Decided on June 13,1951

Dambarudhar Injal And Ors. Appellant
THE STATE Respondents


Deka, J. - (1.) THIS matter comes before us in revision at the instance of the six petitioners who were convicted Under Section 395, Penal Code, by the Assistant Sessions Judge, L.A.D. at a trial held with the aid of a jury & sentenced to three years' rigorous imprisonment each. Their appeal to the Ses, J. L.A.D. was summarily dismissed.
(2.) THE case for the prosecution was that on 1 -1 -49, Padmadhar Bora a local lawyer with Anr. man by the name of Adit proceeded on two bicycles to a village named Birkuchi in Beltola Mauza not far off from Gauhati, with a view to take some paddy from one of the Padma Bora's tenants in the said village. No paddy, however, was obtained from the tenant & Padma Bora & Adit were returning home after having laden their pony carts which they took for the purpose of carrying paddy, with hay & fuel obtained from the locality. They themselves were following the cart on their respective bicycles. Before they proceeded far from the village of Birkuchi, Padma's cart was surrounded by some ten or twelve persons who held up the cart to see if any paddy was being carried in it, as at the material time there was a local agrarian agitation against payment of rent to the landlords. Padma Bora resented this interference & had an altercation with the persons who surrounded the rule some of these persons got infuriated & began to assault Padma Bora, his companion Adit & the cartman. The crowd eventually dispersed after taking away Adit & Padma Bora's bicycles. Padma Bora proceeded to the town, lodged F.I.R. at the Gauhati P.S. & the police in the course of the investigation recovered only one of the stolen bicycles - -the one removed from the possession of Padma Bora. The other bicycle remained untraced. The injuries on the persons of Padma Bora & Adit were examined by the Doctor & they were medically treated. After completing the investigation, the police submitted a chargesheet & sent up thirteen persons including the petitioners on a charge of dacoity. The Committing Court discharged seven of these persona & sent up the six petitioners for trial in the Court of Session & the learned Assistant Ses, J., L.A.D. agreeing with the unanimous verdict of the jury found the six persons guilty Under Section 395, I.P.C. & sentenced them as stated before. An appeal was preferred to the Court of the Ses, J., L.A.D. & the learned Ses, J. dismissed the appeal summarily by his order dated 5 -1 -51. The two points taken before us on behalf of the petitioners are: (1) that the summing up of the leaned Assistant Ses, J. is defective in view of the fact that he failed to give proper direction on the requirements of Section 395, I.P.C. (2) that the cases of individual accused were not fairly & squarely placed before the jury. It appears to us that there is a great deal of substance in both the points that have been pressed before us. We think that the cases of individual accused have not been considered separately & that the charges against each accused are not dealt with by marshalling the evidence against each of them. It is true that the evidence has been discussed but it was not discussed from the point of view of culpability or otherwise of each of the accused persons, with respect to the charges as framed against them.
(3.) THE summing up was also defective as regards the requirements of the offence of dacoity. Section 391, I.P.C. clearly provides that When five or more persons conjointly commit or attempt to commit robbery or where the whole number of persons conjointly committing or attempting to commit robbery amount to five or more, every person so committing, attempting or aiding is said to commit dacoity. The learned Judge has apparently failed to notice that the word 'conjointly' is the most important word bearing on the liability of persona accused of an offence of dacoity. While it may be true to say that common intention is no part of the offence of dacoity, the word 'conjointly' used in Section 391, I.P.C. manifestly refers to united or concerted action of the persons participating in the transaction. If individual acts of persons cannot reasonably be referred to a united or concerted action of such persons, there cannot be any question of any conviction for an offence of dacoity of the group of persons concerned. It is only when their individual actions can be properly referred to their concerted action that the question of a conviction under Section 395, I.P.C. can arise. The learned Govt. Advocate appearing for the State has argued that once it is found that the persons had assembled with a view to commit dacoity or attempting to commit dacoity, even their individual actions which cannot reasonably be referred to their original concerted action, may be regarded as sufficient for the purpose of dacoity. We are unable to accept that contention. The prosecution case is that the accused persons went in a body to see whether any grain was being carried in the cart. Admittedly there was no grain in the cart & nothing was removed from the cart, the removal of which would make the persons liable for the offence of theft. All that -followed was battery & assault. The original concerted action which the accused persons might have had in view, undoubtedly came to an end at this stage. If thereafter some of the accused persons acted individually & in this case two of them removed the bicycles from the possession of P.Ws. 1 & 2, it cannot be said that the other persons were acting conjointly with these two persons so as to make each of them liable for the offence of theft or dacoity. This aspect of the case was not placed before the jury by the learned Judge & we consider this to be a substantial misdirection leading to an erroneous verdict by the jury.;

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