LexRAJ KUMAR@ RAJU versus STATE OF UTTARANCHAL
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A B [2008] 5 S.C.R. 1216 RAJ KUMAR@ RAJU v. STATE OF UTTARANCHAL (Criminal Appeal No. 855 of 2007) APRIL 7, 2008 (C.K. THAKKER AND D.K. JAIN, JJ.) Penal Code, 1860; Ss.302, 396 and 412 rlw s.1208: Dacoity, murder and conspiracy - Accused persons c armed with weapons allegedly committed dacoity, looted articles and also committed murder of wife of PW1 - Fl.R. - Investigation - Investigating Officer submitted charge-sheet against six accused persons for committing the offences punishable ulss. 396 and 412 rlw s.120-B, /PC - Acquitting 0 accused Nos. 5 & 6, trial Court found accused Nos. 1 to 4 guilty for committing the offence of dacoity punishable u/s. 396, /PC but acquitted them of the charges for committing the offence punishable uls.412 and also uls.120-8, and sentenced them accordingly - Conviction and sentence affirmed by Division Bench of the High Court - Correctness of - Held: E Incorrect - In case, factum of five or more pers.ons is either not disputed/clearly established and the Court acquitted some of them as their identity not established, the conviction of even less than five accused could stand - But in the absence of such a finding, less than five accused persons can not be F convicted for committing an offence of dacoity- In the instant case, though charges were framed against six accused persons, but even the trial Court was not convinced with prosecution evidence about complicity of all the accused and granted benefit of doubt to two of them - Once the Court doubts G presence and participation of two out of six accused and granted benefit, there would be less than five persons, and therefore, no conviction could be recorded against them for committing an offence punishable uls.396, /PC - Moreover, in the absence of the finding that the identity of two accused H 1216 RAJ KUMAR @ RAJU v. STATE OF UTTARANCHAL 1217 not established, conviction of appellant for committing the A offence of dacoity cannot stand - Hence, set aside. According to the prosecution, .PW1 filed a complaint at the Police Station informing that on the fateful day, when he reached his house in the afternoon, he found four B persons armed with weapons dragging the body of his ~ wife soaked in blood. On seeing him, the accused fled away. The accused had allegedly looted the household articles and committed the murder of his wife. PW3, PWS and PW6 also witnessed the accused running away. Police registered an F.l.R. , started investigation, arrested c the accused and recovered certain articles from them. After completion of the investigation, charge-sheet was submitted by the Investigating Officer against six accused persons for committing the offence punishable u/Ss. 396 and 412 r/w·S.120-B, IPC. Trial Court acquitted the D r accused persons of the charge for committing an offence punishable u/s.120-B and also u/s.412, IPC since prosecution has failed to prove the charges. However, the trial Court found accused Nos. 1 to 4 guilty of committing the offence of dacoity punishable u/s.396, IPC, convicted E them and ordered to undergo rigorous imprisonment for ten years and to pay fine, but acquitted accused Nos. 5 & 6 as the charge was not established against them. Appeal preferred thereagainst by the convicts was dismissed by the High Court. Hence, the present appeal. F Accused-appellant contended that both the Courts ' below have committed an error in convicting the appellant for an offence punishable under s.396, IPC; that charge was framed for an offence punishable under s.396, IPC against the appellant along with other five accused. When G the trial Court acquitted two of them, no conviction could have been recorded of the remaining accused for an offence punishable under s.396, IPC; that in view of acquittal of two out of six persons, both the Courts were w~ong in invoking and applying s.396, IPC. On that ground H 1218 SUPREME COURT REPORTS (2008] 5 S.C.R. A alone, the order of conviction and sentence deserves to be set aside; that all the accused were charged for criminal conspiracy but they were acquitted for an offence punishable under s.1208, IPC and the said order was not challenged by the State; that all the accused were charged B for an offence of dishonestly receiving property stolen in the commission of dacoity, punishable under s.412, IPC, but even on that count, the trial Court acquitted them and the said order also has attained final
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