The section 391 of the Code describe the number of accused persons committing the offence of a robbery conjointly committed by five or more persons, however, section 396 of the Code provides punishment to the accused involving the offence of robbery committed conjointly by five or more persons. So far as, this case is concerned only three persons have been booked for the offence of committing robbery with murder which does not fall within the category of dacoity with murder as per section 396 of the Code whose requirement of number of accused is five or more, the same has not been taken into consideration by the trial court.
The learned trial court while awarding alternative sentence was required to take into consideration the mandatory provisions of law as required under section 367 of the Act V of 1898. The trial court was obliged to state the reasons in its judgment as to why death sentence was not passed as required by sub-section (5) of section 367 of the Act V of 1898.
In the light of section 367 of the Act V of 1898 and taking into consideration the dictum laid down by the Hon’ble Supreme Court, we are inclined to accept these appeals, set aside the impugned judgment and remand the case to the Trial Court for rewriting of judgment by taking into consideration the mandatory provisions contained in section 367, Cr.P.C. with the result, the case shall be treated pending before the Trial Court and the parties shall be allowed an opportunity of addressing arguments. The matter shall be concluded preferably within one month after the receipt of this judgment.
CRIMINALAPPEALNO.01-QOF2022
SADDAM HUSSAIN
VERSUS THE STATE
16-11-2023
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