This article is written by Rida Zaidi, a law student of the Faculty of Law, Aligarh Muslim University. The author tries to deal with the question of whether the Court can try three accused when two are absconding.

Introduction

The principle of joint liability which according to Section 34 of the Indian Penal Code is defined as where two or more persons have jointly committed a criminal offence possessing common intention to carry out the said act, each of these offenders shall be liable as if they have committed that particular criminal offence individually. The principle of joint liability applies equitably under Section 391 of the Indian Penal Code where if five or more persons conjointly commits or attempts to commit dacoity or aid in the commission of dacoity and the offenders amount to five or more, each of them committing, abetting and attempting would be said to have committed dacoity. The punishment for committing dacoity as per Section 395 of the Indian Penal Code is imprisonment for life or rigorous imprisonment which may extend to ten years and shall also be liable to fine. But the essential question which arises surrounding this offence of Dacoity is whether the Court out of five accused can try only three accused where two are absconding?

One of the essential ingredients of Section 391 of the Indian Penal Code is that there should be five or more offenders involved in the commission of the offence of dacoity. The Court has laid down in the case of Balbir & Others v State of UP (1983) the Allahabad High Court observed that the prosecution has failed to prove sufficient evidence as to prove the fact that five or more persons were involved in the commission of dacoity under Section 391 or in establishing their identities. The Court did not find merit in the case and ruled that the conviction of the appellant is against the form and substance of Section 391 of the Indian Penal Code and overruled the decision of the Trial Court and granted their appeal. Though the answer to this question was answered by the Court in the case of Ganesan v State (2021) which shall be dealt with in this article exhaustively. 

Two criminal appeals were filed by one accused Ganesan and another accused Shanmugan Babu.

Ganesan v. state (2020)

Appellant- Ganesan & Shanmugam Babu 

Respondent- State

Court- Supreme court of India

Bench- Justice Ashok Bhushan

Date of judgement- 14th October 2020

Initially, Ganesan was named as accused A1 in the criminal appeal and Shanmugam Babu was named as accused A3 when the charge sheet involved the names of five offenders punishable under Section 395 read along with Section 397 though after two of them absconded at a relevant time who was Benny named as A2 and Shahjahan named as A5. Benny was arrested after 15 years and was subsequently dealt with under a separate trial. 

Facts of the case

The five accused from A1 to A5 with an intention to carry out a robbery proceeded in a car on 19th October 1996, from Cuddalore to Panruti with a knife and an iron rod at 8:00 pm.

1. Accused ‘A1’, that is Ganesan, stayed in the car while the other four accused that were A2 to A5 pushed the prosecution witness 1 who was Duraisamy from his bicycle and hit him with the iron rod on his head and injured his right-hand finger. 
2. One of the accused from A2 to A5 snatched his bag carrying Rs 60,000 and jewellery worth 16 grams and ran away with the above-mentioned bag.
3. One of the witnesses, ‘Palanivel’ tried to catch hold of the accused A2 to A5 but Benny who was A2 escaped by hitting him on his head and hand with an iron rod.
4. The charge sheet mentioned the names of all the five accused that are punishable under Section 395 read with Section 391 of the Indian Penal Code.
5. Though the accused A2 that is Benny and accused A5 that is Shahjahan were still absconding.
6. The charge sheet was split and tried between Ganesan, Prabakaran and Shanmugam.
7. In the trial Ganesan was named as A1, Prabhakaran as A3 and Shanmugam as A5. 

Court’s analysis

The Trial Court after examining all the oral and documentary pieces of evidence provided by the Prosecution, Court convicted the accused of an offence punishable under Section 397 of the Indian Penal Code and sentenced 7 years of Rigorous Imprisonment to each of these accused. The accused aggrieved and dissatisfied with the impugned judgement, both Ganesan and Shanmugam filed a Criminal appeal respectively against this impugned judgement passed by the Trial Court. The First Appellant Court dismissed the appeals and upheld the decision of the Trial Court. The accused again aggrieved and dissatisfied with the dismissal of the revisional applications by the First Appellant Court, filed criminal appeals by accused A1 and A3 before the High Court.

Issues before the Court

1. The accused is held convicted under Section 391 and to be punished under Section 395, the ground for conviction is the involvement of five or more persons in the commission of a robbery.
2. The Court has tried only three accused as two are absconding out of five persons involved in the commission.

Appellant’s contentions

The contentions asserted by accused Ganesan are as follows-

1. The FIR lodged by the investigating officer is under suspicion as PW1 stated that after he was hit by an iron rod, he was so injured that he was unconscious and was admitted to a Government hospital and gained consciousness after a week. The investigating officer gave a contrary deposition that PW 1 reached the hospital at around 2:30 am and he recorded the statement of PW 1 at around 3:00 am where PW1 accompanied him. Even PW13 stated in his complaint that the complaint was neither signed by the complainant nor thumb affixation was found. Thus the complaint is inadmissible.
2. Most of the Prosecution witnesses stated that they are not sure about the identity of the accused because 14 years have passed or that Prosecution witness 1 became unconscious after the incident therefore he is not able to recall it. The learned counsel has also asserted that no Test Identification Parade was conducted to establish the identities of the accused.
3. The doctor who treated the complainant was informed that he was injured by three known persons so there is a doubt as to whether there were three accused or five accused.
4. The accused Ganesan stayed in the car and was not present at the very place of occurrence and thus Section 397 of the Indian Penal Code could not be applied.
5. The prosecution was not sure of the number of accused as the charge sheet involved the names of five accused but according to all the prosecution witnesses, there were three accused present. And to attract Section 397 five or more persons should commit or attempt to commit a robbery that would be termed as a dacoity. The Trial Court framed the charges alone under Section 397 through the charge-sheet involving charges under Section 395 read with Section 397 of the Indian Penal Code.
6. The prosecution witnesses A2 and A4 are not reliable eye-witnesses as their houses were located at a distance from the place of incident and they would have reached there only after the robbery was committed.
7. The charge-sheet and trial were conducted after 14 years for which no reasonable cause was shown by the prosecution and as Benny accused number A2 was acquitted, therefore Ganesan could also be acquitted for which he was convicted under Section 397. He is entitled to the benefit of the doubt by the Court.

The accused Shanmugam’s contentions are as follows-

1. There is as such no substantive charges for conviction except for charges under Section 395 that is dacoity and otherwise there is nothing on record.
2. There is the absence of charges for conviction of robbery under Section 390/392 along with Section 378 (Theft) and Section 383 (Extortion).
3. Shanmugam is convicted merely on the grounds of a confessional statement by accused A1 that is Ganesan and accused A2 that is Benny under Section 397 of the Indian Penal Code.

Respondent’s contentions

1. The prosecution contended that analysing all the facts and circumstances of the case the conviction of accused Ganesan and Shanmugam is pertinent.
2. The presence of the accused at the place of occurrence has been proved by the prosecution, both through oral pieces of evidence and through documentary pieces of evidence.
3. There are parallel findings firstly, by the Trial Court then by the Revisional Court and finally by the High Court, therefore, any interference in the exercise of the powers of the Court is not warranted under Article 136 of the Constitution.
4. The injured witnesses were brought to the hospital where the Prosecution witness 10 who was the doctor treated them. Investigating officer who is Prosecution witness 13 went to the hospital to record the statement of Prosecution witness 1 who was injured after which the investigating officer went back to the police station and filed an FIR around 3:00 am. As the Prosecution witness 1’s fingers were injured he could only affix a thumb impression after which he became unconscious. The testimonies of both the witnesses can be corroborated to reach the conclusion which was made by the Court and it does not lead to any adverse presumption.
5. The omission of not conducting the Test Identification Parade is not fatal for the prosecution’s case as it is required where the substantive evidence is uncorroborated but in the present case, there are overwhelming shreds of evidence including the accounts of witnesses pointing towards the guilt of the accused.
6. The charge-sheet involved 5 accused of which 2 absconded and the trial proceeded against the three accused. There is ample evidence that proves the fact that there are five accused involved and Section 395 is attracted.
7. The identity of the accused was made out by some of the witnesses and some accused were identified based on information collected by various sources. Moreover, non-identification of all the accused would not blemish the case of prosecution especially in cases of dacoity or robbery.
8. The prosecution contended that it has proved beyond reasonable doubt the guilt of the accused and they should be convicted under Section 395 along with Section 397.

Observation of the Court

The High Court observed that the appeals of the accused were required to be considered as their conviction is unsustainable and to attract Section 391 which is punishable under Section 395, the essential ingredient is the involvement of five or more persons in the commission of the offence of dacoity. In the present case initially only three accused were tried as two accused were absconding of which one of them was tried subsequently in a separate suit.

The Court pointed out that at the Trial stage as the case under Section 391 punishable under Section 395 was made out therefore they could be convicted under Section 391 read with Section 395 as Court referred to the judgement of Rameshbhai Mohanbhai Koli v State of Gujarat (2010) that where a grave offence could not be established against a suspect may be out of lack of merit or any technical issue, he can be convicted for a minor offence without altering the charge. The Court also laid down that the charge-sheet which was filed involved the names of five accused and what is mandatory is the involvement of five or more persons in the commission or attempting to commit robbery which would fall under the definition of dacoity and not the fact that five or more persons were tried. The appellants contended that the benefit of acquittal of Benny that is one of the accused who absconded should be levied on the present accused as well but the Court rightly pointed out that the Trial of Benny was carried out after 15 years where only 5 witnesses were examined, therefore whereas in their case around 15 witnesses were examined. The prosecution proved beyond reasonable doubt the guilt of the accused.

The Court preferred the judgement of Amrita v State of MP (2004) that the same evidence of acquittal of an accused does not lead to the conclusion that all deserve to be acquitted, therefore appropriate reasons have to be given for both acquittal and conviction. The Court concluded by setting aside the appeals of the accused and convicted them under Section 391 read along with Section 395 of the Indian Penal Code and imposed rigorous imprisonment of 6 years and with a fine of Rs 2000 along with default of 6 months of rigorous imprisonment.

Conclusion

The Court in the case of Ganesan v State held that for the commission of robbery or attempting to commit robbery which falls under the definition of dacoity what is required is the involvement of five or persons in the commission of an offence under Section 391 which is punishable under Section 395 and not the Trial of five or more persons. Therefore, the answer to the question that can the Court try three accused when two are absconding is absolute yes but the essential ingredient is that they must be involved in the commission of the said offence.

References

1. https://www.casemine.com/judgement/in/56090097e4b0149711154b3c
2. https://www.scconline.com/blog/post/2021/11/02/explained-dacoity-supreme-court/
3. https://www.lawweb.in/2021/11/whether-court-can-try-three-accused-of.html?fbclid=IwAR12bkpKUMPGn6-KcSjkRVy9JhEjU7LZdPuvquPR-xLDsdvq4EAYqmqo8AA 

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