JUDGMENT 1. - This appeal is directed against the judgment dated December 18, 1975 of the learned Sessions Judge, Bharatpur, whereby he convicted and sentenced accused appellants Jagan Singh, Hari Singh and Maharaj Singh as under: Harisingh U/s 392 IPC 5 years rigorous imprisonment and a fine of Rs. 500/-. In default of the payment of fine to further undergo six months rigorous imprisonment, U/s 120 B IPC. Same as above jagan Singh and Maharaj Singh U/s 392/34 IPC 5 years' rigorous imprisonment and a fine of Rs. 500/-. In default of the payment of fine to undergo rigorous imprisonment for a further period of six months. U/s 120 B IPC. Same as above.The substantive sentences of imprisonment were ordered to run concurrently. 2. Tersely speaking shorn of unnecessary details the prosecution story as disclosed at the trial is that PW I Jangjeet Singh was the Chairman of the Co-operative Society, Nayagaon and accused Jagan Singh was its Secretary. An amount of Rs. 23000/- was realised by the Sarpanch on behalf of the Society and it was to be deposited in Bank at Roopwas. On May 17, 1975 PW 1 Jangjeet Singh in the Company of Jagan Singh started from his village for Roopwas. He had kept a sum of Rs. 19000/- in a lather bag and Rs. 4,000/- in his pocket. In the way Kanchan Singh PW 2 met them. After some time Chandan Singh PW 3 also met them. All of them started together for the village Roopwas. When Jangjeet Singh and his party reached near Nadia, two unknown persons (later on identified as Hari Singh and Maharaj Singh) met them. After for a while all of them sat under a Neem tree near village Chekora at 9.30 a.m. for smoking bidi. Jangjeet Singh lighted the bidi after putting the bag containing the currency notes on the ground. Hari Singh accused availed of the opportunity and lifted the bag and ran away. Maharaj Singh also followed him. They were chased by other persons. At that stage Maharajsingh fired a shot from his gun. On the hue and cry raised by Jangjeetsingh and others the villagers of Chekora and Panduri also followed the accused and they caught hold of Maharajsingh and Hari Singh with the leather bag and a gun. It is the common case of the parties that at the time of running away Hari Singh threw Rs. On the hue and cry raised by Jangjeetsingh and others the villagers of Chekora and Panduri also followed the accused and they caught hold of Maharajsingh and Hari Singh with the leather bag and a gun. It is the common case of the parties that at the time of running away Hari Singh threw Rs. 9,800/- out of the bag, which was being carried by him. The first information report Ex P 9 of this occurrence was lodged at the Police Station, Roopwas on May 17, 1975 at 11.45 a.m. During the course of investigation Rs. 9,800/- were seized by the police vide Ex/4 Accused Maharaj Singh, Hari Singh and Jagan Singh were arrested on the spot vide arrest memos Ex P 6, Ex P 7 and Ex P 8 respectively. At the time of arrest gun article 2 was seized from the possession of accused Maharaj Singh vide memo Ex P 5 The police after investigation submitted a challan against all the three accused in the court of Munsiff Magistrate, Bavana, who committed the accused to the court of Sessions Judge, Bharatpur for taking their trial under Section 39, read with section 34 1PC. 3. The accused pleaded not guilty to the charge and the prosecution examined 7 witnesses in support of their case, out of whom PW 1 Jangjeet Singh is the Sarpanch from whose possession accused Hari Singh is alleged to have taken away the money bag by committing robbery. PW 2 Kanchan Singh and PW 3 Chandan Singh have been examined as eye-witnesses of the occurrence. Pannalal PW 7 is the investigating officer in the case. 4. The accused dented their complicity in the crime. They examined two witnesses in their defence. 5. Learned Sessions Judge held that the defence evidence was not reliable. Placing reliance on the statements of the eye witnesses of the occurrence supported on the recovery of the currency notes and judicial confession made by accused Hari Singh, the learned, Judge convicted the Accused appellants and sentenced them as mentioned above. 6. Aggrieved with the aforesaid judgment, the accused appellants have come up in appeal before this Court. 7. Placing reliance on the statements of the eye witnesses of the occurrence supported on the recovery of the currency notes and judicial confession made by accused Hari Singh, the learned, Judge convicted the Accused appellants and sentenced them as mentioned above. 6. Aggrieved with the aforesaid judgment, the accused appellants have come up in appeal before this Court. 7. It is not necessary for me to consider the evidence in details and all the circumstances brought forth on the record by the prosecution to establish the guilt of the accused, as the learned counsel for the applicants has conceded that there are no sufficient grounds made out for challenging the fact that the accused Harisingh had taken away the bag from the place where Jangjeet Singh has placed it. However, I have also looked into the relevant portions of the record and am satisfied that the prosecution has established beyond reasonable doubt by overwhelming evidence that accused Hari Singh took away the bag lying there and while he was running he was followed by Maharaj Singh and after going for a while Maharaj Singh fired a shot towards the chasing party. 8. Two questions have been raised before me, firstly that the case under Section 120 B IPC has not keen made out against any of the accused-appellant Secondly there is no evidence on record to hold that Maharaj Singh fired a shot to facilitate the carrying away of the stolen property. The learned counsel for the accused-appellants has very vehemently urged that the possibility of Maharaj Singh's firing a shot to save himself from being caught cannot be ruled out and if two views of the same evidence are possible, a favourable view to the accused should be taken. 9. The entire evidence regarding criminal conspiracy is circumstantial. The first circumstance relied upon by the prosecution is that jagansingh accused was in know of the fact that Jagnjeet Singh will be taking Rs. 23,000/- from his village to he deposited in the Bank at Roopwas. The prosecution suggestion that unless, Jagan Singh accused would not have conspired with the two accused, they would not have appeared on the scene of occurrence at the relevant time and decamped with the property, to my mind, is net tenable. 23,000/- from his village to he deposited in the Bank at Roopwas. The prosecution suggestion that unless, Jagan Singh accused would not have conspired with the two accused, they would not have appeared on the scene of occurrence at the relevant time and decamped with the property, to my mind, is net tenable. Even if it is held that accused Jagan Singh informed his brother accused Hari Singh about the former's leaving the village with Jangjeet Singh, who was to carry Rs. 23000/- it does not lead to the culpability in the part of the three accused in the matter of criminal conspiracy. This circumstance can be innocuous. It cannot be necessary inference that accuse Jagan Singh guided his brother or conspired with to commit the offence of robbery. The other is that when Hari Singh was running away with the bag containing the money he did not chase him and did not give the names of the accused person. This evidence falls much short of the requirements of the provisions of Section 120 B IPC. No doubt generally direct evidence regarding conspiracy cannot be gathered, but it is a well settled position of law that circumstantial evidence should be of type which should not be explicable to any other hypothesis except the guilt of the accused. It is not sufficient in order to convict a person under the section merely to prove that he had been associating with the accused at a certain place or time or he was in know of certain facts within might facilitate the commission of the crime or that he was a close relative of the accused or was making an attempt to conceal the identify of the accused after the commission of the crime. The other circumstances relied upon the learned Sessions Judge, who convicted all the three accused under section 120 B IPC is the extra judicial confession made by Hari Singh before Jangjeet Singh and other. Jangjeet Singh stated that when Jagan Singh was being beaten Harisingh admitted that his brother Jagan Singh appellant told him that on May 17, 1975 the former will go with prosecution witness Jangjeet Singh to deposit money in the Bank and latter should rob them off the money and make good their escape by firing a shot. Jangjeet Singh stated that when Jagan Singh was being beaten Harisingh admitted that his brother Jagan Singh appellant told him that on May 17, 1975 the former will go with prosecution witness Jangjeet Singh to deposit money in the Bank and latter should rob them off the money and make good their escape by firing a shot. This evidence relied upon by the learned Sessions Judge cannot be of much avail to the prosecution primarily because Hari Singh made such a statement coercion. Secondly such an extra judicial confession which is alleged to have been made by Harisingh cannot form the basis of the conviction of an accused. This evidence, even if held to be admissible and reliable is not sufficiently to bring home the guilt to any of the accused-appellants under section 120B IPC. 10. Having dealt with the inducement of conspiracy, now I will deal with the individual' cases of all the accused. Except the evidence of conspiracy and conduct noted above, there is no evidence ti incriminate the accused appellant Jagan Singh. From the above narration of facts and discussion of evidence I am of the opinion, that the prosecution his failed to bring home the guilt accused Jagan Singh. 11. The next question for consideration is whether the two appellants Harisingh and Maharaj Singh can be found guilty of robbery. As defined in Section 390 IPC `theft, becomes robbery if in order to 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 or attempts, to cause, to any person death or hurt, or wrongful restraint for fear or instant death or of instant hurt, or of instant wrongful restraint. It is the requirement of the law, that the use of violence by the offender must be for the purpose of committing the theft or for the purpose of removing any article of theft, but if it is of otherwise in order to help the offender to escape or to make good his own escape, the act may not 'come within the definition of robbery. In the case on hand, the theft was committed as soon as Harisingh lifted the bag and ran away with it. In the case on hand, the theft was committed as soon as Harisingh lifted the bag and ran away with it. The shot fired at by Maharaj Singh subsequently in his attempt to escape cannot be termed to be as facilitating for removing article. The theft was already committed by Harisingh by removing the bag. Maharaj Singh appellant was not found carrying stolen article. It may be that the act of Maharaj, Singh in firing the short towards the chasers may have assisted the other accused to make good his escape with bag, but it cannot necessarily be said that the use of violence by Maharaj Singh was coregulated to help the removal of the stolen article. The use of violence could also be to enable Maharaj Singh to save himself from the clutches of the chasers. If both the views are possible, one favourable to the appellant should be accepted. In the circumstances of the case and the evidence on record, it would not be safe to uphold the conviction of the accused Harisingh under section 392 IPC and accused Maharaj Singh under Section 392/34 of 120B IPC. 12. The learned counsel for the appellants is correct in submitting that on proved facts of the case accused Harisingh can be held guilty of the offence punishable under section 379 IPC and Maharaja Singh under section 392/34 IPC. 13. The net result of the above discussion is that accused-appellant Jagan Singh is acquitted of all the charges framed against him and the conviction and sentences awarded to him under Sections 392/34 and 120 B IPC are set aside. 14. The conviction and sentence awarded to accused appellant Hari Singh under section 120 B IPC ate set aside. His conviction under section 392 IPC is converted to one under section 379 IPC and he is sentenced two years' imprisonment in place of five years' rigorous imprisonment and a fine of Rs. 500. 15. The conviction of accused appellant Maharaj Singh is converted from section 392/34 & 120 B IPC to one u/s 379/34 IPC. He is also sentenced to undergo two years' rigorous imprisonment instead of 5 years' rigorous imprisonment and a fine of Rs. 500/-. 16. It is, however, made clear that the accused appellants Harisingh and Maharaj Singh shall be entitled to the benefit of section 428 CrPC. He is also sentenced to undergo two years' rigorous imprisonment instead of 5 years' rigorous imprisonment and a fine of Rs. 500/-. 16. It is, however, made clear that the accused appellants Harisingh and Maharaj Singh shall be entitled to the benefit of section 428 CrPC. The period of the detention, if any, undergone by them during investigation, or inquiry, or trial of the case shall be set off against the term of imprisonment imposed on them by this court.Order accordingly. *******