This article is written by Richa Joshi of the New Law College, Bharati Vidyapeeth University, Pune and  Kishita Gupta, a graduate of the Unitedworld School of Law, Karnavati University, Gandhinagar. This article provides exhaustive information about the offence of dacoity. 

It has been published by Rachit Garg.

Introduction 

Hindi cinema has highlighted the lives of dacoits in classic movies like Sholay and Paan Singh Tomar. These movies tell the story and lifestyle of dacoits. That is far from reality. Earlier, the term used for dacoity in the Indian subcontinent was “banditry.” “Bandits or Dakoo” are the terms in local colloquia in India for dacoits. Some of the laws were the Prevention of Crime of Dacoity Act, 1843, introduced by British India under East India Company rule to curb dacoity. Later, dacoity was mentioned under the Indian Penal Code (I.P.C), 1860 and made a punishable offence. Sections 391 to 402 elaborately talk about dacoity and its punishment. In Malaysia and Singapore, “gang robbery” is the term used for dacoity. In this article, the authors have explained in detail the concept of dacoity as per the Indian Penal Code and all the related provisions.

Definition of dacoity 

The offence of dacoity is explained by Section 391 of the IPC, 1860.

Section 391 defines dacoity as follows: “When five or more persons conjointly commit or attempt to commit a robbery, or where the whole number of persons conjointly committing or attempting to commit a robbery and persons present and aiding such commission or attempt amounts to five or more, every person so committing, attempting, or aiding is said to commit dacoity.”

The major difference between robbery and dacoity is the number of people present during the commission of the offence. If the number of persons committing robbery is five or more, the offence will be dacoity. For example, A, B, C, D, and E are the persons who decided to rob the bank during the night. E was standing at the door with a gun in his hand so that nobody could enter the bank while the other four were busy breaking the locker. All five people will be liable for the offence of dacoity.

In the case of Om Prakash v. State (1956), the Court mentioned that the offence of dacoity consists of the cooperation of five or more persons to commit or attempt to commit robbery. All the persons must share the common intention of committing robbery. 

Essentials of dacoity 

Some key ingredients are necessary to define the specificity of an offence. These ingredients are necessary to keep a distinction between one offence and another. The following are the key ingredients that constitute the offence of dacoity:

  1. The accused had committed or attempted to commit robbery.
  2. Persons committing or attempting to commit robbery must be five or more. This includes the person present and aiding.
  3. All such persons should act conjointly.

In the case of Lachaman Ram v. State of Orissa (1985), the Court held that all the accused persons committed dacoity in the houses of the complainants one after the other and looted and took away various kinds of property in the nature of watches, ornaments, etc. All the accused were held guilty under Section 391 of the Indian Penal Code.

The Supreme Court, in the case of Ganesan v. State Rep. By Station House Officer (2021), while discussing the essential element of Section 391 IPC, observed that the offence under Section 391 IPC punishable under Section 395 IPC cannot be declared to not have been made out just because some of the accused fled and less than five individuals turned up to be punished in the trial. It is necessary to take into account that five or more people participated in and committed the robbery, not whether those people were put on trial. When five or more people jointly commit the robbery offence or attempt to commit the robbery, the case is brought under Section 391 IPC and is considered to be a “dacoity,” depending on the evidence.

The Orissa High Court noted in the case of Madan Kandi v. State of Orissa (1995) that the theft must be committed using either actual violence or threatened violence in order to be classified as a dacoity offence. The behaviour and nature of the mob may imply threatened violence. Any overt act does not necessarily need to convey threat or force. A person cannot be charged with dacoity unless they have actually committed robbery or helped another person commit it. The only crime that the law has made criminal in four different phases is possibly dacoity. Each person who gathers with five or more others to commit a dacoity is subject to Section 399 punishment. The definition of ‘dacoity’ in Section 391 demonstrates how the other two stages of robbery, including planning and carrying out the heist, have been considered equally and are covered by the term. There might come a day when committing dacoity is just an agreement. The conspiracy offence, which is penalised under Section 120, is finished if there is evidence of agreement.

In another judgement by the High Court of Patna, Musafir Rajbanshi v. State of Bihar (2001) it was held that the theft must be committed using either actual violence or threatened violence as it is an essential element of a dacoity offence. The behaviour and nature of the mob may imply threats of violence. It is not necessary for any overt act to demonstrate the force or threat.

Section 395 IPC

Section 395 of the Indian Penal Code prescribes the punishment for dacoity. This Section says whoever has committed the offence of dacoity shall be punished with

  1. Life imprisonment, or
  2. Rigorous imprisonment up to ten years of the term, and
  3. Liable to a fine.

The offence of dacoity is 

  • Cognizable (means that any person who came to know about the offence can inform the police regarding the offence), 
  • Non-bailable ( no bail to be granted under such offence as a matter of right),
  • Non-compoundable (the offence is non-negotiable), and 
  • Triable by the court of the session (the first court of the trial is the court of session). 

Types of dacoity

Dacoity with murder (Section 396)

Section 396 fixes joint liability for all the persons who cause murder and jointly commit dacoity. For instance, if in a group of dacoits, one dacoit murders along with a dacoity. All will be equally liable for the act. The punishment given by this section may be death, life imprisonment, or rigorous imprisonment for a term that may extend to ten years and a fine.

If one of the accused commits murder while they are being chased, the question of whether the other could be convicted for the offence of dacoity with murder depends upon the facts and circumstances of each case, i.e., whether the act of dacoity could or could not be said to be continuing at that time. This was held in the case of  Shyam Behari v. State of Uttar Pradesh (1956).

In another case, Rafiq Ahmad v. State of Uttar Pradesh (2011), the Supreme Court noted that as Section 302 is incorporated into and a fundamental component of Section 396, it is claimed that the word ‘murder’ in Section 396 has the same meaning, connotation, and elements as those found in Section 300. Therefore, if the accused is charged under Section 396 with four other people for the commission of dacoity and murder but the charge of dacoity is not proven and the other co-accused are found not guilty, then in such a scenario the accused may still be found guilty. He will be punished under Section 302 for the commission of murder without changing the charge if the necessary elements are satisfied on the merits, beyond a reasonable doubt, and the accused did not suffer any harm to his right to a defense for a fair trial.

Dacoity with the attempt to cause death or grievous hurt (Section 397 IPC)

Section 397 prescribes a minimum sentence of seven years for using deadly weapons or causing grievous hurt in committing robbery and dacoity. It postulates an individual act and allows no scope for constructive liability.

It was observed by the Bombay High Court in the case of Wilson Abraham Chouriappa v. State of Maharashtra (1995) that, according to Section 397 of the Penal Code, the aforementioned section only applies if there is proof that the accused used a deadly weapon, injured someone seriously, or attempted to murder or seriously injure someone while committing robbery or dacoity. Section 396 of the Penal Code of 1860 contains the principle of vicarious liability explicitly and states that if one or more people involved in a dacoity commit murder while it is being committed, then all of them would be subject to the same punishment. In contrast, Section 397 of the Penal Code of 1860 contains the principle of individual liability. The offender is the language used. Before Section 397 of the Penal Code of 1860 may be used in any way, the prosecution must prove who the offender or accused person was who used a dangerous weapon while committing a robbery or a dacoity, injured someone seriously, or attempted to murder or seriously injure someone. This conclusion is supported by a study of the terminology used in Sections 396 and 397 of the Penal Code of 1860.

The Court went on to observe that the difference in language between Sections 396 and 397 of the Penal Code, 1860, makes it clear that the term ‘the offender’ used in Section 397 only refers to the accused person who, at the time they committed the robbery or dacoity, uses a deadly weapon, causes or attempts to cause grievous hurt to anyone, and does not include all those who take part in the commission of such a robbery or dacoity. In order to apply Section 397 of the Penal Code of 1860, it must first be proven that either robbery or dacoity occurred.

Attempt to commit dacoity when armed with deadly weapons (Section 398 IPC)

Section 398 applies to cases of attempted dacoity. It has no application to cases in which robbery has been committed. A person is said to be “armed with a weapon” when he has a weapon with him and carries it, intending to use it should the occasion require so. It is sufficient if the offender carries a dangerous weapon in such a manner that a person feels that it can be used at any moment against him. Section 398 will be subject to punishment.

In Pappu v. State (2011), both Sections 397 and 398 of the IPC allow for the accused to employ a weapon while committing robbery or dacoity or attempting to do so. When the crime of dacoity/robbery has finally been committed, Section 397 IPC is applicable. On the other hand, attempts at robbery or dacoity are covered by Section 398 IPC. For attempts at robbery or dacoity paired with the use of a dangerous weapon, Section 393 IPC translates to Section 398 IPC, whereas Section 392 IPC relates to Section 397 IPC. Since the offender has already achieved his goal and robbery has been actually committed with the use of a deadly weapon under Section 397 IPC, Section 398 IPC prescribes the punishment in a case of attempted robbery while carrying a deadly weapon. The offence committed is punishable under Section 398 IPC since only an attempt to commit robbery with the use of a lethal weapon is made out by the circumstances established by the prosecution. Since Section 398 IPC is a minor offence under Section 397 IPC, the conviction of the appellant is changed from Section 397 to an offence punishable by up to two years in prison under Section 398 IPC.

The Supreme Court in  Ashfaq v. State (Govt. of the NCT of Delhi (2004) noted the language of Section 398 IPC, where the words “the offender is armed with any deadly weapon” are used, when interpreting Section 397 IPC. According to the Supreme Court, brandishing and displaying a lethal weapon in such a way as to inspire dread and threat in the victim’s mind so that he does not resist out of fear of harm is sufficient for the purposes of Section 397 IPC.

Preparing to commit dacoity (Section 399 IPC)

Section 399 punishes mere preparation to commit dacoity. Dacoity is an offence that is punishable at the stage of preparation itself. The preparation implies that a plan for committing dacoity has been drawn up. The preparation is in pursuance of such a design. Preparation includes devising, planning, or arranging for the commission of the offence of dacoity.

The Allahabad High Court held in Ram Kishore v. State (2021) that the prosecution must prove that further steps were taken during the preparation for committing dacoity in order to establish the offence under Section 399 of the IPC.

In another case, Asgar v. State of Rajasthan (2003), it was held that a preparation act must be proven in order to establish an offence punishable under Section 399 IPC, and it must also be proven that the act for which preparation was being made was a dacoity or robbery to be committed by five or more people.

Punishment for belonging to the gang of dacoits (Section 400 IPC)

Section 400 provides punishment for those who belong to a gang of persons who have made dacoity their usual business. The association with the habitual pursuit of dacoity is the gist of the offence. Association means a combination for a common purpose.

In a 1971 case, State v. Hetep Boro, the Gauhati High Court established that it is not essential to show that the accused engaged in a specific dacoity in order to establish responsibility under Section 400 of the Indian Penal Code. Instead, evidence that was disbelieved in order to establish guilt under Section 395 may still be used to establish guilt under Section 400.

As observed by the Patna High Court in the case of Lalchand Khatri v. the State (1959), looking to the evidence of association is the correct approach to take in cases under Section 400 of the Indian Penal Code, and this approach must be held to be independent of whether an accused man has been found guilty of a crime or has been found innocent because there was insufficient evidence against him. It’s possible that the evidence used by the prosecution to show an accused person’s complicity in the gang’s activities that were predicated on a specific crime may not be applicable in cases where the accused person has been declared fully innocent of the crime. However, the mere fact of his release from custody would not lessen the strength of the evidence presented against him because, as Section 400 stipulates, it is the evidence of association that is really relevant rather than participation in any specific dacoity, and for the purpose of proving association, the evidence that has been found to be insufficient for a specific charge of dacoity may still be relevant for instituting an association of the members of the gang with the intention of committing the crime of dacoity.

Assembling to commit dacoity (Section 402 IPC)

Section 402 provides punishment for assembling for the purpose of committing dacoity. It applies where the case is mere assembly. without proof of any preparation or attempt. The essential element of the offence is the intention of committing dacoity.

It was noted in Jagsir Singh Alias Sira v. State of Punjab (2011) that it is very essential to prove that the accused persons assembled at the scene of the crime with the intent of committing dacoity, as this is an essential ingredient of Section 402 of the Indian Penal Code. 

In another case, Mohd. Wahid and Ors. v. State (2018), the Delhi High Court observed that Section 402 penalises assembling with the intent of committing dacoity, in contrast to Section 399, which penalises preparation to commit dacoity. Therefore, it is clear that the prosecution must demonstrate that the accused gathered there with the aim of conducting dacoity in order to establish a violation of Section 402. The stage for Section 402 is less than preparation and more than intention, or between the two. Even though the intention of the accused can be inferred from the fact that they gathered with the weapon, this is insufficient to convict them of the crime punishable under Section 402 IPC because they could have gathered for any other crime, such as murder or another offence for which mere assembly is insufficient.

Difference between robbery and dacoity 


Basis of difference

Dacoity

Robbery

Meaning
When five or more people jointly commit robbery, dacoity is committed. including the person present and aiding the other in the commission of the offence.Robbery is an extension of the offence of either theft or extortion.

The number of people
The minimum number of perpetrators is five or more.Those who aid or abet the offence will come under the purview of the offence as its perpetrators.The minimum number of perpetrators required is one.

Punishment
Section 395 prescribes punishment for dacoity. The punishment may be either imprisonment for life or rigorous imprisonment of up to ten years and a fine.Section 392 prescribes punishment for robbery. The punishment may extend to ten years of rigorous imprisonment and a fine.When the robbery is committed on highways. Between sunset and sunrise, the punishment may extend to fourteen years of imprisonment.

Triable by court
It is triable by the court of the session (COS). This offence is cognizable, non-compoundable, and non-bailable.This offence is triable by the judicial magistrate of the first class (JMFC). It is cognizable, non-bailable, and non-compoundable

Gravity
The offence of dacoity is the gravest form of crime against property.It is an advanced form of robbery, as dacoity includes robbery. Robbery is graver but not more than dacoityA robbery is an advanced form of either theft or extortion.

The Delhi High Court observed in Raj Kumar @Raju & Anr. v. State (2009) that, technically speaking, the distinction between robbery and dacoity is the number of people involved. The use of violence in the theft offence’s commission is a shared factor between the two. The same actions would be considered dacoity if there were five or more people present, and robbery if there were fewer.

In another judgement by the Allahabad High Court, Gopali Prasad v. State of U.P. (2019), the Court observed that the only distinction between robbery and dacoity is the number of persons. If there are five or more individuals involved in the robbery, it is considered dacoity. The act of cooperating with five or more people to commit or attempt to commit robbery constitutes the crime of dacoity. It is essential that everyone involved have the same intent in mind when committing the robbery.

Case laws 

State v. Sadhu Singh and ors. (1972)

In State v. Sadhu Singh and ors. (1972), five people, one of whom was Kurda Singh, together committed dacoity at the house of Gharsiram. They were armed with deadly weapons like rifles and pistols. During this act of dacoity, they injured three people. Personal items of one Mr. Santai’s were taken by the dacoits. The dacoits were not able to escape successfully with the looted property because of the hue and cry caused by the inmates. This attracted the attention of nearby people. The villages, however, gave the dacoits a tough chase as they fled for a safe retreat. One of the dacoits fired a shot while escaping, which led to the death of one chaser, Dharma. The villagers were brave enough to apprehend one of the dacoits during this act. Hence, the court held them liable for dacoity and punished them under Section 395 of the I.P.C.

Shankar and Ors v. State of Andhra Pradesh (2003)

In the case of Shankar and Ors v. State of Andhra Pradesh (2003), the prosecution placed before the court its argument that the accused drove to Kalamaduga Village in a jeep. They were carrying knives and sticks with them. They stopped the vehicle in front of the victim’s house. They claimed to be police and had come to see whether the victim was providing food to Naxalites so they could get the owner of the house (the victim) to open the door. As he opened the door, he was caught by four accused, who dragged him towards the jeep and asked him to hand over the gold ornament to them. When he refused to do so, they went inside his house forcefully and searched his Kirana store. They also threatened his wife and took away the gold ornament, wristwatch, and Rs. 1,75,000 cash. This was done by them in several houses, one after another. The court held them liable for the offence of dacoity under Section 395 IPC.

Raj Kumar alias Raju v. State of Uttranchal (2008)

In another case, Raj Kumar alias Raju v. State of Uttranchal (2008), the prosecution submitted that one Tilak Raj submitted a written police report at Khatima Police Station and that when he reached home for lunch at about 12.30 pm, he saw a few people standing inside his house. Those five were Raj Kumar @Raju, Pushpendra Singh, Swadesh Chandra, and Nirankar, who was dragging his wife. His wife was soaked in blood. According to Tilak Raj, on seeing him accused, he fled away. He tried to catch hold of them but was unsuccessful, as they all had knives with them. They looted the items in his house and also murdered his wife. The Court held that the accused is liable along with other participants under Section 395. They have to undergo rigorous imprisonment for 10 years and also have to pay a fine of Rs 2,000. In default of the fine, they have to undergo additional imprisonment for one year.

Raju Sampath Darode v. The State of Maharashtra (2022)

In the case of Raju Sampath Darode v. The State of Maharashtra (2022), the Bombay High Court has awarded the death sentence to the accused for committing dacoity along with the murder of his employers. On December 2, 2007, the accused entered the residence of his employers, Ramesh and Chitra, by tricking their watchman, who was on duty. Ramesh was found with a pool of his blood in the living room. The accused stabbed his heart and forehead. He sealed his mouth with tape. His wife Chitra was tried with telephone wire in a chair, with her throat slit. Jewellery, foreign currency, and nine lakhs in cash were also stolen from the house.

Conclusion 

Under Chapter XVII of the Indian Penal Code, 1860, dacoity is the gravest offence done on the property of a person. But to have a good understanding of dacoity, one needs to be clear on the concepts of robbery, theft, and extortion. These offences are different in the gravity they hold compared to each other. Their punishment also increases with gravity. For example, if theft is the first offence, the property gets the minimum sentence, then comes extortion, thereafter robbery, and finally dacoity.

Frequently Asked Questions (FAQs) 

Is the preparation of dacoity punishable? 

Section 399 of the Indian Penal Code 1860 says that preparation to commit dacoity is a punishable offence. It is one of the few crimes that are punishable at the preparation stage itself.

What is the nature of the offence of dacoity?

Dacoity is a cognizable offence that is also non-bailable and non-compoundable. It is the offence that is triable by the court of session.

What will be the consequence, if any offender kills a person while committing dacoity?

If any person, while committing dacoity, also murders in the same event, then all the persons who are involved in dacoity will be held punishable for the offence of murder also. They shall be punished with death, life imprisonment, or rigorous imprisonment for a term of up to 10 years.

References 

  • K.D. Gaur, I.P.C. 1860, Fourth Edition

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