Criminology

Fundamentals of Crime, Criminal Law and Criminal

Justice
Robbery and Dacoity

1
 Role Name Affiliation

Principal Investigator Prof. (Dr.) G.S. Bajpai Registrar, National Law

University Delhi

Paper Coordinator Dr. Debdatta Das Assistant Professor,

Department of Law, The
University of Burdwan, WB.

Content Writer/Author Ms. Sumiti Ahuja Assistant Professor, Amity

Law School, Amity
University

Content Reviewer Dr. Dipa Dube Associate Professor, Rajiv

Gandhi School of Intellectual
Property Law, IIT Kharagpur

DESCRIPTION OF MODULE

Items Description of Module

Subject Name Criminology

Paper Name Fundamentals of Crime, Criminal Law and

Criminal Justice

Module Robbery and Dacoity

Name/Title

Module Id 26

Objectives The objective of this module is:

 To inculcate within the readers in-depth

knowledge of law related to Robbery and
Dacoity with the help of relevant case laws
and illustrations.

 To explain most basic of concepts required for

better understanding of the module.

 To differentiate between theft, extortion,

robbery and dacoity.

2
Prerequisites General understanding of the fundamental principles
of criminal law; basic knowledge of offences against
property and the general explanations under the
Indian Penal Code, 1860.

Key words Robbery, Dacoity, Gang Robbery, Imminent fear,

Conjointly, Deadly weapon, Preparation, Death
Sentence

3
 Module Title: Robbery and Dacoity

Synopsis

 Introduction to Offences of Robbery and Dacoity

 Learning Outcomes
 Offence of Robbery under the Indian Penal Code, 1860
 Difference between Indian Law and English Law on the offence of robbery
 Offence of Dacoity under the Indian Penal Code, 1860
 Aggravated form of robbery and dacoity under the Indian Penal Code, 1860
 Offences in connection with Dacoity under the Indian Penal Code, 1860
 Summary

1. Introduction

Robbery and Dacoity are violent crimes related to property.1 In other words, there is high
probability of physical injury, emotional trauma and feeling of helplessness. Both these
offences of robbery and dacoity are either aggravated forms of theft or of extortion.

They have been comprehensively dealt with under Sections 390 to 402 of the Indian Penal
Code, 1860. These sections dealing with robbery and dacoity can be divided under following
heads:2

 Robbery and Attempt to Robbery (Sections 390, 392 and 393)

 Dacoity (Sections 391 and 395)
 Aggravated form of Robbery (Section 394)
 Aggravated form of Dacoity (Section 396)
 Minimum sentence in certain cases of Robbery and Dacoity (Sections 397 and 398)
 Offences in connection with Dacoity:
(a) Preparation to commit dacoity (Section 399)
(b) Assembling for purpose of committing dacoity (Section 402)
(c) Belonging to gang of dacoits (Section 400); for belonging to gang of thieves,
punishment if given under Section 401.

This module aims to explain the essentials required for determining liability under crimes of
robbery and dacoity with the help of statutory provisions and relevant case laws.

2. Learning Outcomes

After completing this module, the reader will be able to:

1
Offences of robbery and dacoity are heinous than theft and extortion as in these, there is an imminent
fear of violence. To commit these crimes, an individual must find a potential victim in circumstances
where he could not defend himself or secure help; then, the perpetrator must threaten or commit
violence against the victim. See Water Block, ―Threats, Blackmail, Extortion And Robbery And Other
Bad Things‖ 35(2) Tulsa L.J. 335 (2000).
2
V Suresh and D Nagasaila (eds.), PSA Pillai’s Criminal Law 769 (LexisNexis Butterworths, New
Delhi, 9th edn.).

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3. Offence of Robbery under the Indian Penal Code, 1860

Robbery is depriving someone of his/her property either by threatening use of violence or, by
actually using violence. It can be either an armed robbery or, an unarmed robbery. In case of
former, stricter punishments are given.

Consider two situations:

Situation A: X and Y enter inside the bank vault/strong room through a tunnel and
take away all the valuables kept safe there and through that tunnel itself they make their way
out.

Situation B: X and Y enter inside the bank premises armed with guns, they head
towards the cashier and demand him to deliver the money, on his refusal and on the guard‘s
intervention they shot at both of them and take away the money.

Now, if we carefully read above-mentioned situations, the result in both of them is same, i.e.,
X and Y run away with the monies. But, in one situation the entire act is executed
mysteriously, whereas in the other, both X and Y use threat and force (violence) to achieve
the ends. This element of violence is what distinguishes these two situations from each other.
If coming to the liability of both X and Y in those situations: under situation A they will be
held liable for theft and under situation B they will be held liable for robbery.

3.1 Statutory Framework

Section 390 of the IPC lays down the essentials of the offence of robbery. It reads as:

390. Robbery.—―In all robbery there is either theft or extortion.

When theft is robbery.

When theft is robbery.--Theft is ―robbery‖ if, in order to the committing of the theft, or in
committing the theft, or in carrying away or attempting to carry away property obtained by
the theft, the offender, for that end, voluntarily causes or attempts to cause to any person
death or hurt or wrongful restraint, or fear of instant death or of instant hurt, or of instant
wrongful restraint.

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When extortion is robbery.

When extortion is robbery.--Extortion is ―robbery‖ if the offender, at the time of

committing the extortion, is in the presence of the person put in fear, and commits the
extortion by putting that person in fear of instant death, of instant hurt, or of instant
wrongful restraint to that person or to some other person, and, by so putting in fear, induces
the person, so put in fear then and there to deliver up the thing extorted.

Explanation.-The offender is said to be present if he is sufficiently near to put the other

person in fear of instant death, of instant hurt, or of instant wrongful restraint.‖

As can be pointed out from the opening statement of Section 390, all robberies are either theft
or extortion. In order, to verify, whether a particular act would amount to a robbery or not,
one has to first establish that the offence has essential ingredients of theft or extortion, since
robbery is aggravated form of theft or extortion.

THEFT ROBBERY EXTORTION

3.2 Essentials for determining liability under Robbery

When Theft is Robbery, the essentials are as follows:

(1) Offender committed theft;

(2) He voluntarily caused or attempted to cause,

(i) death, hurt or wrongful restraint or,

(ii) fear of instant death, instant hurt or instant wrongful restraint;

(3) He did either act for the end,

(i) to commit theft or,

(ii) while committing theft or,

(iii) in carrying away or in the attempt to carry away property obtained by theft.

When Extortion is Robbery, the essentials are as follows:

(1) Offender committed extortion;

(2) He was in presence of person so put in fear;

(3) He commits extortion by putting that person in fear of,

(i) instant death, instant hurt or instant wrongful restraint to that person or,

(ii) instant death, instant hurt or instant wrongful restraint to some other person;

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(4) The person so put in fear, is induced to deliver the thing extorted then and there.

3.2.1 When Robbery is aggravated form of theft.

The most striking feature of robbery which makes it graver than theft (and, extortion) is
imminent fear of violence. This violence resorted to by the offender in terms of voluntarily
causing or attempting to cause ‗death, hurt or, wrongful restraint‘ or, fear of ‗instant death,
instant hurt or, instant wrongful restraint‘ is for achieving certain end3, i.e., for facilitating
theft, while commission of theft, or, in carrying away or attempting to carry away the stolen
property. As, pointed out in Smith & Hogan’s Essentials of Criminal Law4, the two major
parts of the offence of robbery, i.e., theft and force, must be linked. There must be temporal
links and intentional links.

As stated under Section 390, the force (or, fear of using force) should be used either
‗immediately before‘, ‗during‘, or ‗immediately after‘ the theft. There has to be relation
between theft and time of using force. This signifies the temporal link between theft and
force in case of robbery. In Harish Chandra v. State of U.P.5, offenders used force while
carrying away the stolen property. So, the action was held to be well within the ambit of
Section 390. The facts of the case were that victim had boarded a train from X station. The
accused and co-accused also boarded the same train. When the train reached at Y station,
many passengers stated de-boarding due to which there was a huge rush. At that time, the
accused forcibly took the wristwatch of the victim. When victim raised an alarm, the accused
slapped him and the co-accused hit him with a stick. After which both the accused jumped out
of the compartment. They were followed by the victim, who informed about the incident to a
constable whom he found at the platform. The constable was able to nab both the accused.
The stolen property was also recovered. The defence taken by the accused was that force
which they used was after the watch had been stolen, the hurt could not be said to have been
caused in order to commit the theft, so as to bring the offence under Section 390. However,
the Apex Court held that force was used in order to smoothly carry away the stolen property,
which forms part of Section 390.

There also has to be an intentional link between theft and force. This means that force must
be used in order to steal, or, the force is used intentionally to facilitate commission of theft.
Accidental infliction of force in order to commit theft is not robbery. It is also clear from the
wordings of Section 390 that ‗the offender voluntarily6 causes or attempts to cause…‘ For
example, where an accused has abandoned stolen property and is running away, but he is
chased by others, in such circumstances he uses violence against the pursuers. In such case,
violence cannot be said to be committed for the end of committing theft or for carrying away
stolen property, but for saving himself from being caught and handed over to police.

3
The words ‗for that end‘ used in Section 390 of the IPC are very crucial, and capable of
distinguishing a case of theft accompanied with assault, covered under Sections 379 and 323 from that
of robbery. So, if death, hurt or wrongful confinement has not been caused for the end of achieving the
object of theft or carrying away the stolen property, then it will not amount to offence of robbery.
4
John Child and David Ormerod, Smith and Hogan’s Essentials of Criminal Law 354 (Oxford
University Press, United Kingdon, 2015).
5
AIR 1976 SC 1430.
6
Section 39 of the Indian Penal Code, 1860, defines the term voluntarily as- ―A person is said to
cause an effect ‗voluntarily‘ when he causes it by means whereby he intended to cause it, or by
means which, at the time of employing those means, he knew or had reason to believe to be likely to
cause it.‖

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It is not necessary that the violence should actually be committed, even attempt to commit
violence has been held to be enough.7

3.2.2 When Robbery is aggravated form of extortion.

Apart from imminent fear of violence, one other important point of difference between
extortion and robbery is that the extortionist is in presence of the person so put in fear of
violence. Fear is put in mind of one person but can be pertaining to some other person. This
can be explained through the following situations:

Situation A: X obtains property from Y by saying-―Your child is in the hands of my

gang, and will be put to death unless you send us ten thousand rupees‖.8

Situation B: X on a deserted road obtains all valuables and money from Y by saying-
―Give me all valuables and money you are having with you right now, otherwise I will shoot
your child in no time‖.

First situation will result in putting X behind bars for the offence of extortion, the result will
be same even if he is not having Y‘s child with him but merely says so for obtaining property
by creating fear. On the other hand, in situation B, X will go behind bars for committing
robbery. The distinguishing feature, in the two situations being that in the second situation X
is present in front of Y, when the latter is put under fear of instant violence.

Other point of difference between extortion and robbery that can be thought of is, in case of
extortion a person is put in fear of injury. The latter may pertain to mind, body, reputation or
property.9 Whereas, robbery deals with putting a person in fear of instant death, instant hurt or
instant wrongful confinement, all pertains to body.

An interesting thing pointed out in Ratanlal & Dhirajlal, The Indian Penal Code10, is that
although as expressly mentioned in the Indian Penal Code, every robbery is either theft or
extortion; in practicality large proportions of robberies will be half theft, half extortion.
Consider for example: X on gun point asks Y to deliver what all valuables and money he has
with himself to X; till the time Y out of fear starts removing his wristwatch and gold chain, X
puts his hand in the pocket of Y and takes out his mobile phone and wallet. Now, in the
example cited, the robbery is a mixture of both extortion and theft. Probably a few minutes
later, neither the robber, nor the person robbed would be able to recollect in what proportion,
theft and extortion were mixed in the offence; it is not even necessary to do so while meeting
ends of justice.11

7
See Venu v. State of Karnataka, AIR 2008 SC 1199.
8
See Illustration (d) to Section 390 of the Indian Penal Code, 1860.
9
See Section 44 of the Indian Penal Code, 1860.
10
Justice KT Thomas and MA Rashid, Ratanlal & Dhirajlal: The Indian Penal Code (LexisNexis,
Gurgaon, Haryana, 34th edn., 2014).
11
Id at 956.

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3.2.3 Punishment for Robbery

Section 392 of the IPC describes the punishment to be meted out in case the offence of
robbery is established against the accused.

392. Punishment for robbery.—―Whoever commits robbery shall be punished with rigorous
imprisonment for a term which may extend to ten years, and shall also be liable to fine;
and, if the robbery be committed on the highway between sunset and sunrise, the
imprisonment may be extended to fourteen years.‖

There is a discretion given to the court by laying down the maximum punishment but not
imposing the minimum sentence12 under this section. There have been cases wherein, the
courts have reduced the punishment and showed leniency.13

The highlighted part in the box emphasizes on the higher (deterrent) punishment to be given
in case of robberies committed between sunset and sunrise on highway. It is a graver form of
robbery looking at the nature of the act and circumstances. In Venu v. State of Karnataka14,
evidence of the victim, her husband, and the factum of recovery of vehicle used clearly
showed commission of offence by the accused. Offence been committed on highway between
sunset and sunrise, the deterrent punishment of rigorous imprisonment for ten years and fine
was imposed.

Possession of stolen property has always been considered as sufficient presumptive evidence
to prove the commission of theft and robbery. Section 114 of the Indian Evidence Act, 1872,
becomes necessary to be stated here.

114. Court may presume existence of certain facts. —―The Court may presume the
existence of any fact which it thinks likely to have happened, regard being had to the common
course of natural events, human conduct and public and private business, in their relation to
the facts of the particular case.

Illustrations: The Court may presume---

(a) That a man who is in possession of stolen goods soon after the theft is either the thief or
has received the goods knowing them to be stolen, unless he can account for his
possession;….‖

12
However, minimum sentences to be imposed on the offender in certain cases of robbery and dacoity
have been provided under sections 397 and 398 of the Indian Penal Code, 1860.
13
See Din Dayal v. State (Delhi Administration), AIR 1991 SC 44. In this case, the accused, a higher
secondary student of 14 years alongwith others, was held guilty of snatching wrist watch. The sentence
imposed of 2.5 years was reduced to 8 months already spent in custody.
14
Supra Note 7.

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In Baiju v. State of M.P.,15 the accused who claimed to be a sorcerer, having won the
confidence of the deceased‘s family by promising that he will enable them to get a child;
killed four members of the family and looted the house. Thereafter, the stolen articles were
recovered from his house. The Apex Court placing reliance on illustration (a) to section 114
of the Indian Evidence Act, 1872, that the presumption under this section would depend on
the facts and circumstances of the case, convicted the accused. The Supreme Court held that
in cases where murder and robbery have been shown to form part of one transaction, then the
unexplained possession of stolen property would be presumptive evidence against an accused
in the charge of theft and any other aggravated crime.16

3.3 Attempt to Robbery under the Indian Penal Code, 1860

Attempt to Robbery is one of those few attempts which are punished in a separate section
from that of the accomplished offence. In other words, attempt to commit robbery is not
punishable under Section 392 but is punished separately under Section 393 of the IPC.

393. Attempt to commit robbery.—―Whoever attempts to commit robbery shall be punished

with rigorous imprisonment for a term which may extend to seven years, and shall also be
liable to fine.‖

For example: X enters inside the bank premises with an intention to commit robbery and
demands money from the cashier, in the meanwhile, the manager passes the emergency alarm
bell after which X tries to flee away from the bank. However, the public gathered outside
apprehends him, and he is found in possession of weapons. In this case, X will be held liable
for attempt to robbery as his attempt failed because of external influence (raising alarm).

4. Difference between Indian Law and English Law on the Offence of Robbery

Definition of Robbery under English Law is given under Section 8 of the Theft Act, 1968.

It reads as: (1) A person is guilty of robbery if he steals, and immediately before or at the time
of doing so, and in order to do so, he uses force on any person or puts or seeks to put any
person in fear of being then and there subjected to force. (2) A person guilty of robbery, or of
an assault with intent to rob, shall on conviction on indictment be liable to imprisonment for
life.

Force of any degree is enough, it may be minimal, except that in common sense it should be
something more than the slight ―force‖ necessary merely to take property from an unresisting

15
(1978) 1 SCC 588.
16
Also See George v. State of Kerala (2002) 4 SCC 475; in this case dead body of the victim was
recovered two days after his disappearance and the cause of his death was found to be drowning. The
accused was presumed to have committed robbery against the deceased victim, as he was found in
possession of the looted property the next day when he was trying to repay his loan by offering some
looted property. However, the Supreme Court, not upholding the decision of trial court and High Court
in this case, went on to hold that the principle laid down in Baiju’s case was not applicable in this case
according to its different facts and circumstances. The court did not find it justifiable to hold the
appellant liable for murder as well, because death of the victim did not seem to be direct or indirect
result of robbery. However, the appellant was held liable for committing robbery. [Bushan Tilak Kaul,
―Criminal Law‖ LVIII ASIL 224-225 (2002)]. Also See Palwinder Singh v. State of Punjab (2013) 5
SCC 715; Wasim Khan v. State of U.P., AIR 1956 SC 400; Akhil @ Javed v. State of NCT of Delhi,
2013 CrLJ 571.

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owner. In Dawson’s case17, defendant along with two others surrounded V, one of them
nudged him so that he lost his balance, and while he was thus unbalanced another stole his
wallet. Conviction of robbery was sustained on appeal.

Similarities:

 The definition of robbery under Section 8(1) of Theft Act, 1968, seems to be similar
to the definition of robbery when it is aggravated form of theft under Section 390 of
the Indian Penal Code, 1860.
 For theft, to be robbery, there should be link between theft and force (or, fear of
force).
 The force must be used for achieving an end, as mentioned under both the definitions.
Force must be used in order to steal.
 Presence of instant fear of violence.

Differences:

 Under the Indian Law, robbery is either aggravated form of theft or of extortion.
Whereas, under the English Law, robbery is only an aggravated form of theft. It is
treated separately from blackmail.
 Under the English Law, the force threatened must be ―on any person‖; it is not
robbery to steal from a man by threatening to injure his baby if he resists, where the
baby is not put in fear. In other words, it must be force against the person threatened
(who is put in fear of being then and there subject to force).18 Under Indian Law, as
robbery can be aggravated form of extortion, so this rule is inapplicable.
 According to the Indian Law, force or threat of force can be at three times, i.e., for
facilitating commission of theft, while committing theft, or, while carrying away or
attempting to carry away the property stolen. Whereas, according to English Law, the
force or threat must be immediately before or at the time of stealing. The words of
Theft Act, have omitted using force or threat of force while carrying away property 19
because it is considered to be a usage in order to escape and not in order to steal.

5. Offence of Dacoity under the Indian Penal Code, 1860

The difference between robbery and dacoity lies only in the number of offenders and as such
there is no other difference. The term dacoity has been termed as gang robbery in the
jurisdictions of Malaysia and Singapore.20

5.1 Statutory Framework

The offence of dacoity is defined under Section 391 of the IPC.

17
(1976) 64 CAR 170 as cited in Glanville Williams, Textbook of Criminal Law 824 (Universal Law
Publishing Co., New Delhi, 2nd edn.).
18
Id at 825.
19
However, the courts have given the words of the statute an extended meaning and have held the act
of appropriation to continue for some undefined time after the taking. See Hale’s case (1978) Crim. LR
69.
20
K.D. Gaur, Textbook on The Indian Penal Code 699 (Universals Law Publishing Co., New Delhi, 4 th
edn.).

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391. Dacoity.—―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‖.

As mentioned earlier the only difference between robbery and dacoity is that for
accomplishment of the latter offence five or more persons are required.

5.2 Essentials for determining liability under Dacoity

In case of robbery, gravity of offence is violence (or, imminent fear of violence) whereas, in
dacoity it is the terror caused by presence of number of offenders.

Punishment for Dacoity is given under Section 395 of the IPC; it states that: ―-Whoever
commits dacoity shall be punished with imprisonment for life, or with rigorous imprisonment
for a term which may extend to ten years, and shall also be liable to fine.‖ Dacoity is
considered to be a very grave and serious offence and hence courts have held that in cases of
dacoity, deterrent punishment is called for. In Kapoorchand v. State of Bihar21, no leniency in
terms of punishment was shown to dacoits who had robbed innocent bus passengers off their
belongings irrespective of the fact that the accused persons had been facing rigor of trial for
fourteen years.22 However, on facts and circumstances of certain cases, the Apex Court has in
several cases imposed lighter punishments.23

21
2002 CrLJ 1424 (Pat.).
22
In Subhaya Perumal Pilley v. State of Maharashtra (1997) CrLJ 922 (Bom.), more than five persons
were involved, force was used, threatening words were spoken and gold was taken away, hence, all the
essentials of dacoity punishable under Section 395 of the IPC were proved. No injury or hurt was
caused though; the sentence of ten years was reduced to seven years imprisonment.
23
See Kusho Mahton v. State of Bihar, AIR 1980 SC 788, in this case, the Supreme Court while
reducing the sentence of the appellants to period already undergone observed that ―all the appellants
are young men and it is stated that they have already served a sentence of about one and half years.
There was no attempt to cause injury to any of the inmates of the house or other persons at the time of
the commission of the offence or even thereafter. Taking into consideration all the circumstances of the
case we are of opinion that the ends of justice will be served if the sentence is reduced to imprisonment
already undergone‖; State of Rajasthan v. Sukhpal Singh, AIR 1984 SC 207, in this case, although the
Supreme Court upheld the order of trial court holding them guilty under Section 395, but reduced the
sentence to period already undergone behind prison (reason cited was twofold: the High Court‘s order
acquitting them was decade old and secondly, all of them were married and settled in their lives).

12
If five or more persons, attempt to commit robbery but without any success in either carrying
away or getting away with the booty because of stiff opposition. Even in such case
punishment will be given under Section 395 of the IPC.24

5.2.1 The number of offenders in case of dacoity has to be five or more

The number of offenders in case of dacoity has to be five or more, it will include those who
even though were not principal offenders but were present and aiding the principal actors in
commission of the crime.25 In dacoity, every member of the gang is punished, irrespective of
whether he takes active part or not. If one of the participants (either active or passive)
commits wrong defined under this section, all the members are liable for punishment.

In Ram Shankar v. State of U.P.26, where only five named accused committed dacoity, out of
which two were acquitted, the Supreme Court held that the remaining three cannot be held
liable for offence of dacoity. However, where in spite of acquittal of some persons, it is found
as a fact that long with the persons convicted there were other unidentified persons who
participated in the offence, bringing total to five or more persons, then conviction of less than
five will be correct.

In Raj Kumar v. State of Uttaranchal27, it has been reiterated by the apex court that for
commission of offence of dacoity a minimum of five persons is an essential ingredient. The
court in this case also observed that:

―In a given case, however, it may happen that there may be five or more persons and
the factum of five or more persons is either not disputed or is clearly established, but
the court may not be able to record a finding as to identify all the persons said to have
committed the dacoity and may not be able to convict them and order their acquittal
observing that their identity is not established. In such a case, conviction of less than
five persons – or even one – can stand. But in the absence of such a finding, less than
five persons cannot be convicted for an offence of dacoity.‖28

5.2.2 All such persons should act conjointly

Black’s Law Dictionary defines the term conjointly as acting together or in concert or
cooperation. According to Corpus Juris Secundum, conjointly is explained as ‗together‘, the
one with knowledge, consent and aid of the other and pursuant to an agreement or
understanding or ‗unitedly‘.

24
Shyam Behari v. State of U.P., AIR 1957 SC 320. In this case, the accused had entered the house
with the intention of committing robbery. However, they failed in their attempt because of the hue and
cry raised by the residents. All the residents of the village and the neighboring village arrived at the
scene. The accused along with his companions ran away from the house without collecting the booty.
On the contrary, if the victims do not offer resistance and no force or violence is used, this does not
reduce the offence of dacoity to theft.
25
Conviction for offence of dacoity of less than five persons is not sustainable [Ram Lakhan v. State of
U.P. (1983) 2 SCC 65].
26
AIR 1956 SC 441.
27
(2008) 11 SCC 709.
28
Ibid (Para 19). Also See Manoj Giri v. State of Chhattisgarh (2013) 5 SCC 798; in this case, murder
was committed during conjoint commission of dacoity, factum of five persons involvement was not
disputed, although four other accused were acquitted due to insufficiency of evidence, but appellant
was convicted for dacoity, the court observed that insufficiency of evidence against four other accused
does not mean that accused person(s) against whom sufficient evidence is available cannot be
convicted for dacoity. Hence, conviction of appellant alone for dacoity was upheld upheld.

13
The use of word ‗conjointly‘ in Section 391 IPC indicates that five robbers act with
knowledge and consent and in aid of one another or pursuant to an agreement or
understanding, i.e., unitedly. Thus, in most of dacoities, the robbers would be acting with a
common object to loot with use of violence. At least in some cases of dacoities, the robbers
act and use force in pursuance of their common intention and in all cases they act in
prosecution of a common object. The word ‗conjointly‘ means uniform intention along with
unified or united or concerted action. This word, because of its deep rooted meaning, has been
deliberately preferred over the word ‗jointly‘.29

6. Aggravated form of Robbery and Dacoity under the Indian Penal Code, 1860

Aggravated forms of robbery and dacoity are provided under sections 394 and 396
respectively.

6.1 Aggravated form of Robbery

394. Voluntarily causing hurt in committing robbery.--If any person, in committing or in

attempting to commit robbery, voluntarily causes hurt, such person, and any other person
jointly concerned in committing or attempting to commit such robbery, shall be punished with
imprisonment for life, or with rigorous imprisonment for a term which may extend to ten
years, and shall also be liable to fine.

The accused should not be convicted both under Sections 392 and 394 of the IPC. This
provision is more severe than Section 392 as it describes more severe punishment in case the
accused voluntarily causes hurt (the hurt caused if accidental will not come under this section)
to the person. As per Section 390, offender need not actually cause hurt to constitute offence
of robbery. Section 394 is a special provision.

Section 394 identifies two distinct classes of persons (underlined in the box), namely:

 Those who actually cause hurt;

 Those who do not actually cause hurt but are jointly concerned in commission of
robbery.

This means, for example if X and Y have gone to commit robbery and while they try to run
away with the property stolen, they are intervened by Z. X beats up Z, as a result of which he
falls down; X and Y run away with the property. Now, although hurt was voluntarily caused
by X but according to Section 394, Y who was jointly concerned with commission of robbery
will be equally held liable under this section alongwith X.

The cases pertaining to forceful recovery of vehicle by finance company (in case of default in
installments), through recovery agents can fall under the purview of this section. The
Supreme Court in Citicorp Maruti Finance Ltd. v. S. Vijayalaxmi30 has held that recovery
process under hire-purchase agreements has to be carried out in accordance with law and not
by use of force.

6.2 Aggravated form of Dacoity

29
See Allaudin & Ors. v. State (N.C.T. Of Delhi), Delhi High Court judgment dated February 04, 2016.
30
(2012)1 SCC 1.

14
396. Dacoity with murder.--If any one of five or 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.

Out of the few offences under the Indian Penal Code which are punishable with death
sentence31, committing dacoity with murder under Section 396 is one of those. Punishment of
death, though, is given only under rarest of rare cases. According to this section, if while
committing dacoity, one of the accused commits murder, then each one of those five or more
persons, by fiction of law would be deemed to have committed the murder. It is similar to
situation under Section 149 read with Section 141, where there is liability of every member of
unlawful assembly for an offence committed in prosecution of common object.

In order to bring an offence under the purview of this section, the prosecution has to establish
that murder was committed during dacoity, in such case offence traverses from Section 395 to
Section 396. Physical presence of all members when murder is being committed is not
necessary, for example, miscreants entered a house, and all five of them went in different
directions to commit robbery, one of the members of the gang when interrupted with by a
member of the house, shot him dead. In this case, all five of the accused will be held liable
under Section 396. It is not necessary to prove that, when murder was committed by one or
more of the accused persons, all shared a common object or common intention.

In Rafiq Ahmed @ Rafi v. State of U.P.32, the appellant was charged for an offence under
Section 396 IPC and without reformulation/alteration of the charge, the appellant was
convicted for an offence under Section 302 IPC by the trial court. Before the Supreme Court,
it was his counsel‘s argument that his client was deprived of a fair opportunity of defence and
Section 302 IPC being a graver offence than an offence punishable under Section 396 of the
IPC, as such the entire trial and conviction of the appellant is vitiated in law. The Supreme
Court observed that ingredients of Section 302, IPC, become an integral part of offences
punishable under Section 396. Murder under Section 396 will have same connotation,
meaning and ingredients as are contemplated under Section 302 of IPC. The Supreme Court
upheld the conviction of appellant under Section 302 (even though charge was not framed,
and all his companions had been acquitted from charge of dacoity).

6.3 Minimum sentence to be awarded in certain cases of robbery and dacoity

The legislature under Sections 397 and 398 has fixed a minimum sentence to be imposed on
the accused in certain cases of robbery and dacoity.33 These sections merely regulate the
punishment already provided for dacoity and robbery (under Sections 392 and 395) and do
not create any substantive offence.

Section 397, IPC

31
Apart from Section 396, there are ten other sections under IPC wherein punishment of death sentence
has been provided for: Sections 120B (1) (being party to a criminal conspiracy to commit an offence
punishable with death), 121, 132, 194 (for intentionally fabricating evidence resulting in execution of
an innocent person), 302, 305, 307 (attempts by life convicts), 364A, 376A and 376E [Source:
http://www.deathpenaltyindia.com/sections/ (Last Visited June 15, 2016)].
32
AIR 2011 SC 3114.
33
It is only in cases of very grave offences that the legislature fixes a minimum sentence to be imposed
on the accused (example, dowry death and rape), generally penal sections under IPC provide for the
maximum limit of punishment giving discretion to the judge to decide the sentence in accordance with
the facts and circumstances of each case.

15
397. Robbery or dacoity, with attempt to cause death or grievous hurt.--If, at the time of
committing robbery or dacoity, the offender uses any deadly weapon, or causes grievous hurt
to any person, so attempts to cause death or grievous hurt to any person, the imprisonment
with which such offender shall be punished shall not be less than seven years.

This section provides for a minimum sentence of seven years if in commission of dacoity or
robbery, the offender34:

 Uses any deadly weapon; or

 Causes grievous hurt to any person; or
 Attempts to cause death or grievous hurt to any person.

As can be interpreted through reading of the section, liability to enhanced punishment is

limited to the offender who actually uses deadly weapon or causes grievous hurt etc. The term
offender occurring in this section pertains to actual offender and does not provide for
constructive liability. The interpretation of the phrase ―uses deadly weapon‖ as done by the
Supreme Court can be read in case of Ashfaq v. State (Govt. of NCT of Delhi)35; it has been
held that if the weapon carried by the offender is well within the vision of the victim and
sufficient enough to create terror in his mind, it is sufficient to satisfy the requirement of use
of deadly weapon36. It is not necessary to show further that any hurt was caused by the use of
weapon.

One of the differences between Sections 394 and 397 can be noted here, in the latter, liability
is only of individual offender, whereas, in the former it is both individual and vicarious. Also,
that Section 397 in contrast to Section 394 does not define any substantive offence, being
only a punishing provision.

Section 398, IPC

398. Attempt to commit robbery or dacoity when armed with deadly weapon.--If, at the
time of attempting to commit robbery or dacoity, the offender is armed with any deadly
weapon, the imprisonment with which such offender shall be punished shall not be less than
seven years.

This section regulates punishment only in cases of attempting to commit robbery or dacoity
and not where the offender has actually accomplished his purpose (Section 397). Like Section
397, this also applies to individual offender and not to others present to attempt commission
of robbery or dacoity.

It has been held by the Supreme Court in Phool Kumar v. Delhi Administration37, the words
―uses‖ (under Section 397) and ―armed‖ (under Section 398) have to be given identical

34
See Shravan Dashrath Datrange v. State of Maharashtra (1997) 2 Crimes 47 (Bom).
35
AIR 2004 SC 1253.
36
Black’s Law Dictionary defines a deadly weapon as: ―Such weapons or Instruments as are made and
designed for offensive or defensive purposes, or for the destruction of life or the infliction of injury,
one which, from the manner used, is calculated or likely to produce death or serious bodily injury.‖
The literal interpretation of the term ‗deadly weapon‘ will also be a weapon capable of causing death of
person against whom it is used.
37
AIR 1975 SC 905.

16
meaning to resolve anomaly38. Therefore, carrying deadly weapon would be enough to attract
the mischief of either section.

Consider for example: ‗X‘ a person driving on highway is stopped by ‗A‘. ‗A‘ keeping ‗X‘ on
gunpoint takes away all the valuables and money which he was carrying. Now, in this case
‗A‘ has committed robbery. Punishment as given under Section 392 for this act is maximum
of 14 years rigorous imprisonment and fine. But, because he ‗used‘ a deadly weapon in
committing robbery, the punishment which will be given to him will not be less than 7 years
(as per Section 397). Therefore, the punishment that ‗A‘ will have to undergo will be between
7-14 years. Similarly, if in this example, ‗A‘ when he was trying to commit robbery is
apprehended by police party passing by. He will be held liable for attempt to commit robbery
(Section 393, maximum punishment seven years rigorous imprisonment and fine), but as he
was armed with deadly weapon while attempting to commit robbery, the punishment which
he‘ll be getting cannot be less than seven years (Section 398). Therefore, in this case the
punishment that he‘ll be imposed upon with will be seven years rigorous imprisonment and
fine.

A difference or contrast between Sections 393 and 398 can be noted here. Section 393 dealing
with attempt to robbery provides for maximum imprisonment of seven years, whereas,
Section 398 provides for minimum punishment of seven years in case the offender while
attempt to commit robbery is carrying a deadly weapon. One cannot be convicted and
sentenced separately under Sections 393 and 398, IPC; former creates offence, latter merely
regulates punishment. Although, one can be held liable under Section 393 read with Section
398.

7. Offences in connection with Dacoity under the Indian Penal Code, 1860

Dacoity as an offence under the Indian Penal Code, 1860, is punishable at various stages as
follows:

38
According to the observation of Supreme Court in this case, the anomaly was: ―It is unreasonable to
think that if the offender who merely attempted to commit robbery but did not succeed in committing it
attracts the minimum punishment of seven years under Section 398 if he is merely armed with any
deadly weapon, while an offender so armed will not incur the liability of the minimum punishment
under Section 397 if he succeeded in committing the robbery.‖

17
Section 399, IPC

Making preparation to commit dacoity--Whoever makes any preparation for committing

dacoity, shall be punished with rigorous imprisonment for a term which may extend to ten
years, and shall also be liable to fine.

The various stages of crime as we know are: intention, preparation, attempt and
accomplishment. It is generally when an act reaches the stage of attempt it is punishable as an
offence under the IPC. However, this general rule finds exceptions under the Code itself,
Section 399 being one of those.39 Preparation refers to devising or arranging of means
necessary for commission of offence.40 It implies that a design or plan for committing dacoity
has been drawn up and the preparation is in pursuance of such design.41 Preparation under
Section 399 is to be distinguished from mere assembly (without preparation) under Section
402.

Section 402, IPC

Assembling for purpose of committing dacoity--Whoever, at any time after the passing of
this Act, shall be one of five or more persons assembled for the purpose of committing
dacoity, shall be punished with rigorous imprisonment for a term which may extend to
seven years, and shall also be liable to fine.

39
Apart from Section 399, IPC, the other sections punishing mere preparation are sections 122 and
126.
40
Malkiat Singh v. State of Punjab, AIR 1970 SC 713.
41
Karam Dass v. State, AIR 1952 Punj 249.

18
The elements which are supposed to be proved by the prosecution before a person can be
convicted under this section are:

 There must be an assembly of five or more persons.

 These persons must assemble for the purpose of committing dacoity.

Though the ingredients of offences under both Sections 399 and 402 are same, the only
difference between the two is that while under Section 402 mere assemblage without
preparation is enough, Section 399 requires some additional steps by way of preparation. The
mere fact that the accused are acquitted of the charge under Section 399, this forms no ground
to do away or refrain from charge under Section 402. In both the sections, however, it is of
utmost necessity to establish or prove that such assemblage or preparation was for the
commission of dacoity only.

In Birbal B. Chouhan v. State of Chhatisgarh42, appellants, who were residents of different

villages gathered with lethal arms at odd hours in the night in a desolate place and tried to
stop two bike riders. The bikers informed the police who when reached the spot found the
appellants under a tree armed with lethal weapons. Seeing police party some of them escaped,
but the rest were apprehended by police with arms. All of them were held liable under
Sections 399 and 402, IPC. The trial court in this case had imposed a sentence of rigorous
imprisonment of five years on both counts which was further affirmed by High Court. The
Supreme Court although upheld the charges and conviction but held that sentence imposed
appeared to be harsh and therefore reduced it to 3 years rigorous imprisonment on both
counts, and the sentences were to run concurrently.43

Section 400, IPC

Punishment for belonging to gang of dacoits—―Whoever, at any time after the passing of
this Act, shall belong to a gang of persons associated for the purpose of habitually
committing dacoity, shall be punished with imprisonment for life, or with rigorous
imprisonment for a term which may extend to ten years, and shall also be liable to fine.‖

 The term ‗belong‘ refers to something more than mere casual connection. It refers to
those persons who habitually associate with a gang of dacoits and actively assist them
in their operations.
 The term ‗gang‘ refers to any group or company of persons who go about together or
act in concert. The essence of the word is that the persons should act in concert.

Section 401, IPC

Punishment for belonging to gang of thieves—―Whoever, at any time after the passing of
this Act, shall belong to any wandering or other gang of persons associated for the purpose
of habitually committing theft or robbery, and not being a gang of thugs or dacoits, shall be
punished with rigorous imprisonment for a term which may extend to seven years, and
shall also be liable to fine.‖

 This section is similar to Section 400, the difference being that this section punishes
being member of gang of thieves or robbers, whereas, Section 400, punishes being
member of gang of dacoits. Second difference is in terms of punishment.

42
(2011) 10 SCC 776.
43
Id at 778.

19
8. Summary

The offences of robbery and dacoity are aggravated forms of theft and extortion described
under Sections 390-402 of the Indian Penal Code. Under Section 390, theft is robbery when,
the accused for facilitating commission of theft, or, during commission, or for carrying away
or attempting to carry away property causes death, grievous hurt or wrongful confinement/ he
puts the person under fear of instant death, grievous hurt or wrongful confinement. In other
words, the accused puts the victim under fear of violence or actually commits violence against
the victim. Extortion is robbery when, the accused puts the victim in fear of instant violence
(either to be imputed to him or to some other person) and makes him deliver property.
Robbery under Indian Law is different from robbery under English Law, as in the latter case
robbery is an aggravated form of theft only, and is treated separately from the offence of
blackmail.

Dacoity, as defined under Section 391, is nothing but aggravated version of robbery
committed by five or more persons. In other words, the only difference between robbery and
dacoity is the number of offenders. Punishments for robbery and dacoity are provided under
Sections 392 and 395 respectively. Section 393 provides for separate provision for punishing
mere attempt to commit robbery. Section 394 deals with graver type of robbery, i.e, when a
person while committing or attempting to commit robbery voluntarily causes hurt to victim,
in such case if the number of offenders is more than one then all offenders will be jointly
liable under this section for causing hurt. Section 396 is amongst one of those very few
sections of IPC which provides for a death sentence as punishment (in rarest of rare cases).
The section deals with dacoity alongwith murder. This is the gravest form of dacoity
(robbery).

Sections 397 and 398 without creating any new substantive offence, provide for minimum
sentence that will be levied on the offender (no joint liability under this section, only actual
offender to be given that enhanced punishment) in case the conditions under those sections
are satisfied. One of the conditions is usage of deadly weapon to terrorize the victim; armed
robberies are graver forms of robbery in comparison to unarmed robberies, so in case it‘s an
armed robbery, punishment for the offender has to be minimum seven years rigorous
imprisonment.

Dacoity as an offence under the IPC is punishable at various stages. The same are preparation
for commission of dacoity (Section 399), mere assembly for purpose of dacoity (Section 402),
attempt to commit dacoity and accomplishment of the offence (treated alike under Section
391, punishable under Section 395). Mere preparation (group of five people found with arms)
or assembly (group of five people assembled at a place carrying a weapon), is not enough, the
prosecution has to prove that such preparation or assembly was for the purpose of
commission of dacoity.

To end with, even belonging to or being a member of a gang of thieves or robbers (Section
401) or dacoits (section 400) is punishable.

20