Shyam Behari vs State Of U.P

Rewritten Version Notice: This is a rewritten version of the original judgment.

Court: Supreme Court of India

Case Number: Appeal (crl.) 72 of 1956

Decision Date: 5 October 1956

Coram: S.R. DAS (CJ), N.H. BHAGWATI, S.J. IMAM, S.K. DAS, P.G. MENON

In the appeal titled Shyam Behari versus State of U P, the matter was listed on 5 October 1956 before a bench consisting of Chief Justice S R Das, and Justices N H Bhagwati, S J Imam, S K Das and P G Menon of the Supreme Court of India. The appellant, Shyam Behari, had been prosecuted for several offences, the most serious of which was under section 396 of the Indian Penal Code. The factual background related to an incident that occurred on the night of 10 November 1954, a few hours before sunrise, in the hamlet of Banni Purwa, within the jurisdiction of Kotwali police station, Kheri district. According to the trial court, the appellant, together with several accomplices, entered the dwelling of a man named Mendai with the intention of committing robbery. Their attempt was thwarted when Mendai and another resident, Ganga, raised an alarm, causing the residents of Banni Purwa and the nearby settlement to gather at the scene. The accused fled the premises without obtaining any loot. While fleeing they were pursued by Mendai and Ganga; as they crossed the ditch of Pipra Farm, Mendai seized one of the dacoits. The appellant, who had been positively identified by multiple witnesses as one of the fleeing parties, then discharged a pistol, striking Mendai. Mendai fell, was taken to a hospital, and subsequently died. Both the Sessions Judge and the High Court recorded the same factual finding that the appellant shot and killed Mendai in order to free a captured companion and to secure the escape of the group. The courts did not need to elaborate further on the appellant’s subsequent movements.

The legal issue raised by the appellant concerned the applicability of section 396, Indian Penal Code, which imposes a death penalty, life imprisonment, or rigorous imprisonment up to ten years, together with a fine, on every participant when murder is committed in the course of a dacoity involving five or more persons. The appellant contended that while he might be liable under section 395 for murder, he could not be convicted under section 396 because the murder occurred after the attempted robbery had been abandoned and no loot had been obtained. He argued that a distinction should be drawn between dacoity in which the offenders escape with stolen property, thereby justifying a charge of dacoity with murder, and dacoity in which the offenders flee empty‑handed, in which case the murder, he claimed, should not attract section 396. The High Court rejected this contention, holding that the statutory provision applies even when the dacoity is merely attempted and a murder is committed during the offenders’ attempt to secure a safe retreat. Consequently, the High Court affirmed the conviction of the appellant under section 396 and upheld the death sentence imposed by the Sessions Judge. The appellant subsequently sought permission to appeal to the Supreme Court, and the High Court granted a certificate of leave under Article 134 (1)(c) of the Constitution.

In this case the High Court rejected the appellant’s contention that section 396 of the Indian Penal Code would not apply because the murder was committed while the dacoits were retreating without any booty. The Court held that section 396 is attracted even when the dacoity is only attempted and a murder occurs while the dacoits are trying to make a safe retreat. Consequently, the conviction of the appellant under section 396, together with the death sentence imposed by the learned Sessions Judge, was affirmed. The High Court also granted the appellant a certificate of leave to appeal under Article 134(1)(c) of the Constitution.

Section 396 of the Indian Penal Code states: “if any one of five of more persons, who are conjointly committing dacoity, commits murder in so committing dacoity, every one of those persons shall be punished with death, or imprisonment for life, or rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine.” 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, amount to five or more, every person so committing, attempting or aiding, is said to commit dacoity.” The essential ingredients of the offence, therefore, are that at least five persons must be involved and that they either commit or attempt a robbery. In the present case there was an attempt to commit robbery by the appellant and his companions, but no robbery was completed because a hue and cry was raised by the victims Mendai and Ganga. When the villagers from Banni Purwa and Banni came to the assistance of the victims, the dacoits fled without taking any booty. The Court held that the offence of dacoity was deemed to be completed the moment they fled, even though no loot was obtained. The attempt to commit robbery, however, would have made the participants liable for punishment under section 395, which deals with the penalty for dacoity. The prosecution argued that the appellant was liable not only under section 395 but also under section 396 because the appellant, as one of the conjoint participants, committed the murder of Mendai in the course of the dacoity. The prosecution maintained that the criminal transaction began with the entry of the appellant and his companions into Mendai’s house and continued up to the moment the appellant shot Mendai, thereby satisfying the requirement that the murder be committed “in so committing dacoity.”

The Court observed that while Mendai was crossing the ditch of the Pipra Farm, the appellant shot him, and that killing could be said to have occurred in the course of the alleged dacoity. The appellant, however, argued that the dacoity was completed the moment the gang fled without obtaining any booty, and that the killing of Mendai constituted a separate transaction unrelated to the dacoity. According to that contention, the murder was committed independently of the dacoity, at a time when the dacoits were retreating for safety and had moved a considerable distance from Mendai’s house, the place where the dacoity had taken place. The appellant maintained that the moment the dacoits abandoned the house without any loot, the criminal episode of dacoity ceased, and any subsequent act, including the killing, fell outside the definition of dacoity. He further asserted that the murder took place after the gang had already begun its flight, and therefore the homicidal act could not be legally linked to the earlier attempt at robbery. Consequently, the appellant sought to treat the killing as an independent offence of murder, distinct from the charge of dacoity.

The Court then turned to the plain language of section 391 of the Indian Penal Code, which requires that five or more persons jointly commit a robbery or an attempt to commit a robbery in order to constitute dacoity. In the present case the number of participants satisfied this statutory requirement, thereby meeting the quantitative element of the provision. If an actual robbery were carried out, the offenders would be in possession of booty, whereas an attempt to rob would not necessarily involve any booty being possessed by the dacoits. The Court noted that section 390 defines robbery as theft accompanied by the offender voluntarily causing or attempting to cause death, grievous hurt, wrongful restraint, or the fear of such immediate injury while committing or attempting to commit the theft. In the present facts there was a clear attempt to rob, but the attempt did not involve the carrying away or attempted carrying away of property that had been stolen. No theft had actually been completed and the accused were not engaged in taking away any stolen property; consequently the alleged dacoity stopped at the mere attempt to commit robbery. For the alleged dacoity to extend up to the ditch of the Pipra Farm, there would have needed to be an act of carrying away, or an attempt to carry away, stolen property, which could not have occurred unless the booty had first been collected at Mendai’s house and the gang was fleeing with it. Accordingly, if the appellant had fired at Mendai while he and his companions were indeed running away with the booty, the killing could justifiably be said to have been committed in the commission of the dacoity. The prosecution, however, relied upon the decisions of the Allahabad High Court in Sirajuddin v. State, reported in 1951 AIR All 834, and in Kaley v. State, reported in 1955 AIR All 420, to support its position.

In support of its argument that a murder committed by a dacoit during a retreat could still be considered part of the dacoity, the prosecution relied upon the decisions of the Calcutta High Court in Monoranjan Bhattacharjya v. Emperor, 1932 AIR(Cal) 818 (FB), and of the Bombay High Court in Queen‑Empress v. Sakharam Khandu, 2 Bom LR 325. The appellant, by contrast, placed reliance on the Allahabad High Court judgment in Emperor v. Chandar, 1906 All (WN) 47 : 3 CrLJ 294. The Court observed that the decision in Emperor v. Chandar unquestionably supported the appellant’s contention. In that case, the dacoits were not in possession of any property, yet the offence of dacoity, defined in section 395 of the Indian Penal Code, was held to have been completed because an attempt to commit robbery by the gang was clearly established. However, the attempt was thwarted by the arrival of villagers, and at the moment the deceased was killed the dacoits were already seeking to escape from the village, having abandoned their intent to rob. Consequently, the Court concluded that, on the facts before it, the murder could not be said to have been committed “in the course of committing the dacoity,” and therefore the conviction under section 396 of the Indian Penal Code could not be sustained. The conviction under section 396 was set aside and the finding was altered to a conviction under section 395. Nonetheless, the record contained evidence that, if proved, would justify charging the appellant with an offence under section 302 of the Indian Penal Code, for which he had not yet been tried. The Court therefore deemed it just and proper that the appellant be committed to the magistrate’s court having jurisdiction, so that he may stand trial before the sessions court on the charge of murder. The Court also referred to the 1951 AIR(All) 834 decision, where the dacoits were fleeing without any booty because the villagers had presented a strong resistance. That Court held that whether a murder is committed “in the course of dacoity” is a pure question of fact and degree, not one governed by any general rule, and must be decided on the special circumstances of each case. On the facts of that case, the Court concluded that there was no indication that the murder was so detached in time or space from the dacoity that a distinct chapter had begun; rather, the transaction of dacoity was deemed to continue up to the moment the murder occurred.

In this case, the Court observed that the alleged offence fell within section 396 of the Indian Penal Code. The decision therefore hinged on the specific facts of the present case and could not be taken to set a general rule that dacoits who fled without securing any loot could nevertheless be held liable for murder committed in the course of the dacoity. The judgment cited the case reported as (S) 1955 AIR(All) 420 (B), in which the accused dacoits were described as fleeing while in possession of the booty. The only significance attached to that decision, the Court explained, was that it referred to an earlier precedent, namely the decision reported in 1906 All(WN) 47: 3 CrLJ 294 (E), and that the learned Judges in the 1955 case remarked that the rule laid down in the earlier case appeared to have been articulated “too widely.” The Court further examined the authority reported as (S) 1932 AIR(Cal) 818 (FB) (C), which articulated a test for determining whether the transaction of dacoity had been completed and a distinct, separate transaction had begun thereafter. The Court stated that if, on the facts of a particular case, it could be shown that the murder occurred after the dacoity transaction had been completed and after a new, independent transaction had started, then such murder would fall outside the ambit of section 396 of the Indian Penal Code. Although that decision contained indications that the dacoits had abandoned the loot before the killing took place, the ratio decidendi, as noted above, was the demarcation drawn between the conclusion of the dacoity transaction on the one hand and the commencement of a separate transaction on the other, the latter transaction being the one in which the murder occurred. The Court also referred to the decision reported as 2 Bom LR 325 (D), which turned on the question of whether the retreat of the dacoits was so separated in time or space from the offence that formed the common object of the assembly that it could be said to fall outside that common criminal purpose. The Court held that this issue was a pure question of fact and degree, to be decided on the special circumstances of each case rather than by any general rule. Applying the facts of that case, the Court found no such separation; it held that the retreat formed an essential part of the common criminal purpose, that it was a continuation of the dacoity while the accused were still acting in concert, and that it was so closely connected with the actual demand of “khand” that the murder must be treated as committed in prosecution of the common object of the assembly. Consequently, the Court recognized that the appellant’s contention was strongly urged, namely that, on the facts and circumstances of the present matter, the transaction of dacoity had terminated the moment the dacoits fled, and that a new and separate transaction began when the appellant fired at Mendai while crossing the ditch of Pipra Farm, and therefore the appellant could not be convicted under section 396 of the Indian Penal Code. The Court noted that counsel for the appellant had raised this argument before it.

In this case the appellant vigorously argued that his conviction under section 396 of the Indian Penal Code ought to be set aside and that, on the basis of the identical factual findings recorded by both subordinate courts, the conviction should instead be modified to one under section 395 of the Indian Penal Code. The Court, however, found it unnecessary to entertain that request because, given the material facts and circumstances, the appellant was already liable to be convicted of the offence punishable under section 302 of the Indian Penal Code. Section 396 of the Indian Penal Code comprises two essential ingredients: first, the commission of a dacoity, and second, the commission of murder in the course of that dacoity. The first ingredient was established beyond any doubt and was not contested by the counsel for the appellant. The second ingredient was likewise proved, because the appellant’s focus was not only on the execution of the dacoity but also on the specific act of murder that he participated in. The charge framed against him expressly identified him as liable for both the dacoity and the murder committed in furtherance of that dacoity. Evidence produced by the prosecution specifically implicated the appellant; a prosecution witness named him as the person who fired at Mendai while Mendai was crossing the ditch of Pipra Farm. Moreover, his examination under section 342 of the Criminal Procedure Code brought out the same point, and he was directly questioned on this matter. Both lower courts recorded concurrent findings of fact regarding the appellant’s participation in the murder of Mendai. Consequently, it could not be argued that the appellant could not be convicted under section 302 of the Indian Penal Code if the charge could be substantiated against him, as affirmed in the precedent of Willie (William) Staney v. State of Madhya Pradesh, Crim App No. 6 of 1955 dated 31‑10‑1955 (AIR 1956 SC 116). The Court further declined to express a definitive opinion on the legal question raised by the High Court’s order granting the appellant a certificate of fitness for appeal. The Court merely observed that even assuming, hypothetically, that the conviction under section 396 were not sustainable, the murder of Mendai – which occurred after the dacoits had fled without seizing any booty – had been proved beyond any doubt. Under those circumstances the appellant would be convicted of the offence punishable under section 302 of the Indian Penal Code.

The Court considered the matters raised in the appeal in light of the provisions of the Indian Penal Code. After carefully reviewing the arguments and the record of the trial, the Court concluded that the appellant’s contentions did not demonstrate any error or defect sufficient to disturb the judgment of the lower court. Accordingly, the Court held that there was no force or merit in the appeal and consequently ordered that the appeal be dismissed. In the same spirit, the Court affirmed that the conviction of the appellant, as recorded by the learned Sessions Judge, remained sound and required no alteration. Moreover, the Court confirmed that the sentence of death imposed by the learned Sessions Judge on the appellant continued to stand without modification. The order therefore upholds both the finding of guilt and the capital punishment that were originally imposed.