offence u/s 398 ipc with only four accused will not lie ?
WHATSAPP 91-8075113965
(Querist) 01 September 2010
This query is : Open
sir,
in one of my case, the allegation is that 4 accused persons showed a knife to the defacto-complainant and snatched a gold chain from him and subsequently after so many days, gave it to the 5 th accused to sell the gold ornament.here the offences charged against the accused are u/s 392, 398, r/w 34 of IPC against accused No. 1 to 4 and an offence u/s 414 of IPC seperately.
now , in this case, charge has been framed and denied by the accused,summons has been issued to the witnesses.
now, my doubt is that, here the only sessions offence is 398 IPC. it requires 5 or more persons to commit the offence. but, here, in this case, even though now there are 5 accused persons, at the time of commission of offence there were only 4 accused persons. or in otherwords, accused No.5 has not ever took part in the dacoity at all, the only allegation against her is that she has assisted in concealment of stolen property (u/s 414 IPC).
so, according to me 398 will not lie as there were only 4 accused persons at the time of dacoity.
if at all, 392 may lie.so, 392 IPC and the other offence charged against accused No. 5 , 414 IPC, is also an offence triable by magistrate only.but, now, as sec. 398 has been incorporated now it is in sessions court.now, charge has been framed and denied by the accused. so, i cannot argue for discharge also.
what is the remedy ?
SALIL KUMAR.P
ADVOCATE
THALASSERY-670101
9447536929
advocatesalil@gmail.com
