Minimum Five Persons Mandatory To Prove 'Preparation For Dacoity' Under Section 399 IPC: Gujarat High Court

"The prosecution has no escape, but to prove the active involvement of five or more persons in the preparation for committing dacoity." Gujarat High Court, in a significant ruling, held that a conviction for "preparation to commit dacoity" under Section 399 of the Indian Penal Code cannot be sustained unless the prosecution conclusively proves the active involvement of at least five persons.

A single-judge bench of Justice Gita Gopi set aside a trial court conviction, observing that the existence of a mysterious fifth accused remained completely unproved and that the police investigation was vitiated by severe procedural lapses.

The District Crime Branch, Ahmedabad, apprehended four individuals from a busy public road near Natraj Hotel on June 2, 2003, based on secret information that five persons were assembling to plan a petrol pump dacoity. The police claimed the fifth accused, identified only as 'Munno', escaped into the crowd and could never be traced despite subsequent police remands. The trial court convicted the four apprehended persons under Section 399 of the IPC and the Arms Act, prompting the present appeals by the accused and a cross-appeal by the State seeking sentence enhancement.

The primary question before the court was whether a charge under Section 399 of the IPC can be established when the prosecution fails to prove the assembly and identity of five or more persons. The court was also called upon to determine whether procedural irregularities regarding search, seizure, and the recording of secret information vitiated the police raid and the subsequent trial.

Mandatory Requirement Of Five Persons For Dacoity

The court initiated its analysis by examining the interplay between Section 391 (dacoity) and Section 399 (preparation to commit dacoity) of the IPC. The bench noted that the statutory language mandatorily requires five or more persons to conjointly make preparations for the commission of the offence. The trial court had erred by formulating a point for determination based on the conspiracy of "any one or more" of the accused, which directly contradicted the statutory mandate.

Failure To Prove The Identity Of The Fifth Accused

The court heavily criticized the prosecution's failure to establish the existence of the fifth accused, 'Munno'. Justice Gopi observed that no supplementary chargesheet was ever filed, nor were any proceedings initiated to verify his identity. The bench noted that it was highly improbable that despite police remands and interrogation, the whereabouts and origin of the fifth person could never be ascertained by the investigating agency.

"The prosecution has no other option, but to prove the identity of atleast five persons. Here, the trial was only against four. The escaped person 'Munno' could not be identified by the police."

Waiver Of Privilege Under Section 125 Evidence Act

Addressing the police's reliance on secret information, the court examined the privilege claimed under Section 125 of the Indian Evidence Act. The bench observed that the police leader had brought the informant along during the entire raid and allowed him to identify the accused at the spot. Because the leader did not shield the informant's identity from the raiding team or the panchas, the court held that the police could not subsequently claim privilege to avoid examining the informant as a prosecution witness.

Failure To Maintain Mandatory Station Diaries

The court noted severe lapses in recording the secret information prior to the raid. The bench stated that the leader of the raiding team was mandatorily required to record the information as a 'Janva Jog' entry in the police station diary under Section 44 of the Police Act. The court noted that the failure to document the information or inform superior officers prior to laying the trap made the prosecution's narrative highly suspicious.

Investigating Officer As An Interested Witness

The independence of the investigation was fatally compromised because the Investigating Officer was himself a subordinate member of the raiding party. The court observed that since the Investigating Officer was an eyewitness to the trap and was following the instructions of the raid leader, he was an interested party. The bench held that in all due fairness, such an officer ought not to have investigated the case to ensure impartiality.

Panch Witnesses Failed To Corroborate Police

The court highlighted that the independent panchas called to witness the raid failed to support the police version of events. One panch witness stated that only four persons were arrested from a rickshaw, while another testified that only two accused were present when the panchnama was drawn. Neither panch could establish the presence of five persons, rendering the testimonies of the police witnesses uncorroborated and doubtful.

Non-Compliance With Sections 51 And 52 CrPC

Regarding the recovery of weapons, the court found blatant violations of mandatory procedural safeguards under the Code of Criminal Procedure. The police failed to issue seizure receipts to the accused as required under Section 51 CrPC. Furthermore, the raiding party members, who were themselves armed, did not subject themselves to a personal search before searching the accused, creating serious doubts about the authenticity of the recovered weapons.

Mere Recovery Of Weapons Insufficient

Relying on Supreme Court precedents, including Chaturi Yadav v. State of Bihar, the court held that mere recovery of weapons from persons standing on a public road is insufficient to prove preparation for dacoity. The bench observed that the hotel was a busy public junction, making it highly improbable that a gang would gather there to plan a dacoity at a petrol pump situated 28 kilometres away.

CONCLUSION

The High Court allowed the appeals filed by the accused and set aside the trial court's judgment of conviction, acquitting them of all charges. Consequent to the acquittal, the State's cross-appeal seeking an enhancement of the sentences was dismissed, and the bail bonds of the appellants were ordered to be discharged.

Date of Decision: 25 March 2026