JUDGMENT 1. - This appeal is directed against the judgment dated 31st July, 1979. passed by the learned Sessions Judge, Jhalawar, in Sessions case No. 16 of 1978, where by he convicted the accused appellants as under : 1. Accused Kanhaiya : u/S. 397 IPC 7 years R.I. and a fine of Rs. 700/- in default of payment of fine one year rigorous imprisonment u/S. 394 IPC 3 years R.I. and a fine of Rs. 200/- in default of payment of fine 2 months rigorous imprisonment u/S 326 IPC 4 years R.I. and a fine of Rs. 500/- in default of payment of fine one year R.I. 2. Accused Baput : u/S. 394 IPC 3 years R.I. and a fine of Rs. 200/- in default of payment of fine to undergo further imprisonment of 2 months R.I. u/S. 326/34 IPC One year R.I. and a fine nil 2. The learned Sessions Judge, further directed that all the sentences imposed on the accused persons will run concurrently and he also directed to pay Rs. 1,000/- to the injured Mangilal son of Shri Kishana. 3. The facts of the case in brief are that the accused party and the complainant party used to graze the cattles in the jungle which is near by the village. It is further alleged that on 15th September, 1977, at about 3.00 p.m., accused appellants Kanhaiyalal and Bapu, tried to take away the cattle of i.e complainant Mangilal, P.W.11. Mangilal, was also present. Accused appellant Bapu gathered the cattles and the another co-accused Kanhaiyalal, inflicted a gandasi blow on the head of the injured Mangilal, and the accused then went towards other co-accused Bapu, who was carrying awary the oxen. It is further all edged that the injured gave a alarm `Dorjo Dorjo the accused persons are carrying away the oxen. It is further alleged that accused Bapu, gave a lathi, blow on the jaw of the injured Mangilal On hearing the hue and cry Devilal, Heera Lal. Gendalal, and another Mangilal, ran towards the accused persons and chased the accused but could not succeed to catch them, and returned back at the place where injured Mangilal, was present and they found him un-couscous and blood was oozing from the head of the injured. The rojnamcha report Ex P. 11, bearing no. Gendalal, and another Mangilal, ran towards the accused persons and chased the accused but could not succeed to catch them, and returned back at the place where injured Mangilal, was present and they found him un-couscous and blood was oozing from the head of the injured. The rojnamcha report Ex P. 11, bearing no. 384 of the incident was sent to the In-charge, Police Station, Javer, on 15.9.77, at about 8 30 p m. On the basis of said report, In-charge, Police Station, Manohar, Distt, Jhalawar recorded the F.I.R. bearing No. 154/77 which is Ex P. 10, after two days i.e. 18th September 1977. 4. Learned counsel for the appellant vehemently argued the case on behalf of the appellants in a lucide way and very seldom we find the Advocates, who prepared the case very well and this is a case in which the Advocate, argued in a lucid way. PW 11, Mangilal, is the injured person who sustained injuries on his person and the FIR of the incident was lodged by one Devilal, PW 8. Devilal, has turned hostile and he does not support the case of the prosecution. Ex. P. 10, is the F.I.R. which is based on the rojnamcha report bearing No. 393 Ex P 16. In Ex. P. 10, i.e. F.I.R. in which it has been mentioned that the accused Kanhaiyalal and Bapu, started " cSy ?ksjuk 'kq: dj fn;kA " and accused. Kanhaiyalal, inflicted a gandasi blow on the head of the injured. In the F.I.R. Ex. P. 10, it has also been mentioned that when accused Kanhaiya, gave a gandas blow, injured cried `Dorjo Dorjo' accused persons are taking away his oxen. On hearing the cry of the injured Devilal, Heeralal, and Gendalal, and another Mangilal, rushed towards the place of incident and chased the accused persons but they could not catch them but they succeeded only in getting the bullocks free-Learned counsel for the appellants has invited my attention towards the inconsistency available on record in the case of prosecution. One inconsistency is that the name of father of accused Bapu has been shown in the F.I.R., as Shyama, whereas the name of father of accused Bapu is Motilal. One inconsistency is that the name of father of accused Bapu has been shown in the F.I.R., as Shyama, whereas the name of father of accused Bapu is Motilal. The second in-consistency which is available in the case of prosecution and has been shown by the learned counsel for the appellants is that prosecution has come with a case that the injury was inflicted with `gandasi. However, after looking the injury report, the theory of the prosecution has been changed and the word 'ballam has been used in place of `gandasi in the F.I.R. The injury report was prepared by PW 4, Dr. S. C. Vijayavergiya, who has examined the injuries of the injured Mangilal and found incised wound and the blood was coming out of the wound on cleaning after removal of cloth tied over it. The injury was 5" long x 1" wide. In the center and less at both ends into bone deep in oblique direction and forwards vertically 1" deep situated 1.5" above the left ear and 4" behind the outer angle of left upper eye lid running from behind forwards and upwards. This injury admittedly cannot be caused by `ganoasi but it can only be caused by 'ballam'. 5. On behalf of the prosecution PW 9, Genda, PW 12. Heeralal. s/o. Jailal PW 13 Heeralal, son of Girdhari, PW 14, Mangilal son of Dhanna, and PW 8 Devilal, have been produced as eye witnesses of the case of prosecution, PW 8. Devilal, PW 3, Baboo son of Madan, PW 14 Mangilal, PW 12, Heeralal, have turned hostile. The prosecution has examined the evidence of test of the eyewitnesses who are PW II, Mangilal, PW 9. Genda and PW3 Heeralal. There is also a corroborative peace of evidence relating to the injuries sustained by the injured Mangilal, Dr S.C. Vijayvargia, PW 4, has proved the injury report and PW 1, Dr. Chandra Singh Pan war, has proved the X-ray report. 6. On behalf of the prosecution P.W. 6, Prabhulal, has been produced to prove the report. 7. Learned counsel for the appellants has assailed the judgement passed by the court-below and submitted that there cannot be a case of robbery or dacoity at all. The complainant party and the accused party are well known to each other and they were grazing their cattles in the jungle and were sited together. 7. Learned counsel for the appellants has assailed the judgement passed by the court-below and submitted that there cannot be a case of robbery or dacoity at all. The complainant party and the accused party are well known to each other and they were grazing their cattles in the jungle and were sited together. He further submits that the theory of " cSyksa dks ?ksjk " has been introduced to make out a case. He has further submitted that no case of robbery or dacoity is committed in a way as stated by the prosecution. The motive for the commission of crime is not placed by the prosecution in the record. Learned counsel for the appellants further submits that it is a case of quarrel and the truth has not been placed by the prosecution on record. Mr. Sharma, has also assailed the judgment and submitted that it is a case of substitution of accused as well as number of infirmities are also in the case of prosecution and the prosecution has failed to prove the case. 8. On the other hand, learned P.P. has supported the judgment passed by the court-below. He admits that the author of the F.I.R. committed a mistake by giving the names of the father of the accused as Shyama. instead of Motilal. He further submitted that other persons have named the accused person. Mr. Sritnal, learned P.P. further submits that it is a case of robbery as the accused person have committed theft by removal of bullocks from one place to other place and the grievous injury has been caused by Kanhaiyalal, to the injured person. 9. I have heard the rival contentions made by the learned counsel for both the parties and the record of the case First of all, I would like to consider whether any case Under Section 394 and 797 has been made out by the prosecution or not. S. 378 IPC defines the facts under:- "Whoever, intending to take dis-honestly any movable property out f of he possession of any person without that persons consent moves that property in order to such taking, is said to commit theft." Explanation (4) of S. 378 Cr. S. 378 IPC defines the facts under:- "Whoever, intending to take dis-honestly any movable property out f of he possession of any person without that persons consent moves that property in order to such taking, is said to commit theft." Explanation (4) of S. 378 Cr. P.C. provides that:- "A person, who by any means, cause an animal to move, is said to move that animal; and to move everything which, in consequence of the motion so caused is moved by that animal." 10. The most important ingredients are (i) intending to take dis-honestly; (ii) any movable property (iii) out of the possession of any such person (iv) without that person's consent (v) moves that property in order to such taking. Thus, it is necessary that the person who moves the property against the wish of the owner moves it with the intention to take it dis-honestly. Even if the case of the prosecution is accepted to the hit then no offence under sections 394 and 397 is committed by the accused persons. The prosecution has come with a story that the I bullocks which the complainant party used to graze in the forest were collected " ?ksj fy, " The intention to take away them is not there and not a single witness slated that the intention was to take away the bullocks after collection. To take away is an important ingredient of the theft or if anyone moved the immovable property but for any other purpose, then the offence of theft is not completed There must be an intention take away the movable properly and further there must be a dis honest intention. If the prosecution fails to prove that there was an intention to take away the property dis-honestly their no case of theft is made-out and the accused persons cannot be convicted for the commission of theft S. 390 IPC defines-theft is a robbery as under:-When theft is robbery:- Theft is `'robbery" if. in order to the committing of the theft, or in commuting the theft or in carrying away or attempting to carry away the properly obtained by the theft offender, for that end, voluntary causes or attempts to cause to any person death or hurt or wrongful restrain, or fear of instant death or of instant hurt, or of instant wrongful restraint." 11. Thus, the theft is a necessary ingredient for the robbery and it is necessary for the prosecution to prove that the ingredient of theft has been proved. Collecting the bullocks without any intention to take away the bullocks dis-honestly can be considered as a case of theft or robbery P.W.9. Ganda, has only stated " Ckkiw us cSy ?ksjs " He further states that there is a heed of the forest department and the accused and the complainant party used to graze their cattles and sometimes they also used to take repose together. P.W. II, Mangilal, has stated that accused Bapu and Kanhaiya, came from the backside to collect the bullocks. He further states that he has identified them He further states that he has identified them- He further states that accused Kanhaiya inflicted below of ballam on the head when accused Bapu, was collecting the bullocks. He has further stated that all persons were sitting beneath the tree. He further states that cattles of both the parties were in one group and were grazing together. He admits that at the time of beating he was going towards his house. He further admits that he has not seen the accused collecting the bullocks after causing the injuries. PW13, Heeralal, is the other witness of the prosecution. He states that he has identified both the accused and the accused persons ran away after leaving the bullocks on the spot. The witness who have turned hostile has given out the story of the prosecution and did not support the case of the prosecution. The motive for the commission of the crime is not necessary to be proved but generally it is necessary to arrive at a right conclusion In the instant case, the motive for the commission of crime was to give beating to the injured Mangilal, as stated by the prosecution is in-believable. There must be other motive which is not on record and this fact gets the support from the r prosecution version itself. There must be other motive which is not on record and this fact gets the support from the r prosecution version itself. The accused party and the complainant party used to graze the cattle in the beed of the forest and sometimes they used to smoke and also used to take repose under the tree is a factor which needs consideration if they were not known to each other In such circumstances, the case of the prosecution that the accused intended to commit the theft by taking away the cattles dishonestly cannot be accepted. None of the witnesses have stated that the accused intended to take-away the castles without consent of the complainant party. In such circumstances. I am not prepared to accept the prosecution story as far as the commission of crime or robbery or dacoity is concerned and it is not a case of theft or robbery at all. 12. Now I will take the second part of the case namely the part relating to causing the injury to the complainant injured from the stage of F.I.R. to the stage of examining the witnesses. There is a consistent theory that Kanhaiya, inflicted blow on the head of the injured by `gandasi. Even during the course of r examination under section 161, the witnesses have stated that the ballamwas used by accused Kanhaiyalal, when he inflicted the injury on the head of the injured from the back-side Devilal, might have committed a mistake in using the word gandasi in place of Ballam at the time of lodging the F.I.R. and only on this ground the testimony of the other witnesses cannot be discarded. Injured P.W. 11, Mangilal, P.W. 9, Genda, and P.W. 13, Heeralal, have stated about the injury sustained by P.W. 11 Mangilal inflicted by accused Kanhaiyalal, and these witnesses also I stated that accused Bapu, son of Motilal, inflicted the blow on the jaw of the complainant Mangilal, with a lathi There is an injury on the jaw of injured Mangilal, and which has been caused by the blunt object. P W, 4, Dr. S.C. Vijayvargia, has examined P.W. 11. Mangilal, and found two injuries on his person as mentioned above. Thus, the injuries sustained by Mangilal, injured P.W. 11, are proved and I found that the accused Kanhaiya, has committed an offence under section 326 of the IPC. P W, 4, Dr. S.C. Vijayvargia, has examined P.W. 11. Mangilal, and found two injuries on his person as mentioned above. Thus, the injuries sustained by Mangilal, injured P.W. 11, are proved and I found that the accused Kanhaiya, has committed an offence under section 326 of the IPC. The injury has also been proved by P.W. 4, Dr. S.C- Vijayvargia, k as grievous in nature and submission made by the learned counsel for the appellants cannot be accepted that the prosecution has failed to prove the injuries grievous in nature. Accused Bapu, has inflicted one blow on the jaw of the complainant and as such it can be inferred that there was a common intention to give a beating to the injured. Accused Kanhaiya, has inflicted the blow on the bead of the injured by sharp edged weapon and the injury is grievous in nature. Therefore I am of the view, that he has committed an offence under section 323 of the IPC by causing the injuries. Accused Bapu, has inflicted injury on the jaw of injured therefore, he is also held guilty for the offence under section 323 of the IPC. 13. In the result, the appeal of accused Bapu and Kanhaiya, is partly accepted and they both are acquitted for the offence under section 397 and 394 of the IPC. 14. The accused Kanhaiya, has been convicted under S. 326 of the IPC and his conviction is maintained. 15. On the question of quantum of sentence I have heard learned counts.T for both the parties and in the facts and circumstances of the case, I am of the view, that the sentence awarded under section 326 IPC is reduced from 4 years to two years and fine of Rs 500/-is maintained. In default of payment of fine the accused Kanhaiyalal, will have to undergo the sentence of 3 months, simple imprisonment. 16. The accused Bapu, has been convicted and sentenced under S. 326/34 and 323 of the IPC. As the case relates to the year 1979, and in the facts and circumstances of the case, I do not consider it just and proper to send the accused Bapu. back to jail. Therefore, the accused Bapu. is released on the sentence already undergone. Bapu, need not surrender and his bail-bonds shall stand cancelled. 17. As the case relates to the year 1979, and in the facts and circumstances of the case, I do not consider it just and proper to send the accused Bapu. back to jail. Therefore, the accused Bapu. is released on the sentence already undergone. Bapu, need not surrender and his bail-bonds shall stand cancelled. 17. Non-bailable warrants be issued against Kanhaiyalal, to undergo the remaining part of the sentence.Appeal partly allowed. *******