crime deserve no locus paenitentiae for they
away fr0m their purpose.

for committing dacoity thc commission of the overt

acts is
To constitute the preparation
1s donc. A merc assemblage
not necessary. It is
sufficicnt if some act to get ready for dacoity
to mere assemblage
is not such preparation. Section 402 applies
to commit dacoity, however,
without further preparation.' So, it would be idle to
for the purpose of committing dacoity
conviction under this section.
search for an overt act for recording a
commission of the dacoity is a distinct offence
assemblage for the purpose of
Mere
such assemblage cannot be deemed to be a preparation
punishable under Section 402. Hence armed themselves
commission of a dacoity punishable under Section 399. Butifthey had
for the
offence under Section 399.3
with weapons they would be guilty of an
4. Number of persons
makes preparation for
makes it clear that any one or more
opening
The word 'whoever are liable under
all and may be one, yet all
The preparation may not be by
committing dacoity.
this section.
should be fíve or more in
shown to be making preparation
that persons preparation was
It is not necessary for which they were making
to prove that the raid
number. But it is necessary but merely robbery
Otherwise it would not be dacoity
five more persons.
to be committed by
or is not punishable
robbery unless it ends in an actual attempt
for committing of whom
and mere preparation were found
collected together some
mere fact that a
number persons of inference that they had
by law.10 The not by itself lead to the
were in possession
of unlicensed weapons does had made preparations
to commu
that
of committing dacoity
or they
collected for the purpose

dacoity." in a raiway
of them armed,
are caught
of men, some to the
The mere fact that a number
persons,
and with regard
scores of harmless
inevitably contain
common

which must are actuated by a

carriage certain as to which of them Section 402, 1 PC..
which it cannot even be under Section
399 or
passengers.of conviction
warrant their
intention or object does not their innocence.2
consistent with the basis of
for it can be perfectly Section 402, simply
on
399 or
under Section
conviction c a n be recorded
No PLR p. 156.
1234: 1960
1960 Cri. LJ
1960 Punj. 482 (483):
State of Punjab, AIR
6. Lekh Raj vs.
(All).
1989. Cri. LJ 1274
7. AIR 1955 NUC (All) AIR 1959 All.
727: 1959
Randhir Sri Chand,
8. State vs. 136 (140) (Pesh).
1951 All. 452 (454). 1119: (1923) 24 Cri. LJ212: 1956 Cr.
LJ 956.
9. AIR 1952 Cri. LJ 1956 A.W.R. (H.C.) A.W.R. (H.C.) 39-
249 (250): 853:
AIR 1952 Punj. 464: 1956
A.L.J. Cr. R. 312: 1959
10. 1956 All. A.L.J. S19: 1959 All.
Ghissa Khan, 727: 1959
11. State vs. 1959 All.
Randhir Srichand,
12. State U.P.
of vs.

1959 Cr. LJ 1274.

 3210 LAWOF CRIMES&CRIMINOLOKGYY
the fact that
a railwa
a
state 13
certain mumber of persons, some being amed are
rchended
apprchendcd atat a a

platforrm of
The mere circumstance of the asscmbling of eight persons in aa
in school comne
market-placc at 1 a.m. and recovery of a gun and catridges from them, a convict. near aa compound
Sections 309 and 402 cannot stand." Where the accused were found
sitting in a lonel. under
night in a house which was under construction and incriminating articles like fircar
bombs and a bhujali were recovercd from their possession, these
place at
circumstanc
ances would noSonc
sufficient to prove the charge that they had assembled for mak1ng
preparation for comm
ofdacoity15
Lone person found in a lonely
place, charge of preparation for dacoity not proved.
was found seated in a
lonely place in the night. Firearms, bombs and a Bhiyali were Accuo cused
him. It was held that
charge was not proved."5
seized from
from
5. Preparation
The preparation consists in
the commission of the offence. On devising arranging the means
or or measures
the other necessary for
movement towards the commission after
hand, an attempt
commit the offence is a
to
direct
convicted of an attempt to commit a crimepreparations are made. In order that a
person may be
he must be shown first to have had
commit the offence, and an intention
to
secondly,
criminal attempt. The test for
to have done an act
which constitutes the actus reus of a
determining whether the overt acts
the offender
changes his mind and docs not proceed further in itsalready done are such that if
done would be
completely harmless. progress the acts already
Accused's procurement of instruments
to commit the
the for the commission of offence will not constitute
offence in the absence of some
if preparation comes further overt act. But it has been suggested that
very near to the
accomplishment of the
renders the crime so
probable that the act will be a misdemeanor,act, the intent to complete it
penitentiae in the need of a further exertion of the will though there is still a locs
be complete the crime.18
Preparation consists in devising or arranging the
commission of the offence and that the means or
measures for tne
after the attempt is the direct movement towardnecessary
preparations are made.19 the commission
Where in pursuance of
five
information the police was successful to
accused, one of course managed to apprehend four out o
escape and from their personal search
Were recovered.
The essential
ingredient of offence under deadly weapons
Hence there was infimity in the order Section 309, IPC, is made oul
13. 1978 Cr. LJ
877; 1983 (1) Crimes 821.
14. Chaturi Yadav, AlR 1979 SC
LJ 1031 (Pat.). 1412: 1979 Cri. LJ 1090 (SC): 1979 SCC
15. Gholtu
(Cri.) s02. See also Brijlal Mandal 19 Cri
Modi, 1986 Cri. LJ 1031
16. 1986 Cr. LJ
1031.
(Pat.).
17. Malkiat Singh vs. State of Punjab, AIR 1970 SC 713: (1969) 1
aUniled
Ct. 362.
States
Coplon, (CA 2 NY)
vs.
185 F 2d 629: 28
SCC 157: 1970 Cri. LJ 750:
(1969) 2
CR6663.
(b) Commonwealth vs. ALR 2d 1041: Cert den 342 US 920: 96 Lea
aPeople vs. Peaslee, 177 Mass 267: 59 NE oo
(c) State vs. Anderson, 1 Cad 2d 687: 37 P 2d 55.
20. Hurley,
Dalip Kumar vs. State79 Vt 28: 64 A 78.
67. (b) People vs.
Youngs, 122 Mich 292: o*
(Delhi Adminigtu *
 PREPARATION 321
Sec. 399 &400]
under Scction 399 did not carry
The fact that the accuscd charged with the dacoity
mere
in no way weaken the prosccution casc.
any instruments of housc-breaking can
for thc prosccution to provc that the
n a casc under Section 399 it is not neccssary
the house of a particular person of a particular
intention of theaccused was to commit dacoity in
satisficd if it is proved that the asscmblagc or proparation
village. Thc legal requircments would be where it was to bc
a dacoity, irrcspectivc of the placc
was made for the purposc of committing

committed 22

6. Procedure
Warrant- Not bailable - Not compoundable- Triable by Court of
Cognizable-
Session.

7. Charge
I (name and office of the Sessions Judge, etc.), hereby charge you (name of the
accused), as follows
That on or about the. ..day of... at. ... you made preparation
by. . . (specijy the act) for committing dacoity and thereby committed an act punishable
under Section 399, of the Indian Penal Code, and within my cognizance.
And I hereby direct that you be tried on the said charge.

Section 400

Punishment for belonging to gang ofdacoits-Whoever, at any time afier

the passing of this Act, shall belong to a gang of persons associated for the
purpose of habitually committingg dacoity, shall be punished with imprisonment
for life, or with rigorous imnprisonment for a lerm which may extend to ten

years, and shall also be liable to fine.

SYNOPSIS

1. Scope 9. Nature of evidence required in a

2. Ingredients gang case and guidance for

investigating officers
3. Gang
4. Belong 10. Sentence
5. Associated 11. Probation
12. Procedure
6. Habit-Habitually
7. Habitual offender & Sec. 110 Cr. P.C. 13. Charge
8. Previous Conviction
21. AIR 1959 All. 727 (730): 1959. Cri. LJ 1274 (DB).
22. AIR 1960 Pat. 582 (586): 1960 Cri. LJ 1650.
 3212 LAWOFCRIMIS&CRIMINOLOXGY

1. Scope
Soctton 400, LPC. which deals with gang cascs, is intendod to
to uprow nded uproot
dacoits To combat successfully the depredations of dacoits, a casc ofany
nstituted for cutting out all rccruits, supplics and assistancc to the
the Dane
of thiswang of hatm
nature
gang which (an
dcath blow to them and result in their total extinction.
A gang of dacoits signifies a body of persons acting in conjunction for
shold hre
deala
a
which is dsreputable. Here it means the gang of habitual dacoits.
need not have taken part in every one of the dacoits. It is enough if the .
particulofar pu
ach mcmber
the gang to
the
accused bclonged is associated for the habitual commission of dacoity,
which the
2. Ingredients
() Accused belongs to a gang of dacoits.
() The gang is associated for the purpose of
habitually committing daco
3. Gang coity
The word 'gang' means any band or
company of persons who go out together
concert. The essence of the word
and. therefore, two or more
'gang in this section is that the
person should act in.
persons can constitute a gang. Their purpose oncer
dacoity may be proved by their declaration or by their conduct. of habitually commit
consists in the conduct of the accused in Where the relevant eid
no other evidence to
having in participated
different dacoities and the
prove the criminal purpose,
a short participation in more than two dacotiesi
space of time is sufficient to prove the existence
of a gang. wIthn
The expression in this section
means a band of
criminal purpose. In this section the
a persons acting or gong about
purpose is habituals committing together ior
The word "gang" is
well-known and when we talk
dacoity2
that it means the
gang organised by that persons and
ofa certain person's gang it is understood
For the constituting that person and others
meaning of "gang", it is not necessary that the
any dacoity4 accused should have taken part m
The tem
'gang' is well known and
that the gang was where a person is said to
organised by X, he (X) being also a member of belong to X's gang mc
it

Where a gang is once that

gang
become members established, persons joining the gang knowing IS wll

in a theft with
of the gang. There may, however, be Pu
some members of
the gang is not exceptions. Thus a persOn tane part
To prove this
case the
necessarily its member.
prove. It requires a following points are necessary and obtain and

continuance and
permanence of some tendency. prosccution
The existence
of the gang for the purpose tune

specified in the of committing dacoly

1.
2.
(1963) 2 Cr. LJ 121. charges
AlR 1927 Lah. 524
AaSingh (525): 28 Cri. LJ 179.
4.
1972 Cr. LJ Petitioner vs.
State, AIR
5.6. AIR 1953 1074. 1953 PEPSU 145
AIR 1916 Pepsu 145 (Vol. 40, C.N. 63).
Lah. 447 (145). 1953
(450): 17 Cri. Cri.
LJ
ILJ 1519.
443.
 Scc. 400] GANG 3213

2. Their association for that purpose.

3. Approver 's cvidcnce corroboratcd on material points

4 Relationship by blood or marriagc or community or intcrest amony thcm

5. Evidence relating to the 14 spccific cases of dacoity committcd by the gang as wel
as other similar dacoitics
6 Confession of co-accuscd recorded with all legitimatc precaution and cnsuring
that it was a voluntary and truthful one.
7. Evidcnce ofrecoveries of properties stolen in these dacoities and found in possession
of the accused.
8. Decrcase in the number of dacoities after the apprehension of the deccased

9. Simultaneous absence from their homes in batches or singly of memberS of this

gang coincident with the occurrence of dacoities in the area operated upon
10. Habitual commission of dacoities proved by the aggregate acts.
11. Opinion of the Police officers in regard to this modus operandi.
12. Sameness in the modus operandi in regard to all these dacoities.

13. Tdentification of the most of the accused at parades held with all precautions to

ensure a fair and legitimate identification.

the victims in all these cases.

14. Prompt complaints given by
with a body of persons.
The gang" implies an intimate connection
expression "belong to a
to warrant the inference that
It must extend over a period of time. It must be sufficiently long
it and the common object of this body is the
the person concerned has identified himself with
association is excluded.
habitual commission of dacoity. A casual
of a statute and is intended to break
The offence under Section 400, is entirely creation
a
their purpose. Section
therein by punishing also their associates who share
up gangs mentioned definite period and the
definite gang operating for a
400, appcars to postulate the existence of a those proved to be
to provide for the punishing of
object of the Section would seem to be section provides
members of such a gang against whom
evidence is not forthcoming. This
and is
whose profession is the commission of dacoity
punishment for those belongng to a gang
intended to break up gangs and pursue their associates.
attachod to
of the members of the gang who live with them and are
Wives and mistresses contribute to its
to the gang as they may not
them cannot be said necessarily to belong they
or associate with
them for friendship's sake, though
cffectiveness and strength as dacoits,
run the risk of being punished
for harbouring dacoits.
their association again
have been convicted once of dacoity,
If members of such agang be enough to justify a
the repetition of such crime would
under c1rcumstances evidencing
ConvictIon under this section.

LJ 121.
1962 AP 96; 1963(2) Cr.
7. AIR 1963 AP 314: ILR
1963 AP 314.
8. Sharaf Shah Khan, AIR
 LAW
3214
of casual.
4. Belong
mplies
somcthing
nOre

lcss i n t i m a t c
than the idca
conncction
with
associatiOn,
a
it invol
that the body
word belong m o r e or
The
eendng over a period of indicates a
tme sufficicntly longg to warrant thc infcrencc mission
the ot
of dac
pers persrn
continuity
ad
the notion of com
band. the
purposc
common
of v h i c h
is the habitual
acot afll
himseif n th a
w1VCS Or
mistresses With mcn wh. ho wcrc dacr
w o m e n lvcd as assee.
7he m e r e
fact that to a gang of pcrsons iatcd for the purpre
to hold that they belongcd
court
Sufficent for a 0
dacoty
committng
la
o habituallh
of the section is the agrccment
habitually to commit dacoity
.
not thc
The essence
commission
of dacoitics.
The cxIstencc such
of such aan
n

agrccment andclual
attenpted
commission or
agrecmcnt may
be infcrred
ances
from circumstar th
of any person in that
participation
more that the idea of casusn
Section 400 implics something
The termbclong"in
nvohes the notion of cont1nuity
and indicates a more or
less intimate connecti association
th a bod
of person cxtending over a period of time sufficiently long to warrant the infer that the

idcntified himself with a band, the common purpose of which is the

person affocted has itual
2
commission of dacoity

A person who has dacoits in one dacoity and as such much have knon tL...
joined t
were a gang of habitual dacoits cannot be said to belong to the gang within the mcanin the
Section 400,13
of

An accused who gang in its nefarious activities by keeping one odf its
actively helps a
icaders as a guest in his house for several days and thereby facilitates the
dacoities and also helps them financially and otherwise cannot be said to be
of severai
everal planning
mere harhournr
receiver of stolen property.14
A person may
belong to a gang of dacoits without having actually participated in the
commission of even one dacoity. A
clever member of the gang may always remain in the
background while organising the operations of the gang, giving them active assistancc for the
purpose of mecting together, furnishing
commission of the crime and them with weapons and also screening them after the
helping them in the disposal of the looted
Persons merely property.
assisting and sheltering the dacoits and
associated with them for triendship
sake, who join them in
drinking,
punished, could not be said to
or
meeting them at fairs, though
they ran the risk of beln
direct evidence or belong to a gang. The association and purpose may be proveu
from facts
Cven in a established.16 It is not necessary for
single dacoity, 17 participation of any niei nber
.
5achchu vs.
Emperor, AJR 1930 Oudh
Cr.IJ 121; Hira 455; Sharaf
Lal vs.
Emperor 11 Cr. LJ 554; 7 Shah Khan vs, State of Andh. 2)
10 Yeili Kom Yella
Ind. Cas. 1012. Pra., AlR 1963 A
I1. A!R (1896) Cr. R. No. 26 of
1928 Cal. 309:
12. AlR 29 Cr. L.J 1896: Rat Un Cr. C.
1930 Oudh 705. 863.
455: 7 OWN
5 862; 32 Cr. LJ 162:
3AIR 19 A.J 725: 11 Cr. LJ 554:
1921 All. 32: 13 OC 243:
AIR 1928 Cal.
309;; 29 Cr. L
LJ 705;
1 AlR 1956 22 Cr. LJ 1956 705, AIR 1921 All.
15 Orissa 177:
663. Cr. LJ 1208:
AIR 1963 Andh Pra.
Aun 3) 2 Cr. IJ
121.
1956 Cr. L.J 1956 Cr. LJ si7
16. 374
Roni Cin, 1208.
17. Il.R 32
Biima Shaw, AIR Mad. 179: 9 Cr. LJ
1956 567.
Orissa 177
Sec. 400] ASSOCLATED

5. Associated
Associated means and commotes affiliatcd closclv allicd. closcly rclatl. combind

Conjomt. comected. coworking. leagucd. linked. rclatcd. unitcd

the persons sought to bc brought within
This provision should not to be resorted to when
for distinct and ind1vidual offcncus
its four comers might have been made responsiblc.
scction it is nccessary to prove :(1)
thcre CXIsted a gang
To sustain a conviction underthis
the purpose of committ1ng thcft o r
of persons. (2) that those persons were associatcd for
was counitted habitually. (4)
that the accuscd was a membcr
robbery. (3) that thett or robbery 19
Association is the gist of the offence under this section
of such a gang."8
to provide for the punishment of those provocd
The object of the section would sccm to be
to be members of such a gang
and against whom cvidence is not forthcoming to convict them
of specific offences of dacoity.20
The exprcssion, 'Associate' taken along with the words "habitually committing dacoity
act of dacoity but extends to a
imports the idea that the combination is not merely for a single
committed."
period of time during which several acts of dacoity may be
direct evidence, viz.. that
The assoCiating and purpose of association may be proved by
of habitually committing
the accused met, and determined to join together for the purpose
and purpose of association may be
dacoity. n the absence of direct evidence, the associating inferred.22
established by proof of fact from which they may be reasonably
been kept in jail for several months
When people of bad antecedents are proved to have
to have participated jointly in several
and when subscquent to their release they are proved
as a gang engaged in habitually
dacoities, it will be reasonable to infer that they operated
committing dacoities23
6. Habit- Habitually
chronic.
Habitual means according to habit, accustomed. continual.
and connotes
constant. inverterate, rooted, recurring, perpetual.
of some tendency."
It requires a contnuance and permanence
in dong
restricted to inclination by nature. It means persistence
The word "habit" is not
a n a c t . 25

"dangcrous". "hazardous" eannot

The expression like "by habit", *habitually", "desperate", on speciticity of
of man with laxity of
semantics. The Court must insist
be flung in the face a
consistent course of
one swallow does not
make a summer and a
be satisfied that
facts and
inference that by contirmed
habit. which is
enough
convincing to draw the rigorous
conduct
offencc mcntioned, if he is not kept
is sure to commit the
Second nature, the counter-prisoner
Bom. LR 1223.
73 Ind Cas 815; 26
110 PLR 1916; 47 Cal 154; 1923 Lah. 666;
18. 13 PR 1914 (Cr);
19. (1912) 13 Cri. IJ 39 (40) (1D1B) (Cal).
1963 (2) Cri. IJ 121
20. AlR 1963 Andh. Pra. 314:
1963 (2) Cri. LJ 121.
21 AlR 1963 Andh. Pra. 314:
Cas 683.
22. 32 Mad. 179: 84 Ind.
1956 Cri. LJ 1208 (DB).
23. AlR 1956 Orissa 177 (183):
24. AIR 1954 Mad. 326.
25. AlR 1924 Nag. 19: 25 Cr. L! 60.
 CRIMINOLOGY
CRIMIES &
LAWOF
captne Preventive sections privativc of frccdom, if incontinously pre
rovcd by indol
n l of onc

will have
thc cffect of detentic
Thcy
do deeper injury. t
processes, mav

been held guiltv of a

crime and carry
with it the judicial
imprimaturc
is to affix a d boot. To call
is itsclf
dangcrous, to call a
man despcrate

1S itsclfa judicial
ha7a despcratc adjutiv,
7ard
dangerous
stigmatise a person
as
hazardous to the community
is abundantly
available
26 unlcSs conpul
credence
tcsimony carryng for which cvidencc must

Habil is to be proved by aggrcgatc of facts of similar acts

of comission of a
number
28 Specific tlait
evidence
is proved by of habit.
offences 1Is not evidencc nle
Suspicion complicityor in isolated
in such cases as to lead to be a rcasonahl. there s diru
idcnce to establish his complicity nd deinns
must be specific and
habitual thief. The evidence relate to
conclusion that a person is a
instances within the knowledge of witnesses.29 partical
The word habit" implies a tendancy or capacity resuiing from the repetition c
acts. It implies frequent practice or use and connotes depravity of character as evid he sare
the frequcent repetition or commission of offences referred to in the section 30

The word "habit" should not be restricted to mean inclnation by nature. It mo

ans a
persistence in doing an act, a fact which is capable of proof by adducing evidence
commission of a numbr of similar acts.31
Habit has to be proved by aggregate of facts and mere suspicion or complicity in isolatse
offences is not evidence of habit, unless there is direct evidence to establish his
complicit
such cases as to lead to a reasonable and
definite conclusion that person is a habitual thue
a
The evidence must be specific and
Witnesses 32
relate to particular instances within the knowledee of
Where the
charge against person is that he is a habitual robber, the fact that he
a
bad characters at his house does not go far gathers
to show that the bad characters
enough to be in itself relevant. It would be
necessary
were robbers or have been gathered there for the
committing robbery or theft.3 puposes r
Under Section 23 of the
Police Act, 1861, Police is under a duty to
of offences and to collect intelligence affectingthe prevent commisu
the public peace, For the efficient discharg"
their duties, the Police
Officers are empowered the
history shcets of suspects and to enter by Punjab Police Rules, 1934 to op
must be exercised their names in Police register No. 10. IhesoPe powers
with caution and in
to the
opening of history sheet understrictR.
conformity with the Rules. The conditioP precedt
belicved to be
habitually addicted
23.9(2) is that the suspect is a perSO
action of the Police to crime or to be an aider or fhe
abettor of suci showthat the
Officers is challenged, that the
condition precedent has they must justify their action and
26. AIR 1981
been satisfied. mus
27. AIR 1924
SC 674.
Pat. 500: 25 Cr.
28. AIR LJ 985; 32 Cr.
1930 Lah. 345: LJ 62; 38 Cr. LJ
32 Cr. LJ 889; 40 Cr. LJ 753.
230. AlR 1959 All. 347:
1959 Cr. LJ
62; 25 Cr. LJ 60, 27
Cr. LJ 1067.
AlR 1927 673: AIR
Pat. 126
31 AlR
1924 Nag. (128): 28 Cri. LJ 359. 1924 Pat. 498: 25 Cr. LJ LJ 35,
35; AIR
AIR 1924 Pat.
1924 I'at.
500: 25 Cr. I 96
2
AIR 19 25(21): Cri. LJ 60.
1959 All. 347
Cri. Lj 985. (348): 1959 Cri. LJ SQ0(501)2
AlR 10mr 673: AIR 1934