Judgment Ram Naresh Thakur, S. H. S. Abidi, JJ. 1. All these appellants have been convicted under Sec.396 of the Indian Penal Code and each of them has been sentenced to undergo rigorous imprisonment for ten years. 2. Manraj Rai (P. W.4) has two daughters who were to be married in the in the year 1982. To meet the expenses of their marriage he had executed a mortgage deed in respect of 6 Kathas of his land for Rs.2500/-in favour of Jagdish rai (P. W.1 ). The mortage deed was registered but on the day of registration the mortgage amount was not paid. In the evening of 4th May, 1982, P. W.4 alongwith his son Dewanand Rai (the deceased) went to the house of Jagdish Rai (P. W.1) to bring the money. P. W.1 gave them Rs.2392/-which was kept by the deceased in his waist. At about 8 P. M. in the same night P. W.4 and his deceased son left the house of Jagdish Rai for their home. When they reached near the house of one Parma Thakur, these appellants armed with lathi, bhala and farsa surrounded them. Seeing this wowkward situation, P. W.4 and his deceased son ran towards east raising alarm. When they reached in the field of nathuni Singh the appellants started assaulting Dewanand. Rajaram Rai (already dead) gave three bhala blows on the deceased. Appellant Siaram Rai assaulted dewanand with farsa, and chhuri while other appellants also assaulted him with farsa lathi and bhala appellant Siaram assaulted Manraj Rai (P. W.4) with farsa and knife and others also assaulted him with bhala, farsa and lathi. Dewanand fell down and then Rajaram Rai pressed his neck and thereafter took out the aforesaid money from his waist. P. W.2 came and fell down on the body of dewanand to save him but she also was assaulted. Mona (P. W.3) also fell on him to save him and she was also assaulted by the appellants. Dewanand died then and there P. W.4 was then taken to his and next morning he was taken to chapra hospital. 3. During the relevant period P. W.9 was the officer incharge of Khaira outpost. On 5th May, 1982 at about 10-30 A. M. When he came to khudaibagh, he learnt about some serious occurrence and then he went to village Takia where the occurrence had taken place. P. W.9 recorded the statement. 3. During the relevant period P. W.9 was the officer incharge of Khaira outpost. On 5th May, 1982 at about 10-30 A. M. When he came to khudaibagh, he learnt about some serious occurrence and then he went to village Takia where the occurrence had taken place. P. W.9 recorded the statement. of P. W.2 which is Exhibit 1, on the basis of which a formal first information report was subsequently drawn up. P. W.9 took up the investigation. He found injuries on p. W. s.2 and 3 and sent them to Chapra hospital for medical examination ; held inquest over the dead body of Dewanand, prepared inquest reportand after completing investigation, submitted chargesheet against these appellants and one rajaram Rai who were ultimately put on trial. It appears that accused Rajaram rai died before the trial commenced. 4. In the trying court charges under Sections 324 and 148 of the Indian penal Code were framed against appellants Sawalia Rai and Siaram Rai. The other five appellants were charged under Sec.147 of the Code. A charge under Sec.302/149 of the Indian Penal Code was also framed against all these appellants along with a charge under Sec.396 of the Indian Penal Code. During the trial, nine witnesses were examined on behalf of the prosecution to prove the charges. The appellants denied the allegation but no witness was examined on their befalf. After considering the entire evidence, the learned trying, court convicted the appellants under Sec.396 of the Indian Penal Code and acquitted them of all other charges which were framed against them. 5. There is sufficient evidence on the record to come to the conclusion that the deceased died of violent attack on him. Besides the oral evidence of other witnesses, there is the evidence the doctor (P. W.7) who conducted the post mortem examination on the body of the deceased. The fact that the deceased died of injuries is not even disputed by learned counsel appearing for the appellants before this Court. 6. Similarly, there is also sufficient evidence to prove that P. W.4 also received several injuries. Dr. Shambhu Nath (P. W.8) examined P. W.4 on 5th May, 1982, at 5-58 P. M. and found the following injuries on his person :- " (1)-One incised wound 2" X 1/4" X skin deep on the left frontal region of scalp. 6. Similarly, there is also sufficient evidence to prove that P. W.4 also received several injuries. Dr. Shambhu Nath (P. W.8) examined P. W.4 on 5th May, 1982, at 5-58 P. M. and found the following injuries on his person :- " (1)-One incised wound 2" X 1/4" X skin deep on the left frontal region of scalp. (2)-One incised wound about 3" x 1/4" X boue deep on the left temporal region of scalp. (3)-One incised would about 1 " x 1/4" skin deep on the left temporal region of scalp close to injury No.2 (4)-One bruise about 1" X 1/4" on mid occipital region of scalp. (5)-One bruise about 1 " X 1/4" on the mid scalp. (6)-Swelling present on both the sides of chest wall on lateral aspect present. Surgical imphysma present. (7)-Swelling on both sides of neck with surgical imphysma. (8)-One incised wound about 1/4" X 1/4" X skin deep or interdigital space between third and fourth finger of left hand. " according to him (P. W.8), injuries No. (1), (2), (3) and (8) were caused by sharp cutting weapon such as chhura and flrsa and the rest were caused by hard blunt substance like lathi. In his opinion, injury No. (6) was grievous in nature. Therefore, the fact that P. W.4 also received injuries has also been proved. This fact is also not disputed by the defence i. e. the appellants before this Court. The dispute is with regard to the time and manner of the occurrence. 7. Learned counsel appearing for the appellants had tried to show that the occurrence did not take place at the time as alleged by the prosecution and in this connection he has referred to the medical evidence of P. Ws.6 and 8. It has also been argued on behalf of the appellants that no offence under Section 396 of the Indian Penal Code is made out against any of the appellants on the basis of the evidence adduced on behalf of the prosecution. 8. Dr. Gouri Shanker Prasad Sinha (P. W.6) had examined P. W.2 devasi Devi on 6th May, 1982 at 7-45 A. M. and found one swelling 2" X 1" on the left shoulder. The age was within 24 hours and the nature of the injury was found to be simple. 8. Dr. Gouri Shanker Prasad Sinha (P. W.6) had examined P. W.2 devasi Devi on 6th May, 1982 at 7-45 A. M. and found one swelling 2" X 1" on the left shoulder. The age was within 24 hours and the nature of the injury was found to be simple. On the same day and at the same time he examined P. W.3 mona and found one swelling on her right arm. The age of the injury was within 24 hours and the nature was simple. The injury to both of them was caused by hard blunt substance. In cross-examination he has said that the injury was superficial. P. W.8, as stated above, had examined P. W.4 on 5th May, 1982 at 5-58 P. M. and had found the age of the injuries within 12 hours. He has further said that he gave the approximate age of the injuries but in answer to court question he has said that the approximate age given by him may vary by 2 to 3 hours either way. According to the prosecution case, the occurrence is alleged to have taken place on 4th May, 1982 at 8-30 P. M. P. W.4 was examined on 5th May, 1982 at 5.58 P. M. Therefore, his injuries, according to P. W.8 were caused in the morning of 5th May, 1982. Similarly, according to P. W.6 the injury found on P. Ws.2 and 3 were aged within 24 hours when they were examined on 6th May, 1982 at 7-45 A. M. Thus, according to P. W.6, injuries on P. Ws.2 and 3 were caused in the morning of 5th May, 1982. Therefore, if the evidence of P. Ws.6 and 8 is read together, it appears that all the three injured received the injuries in the morning of 5th May, 1982, and not in the evening of 4th May, 1982, at about 8-30 P. M. 9. P. W.1 is the man who is alleged to have handed over the money to the deceased on the day of occurrence. According to him he had handed over rs.2392/-to Manraj Rai (P. W.4) at about 3 to 4 P. M. Thereafter he was permitted to be cross-examined by the Public Prosecutor and in cross-examination, in paragraph 9 he has said that he had given money on Monday but the occur-rance is alleged to have taken place on Tuesday. 10. According to him he had handed over rs.2392/-to Manraj Rai (P. W.4) at about 3 to 4 P. M. Thereafter he was permitted to be cross-examined by the Public Prosecutor and in cross-examination, in paragraph 9 he has said that he had given money on Monday but the occur-rance is alleged to have taken place on Tuesday. 10. Apart from the aforesaid discrepancies, in our considered view, on the evidence led by the prosecution, no offence under Sec.396 of the Indian penal Code is made out. To appreciate the evidence, it is essential to see the definition of robbery and dacoity. Sec.390 of the Indian Penal Code defines robbery and it reads thus ;- "theft is robbery if, in order to the committing of the theft, or in 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, or fear of instant death or of instant hurt, or of instant wrongful restraint. section 391 of the Indian Penal Code defines dacoity which reads as follows :- "when five or more persons conjointly commit or attempt to commit a robbery, or where the whole number of persons conjointly committing or attempting to commit a robbery, and persons present and aiding such commission or attempt, amount to five or more, every person so committing, attempting or aiding, is said to commit dacoity. " From a mere perusal of Sec.390 it is quite clear that theft is robbery when in order to the committing of 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. . . Therefore, if any violence or assault is caused for that end, then alone dacoity can be alleged to have been committed and if in that dacoity a person is killed while committing dacoity, an offence under Sec.396 of the Indian Penal Code will be made out. 11. In the present case if the entire evidence is read carefully, it will indicate that the criminals had the intention to assault and kill. The theft was an individual act of Rajaram Rai who is already dead. 11. In the present case if the entire evidence is read carefully, it will indicate that the criminals had the intention to assault and kill. The theft was an individual act of Rajaram Rai who is already dead. The fardbeyan also says- "pachis sao rupeya lekar apna ghar ja rahe the jab dono aadmi parma Lohar ke ghar se purab jakar dakhin taraf hue ki ekaek rajaram Rai, Siaram Rai pe. Ramadas Rai, Sawali Rai pe. Siaram rai, Sheo Rai pe. namalum, Shambhu Rai pe. Ramkishun Rai, sheonarain Rai pe. Dhanukdhari Rai, Sheodutt Rai pe. namalum wo Radha Rai pe. Marai Rai sa. Chhotka Takia tha. Jalalpur. hathohath lathi, bhala, farsa, chhuri aadi se laish hokar marne ke liye chahethe. " Similarly, in the evidence in court, there is consistent evidence that when the deceased and P. W.4 were coming, these appellants surrounded them and on chased, started assaulting the deceased and P. W.4 and while the deceased was being assaulted Rajaram Rai took out the money from the waist of the deceased therefore, from the evidence it cannot be inferred that the death and the assault were caused for committing the theft or in order to commit the theft or that the violence was caused with that end to commit the theft. In this connection, learned counsel appearing for the appellants has cited the decision of this Court in pati Kumhar and others V/s. Ahiv Kumahr, A. I. R.1954 Patna 157 where it has been held:- "so far as the question of theft is concerned, the very important words in the section to the effect for that end are commonly lost sight of. 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. The necessary ingredients to make the allegations of the complainant amount to a case of robbery against the accused are not, in my opinion, disclosed in the petition of complaint. " Jn the present case also the evidence does not disclose the offence under Section 396 of the Indian Penal Code. The necessary ingredients to make the allegations of the complainant amount to a case of robbery against the accused are not, in my opinion, disclosed in the petition of complaint. " Jn the present case also the evidence does not disclose the offence under Section 396 of the Indian Penal Code. 12 Unfortunately, in the present case there has been acquittal of the appellants in respect of charges under Sections 302/149, 147, 148 and 324 of the indian Penal Code. We do not know what compelled the Public Prosecutor before the trying court for not pressing the prosecution case in respect of these charges. We cannot say anything father here. But the fact remains that the appellants have been acquitted of these charges and have been convicted only under Sec.396 of the Indian Penal Code which offence, as discussed above, is not made out in the present case. 13. Accordingly, the appeal is allowed and the order of conviction and sentence passed against the appellants is set aside. In the circumstances discussed above, the rule of enhancement is discharged. Let appellants Shambhu Rai and sawalia Rai be released from jail custody forthwith, if not wanted in some other case, and the remaining appellants be discharged from their bail bonds. Appeal allowed.