RAM KHELAWAN CHOUDHARY v. STATE — 1970 DIGILAW 72 (PAT)

JUDGMENT : G. N. PRASAD, J. The appeal and the revision have been heard together. The appeal has been preferred by seven persons, one of 'whom, Ramjulum Yadav, has been convicted and sentenced to undergo rigorous imprisonment for two years under Section 380 of the Indian Penal Code. In the Criminal Revision a rule has been issued calling upon this appellant to show cause why his conviction be not altered into one under Section 395 of the Code and the sentence awarded to him be not suitably enhanced. The remaining six appellants have been convicted and sentenced to undergo rigorous imprisonment for seven years under Section 395 of the Code. One of them, however, Dasain Chaudhary (appellant no. 4), has since died and his appeal has, there fore, abated. 2. The occurrence in question is alleged to have taken place at about 7 p.m. in the evening of the 10th October 1963 in the house of Ramparichhan Chaudhary (P.W. 8) in Khajauli, about one mile away, from Khajauli Police Station, in the district of Darbhanga. The version of the occurrence which P.W. 8 has given is that while he was at his Dwar, he heard the bulla of "Daku, Daku" coming from the inner Angan of his house. On going into the Angan, he saw the seven appellants besides two or three other persons, present there and threatening his mother Janki Devi (P.W. 9) with assault and asking her not to raise 'hulla'. Among the appellants, Bhola Sah and Mauze Sah had Rassa (thick rope) in their hands, appellant Dasain Choudhary had a bamboo in his hand and appellant Ram Khelawan Choudhary was armed with a Thenga. The intruders were engaged in lifting, and removing a heavy iron• safe which used to remain in the north-western corner of the verandah of the house. Some obstruction to the removal was put forward by P.W. 8 but he was assaulted by appellant Ram Khelawan with the Thenga and appellants Raudi Yadav and Bacha Yadav caught hold of him, so that he could not resist the removal of the iron safe. Thereafter appellants Ram Khelawan, Bhola, Dasain and Mauze put the iron safe upon the bamboo, and after tying the same with the Rassa lifted and removed it to the Angan of Mossomat Jhapsi situated to the contiguous north of the house of P.W. 8. Thereafter appellants Ram Khelawan, Bhola, Dasain and Mauze put the iron safe upon the bamboo, and after tying the same with the Rassa lifted and removed it to the Angan of Mossomat Jhapsi situated to the contiguous north of the house of P.W. 8. Appellant Ramjulum, on his own part, picked up and carried away two blankets, one Dari and a few clothes from an Algani of the Osara. Ultimately, appellants Raudi and Bacha left their grip over P.W. 8 and they also went away where was a hull a at the time of the occurrence and several persons, who happened to be passing along the village road running towards the west of the Darwaza of P.W. 8, happened to drop in and see the occurrence. Among them were Kaiyam Mian (P.W. 2), Ram Lakhan Pandit (P.W. 3), Abdul Rahman (P.W. 4) and Rameshar Tanti (P.W.5). 3. After the occurrence Ramparichhan Choudhary (P.W.8) filed a complaint (Ext.1) before the Sarpanch (P.W.7) of the local Gram Panchayat. The Sarpanch examined P. W. 8 on solemn affirmation and took cognizance of the case in respect of offences under Sections 323, 379 and 380 of the Indian Penal Code. He had found a cut injury on the upper portion of the eyebrow of P.W. 8 and so he referred him to local Medical Officer; Dr. M. Konar (P.W.10), who examined P.W. 8 at 10 p.m. on the same night and found an abrasion on the right of his forehead, appearing to have been caused by some blunt weapon like lathi. On the following day (11.10.1963) the Sarpanch (P.W. 7) held an inspection of the place of occurrence, and on 14. 10. 1963, an attempt was made to bring the parties to terms, bat when no compromise could be reached, then the Sarpanch (P.W.7) made a reference to the Sub-divisional Magistrate at Madbubani for propel decision (Vide Ext. 7). 4. On receipt of the record of the case from the Gram Cutcherry, the Sub-divisional Magistrate passed an order on 5.11.1963, whereby he set aside the order of the Sarpanch (P.W.7) of taking cognizance of the case as illegal and directed a judicial inquiry by a Magistrate of the First Class. On the same day, the complainant (P.W. 8) filed a petition objecting to the proposed judicial inquiry. No order on this petition of the complainant was passed on 5.11.1963. On the same day, the complainant (P.W. 8) filed a petition objecting to the proposed judicial inquiry. No order on this petition of the complainant was passed on 5.11.1963. On 5.12.1963, however, the Sub-divisional Magistrate upon reconsideration transferred the case to a Munsif Magistrate of the Second Class for disposal. In due course, the Munsif Magistrate framed charges against the accused persons under Section 380/34, Indian Penal Code, but the complainant (P.W. 8) went up to the Sessions Judge in revision; By his order dated the 4th August 1966, the learned Sessions Judge directed that an inquiry should be held under Chanter XVIII of the Code of Criminal Procedure. Accordingly, a commitment inquiry was held, and by his order dated the 13th December 1966, the Munsif Magistrate committed the appellants to take their trial in the Court of Sessions on a charge under Section 395, Indian Penal Code. They were tried by the Third Assistant Sessions Judge of Darbhanga and convicted and sentenced as aforesaid. 5. The defence was a denial of the entire occurrence and it was claimed that the iron-safe belonged to and was in possession of Kusumwati, the wife of appellant Ram Khelawan, who was living with his mother-in-law Mossomat Jhapsi. A number of defence witnesses were also examined with a view to prove that the parties were on terms of dispute and litigation and that the appellants had been falsely implicated on that account. 6. Upon a consideration of the materials on the record, the trial court has rejected the defence and accepted the prosecution case as Substantially correct. 7. Before dealing with the points raised before us in these cases, it will be convenient to refer to an admitted genealogy of the family of Bhujangi Chaudhary. Bhujangi Chaudhary had two sons-Baijnath Choudhary and Dasain Chaudhary. Baijnath Chaudhary left behind his widow Mossomat Jhapsi and two daughters-Shankarwati and Kusumwati. Shankarwati was married to appellant Dasain Choudhury, while Kusumwati was married to appellant Ram Khelawan Choudhary. According to the prosecution, both her sons-in-law lived with Mossomat jhapsi in the house of her husband Baijnath Choudhary. In the other branch of the family of Bhujangi Chaudhary, Dasain Choudhary had a son Tejilal Chaudhary, the husband of Janki Devi (P.W.9) and the father of the complainant Ram Parichhan Choudhary (P.W. 8). According to the prosecution, both her sons-in-law lived with Mossomat jhapsi in the house of her husband Baijnath Choudhary. In the other branch of the family of Bhujangi Chaudhary, Dasain Choudhary had a son Tejilal Chaudhary, the husband of Janki Devi (P.W.9) and the father of the complainant Ram Parichhan Choudhary (P.W. 8). Tejilal had two more sons-Ram Prasad Chaudhary and Dhaniklal Choudhary, but this portion of the genealogy is not relevant in the present case. Tejilal was alive, but Baijnath Choudhary had died about six months before the present occurrence, Both the branches of the family of Bhujangi Choudhary were living in separate portions of the family house, with their court-yards connected by a Galiyari. Further, it appears that in January 1965, Mossomat Jhapsi and her two daughters had instituted a suit in the Court of the Subordinate Judge at Darbhanga for partition of the family properties by metes and bounds. 8. The first contention of Mr. Rash Bihari Singh appearing in support of the appeal is that the whole trial was illegal and without jurisdiction on the ground that no cognizance was taken by the Sub-divisional Magistrate who proceeded upon the footing that cognizance had already been taken by the Sarpanch of Khajauli Gram Panchayat, although by his order dated the 5th November, 1963, he had Set aside the said order of the Sarpanch and directed a judicial inquiry "before passing final order in this case." In this connection it has further, been contended that once an order for a judicial inquiry had been passed, it was not open to the Sub-divisional Magistrate to proceed with the case without waiting for the report of the Inquiring Magistrate. In view of these contentions of Mr. Singh, it is necessary to examine the true import of the relevant orders of the learned Sub-divisional Magistrate. On 5-11-1963, the order, of the Sarpanch taking cognizance of the case was set aside on the ground that it had been passed in contravention of Section 59 of the Bihar Pancbayat Raj Act and Rule 43(a) of the Gram Cutcherry Rule. But on the same day, the complainant filed a petition drawing the attention of the Sub-divisional Magistrate to the fact that the Sarpanch having already taken cognizance in the case, a judicial inquiry by a Magistrate was not called for. But on the same day, the complainant filed a petition drawing the attention of the Sub-divisional Magistrate to the fact that the Sarpanch having already taken cognizance in the case, a judicial inquiry by a Magistrate was not called for. It was further stated in the said petition that the true reason why the Gram Cutcherry had submitted the record of the case to the Sub-divisional Magistrate was that it had felt that in case of conviction, it could not inflict sufficient punishment and that it was a fit case for trial by a competent Magistrate “in view of the value of the articles alleged to be the subject-matter of theft" and, therefore, the case ought to be transferred to some Magistrate for trial. The learned Sub-divisional Magistrate fixed 19th November 1963 for hearing the said petition of the complainant and he heard the matter on that date. Thereupon he passed the order of the 5th December 1963 in the following terms: "A subsequent petition was filed before me on behalf of the complainant that the Sarpanch has already taken cognizance of the case, but finding the allegations beyond the competency of G.C. (Gram Cutcherry), sent it to this Court for sending the case to some competent Magistrate for trial. In the meantime a petition was filed on behalf of the accused, alleging that Sarpanch has misused his powers, and, therefore, liable for prosecution u/s 218/219 I.P.C. I have reconsidered the petition filed on behalf of the complainant. In the meantime a petition was filed on behalf of the accused, alleging that Sarpanch has misused his powers, and, therefore, liable for prosecution u/s 218/219 I.P.C. I have reconsidered the petition filed on behalf of the complainant. According to his contention, the case should proceed in the Court, as the cognizance has already been taken..........Hence the case is transferred to the file of Sri S. N. P. Sunderka for disposal" It is manifest that the Sub-divisional Magistrate passed the order dated the 5th December 1963 in exercise of his powers under Section 70 of the Bihar Panchayat Raj Act which lays down, so far as it is relevant, that: “The Sub-divisional Magistrate...may, of his own motion or on information received, withdraw any case.......pending before a bench of the Gram Cut cherry for reasons to be recorded in writing he is of opinion that such case ought not to be tried by such bench and may try the case either himself or transfer it to another competent Magistrate for trial" That was the reason why he accepted the contention made before him on behalf of the complainant that the case should proceed in the Court as cognizance bad already been taken. This contention of the complainant was borne out by the records of the Gram Cutcherry which showed that on receipt of the complaint (Ext. I), the Sarpanch (P.W.7), had examined the complainant (P.W.8) on solemn affirmation (vide Ext. 2). This is also borne out by the order-sheet (Ext. 7) of the Gram Cutcherry which shows that on 10-10-1963 itself, the Sarpanch had directed the issue of prosecution against the persons complained of. The order-sheet (Ext. 7) further shows that on 14.10.1963, the accused persons appeared before the Sarpanch who released them on bail of Rs. 25/each and thereafter he made an Effort to bring both the parties to an amicable settlement, which was unsuccessful. It was thereafter that the Sarpanch realised that the case was not to be tried by the Gram Cutcherry and so he submitted the record to the Sub-divisional Magistrate for proper orders. Under these circumstances, it is difficult to accept the contention of Mr. Singh that the case could not proceed before a regular Magistrate on the ground that the Sub-divisional Magistrate had not himself taken cognizance in the case. Under these circumstances, it is difficult to accept the contention of Mr. Singh that the case could not proceed before a regular Magistrate on the ground that the Sub-divisional Magistrate had not himself taken cognizance in the case. It has not been suggested on behalf of the appellants before us that there can be a judicial inquiry even after cognizance has been taken in the case. What has been suggested, however, is that the order of taking cognizance which the Sarpanch had passed, had been specifically set aside on the 5th November, 1963, and, therefore, on the 5th December, 1963, the process could not have been reversed. There could have been some force in this contention had the order of the 5th November, 1963, stood by itself, but it has to be remembered that as soon as the said order was passed and a judicial inquiry was directed to be made, the complainant drew the attention of the Sub-divisional Magistrate to the fact that a judicial inquiry was not called for, since, the Sarpanch had already taken cognizance in the case, and upon this petition, the Sub-divisional Magistrate fixed another date for hearing the matter, meaning thereby that he had kept his order of the 5th November, 1963, in abeyance, which is further clear from the circumstance that the records were not transmitted to the Magistrate who had been named for holding the inquiry, nor was any inquiry held by the said Magistrate. In substance, the order d the 5th November, 1963, was recalled and replaced by the order of the 5th December, 1963, after further consideration in the light of the petition which the complainant filed on the 5th November, 1963, and board on the 19th November, 1963. If the appellant thought that the order of the 5th December, 1963, was illegal or improper, then they should have moved the superior courts against that order. Not having done that, it is too late for them to agitate this matter after a regular commitment proceeding and a full-dress trial in the Sessions Court. 9. The matter can be looked at from another point of view. Assuming that there was no valid order of the Sarpanch taking cognizance of the case, the Sub-divisional Magistrate had before him the complaint (Ext. 1) for necessary action. 9. The matter can be looked at from another point of view. Assuming that there was no valid order of the Sarpanch taking cognizance of the case, the Sub-divisional Magistrate had before him the complaint (Ext. 1) for necessary action. In the normal course, it was open to him to entertain the complaint as if it bad beer presented to him in the first instance. He could have himself examined the complainant on solemn affirmation and then decided whether processes should be issued against the persons complained against or not. But if he had issued, processes against the persons complained against without examining the complainant on solemn affirmation, then that would have been a defect of which no grievance could legitimately be made by the persons complained against [Vide. the Special Bench decision in (I) Bharat Kishore Lal Singh Deo V. Judhisthir Modak (I.L.R. 9 Patna 707)]. That would have been a mere irregularity causing no prejudice to the, accused persons who have been free to place their case before the court and press for an order of discharge either under Section 252(2) or Section 209 of the Code of Criminal Procedure. The most that could be said in these circumstances would have been that the Sub-divisional Magistrate had not recorded a formal order of taking cognizance in the case. But it is well settled that the act of taking cognizance of offences disclosed in a petition of complaint is a mere mental process which is indicated by the action taken in a particular case. The mere omission to record a formal order of taking cognizance can be of no material consequence if from the terms in which the order of the court bas been passed, it can be gathered that it has taken cognizance in the case and come to the conclusion that the persons complained against should be put on trial. In the present case, it is abundantly clear from the terms of the order dated the 5th December, 1963 that the Sub-divisional Magistrate after applying his mind to the complaint (Ext. 1) had come to the conclusion that the case should proceed against the persons complained against. In other words, he took cognizance of the case on that date, otherwise be would not have passed an order transferring the case to a Magistrate for disposal. 1) had come to the conclusion that the case should proceed against the persons complained against. In other words, he took cognizance of the case on that date, otherwise be would not have passed an order transferring the case to a Magistrate for disposal. In either view of the matter, I am unable to hold that the Magistrate who ultimately dealt with the case and held the commitment inquiry under the directions of the Sessions Judge had not been duly invested with jurisdiction to deal with the case. It is significant to note that at no time before filing this appeal, did the appellants raise any objection on the score that there was no order or proper order of taking cognizance in this case. Even if there may have been any error, omission or irregularity in the proceeding taken against the appellants, as suggested above, then that cannot justify an interference by this Court in appeal in view of the provision of Section 537 of the Code of Criminal Procedure, as there is nothing to show that the alleged error, omission or irregularity has occasioned any failure of justice. 10. Mr. Singh has, however, challenged the validity of the order of recall and relied in this connection upon the decision of Sahai, J. in (2) Abdul Majid Khan V. Mathura Prasad (1956 B.L.J.R. 87). But the material facts of that case were entirely different. There, the report of the Inquiring Magistrate was not received for more than six months after the inquiry contemplated by Section 202, Code of Criminal Procedure, had been directed to be made and without waiting for the inquiry report any further, the Sub-divisional Magistrate summoned the accused to take his trial. Thereupon the accused moved this Court in revision for quashing the order directing him to be summoned. In these circumstances, Sahai, J. set aside the order directing the accused to be summoned, in view of an earlier decision of this Court, in (3) Bindeshwar V. Rambujhawan (I.L.R. 29 Patna 1959 where it was held that when a Magistrate has directed an inquiry to be made in the matter of a complaint filed before him, he cannot later recall the inquiry and summon the accused, except when there are sufficient grounds for that action. In the instant case, the accused persons did not challenge the order of the 5th December 1963 in revision, but on the contrary allowed the case to proceed,' Besides, in the circumstances to which I have referred, there were sufficient grounds for recalling the order of the 5th November 1963, which, in fact, had remained in abeyance pending consideration of the petition which the complainant (P.W.8) had filed before the Sub-divisional Magistrate on that very day. The decision of Sahai, J. can, therefore, be of no avail to the appellants at this stage. For the reasons which I have given above, I am unable to accept the contention of Mr. Singh that the whole trial was illegal I and without jurisdiction. 11. On the point of the occurrence and the participation of the appellants therein the evidence of the complainant (P.W.8) has been amply supported by the evidence of his mother (P.W.9) and his co-villagers Sita Ram Chaudhary (P.W.1), Kaiyam Mian (P.W.2), Ram Lakhan Pandit (P.W.3) and Abdul Rahman (P.W.4) besides Rameshar Tanti (P.W.5) who belongs to another village situated about half a mile away. Among them, the evidence of P.Ws. 1 and 3 has been assailed on the ground that appellant Ram Khela wan had brought a case against them under Section 107, Code of Criminal Procedure, but nothing has been brought to out' notice to show why the evidence of P.Ws. 2, 4 and 5 should not be relied upon. Although P.W. 5 is a man of a different village, it appears that he is a brick-layer and had done repair works in the houses of both Teji Lal Choudhary and Mossomat Jhapsi. Nothing was suggested to him as to why he should have sided with the prosecution party with a view to indulge in false implication against the other side. It was sought to be shown on behalf of the appellants that the iron-safe had not been removed from the Osara of P.W. 8, but that it was the apartment of Mossomat Jhapsi from long before, But this contention can never prevail in view of the evidence of the Sarpanch (P.W.7) which shows that in course of his inspection of the house of the complainant (P.W.8) which he had conducted on the very next day (11.10.1963), he had noticed the marks of keeping of iron-safe which appeared to him to be old and disturbed. This feature was noticed in the northern verandah of the southern block which was in occupation of the branch of Teji Lal Chaudhary. In view of this objective evidence which P.W. 7 has given, I have no hesitation in accepting the evidence of P. Ws. 2, 4, 5, 8, and 9 on the point of the occurrence as correct. 12. The main contention of Mr. Singh on this aspect of the prosecution case, however, is that the act of removal of the iron-safe from the house of the complainant (P.W. 8) did not involve any criminal act, inasmuch as it was done in assertion of a bonafide claim to it on behalf of Kusumwati, the wife of appellant Ram Khelawan. In this connection reliance was placed upon the evidence of P.W. 3 who stated in course of his cross examination that there was dispute between Teji Lall and Ram Khelawan with regard to the iron-safe which both of them were claiming as their own. P.W. 3 was further cross-examined with reference to some previous deposition of his and he said. “I was seeing the said iron-safe since my hosh in the house of Teji Lall. I had not stated there that it belonged to father and grand-father of Baijnath Choudhary. I had stated there due to fear that the said iron-safe was purchased by the father of Baijnath and after his (Baijnath's father's) (Sic) death it carne in possession of Baijnath Choudhary. I had also stated there that the said iron-safe was in dispute prior to occurrence." Apart from relying upon these statements of P.W.3, Mr. Singh also drew our attention to the plaint (Ext. II) of Partition Suit No. 18 of 1965 which was instituted by Mossomat" Jhapsi and her two daughters Shankarwati and Kusumwati in respect of the joint properties against Teji Lall Choudhary and other members of his family. But there are at least two circumstances which indicate quite clearly that the act of removal of the iron-safe could not possibly have been in assertion of any bonafide claim of right on the part of the appellants. One is the fact that the removal was effected during the absence of Teji Lall Choudhary from his house and despite the protest and opposition of P.Ws. 8 and 9. The other is that in the plaint (Ext. One is the fact that the removal was effected during the absence of Teji Lall Choudhary from his house and despite the protest and opposition of P.Ws. 8 and 9. The other is that in the plaint (Ext. II), the iron-safe was not included as one of the joint properties sought to be partitioned. Besides in paragraph 38 of their written statement in the Sessions Court in the present case, the appellants denied the very existence of the iron-safe and sought to rely upon several circumstances in order to show that "there was no Tejuri at all and Tejuri exists in the imagination of the prosecution witnesses only". It is manifest that it was not a case of assertion of a bonafide claim of right, but of a dishonest act actuated with the intention of having sixteen annas claim to the iron-safe by removing it from the house of Teji Lall behind his back and despite the protest of P.Ws. 8 and 9 and then disputing its very existence Mr. Singh; however, pointed out that in course of her deposition before the Sarpanch (P.W. 7), Kusumwati had claimed that ever since she attained her age of discretion, she used to see the iron-safe in the northern house, but its keys used to remain in the custody of her father so long as he was alive, and with her uncle after his death, and accordingly her husband had lifted it and kept in one of the rooms of her house. But Ext. 10 is inadmissible in evidence because Kusumwati did not figure as a witness at the trial. It was further contended that certain keys (Exts. I to 1/4) had been produced by the complainant at a late stage of the case and that they had not been proved to be 'the keys of the iron-safe in question. But even then, there could have been no justification at all for removing the iron-safe surreptitiously from the house of Teji Lall and then to falsely deny its very existence. On behalf of the appellants also no keys were produced in order to show that they had any sort of claim or possession over the iron-safe which they had tried to assert. On behalf of the appellants also no keys were produced in order to show that they had any sort of claim or possession over the iron-safe which they had tried to assert. Under the circumstances, there is no escape from the conclusion that the appellants were actuated with dishonest intention in the act of removal of the iron-safe from the house of the complainant. 13. Finally, Mr. Singh contends that upon the prosecution case no offence of dacoity punishable under Section 395, Indian Penal Code, bas been made out. This is also the question which falls for our decision in the Criminal Revision. The offence of dacoity, which has been defined in Section 391 of the Code, envisages the Commission of or attempt to commit the offence of robbery in which five or more persons are involved. Robbery' in its turn bas been defined in Section 390, the material portion of which reads: "Theft is 'robbery', if, in order to the committing of the theft, or in committing the theft, or in carrying away or attempting to carry away property obtained by the theft, the offender, for that end, voluntarily causes of 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." Upon the evidence which bas been adduced in the present case, there can be no manner of doubt that the complainant (P.W.8) was subjected to both hurt and wrongful restraint during the occurrence which undoubtedly was one of commission of theft of certain articles, including the iron-safe, from his house. But on that ground alone, the transaction cannot fall within the ambit of the offence of robbery. The crucial words in the definition of 'robbery', as pointed out in several decisions of this Court are "for that end". Therefore, the case can only fall within the ambit of robbery if it can be held with confidence that hurt and wrongful restraint was caused to the complainant (P.W.8) for the purpose of committing the theft, or in carrying away or attempting to carry away the iron-safe obtained by theft. Therefore, the case can only fall within the ambit of robbery if it can be held with confidence that hurt and wrongful restraint was caused to the complainant (P.W.8) for the purpose of committing the theft, or in carrying away or attempting to carry away the iron-safe obtained by theft. In (4) Pati Kumhar and others V. Ahiv Kumbar (A.I.R.1954 Patna 157) it was pointed out by a Bench of this Court that in dealing with the question as to whether a transaction involves an offence of robbery or not, "the very important words in the section to the effect for that end' are commonly lost sight of". It was further observed; "It is not in every case where theft has been committed as well as assault; that the transaction becomes robbery. -The assault must be found to have been committed for the purpose of committing the theft, or in carrying away or attempting to carry away property obtained by theft," In a later decision, though reported earlier namely, (5) Ramdeo Tewary V. Deonarain -Tewari and others (1953 B.L.J.R. 465), the distinction between the two classes of cases was explained by Misra, J. (as he then was) in the following manner; "It is no doubt a somewhat difficult question to decide whether on the facts of a particular case where theft is accompanied with violence the offence will fall within the definition of Section 379 and Section 323 of the Indian Penal Code or Section 390 and Section 394 of the Indian Penal Code. In some cases it might not be difficult to make a distinction where the object of the accused persons can be clearly determined from the evidence on record. In some other cases, however, a certain amount of obscurity is noticed on account of the difficulty of the court in ascertaining definitely what the object of the accused persons was. In some cases it might not be difficult to make a distinction where the object of the accused persons can be clearly determined from the evidence on record. In some other cases, however, a certain amount of obscurity is noticed on account of the difficulty of the court in ascertaining definitely what the object of the accused persons was. The words of Sections 390 and 394 as they stand might lend themselves to a construction which taker-literally might put a case on the side of the graver offence contemplated by these two sections instead of on the side of the lighter offence contemplated under Sections 379 and 323 of the Indian Penal Code." Then after referring to certain decisions and distinguishing them, his Lordship pointed out that there is no hard and fast rule which can be applied to all cases in a mechanical manner and that the court has to decide the question in the light of all the circumstances. Elaborating the point, his Lordship observed : "I personally think that if on the facts and circumstances of the case it appears that the offender is determined to effect his object of theft or extortion by overpowering his victim and in course of such an offence the offender voluntarily causes or attempts to cause death, hurt or wrongful restraint or fear of instant death or of instant hurt or of instant wrongful restraint, the offence will fall within Section 390 of the Indian Penal Code. If, however, it appears on the facts and circumstances of the case that the offender set out to effect his object in a stealthy manner without fearing any opposition, but incidentally opposition is offered and hurt is caused by the offender, the hurt would be subsidiary and it will not form part of the ingredients of the offence defined in Section 390 of the Indian Penal Code. As I have said, there is no hard and fast rule which can be applied to all cases in a mechanical manner. The Court will have to be circumspect to decide in every case whether the offence is a graver one or a lesser one." With respect, I consider that the law on the subject has been correctly elucidated by Misra, J. in the above decision. 14. The Court will have to be circumspect to decide in every case whether the offence is a graver one or a lesser one." With respect, I consider that the law on the subject has been correctly elucidated by Misra, J. in the above decision. 14. I must, therefore, examine all the facts and the circumstances of the present case in order to decide the question now under consideration. The relevant version of the complainant (P.W.8) is that when he went inside his Angan and saw the various appellants present there with their respective weapons and articles, they were threatening his mother with assault and asking her not to raise hulla. They were also trying to remove the iron-safe which was lying in the northern verandah of his apartment. He has then stated: "Thereupon I obstructed them and then I was assaulted by Ram Khela wan with the Thenga which he had put on the ground, whereas Bacha Yadav and Raudi Yadav caught hold of me but they did not release me to resist the removal of iron-safe. Thereafter Ram Khelawan, Dassain, Bhola and Mauze put the iron-safe over bamboo and after binding the same with the Rassa removed it to the Angan of Mosst. Jhapsi Ram Julum removed two blankets, one Dari and other clothes from Algani of Osara. He also decamped to the Angan of Jhapsi. Those who were catching hold of me also left the place along with other accused after releasing me." The version of his mother (P.W.9) is as follows : "They began to remove the same. Thereupon I obstructed them but I was threatened with assault. Thereupon I raised bulla when my son complainant came and obstructed. Whereupon he was assaulted with lathi and was caught by Bacha and Raudi. Thereafter other accused put the iron safe upon bamboo and after binding it with Rassa removed the same. Accused also removed blankets and other clothes from hanger. It was by Ram Julum. They all decamped into the Angan of Mosst. Jhapsi with the iron-safe and my other materials." It will be noticed that neither of these two witnesses has clarified the actual manner in which they had obstructed the removal of the iron-safe. The evidence of neither of them shows that they had offered any physical obstruction to the act of removal of the iron-safe. Jhapsi with the iron-safe and my other materials." It will be noticed that neither of these two witnesses has clarified the actual manner in which they had obstructed the removal of the iron-safe. The evidence of neither of them shows that they had offered any physical obstruction to the act of removal of the iron-safe. It may well be that the obstruction had taken the form of verbal protests or altercation. Some indication of the fact that such was the form of the obstruction about which P.Ws. 8 and 9 have spoken is to be had in the evidence of P.W. 3 who stated in course of his cross-examination as follows: "There was no other male person besides these accused' when I reached there. The altercation was going on with these accused and she was crying 'Dakoc-Dakoo. Thereupon Ram Khelawan abused her. As soon as Parichhan reached there he was assaulted and was caught. Thereafter these accused removed the iron-safe on bamboo with the help of Rassa." This seems to indicate that the hurt and wrongful restraint, to which P.W. 8 was subject, was part of the altercation which had preceded the actual removal of the iron safe and the other articles. It cannot, there fore, be held with confidence that hurt and wrongful restraint were indulged in "for that end" I within the meaning of Section 390, Indian Penal Code. These were subsidiary to the main purpose which was the removal of the iron-safe. I am, therefore, not satisfied that the transaction was one of dacoity punishable under Section 395, Indian Penal Code. The learned trial Judge also does not seem to have been confident that it was a case of dacoity, otherwise he would not have been justified in picking out one of the members of the gang for the purpose of convicting him under Section 380 of the Code. In my judgment, those who had participated in the actual removal of the iron-safe, namely, appellants Ram Khelawan, Bhola, Dasain and Mauze, besides appellant Ramjulum, who had carried away the blankets etc. most be found guilty of an offence under Section 380 of the Code and appellants Randi and Bacha who had kept the complainant (P.W.8) in their grips must be found guilty under Section 380 read with Section 34 as well as under Section 341 of the Code. most be found guilty of an offence under Section 380 of the Code and appellants Randi and Bacha who had kept the complainant (P.W.8) in their grips must be found guilty under Section 380 read with Section 34 as well as under Section 341 of the Code. But appellant Ram Khelawan who had given a Thenga blow to the complainant (P.W. 8) must also be convicted' under Section 323 of the Code. I, therefore, uphold the conviction of appellant Ramjulum Yadav under Section 380 of the Indian Penal Code as also the sentence imposed upon him thereunder. I alter the conviction of appellants Ram Khelawan Choudhary Bhola Sah and Mauze Sah into one under Section 380 of the Code and reduce the sentence to one of rigorous imprisonment for two years. I also convict appellant Ram Khelawan Chaudhary under Section 323 of the Code and impose upon him a fine of Rs. 200/- there under, with a direction that in default of the payment of the fine, he will suffer rigorus imprisonment for a further term of six months. I alter the conviction of appellants Raudi Yadav and Bacha Yadav into one under Section 380 read with Section 34 of the Code and reduce the sentence in their case to one of rigorous imprisonment for one year each. I also convict appellants Raudi Yadav and Bacha Yadav under Section 341 of the Code, but impose no separate sentence upon them there under, I make no interference in the case of appellant Dasain Choudhary since his appeal bas abated. 15. The appeal is allowed in part as indicated above and the Criminal Revision is dismissed. Appeal allowed.