JUDGMENT H. C. P. Tripathi, J. - These two appeals Nos. 1689 and 1714 of 1962 are directed against a judgment of the Civil and Sessions Judge, Bulandshahr, convicting all the appellants to seven years R. I. each under Section 457, I.P.C. and also under Section 395, I.P.C. respectively. Appeal No. 1689 of 1962 has been filed by Ramphal and Khazangir and appeal No. 1714 has been filed by Jita, Kripal, Babu and Khacheru. 2. The prosecution story in brief is as follows: During the night between August 20 and 21, 1961, Raghubir Saran Nagar (P.W. 1) was sleeping at his house in village Moharsa. His four bullocks were tethered in his gher. At about 2 a.m. he woke up and found his bullocks missing. He also saw that the northern wall of his gher was cut and dismantled. He awakened his nephew Mewa Ram and Kailash and also his neighbours Rameshwar Dayal, Laltu and Jai Prakash and informed them about the theft. Mewa Ram and Kailash then accompanied by the aforesaid three neighbours immediately started in search of the missing bullocks. At about 6 a.m. when they reached near the village Mawai, they saw the four bullocks being taken away on the canal patri by the six appellants, four of whom, viz., Jeeta, Kripal, Ramphal and Khazan Gir were holding the strings of the bullocks while the other two appellants were driving them from behind with lathis. Mewa Ram and his companions raised an alarm and tried to capture the bullocks and the miscreants, but the appellants beat them with lathis and succeeded in bolting away from the scene along with the bullocks. Mewa Ram and his companions thereafter returned to their village and narrated the incident to Raghubir Saran who got a report written by Mewa Ram and handed over the same at the police station on August 21, 1961 at about 11 a.m. in which he nominated all the six appellants. 3. On the basis of this report, a case was registered and after the completion of the investigation, the appellants were sent up for trial. 4. All the appellants pleaded not guilty at the trial. Jeeta had asserted that the people of Moharsa had got him once implicated in a case under Section 109, Cr.P.C. which had resulted in his acquittal and they had again implicated him in this case because of that enmity. 4. All the appellants pleaded not guilty at the trial. Jeeta had asserted that the people of Moharsa had got him once implicated in a case under Section 109, Cr.P.C. which had resulted in his acquittal and they had again implicated him in this case because of that enmity. Kripal had stated that he was a cousin of Jeeta and had been implicated by the witnesses because of their enmity with him. Babu and Khacheru had also asserted that they had been implicated in the case because they happened to be uncles of Jeeta by family relationship, with whom the prosecution witnesses of Moharsa had deep-seated enmity. Khazangir and Ramphal, who are residents of village Moharsa, had asserted that they had enmity with Raghubir Saran Nagar and other prosecution witnesses and had been falsely implicated in the case on account of that enmity. None of them, however, produced any oral evidence in defence. 5. Mewa Ram and Kailash, nephews of complainant, and Rameshwar Dayal had received injuries. They were medically examined by Dr. M. R. Shetrapal (P.W. 10) Medical Officer, Government Dispensary, Anupshahr, on January 28, 1961 between 9.45 and 10.10 p.m. Mewa I Ram had three contusions and Rameshwar Dayal had one contusion on their person, all of which had been caused by I some blunt weapon like lathi and were about half a day old. Kailash had six injuries on his person which included three contusions and . three swellings caused by some blunt weapon, and of g the same duration. 6. The prosecution case rests on the testimony of Raghubir Saran Nagar, his nephews Mewa Ram and Kailash (P. Ws. 1, 2, 3), their neighbous Rameshwar Dayal and Jai Prakash (P. Ws, and 6) and Mukat Lal and Khan Chand, the two residents of village Mowai. Khan Chand was, however declared hostile by the prosecution. 7. Raghubir Saran Nagar had stated that when he got up at about 2 a.m. in the night of the incident, he found his four bullocks missing from his gher. He also found that the northern wall of 9 the gher had been cut and dismantled. He then awakened his nephews and neighbours and informed them about the theft of the bullocks. He also found that the northern wall of 9 the gher had been cut and dismantled. He then awakened his nephews and neighbours and informed them about the theft of the bullocks. Mewa Ram, Kailash and Rameshwar Dayal had stated that they had gone in search of the bullocks in the night, that they had seen the four bullocks being taken away by the six appellants near village Mowai at about 6 a.m. and when they tried to intercept them the appellants assaulted them with lathis and fled away with the bullocks towards the river Ganga, on the arrival of the witnesses from village Mowai. Jai Prakash and Mukat Lal have corroborated p the statements of the three injured witnesses in all material particulars. 8. Sri Jaipal Singh (P.W. 9), who had investigated the case, had deposed that when he reached the village Moharsa on August 21, 1961 at 3.30, p.m. he had found an opening recently made in the northern wall of the gher of the complainant through which bullocks could easily pass away, and which he had indicated in the site plan (Ex. Ka 10). This circumstance coupled with the oral testimony of Raghubir Saran Nagar establishes that his bullocks, which were tethered in the night of the incident in the gher, had been removed from there by some miscreants by making an opening in the wall. 9. The three injured witnesses Mewa Ram, Kailash and Rameshwar Dayal have stated that they had found all the six appellants driving the bullocks and when they challenged them they were beaten with lathis. Their statement has been corroborated as indicated earlier, by Jai Prakash and Mukat, whose testimony does not suffer from any blemish. The presence of numerous injuries on the person of Mewa Ram, Kailash and Rameshwar Dayal unmistakeably indicates that they had come in contact with the miscreants, who were either themselves responsible for removing the bullocks from the gher or had been carrying them knowing them to be stolen property, and when intercepted by the I witnesses had caused them injuries. Their testimony finds corroboration from the statement of Jai Prakash, who is their close neighbour and must have in all probability accompanied them in the search of the bullocks. All of them had known the appellants from before and I am satisfied that the version of the incident as deposed to by them is substantially correct. Their testimony finds corroboration from the statement of Jai Prakash, who is their close neighbour and must have in all probability accompanied them in the search of the bullocks. All of them had known the appellants from before and I am satisfied that the version of the incident as deposed to by them is substantially correct. 10. The question which remains for consideration is whether the participation of all or any of the appellants in the commission of the crime has been proved beyond doubt, and what is the offence that had been committed by them. 11. Admittedly none of the prosecution witnesses had seen any one removing the bullocks from the gher of the complainant. They had only seen the appellants driving the bullocks on the next morning, at a distance of about six miles from the residential village of the complainant. The trial court has held that, as the appellants were found in possession of the stolen bullocks soon after the theft, they were the thieves who had removed the bullocks from the gher. The trial Judge has further found that as the appellants had used force and caused hurt to the witnesses while carrying away the property obtained by theft, they were also liable to be punished under Section 395, I.P.C. 12. Learned counsel for the appellants has contended that there is an apparent fallacy in the reasoning of the trial court on the basis of which he has held the appellants punishable under Section 457, and 395, I.P.C. Learned counsel contends that if a person is found in possession of stolen property soon after the theft there are two alternative presumptions which arise against him, i.e., either he is a thief or he has received the goods knowing them to be stolen. Learned counsel contends that as four of the appellants are the residents of a different village, there is no reason why, on the basis of the presumption which is deducible under Section 114 of the Evidence Act, they should be necessarily held to have themselves committed the theft of the bullocks. Learned counsel contends that as four of the appellants are the residents of a different village, there is no reason why, on the basis of the presumption which is deducible under Section 114 of the Evidence Act, they should be necessarily held to have themselves committed the theft of the bullocks. Learned counsel has argued that there is neither any oral evidence nor any circumstance established on the record which indicates that the appellants had committed the theft of the bullocks from the gher of the complainant, and therefore, under the law, the presumption, which is less onerous to the accused, should have been drawn by the trial court. In other words, the contention of the learned counsel is that, on the facts found established by the trial court the only presumption which could have been drawn against the appellants was that they had received the bullocks knowing them to be stolen and not that they had stolen them. There is force in these arguments. 13. A number of persons were seen by the witnesses going alone with the stolen bullocks. It cannot be presumed that all of them must necessarily have entered the gher of the complainant and removed the bullocks therefrom. It is quite probable that only some of them or even others had committed trespass in the gher and had removed the bullocks therefrom and later on handed them over to the appellants for being driven away. In the circumstances, I think the only presumption which can be drawn from the facts of the case against all or any of the appellants is that they were found in possession of the stolen property knowing them to be stolen. In this view of the law, the appellants can be convicted under Section 411, I.P.C. but certainly not under Section 457, I.P.C. 14. As regards the charge under Section 395, I.P.C., learned counsel contends that once it is held that the appellants were not the thieves, they could not be convicted for robbery even if they had used force in carrying away the stolen property. There is substance in this argument. 15. The relevant portion of Section 390 of the Indian Penal Code runs as. follows: "In all robbery there is either theft or extortion. There is substance in this argument. 15. The relevant portion of Section 390 of the Indian Penal Code runs as. follows: "In all robbery there is either theft or extortion. Theft is robbery if, in order to the committing of the theft, or in carrying away or attempting to carry away property obtained by the theft, the offender, for that end, voluntarily causes or attempts to cause to any person death or hurt or wrongful restraint, or fear of instant death or of instant hurt or of instant wrongful restraint.........." 16. From this, it is obvious that theft or extortion is an essential ingredient in robbery. Therefore, when the section mentions that theft becomes robbery if in carrying away or attempting to carry away property obtained by the theft, the offender, for that end, voluntarily causes or attempts to cause to any person death or hurt or fear of instant death or instant hurt, it uses the word offender as a synonim for the thief who had committed the theft and then had used force in carrying away or attempting to carry away property obtained by the theft. If the word offender as occurring in the section, is interpreted so as to include even a person who himself had not committed the theft but was only carrying away the stolen property and for that end had caused hurt to any person, then the first clause of the section, which provides that in all robbery there is either theft or extortion will be made redundant. I am, therefore, of the opinion that all or any of the appellants could not be convicted under Section 395, I.P.C. for the hurt which they had caused to the witnesses while attempting to carry away the stolen property, but are punishable under Section 323 read with Section 34 of the Indian Penal Code for causing them simple hurts. 17. Learned counsel for Ramphal and Khazangir has argued that the prosecution case against them is not free from doubt. Mukat Lal (P.W. 6) had stated that he knew them from before but he could not identify them when they were put up for identification by him in the court of Sri Oberoi, Magistrate, 1st Class. His evidence, therefore, is valueless as regards these appellants. Mukat Lal (P.W. 6) had stated that he knew them from before but he could not identify them when they were put up for identification by him in the court of Sri Oberoi, Magistrate, 1st Class. His evidence, therefore, is valueless as regards these appellants. The other witnesses Mewa Ram, Kailash, Rameshwar Dayal and Jai Prakash are residents of village Moharsa, which is also the residential village of these two : appellants. All of them are in a way partisans of the complainant Raghubir Saran Nagar and had admitted deep-seated enmity with these two appellants. Certain documents have also been filed by these appellants which indicate that there had been repeated litigations between the Gosais and Nagar Brahmins of the village. The two appellants are Gosais while the complainant is a Nagar Brahmin. The trial court has held that the witnesses of Moharsa have been proved to be enmical towards these appellants and are interrelated with each other. There being no other independent evidence in corroboration of these witnesses, it will not be safe to convict these two appellants on the basis of their testimony. 18. The result is that the appeal No. 1689 of 1962 is allowed and the conviction and sentences of the appellants Ramphal and Khazan Gir are set aside. They are on bail. Their bail-bonds are discharged. They need not surrender. 19. The conviction of appellants Jeeta, Kripal, Babu and Khacheru under Sections 457 and 395, I.P.C. and the sentence of 7 years R. I. awarded to each of them by the trial court under each count are set aside. They are all convicted under Section 411, I.P.C. and each of them is sentenced to undergo R. I. for 2 years. They are further convicted under Section 323, I.P.C. read with Section 34, I.P.C. for having caused hurt to Kailash, Mewa Ram and Rameshwar Dayal and each of them is sentenced to undergo R. I. for six months under that count. The sentences are directed to run consecutively. With this modification in the sentence, their appeal No, 1714 of 1962 is dismissed. They are on bail. Their bail bonds are cancelled. They must surrender forthwith to serve out their sentences.