Criminal Appeal (SJ) No. 438 of 1998 ****** Against the judgment of conviction dated 11.12.1998 and order of sentence dated 14.12.1998 passed by Sri Yogendra Prasad, learned Additional Sessions Judge, Gaya in Sessions Trial No. 11/96/347/1996. ****** Ram Prasad Singh, Son of Shree Kishun Singh, resident of village – Lodipur, Police Station – Mufassil, District – Gaya. .... .... Appellant. Versus The State Of Bihar .... .... Respondent. ****** Appearance : For the Appellant : Mr. Dinu Kumar, Advocate. Mr. Shiv Kumar Prabhakar, Advocate. Mr. Arvind Kumar Sharma, Advocate. For the Respondent : Mr. Anuradha Kumari, A.P.P. ****** P R E S E N T THE HON’BLE MR. JUSTICE GOPAL PRASAD GOPAL PRASAD, J. Heard learned counsel for the appellant and learned counsel for the State. 2. The appellant has been convicted under Sections 364, 395 and 397 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for ten years for the offence under Section 364 of the Indian Penal Code, ten years for the offence under Section 395 of the Indian Penal Code and seven years of the offence under Section 397 of the Indian Penal Code. 3. The prosecution case, as alleged, is that Ram Uday Singh P. W. 4 was coming along with Mahavir Singh on motor-cycle then they saw the road was blocked by boulder. They stopped the motor-cycle. Shatrughan Singh, Ramashray Singh, Ram Prasad Singh, Subhash Singh @ Karor Singh, Mithilesh Singh, Sudhir Singh @ Pakun Singh and 2-3 others armed with Lathi and Farsa surrounded them. They said to take them on hill and kill them and thereafter they started dragging them 2 towards hill. The informant and Mahavir Singh started fleeing away. The accused Shatrughan Singh and Subhash Singh armed with Farsa assaulted them on his head and hand. In the mean time, witness Ram Swarath Singh and Munsi Manoj Singh rush to the place of occurrence. The accused persons fled away along with bag containing Rs.5,200/- kept in the dickey of the motor-cycle. 4. On the fardbeyan of the informant, the FIR was lodged and after investigation, charge-sheet was submitted, cognizance was taken and after commitment the charge- sheet was framed for the offence under Sections 364, 395 and 397 of the Indian Penal Code. 5. P. W. 4 supported the prosecution case that they were apprehended by road blocking and assaulted by Lathi and Garasa and supported the specific role of the appellant armed with Lathi and assaulted with Lathi. 6. During the trial five witnesses were examined on behalf of the prosecution. The witnesses supported the prosecution case about the assault and the snatching of Rs.5200/- from the motor-cycle and the appellant was armed with Lathi and participated in the crime. 7. During the trial five witnesses supported the prosecution case. P. W. 4 Ram Uday Singh supported the prosecution case that while he was going with P. W. 1 Mahabir Singh he was apprehended by road blocking by boulder and accused person apprehended and assaulted them by Lathi and Garasa. However, the specific role attributed to the appellant is assault by Lathi and they commanded and dragged to abduct to the hill to kill but on Hulla the witnesses came. It is further alleged that at the time of decamping the appellant flee away with Rs.5200/-. The Doctor P. W. 5 found injuries. 8. The defence of the accused persons is that no occurrence as alleged has occurred and the accused persons have falsely been implicated due to the prior enmity. 3 9. The trial court on considering the evidence of the witnesses and further taking into consideration the fact that there is long standing enmity between the parties and the accused came out from the jail at the grudge convicted and sentenced the appellant under Sections 364, 395 and 397 of the Indian Penal Code. 10. Learned counsel for the appellant, however, contended that the prosecution has not been able to prove the charges. The dominant motive was to murder and it cannot be inferred that there was intention to commit dacoity or kidnapping and there is no evidence of kidnapping. 11. The allegation and evidence is that the accused persons apprehended the informant and Mahabir Singh and the appellant was armed with Lathi. They assaulted and tried to drag and then snatched Rs.5200/-. However, to fasten the liability under Section 397 of the Indian Penal Code it has to be established that at the time of occurrence the appellant was armed with deadly weapon. Section 397 of the Indian Penal Code cannot be applied constructively as it relates to offender who actually used the deadly weapon himself or caused grievous hurt at the time of committing occurrence. Since the appellant was armed with Lathi which is not the deadly weapon and hence his conviction under Section 397 of the Indian Penal Code is not sustainable. 12. So far the conviction and sentence under Section 364 of the Indian Penal Code is concerned, there is evidence that the accused persons came, surrounded and dragged. Though, stated that to take the victim by them did not succeed as per the intervention and hence it cannot be said that the offence under Section 364 of the Indian Penal Code has been made out as it can only be said that the accused persons surrounded and hence restrained the motivation but since did not succeed to take him and hence the offence under Section 364 of the Indian Penal Code is not made out. 13. However, Section 395 of the Indian Penal Code is concerned, there is 4 evidence that the accused persons came, apprehended and assaulted and thereafter decamped with Rs.5200/- of the informant, which was kept in the dickey. 14. However, having regard to the fact that seven persons surrounded voluntarily, caused hurt and wrongfully restrained and thereafter decamped with Rs.5200/- and hence these ingredients are sufficient to attract Section 395 of the Indian Penal. Dacoity itself is defined under Section 391 of the Indian Penal Code when five and more persons conjointly while committing theft voluntarily, wrongfully restrained and caused hurt. Hence, under the facts and circumstances, the order of conviction recorded under Section 395 of the Indian Penal Code is sustainable. However, no offence under Sections 397 and 364 of the Indian Penal Code is made out. The prosecution has not been able to prove the offence under Sections 397 and 364 of the Indian Penal Code. Hence the order of conviction and sentence recorded under Section 397 and 364 of the Indian Penal Code is set aside. However, so far the order of conviction under Section 395 of the Indian Penal Code is concerned, the appellant has remained in jail for about four years and six months and he is aged about 80 years old as he was 68 years itself at the time of the judgment in the year 1998. Hence, the ends of justice shall meet by sentencing the appellant for the period already undergone hence, this appeal is allowed in part with modification in sentence. (Gopal Prasad, J.) Patna High Court, Patna. Dated, the 19th September, 2011. N.A.F.R./Kundan.