The Delhi High Court has set aside the 10-year dacoity convictions of three men accused of robbing a bus passenger of Rs 30,000 in a “lottery” racket, and convicted them instead of the lesser offence of theft, sentencing them to the nearly two years they have already served.
For dacoity under Section 391 IPC, the prosecution must prove both the commission or attempt of a robbery and that five or more persons took part, with corroborative evidence beyond a bare assertion that others were present. Theft becomes robbery under Section 390 only if the offender, for the purpose of the theft, voluntarily causes or attempts to cause death, hurt or wrongful restraint, or fear of instant death, hurt or wrongful restraint. A complainant’s general fright, without a threat of instant harm, is not enough. Where dacoity or robbery fails but the dishonest taking of property is proved, the offence is theft under Section 379 IPC.
On 10 April 2012, the complainant, Ram Yadav, boarded a bus in Laxmi Nagar, where some men were selling “lottery” boxes for Rs 50 with a promise of a Rs 250 reward. He said that Mohd. Saleem and Arshad took Rs 11,000 and Rs 19,000 from his pockets. The men then jumped off the bus, and the passenger and two patrolling constables caught the three accused, while two others, Raju and Ali, escaped. Rs 19,000 was recovered from Saleem, and seven “lottery” boxes from Asmat Ali. The trial court convicted all three under Section 395 IPC (dacoity) and Saleem under Section 412 (dishonestly receiving property stolen in a dacoity) in 2024. Justice Madhu Jain held that the prosecution proved neither dacoity nor robbery. For dacoity, five or more persons must jointly commit or attempt a robbery, but only three were tried, and the two others were a bare assertion with no supporting evidence, and the court warned against exaggerated allegations to attract graver charges. Robbery was not made out either, since the complainant never said that he was threatened with instant death, hurt or wrongful restraint, only that he got “frightened” that they might have weapons. Relying on the Supreme Court’s Mohd. Wajid ruling, the court said that fear must be of instant harm and must be caused for the purpose of committing the theft. With dacoity gone, Saleem’s conviction under Section 412 also fell. But the court found that the recovery of Rs 19,000 from Saleem and the complainant’s testimony that it was taken without his consent established theft under Sections 378 and 379 IPC. The court noted that they had spent nearly two years in jail, sentenced them to the period already undergone, and ordered their release unless wanted in another case.
Citation: Mohd Saleem v. State NCT of Delhi (with Arshad v. State of NCT of Delhi, CRL.A. 1077/2024, and Asmat Ali v. State (GNCT of Delhi), CRL.A. 1136/2024), CRL.A. 1042/2024, Delhi High Court (Justice Madhu Jain), decided on 16.10.2026 | 2026:DHC:9303
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