- (1.) (1-5) (After statins the facts, His Lordship proceeded.)
(2.) A point of law has now been raised by the learned Counsel for the defence that out of the six dacoits, two having been acquitted, it was not possible to sustain the conviction of the remaining four on a charge under Section 395, I. P. C. which contemplates participation of at least five persons in the offence. In support of his contention he relied on two decisions. The first is a decision of the High Court of Andhra Pradesh in the case of In re, K. Appalaswami AIR 1957 Andh Pra 954 and the case of Devi v. State Both these decisions were by single judges of the respective Courts. In the first case seven persons who were, apparently, known to the complainant had been named in the first information report as having cpmmitted a dacoity by forcibly harvesting and removing his crop. The Sessions Judge found that there was no case against three of the accused persons and he acquitted them for want of proof. He, however, convicted the other four under Section 395, I. P. C. Before the High Court a point was taken on behalf of the appellants that in the circumstances of the case, three of the accused persons having been acquitted the charge of dacoity against the other four under Section 395, I. P. C. could not be sustained. The learned Judge accepted the contention observing as under: I am impressed with this argument. It is true that in the Sessions Court the prosecution witnesses stated, that apart from these accused there were a number of persons cutting the crops but this is belied by Exhibit P-12 the charge-sheet and by the admission made by the investigating officer. Nor does the Sessions Judge say that there were seven people who were engaged in removing the crop but the identity of persons other than the appellant has not been satisfactorily established. It would thus be found that in that case the learned Judge was not satisfied that seven persons had participated in the dacoity. In point of fact, the learned Judge ultimately acquitted all the three accused persons who had appealed against their conviction. The observation of Chandra Reddy, J" quoted above, proceeded entirely on the basis that there was no evidence in the case to show that more than three persons were engaged in the alleged dacoity. It was on this basis that it was held that conviction of the three appellants under Section 395. I, P. C. was not tenable.
(3.) IN the other case which came from the Rajasthan High Court, there were five accused persons who were put on trial, but two of them were acquitted on the ground that only three had taken part in committing the offence. It was, therefore, held that those three persons could not be convicted under Section 395, I. P. C. for the offence of decoity. In this case also the Court held that even as regards the three appellants who had been convicted by the Sessions Judge, no offence was proved beyond a reasonable shadow of doubt. The result was that all the appellants were acquitted. In the course of his judgment the learned Judge observed as follows: The learned Sessions Judge has made an obvious error in convicting the three accused under Section 395 of the Penal Code. It was alleged that there were only five accused who committed the offence. Out of five, two were acquitted by the Sessions Judge himself. According to his finding only three accused took part in the offence, and therefore, the offence could not, in any case be one under Section 395 of the Indian Penal Code. In view of what has been stated above it would appear that the observation of the learned Judge in point was in the nature of an obiter. In any case, the observation has to be read in the context of the facts of that case which are very different from the facts of the present case.;