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Conviction under Sections 399 or 402 of IPC cannot be established for merely assembly outside a house with tools or weapons during the night: High Court of Orissa

Section 399 and Section 402 of the Indian Penal Code deal with making preparation to commit dacoity and assembling for purpose of committing dacoity respectively. For a conviction to be made under these sections it must be proven beyond doubt that actual steps were taken towards preparing for dacoity and that the assembly could only be with the purpose of committing dacoity and nothing else. This was held in the case of Jaganath Mundari v State of Odisha [JCRLA No. 75 of 2016] by a single member bench of the High Court of Orissa consisting of Justice S.K. Sahoo on 15th July 2021.

As per the FIR, The appellant and his associates were found on 11th July 2010 discussing amongst themselves on the campus of DAV Public School by the side of a Bolero vehicle at around 11:00pm. Upon being searched and interrogated by the police, three masks, two billhooks and a screw driver were allegedly recovered from them. The trial court concluded that the screwdriver was meant to open the house of the principal and the mask and billhooks were going to be used to commit dacoity. As a result of this, the appellant and his associates were convicted for offences under Sections 399 and 402 of the Indian Penal Code for making preparation to commit dacoity and for assembling for purpose of dacoity by the trial court through the impugned judgement. In the present case the appellant challenged the trial court’s judgement and prayed for it to be set aside.

The High Court of Orissa noted that preparation to commit dacoity consists in devising or arranging the means necessary for the commission of dacoity and it is necessary that some steps have been taken in the course of preparation for someone to be convicted under Section 399. The almost identical case of Chaturi Yadav v State of Bihar [AIR 1979 Supreme Court 1412] was cited where the Supreme Court declared that “The mere fact that these persons were found at 1 a.m. does not, by itself, prove the appellants had assembled for the purpose of committing dacoity or for making preparations to accomplish that object” and “In these circumstances, therefore, we are unable to sustain the judgment of the High Court.”

Justice S.K. Sahoo concluded in his judgement that “The possibility that the appellant and other accused persons getting assembled for committing some other offences at that point of time cannot be safely eliminated. However in view of the foregoing discussions, it is very difficult to accept that the prosecution has successfully established the charges against the appellant and therefore, the impugned judgment and order of conviction cannot be sustained in the eye of law”. Accordingly the appellants were acquitted of all charges levied against them.

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