Shyam Behari v. State of Uttar Pradesh

COURTSupreme Court of India
JUDGES/CORAMChief Justice S.R. Das, Justice N.H. Bhagwati, Justice Imam, Justice S.K. Gupta and Justice P.G. Menon


In this case, the Supreme Court dealt with the question of law to distinguish between murder done by dacoits escaping with booty and murder done by dacoits not possessing booty. The court referred many decided cases and passed the judgment.


The facts of the case are as follows: The Appellant had been charged for committing offences under Sections 302 and 396 of the Indian Penal Code, 1860. The prosecution presented the case as – the appellant on 10/11th September 1954 in the early hours of the morning committed dacoity along with other persons in the house of Mendai and that in the commission of such dacoity, murder was committed by one of the members. After being found guilty by the Sessions Judge, the appellant raised a question of law in the High Court – that he may be guilty under Section 395 but not under Section 396 because any murder committed by the dacoits during their fight when they were escaping without any booty could not be treated as murder committed in the commission of the dacoity. Subsequently, an appeal was again made to the Supreme Court.


The main issues in the case were:

  1. Whether or not the Appellant was guilty of the offence under Section 395 and Section 396 of IPC or only under one of them.
  2. Whether or not a distinction can be made between a murder done by dacoits possessing booty and by dacoits not possessing booty.

Contention of the parties

The Prosecution contended that the appellant was guilty not only of the offence under Section 395 but also under Section 396 of Indian Penal Code because the appellant and his companions were conjointly committing the dacoity and the appellant (who was the one of the members) committed the murder of Mendai in committing the dacoity. It was, however, contended on behalf of the appellant that the transaction of dacoity was completed the moment the dacoits took to their heels without any booty and the murder of Mendai committed by the appellant, was another transaction which was dissociated from that transaction of dacoity.

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Summary of court decision and judgment

The Sessions Judge found that the appellant and his companions trespassed with intent to commit dacoity, but were foiled as Mendai and Ganga raised hue and cry which caught the attention of neighbours; on arrival of other people the appellant along with his companions left the premises. They were chased by the people and Mendai caught hold of one dacoit and another dacoit fired the pistol to secure the release of his partner and thereby killed Mendai.

The Sessions Judge held the appellants guilty of murder and dacoity; and passed the death sentence for the appellant. The High Court did not accept the contention of the appellant and held that Section 396 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. Thus, the High Court affirmed the judgement of the learned Sessions Judge and dismissed the appeal. In the appeal before the Supreme Court, the Court held that the appellant was liable to be convicted of the offence under Section 302 of IPC without anything more.


Dacoity is defined in Section 391, Indian Penal Code as: –

” 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”

To establish a charge under this section, the prosecution must prove the following elements, beyond a reasonable doubt: the accused committed or attempted to commit robbery; persons committing or attempting to commit robbery and present and aiding must not be less than five; and all such persons should act conjointly.

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Section 395 provides punishment for dacoity as

“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.”

Furthermore, Section 396 of Indian Penal Code provides that:-

“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”.

In Sirajuddin vs. State[1] where the dacoits were running away without collecting any booty by reason of the villagers having put up a bold front. The Allahabad High Court held that the question whether murder was committed by the dacoit while committing dacoity was a pure question of fact and of degree, not to be determined by any general rule, but by the special circumstance of each case. On the facts and circumstances of the case the Court, however, came to the conclusion that there was nothing to show that the murder was so dissociated by time or space from the dacoity that it could be held that one chapter had closed and a now chapter had begun. The Court having held that the transaction of dacoity was continuing right up to the moment when the murder was committed, the case fell within Section 396, Indian Penal Code.

This decision is said to have turned on the facts of the case and could not be relied upon as laying down any general proposition that even though the dacoits were running away without collecting any booty they could be charged with having committed the murder in the commission of the dacoity.

In light of the facts and findings of the Courts in the case I would say that the judgment delivered was appropriate as the facts that the appellant committed murder was not contended to be fault on his behalf does the conviction under section 302 of IPC was just. With regards to the issue of differentiation between murder by dacoits taking away booty and dacoits escaping without booty has not been given a definite opinion or clarification but has been advised to be determined basing on the facts and circumstances of each case thus not generalizing the matter; which in my opinion is for the better as such differentiation would have resulted as a bar/ hurdle to seek justice under different circumstances.

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The Court in this case held the appellant liable for the murder under section 302 of the IPC and upheld the decisions of both High Court and the Sessions Court to accord death sentence to the appellant. In this case the Apex Court refrained from giving a definite opinion on the question of law brought forward by the appellant but stated and advised the Courts to decide the matter according to facts and circumstances of the case keeping in mind the just, equity and good conscience principles and also the principles laid down in the legal system. Thereby I am of the opinion that the judgment delivered is of sound nature and appropriate according to the given laws.

[1] 1951 AIR(All) 834.

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