Penal Code, 1860 — Sections 395 & 396 — Conviction

September 9th, 2013

Penal Code, 1860 — Sections 395 & 396 — Conviction — Acquittal of co-accused, Effect of — Trial court while acquitting other co-accused held the appellant guilty for commission of dacoity, murder of Domara Sahu in the course of committing dacoity etc. and convicted him under Sections 395, 396, 397, 398 and 376(2)(g) of the IPC — High Court maintained the conviction of the appellant, but set aside his conviction under Section 395 of the IPC for a period of five years awarded by the trial court — Appeal by special leave — Held, deceased was killed in the assault by the five accused — The evidence against the other four was not sufficient to convict them — There is no doubt, the murder was committed during the conjoint commission of dacoity — If properly convicted each one of them were liable to be punished with death vide Section 396 IPC — Since that has not happened the conviction of five persons – or even one – can stand — Therefore, no hesitation in maintaining the conviction of the appellant for the incident in which there was a gang rape, dacoity and a wanton murder of the hapless father-in-law.

Raj Kumar Alias Raju versus State of Uttranchal (Now Uttrakhand), (2008) 11 SCC 709, Relied on.

(Para 16)

Manoj Giri v. State of Chhatisgarh[Bench Strength 2], Criminal Appeal No. 470/2012(08/05/2013), 2013(6) SCALE 748: 2013(4) Supreme 33: 2013(5) SLT 266: 2013(5) SCC 798: 2013(2) Crimes 348(SC): 2013(9) JT 65 [T.S. Thakur, J.: Sharad Arvind Bobde, J.]

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