The Legislature while defining provisions of Sections 391/396 PPC has deliberately used the word “conjointly”, which is not used anywhere in PPC except in the afore-said provisions.

 2022 SCMR 2024

The Legislature while defining provisions of Sections 391/396 PPC has deliberately used the word “conjointly”, which is not used anywhere in PPC except in the afore-said provisions. 'Conjointly' indicates jointness of action and understanding. Every one acts in aid of other. 'Conjointly' means to act in joint manner, together, unitedly by more than one person. According to Black’s Law Dictionary, ‘conjoint robbery’ means where the act is committed by two or more persons. 'Conjoin' means 'join together', as per the Oxford Large Print Dictionary. According to Corpus Juris Secundum, 'Conjointly is explained as 'together', the one with knowledge, consent and aid of the other and pursuant to an agreement or understanding or 'unitedly'. In the 'Words and Phrases' 'Vol. 8 A', published by 'West Publishing', same meaning is adopted as in Corpus Juris Secundum. It explains that conjoint robbery is where the act is committed by two or more persons. According to Webster's New International Dictionary 'conjoint' means 'united', 'connected' associated or to be in conjunction or carried on by two or more in combination. The use of word 'conjointly' in Section 391 PPC indicates that five robbers act with knowledge and consent and in aid of one another or pursuant to an agreement or understanding i.e. unitedly. A bare perusal of the aforesaid provisions clearly reflects that the purpose of using the word “conjointly” relates to overlapping each and every act of participants in the occurrence on equal basis without any distinguishing feature. The aforesaid provisions are based upon entirely different footing as compared to ordinary case of murder where conviction can be recorded on the basis of role ascribed coupled with the fact of having common object or common intention. The law has been devolved on these lines since long but as far as these two provisions i.e. Sections 391/396 PPC are concerned, there is absolutely no chance to distinguish the criminal liability on the basis of act or role ascribed to each accused rather each one of them becomes equally responsible soon after they make preparation for the commission of the offence, act during the course of occurrence and even the acts committed while retreating after commission of the offence. No one can be distinguished on the basis of role or criminal liability with reference to such like offences as these offences are squarely against the fabric of the society and heinous in nature by all means.

Section 396 declares in specific terms that the liability of other persons is co-extensive with that of the actual murderer. All that is required to be proved is that they have been conjointly committing dacoity and during the course of dacoity death caused by a dacoit would be murder and would be attributed to all of them. The death need not be proved against any of the dacoits in particular so long as death is the result of cumulative effect of violence used by the gang. The primary element of the offence under this provision of law is that the dacoity was committed conjointly by all persons involved, and the secondary element is that murder was committed while the dacoity was being committed. The fact that Section 396 PPC is a selfcontained provision stands out right away upon its first reading. The Section is unique, in that, it imposes vicarious liability upon all members of the gang without there being any distinction and to that extent is sui generis in nature. Section 396 PPC in its plain term applies to every situation in which five or more persons commit dacoity and in the course of the commission of such dacoity anyone of the said person commits murder. Thereby all five or more people become squarely responsible for the crime of "dacoity with murder" and expose themselves to the penalties outlined in the aforementioned provision of law.

The three essential ingredients for invoking Section 396 PPC are that

(i) one of the persons must commit murder, i.e., his act must amount to "murder" within the meaning of Section 300 PPC,

(ii) the said person must be one of the five or more persons who have joined together to commit dacoity, and

(iii) the murder must be committed in the course of commission of such dacoity.

If these conditioned are fulfilled, Section 396 PPC would set in and bring all the persons involved in the act of dacoity in the same category even if they did not commit the murder. In other words, so far as the remaining persons are concerned, the prosecution is not required to prove any overt act in order to entail Section 396 PPC to apply with their intention to commit dacoity. Neither intention nor knowledge that murder would be committed in the course of the commission of such dacoity is required to be proved to exist in the contemplation of any of the said other persons. As a consequence, all persons must, therefore, possess the mens rea. They would all nevertheless be exposed to the rigour of Section 396 PPC. The provision is, therefore, sui generis, in nature, therefore, it seeks to hold persons liable for the offence.

Perusal of Section 107 PPC reveals that three ingredients are essential to dub any person as conspirator i.e. (i) instigation, (ii) engagement with co-accused, and (iii) intentional aid qua the act or omission for the purpose of completion of abetment.