SHYAM BEHARI Vs. STATE OF UTTAR PRADESH

JUDGEMENT

(1.) The appellant had been charged inter alia with having committed an offence under section 396, Indian Penal Code in that he on 10/11th day of September, 1954, about two or three gharis before sunrise in village Banni Purwa, hamlet of Banni, police station Kotwali, Kheri, along with other persons committed dacoity in the house of Mendai and that in the commission of such dacoity, murder was committed by one of the members. The learned Sessions Judge found that the appellant, and the others, had entered the house of Mendai with intent to commit a robbery but were foiled in the attempt owing to Mendai and Ganga having raised a hue and cry. The residents of Banni Purwa and the adjoining 'abadi' of village Banni arrived on the scene and the appellant and his companions, without collecting any booty, ran away from the house of Mendai. They were chased by Mendai and Ganga and when they were crossing the ditch of Pipra Farm, Mendai caught hold of one dacoit. Another dacoit who was identified by several witnesses as the appellant thereupon fired a pistol shot which hit Mendai and Mendai fell to the ground and was removed to the hospital where he died. The further movement of the appellant thereafter need not be recounted here. The learned Sessions Judge as also the High Court recorded concurrent findings of fact that the appellant shot and killed Mendai to secure the release of one of his companions and also to ensure their safe retreat.

(2.) These concurrent findings of fact ware enough to dispose of the appeal of the appellant before the High Court. He, however, raised a question of law, viz., that he may be guilty under section 395 but not under section 396, Indian Penal Code because any murder committed by the dacoits during their fight when they were running away without any booty could not be treated as murder committed in the commission of the dacoity. A distinction was sought to be drawn between a case where the dacoits were escaping with the booty and the case where the dacoits were running away without any booty. It was argued that it would be an offence of dacoity with murder when the dacoits, after committing robbery, were running away with the booty and in order to escape with the booty they committed the murder and that it would not be a dacoity with murder when dacoits had no booty with them but in order to avoid being caught they committed the murder. The High Court negatived this contention and held that section 396, Indian Penal Code would be attracted even where an attempt had been made to commit dacoity and a murder was committed when the dacoits were trying to make a safe retreat. The conviction of the appellant under section 396, Indian Penal Code was therefore confirmed along with the sentence of death passed upon him by the learned Sessions Judge. On an application made by the appellant for Leave to Appeal to this Court, the High Court granted to him the necessary certificate under Art. 134 (1) (c) of the Constitution.

(3.) Section 396, Indian Penal Code provides that