JUDGMENT 1. - This is a jail appeal challenging the judgment passed by learned Additional Sessions Judge, Dholpur dated 23-12-1988 where by the convicted the appellant for offence Under Section 392 IPC, and sentenced him to undergo two years' rigorous imprisonment and to pay a fine of Rs. 500/- in default of payment of fine, directed him to further undergo three months' simple imprisonment. 2. Brief facts, giving rise to this appeal are that a report was lodged on 15th July, 1985 at Police Station, Sarmathuro by Gopal Das (PW 4) that his niece Meena and one Sunita d/o Khateru Lal, were returning after having Darshan of Mahakaleshwar. At that time accused appellant Tayab and one Maharaj Singh Jatav way laid them and at the point of pistol (Katta), they snatched the gold chain from thenect of Mst. Sunita and ran away. The girls raised alarm, hearing which several persons gathered there who chased the accused persons. They found accused Tayab sitting near a stone quarry. When he was sought to be apprehended, he fired a pistol towards villagers. At that time, Gulam Hussain and Pappu were sitting near him. These people also started pelting stones. The pistol fired by Mohd. Tayab, how ever, missed. The villagers too started pelting stones as a result of which Mohd. Tayab sustained injuries He was apprehended but the other two accused escaped. Tayab was produced before the police along with gold-chain which was with him. He also had three live cartridges and one Deshi Katta Case for offences Under Sections 392, 394, 307, Indian Penal Code and 3/25, Arms Act was registered and investigation commenced. After investigation, police filed a charge-sheet against the appellant along with two other accused persons viz, Pappu (Abdul Jalil) and Gulam Hussain. Prosecution examined 10 witnesses in support of its case. Accused denied the allegations levelled against them. The learned Sessions Judge after trial acquitted Pappu (Abdul Jalil) and Gulam Hussain of the offences charged and the appellant was also acquitted of the offence Under Sections 3/25 and 27 of the Indian Arms Act and Sections 307 and 398, IPC. He was, how ever, convicted and sentenced for offence Under Section 392, [PC as mentioned above. Aggrieved by the same, this appeal has been sent from jail. 3. He was, how ever, convicted and sentenced for offence Under Section 392, [PC as mentioned above. Aggrieved by the same, this appeal has been sent from jail. 3. I enquired from the Public Prosecutor whether State has filed any appeal against the acquittal of accused for offences Under Sections 307, Indian Penal Code and 3/25 and 27 of the Indian Arms Act and Section 398 Indian Penal Code and further enquired from the Registry as to whether a represented appeal has been filed by the accused or not. Having learnt that neither the State has filed appeal against the acquittal nor accused a represented appeal, the arguments in this appeal were heard since the record had already been received by this Court. 4. Shri Sajjan Singh, who had been appointed as Amicus Curiae in the case, assisted this Court in reading the entire record. He submitted that in the instant case there is total lack of evidence to connect the accused with the offence Under Section 391 Indian Penal Code in as much as none of the ingredients of the offence is satisfied. The submission of the learned Counsel is that neither there is a consistent evidence about the recovery of the gold-chain nor the remaining piece of it which is alleged to have remained with Mst. Sunita is produced. It is further alleged that the identification of the accused is not established in the case in as much as neither the two girls were knowing the appellant from before either by face or by his name and no identification parade has been arranged in this case. It is also submitted that once the accused is acquitted of offence Under Sections 3/25 and 27 of the Arms Act and as also for offences Under Sections 307 and 398 IPC, he cannot be convicted Under Section 392 IPC. 5. Learned Counsel for the State supported the judgment of the trial court and submitted that this is a case of broad-day high-way robbery where the appellant had been chased soon after by the villagers. Accused resisted their arrest by opening fire at the villagers. It is also contended that there was recovery of Gold-chain from the person of the accused when he was arrested and thus it is a fully proved case. 6. I have given my thoughtful consideration to the rival contentions and perused the record. 7. Accused resisted their arrest by opening fire at the villagers. It is also contended that there was recovery of Gold-chain from the person of the accused when he was arrested and thus it is a fully proved case. 6. I have given my thoughtful consideration to the rival contentions and perused the record. 7. An extremely important question of law has emerged in this case as to whether conviction and sentence passed against the accused for offence Under Section 392 Indian Penal Code ban be legally maintained in view of the fact that accused has been acquitted of the offence Under Section 3/25 and s. 27 of the Indian Arms Act with a finding that neither it is proved that the accused either fired the Katta or that he was at all in possession of the same or kept it for any illegal purpose or used the same at the time of commission of the crime and nor the State appeal has been preferred against the acquittal of the accused for offence Under Sections 307 and 398 Indian Penal Code and s. 3/25 and Section 27 of the Indian, Arms Act. In order to appreciate this preposition, it is essential to look into the definition of 'Robbery' for which the accused has been convicted. 'Robbery' has been defined under Section 390 Indian Penal Code which reads as under: 390. Robbery--In all robbery there is either theft or extortion. When theft is robbery--Theft is "robbery" if, in or to the 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 restrain, or fear of instant death or of instant hurt, or of instant wrongful restraint.When extortion is robbery--Extortion is "robbery" if the offender, at the time of committing the extortion, is in the presence of the person put in fear, and commits the extortion by putting that person in fear of instant death, or instant hurt, of instant wrongful restraint to that person, or to some other person, and, by so putting in fear, induces the person so put in fear then and there to deliver up the thing extorted.The punishment is provided Under Section 392, IPC. A perusal of the definition shows that one of the essential ingredients which the prosecution is obliged to prove is that the accused voluntarily caused or attempted to cause to any person death or hurt or wrongful restrain or fear or instant death or instant hurt or of instant restrain. The prosecution if comes with a positive case that the accused was armed with a pistol and it was at the point of the pistol that he put the victim in fear of instant death or instant hurt or instant restraint and thereafter fails to substantiate it by evidence, then in my opinion, conviction cannot be maintained for an offence defined in Section 90 Indian Penal Code because of the finding of the trial Court that it is not proved that the accused was armed with the pistol produced in the court and the same has been used by him, then that finding is binding for all other purposes in all subsequent proceedings. 8. The trial court after thorough discussion of evidence has held: (i) Regarding possession of the pistol and the cartridges that neither it is proved that the accused fired the Katta on Jagannath with intention to cause his death, nor it is proved that he was at all armed with it and kept it for any illegal purpose nor used the same at any time (ii) Regarding removal of piece of the gold chain by the accused and remaining with Sunita the learned Judge observed that there is definitely a dispute as to who gave Article 2 piece of chain, to the Police and that there are serious discrepancies in the statements of the witnesses to that extent; (iii) Regarding conduct of the Investigating Officer the learned Judge observed that the conduct of the Investigating Officer is most unfair in the case as he even did not care to appear as a witness; and (iv) Regarding offence wider sec, 307, Indian Penal Code the court observed that no witness states regarding arrest of the accused near Baba-ki-Dham or about firing by him and, therefore, he is unable to held that the accused Mohd. Tayab attempted to cause the death of Jagannath Singh. 9. As mentioned above, the learned Judge completely acquitted the accused Pappu and Gulam Hussain and also the accused-appellant for offences under Indian Arms Act and Sections 307 and 398, IPC. Tayab attempted to cause the death of Jagannath Singh. 9. As mentioned above, the learned Judge completely acquitted the accused Pappu and Gulam Hussain and also the accused-appellant for offences under Indian Arms Act and Sections 307 and 398, IPC. I have already mentioned above that the State Government has not challenged the acquittal of the accused-appellant for aforesaid offences and these findings have to be taken as final. It was open for the prosecution to have challenged aforesaid findings but not having done so it is not opened to the Public Prosecutor to argue about the possession of pistol and use of it for the purpose of putting the girls to instant fear of death of hurt and the natural consequence is that the conviction of the accused for committing robbery as defined Under Section 390 Indian Penal Code and punishable Under Section 392 Indian Penal Code cannot be sustained. 10. In this connection I will seek support from some of the cases where almost similar situations came for consideration. 11. In Sambasivam v. Public Prosecutor (1950 AC 458) the Court had held as under: The effect of a verdict of acquittal pronounced by a competent court on a lawful charge and after a lawful trial is not completely stated by saying that the person acquitted cannot be tried again for the same offence. To that it must be added that the verdict is binding and conclusive in all subsequent proceedings between the parties to the adjudication. The maxim 'res-judicata pro verite acciputur' is no less applicable to criminal then to civil proceedings. Here, the appellant having been acquitted at the first trial on the charge of having ammunition in his possession, the prosecution was bound to accept the correctness of that verdict and was precluded from taking any steps to challenge it at the second trial. 12. In Pritam Singh v. State of Punjab AIR 1956 SC 415 , one accused Pritam Singh Lohra was facing for murder by revolver. He was charged for offence Under Section 302, IPC. 12. In Pritam Singh v. State of Punjab AIR 1956 SC 415 , one accused Pritam Singh Lohra was facing for murder by revolver. He was charged for offence Under Section 302, IPC. He was also tried for offence Under Section 19(f) of the Arms Act and when his case Under Section 302 Indian Penal Code came for hearing before the High Court, one of the arguments was that the effect of finding of acquittal was binding for all purposes and evidence regarding the recovery of the revolver and possession thereof has to be kept out of consideration. When the case came for consideration before their Lordships of the Supreme Court, they also considered this aspect of the matter and held that the acquittal of Pritam Singh Lohra of charge Under Section 19(f) of the Arms Act would tenramount to a finding that prosecution has failed to established the possession of the revolver Ex. 56 by him. The possession of the revolver was this a fact in issue which had to be established by the prosecution before he could be convicted of the offence with which he has been charged. That fact was found against the prosecution and having regard to the observations of Lord Mec Dermott in Sambashivam's case, quoted above, the Supreme Court held that the same could not be proved against Pritam Singh Lohra in any further proceedings. Their Lordships held that High Court was right in rejecting the evidence regarding recovery of Ex. 56 against Pritam Singh Lohara and the evidence against him would have to be considered regardless of the alleged recovery of Ex. 56 at his instance. 13. Almost a similar situation came for consideration before this in Prabhu Dayal v. Surya Narain (1962 RLW 98) . Surya Narain was alleged to have been driving bus No. RJV 331 and while doing so he dashed the bus against one Onkar Lal who was thrown aside and a baby of two years, whom he was carrying in his lap, was also thrown in front of the vehicle and consequently was over run and died. He was, therefore, challenged for offence Under Section 304A read with Section 279, IPC. As Shri Surya Narain had no driving licence, he was also challaned separately Under Section 3 read with Section 112 of the Motor Vehicles Act. He was, therefore, challenged for offence Under Section 304A read with Section 279, IPC. As Shri Surya Narain had no driving licence, he was also challaned separately Under Section 3 read with Section 112 of the Motor Vehicles Act. A private complaint was also lodged for offence Under Section 304A read with Section 279 Indian Penal Code by Prabhu Dayal, the complainant The Magistrate consolidated the complaints and the challan for offence Under Section 304A and 279, Indian Penal Code was submitted. The case under the Motor Vehicle Act was, how ever, decided separately where in the Magistrate held that it was not proved that Shri Surya Narain was driving bus No. RJV 331 at the time of accident and he was acquitted of offence under Motor Vehicles Act. This judgment was cited submitted in the criminal case Under Section 304A and 279 Indian Penal Code and it was prayed that, the proceedings cannot be completed and should be dropped in view of law laid down in Pritam Singh' case. Learned Magistrate rejected the application but on revision by the accused, learned Additional Sessions Judge made a reference to this Court in accordance with which exited at that point of time. The Division Bench of this Court held that the prosecution cannot succeed in the challan case on account of the fact that the findings in case Under Section 3, read with Section 112 of the Motor Vehicles Act that Surya Narain was not driving the Vehicle at the time the occurrence took place will have to be considered as binding on all subsequent proceedings. 14. One more case of the same nature was decided by their Lordships of the Supreme, Court on 7-2-1961 in an appeal ( Banwari Lal v. State of Rajasthan ) which, was preferred against the judgment of Rajasthan High Court. In that case the accused was acquitted of offence Under Section 20 of the Arms Act and was prosecuted for offence Under Section 392 read with Section 397 Indian Penal Code and the only evidence against him consisted of the statement of the approver and the evidence of recovery of the gun. In that case the accused was acquitted of offence Under Section 20 of the Arms Act and was prosecuted for offence Under Section 392 read with Section 397 Indian Penal Code and the only evidence against him consisted of the statement of the approver and the evidence of recovery of the gun. Their Lordships of the Supreme Court relying on Pritam Singh's case held that as the accused was acquitted of offence Under Section 20 of the Arms Act and recovery of the gun-from the possession of the accused was not proved, it could not be accepted in the subsequent trial Under Sections 392 and 397 Indian Penal Code that the fact of recovery of the gun from the possession of the accused was established and that circumstances could not be taken into account for corroboration of the evidence of the approver. 15. The present case is fully covered by the aforesaid decisions and I have no hesitation in coming to the conclusion that the findings of the trial Court that it is not proved that either the Katta was fired or that it was at all kept by accused for any illegal purpose or he used the same at the time of commission of the crime, is binding and if the evidence of putting the threat to the accused goes out, then natural consequence is that case comes out of the ambit of Section 392 Indian Penal Code and case against accused can at best be considered for offence Under Section 379 IPC. 16. Even for recording the conviction Under Section 379 IPC, I find there are various hurdles in way of the prosecution and the foremost is that the Investigating Officer has failed to appear in the case for reasons best known despite the several opportunities having been given to him. The evidence which has been led in the case about the recover of the chain is far from satisfactory. The learned Sessions Judge himself has omitted the evidence from consideration regarding removal of part of the chain by the accused and part remaining with Mst. Sunita for the reasons mentioned therein. It will be no use making this judgment lengthy as I am in concurrence with the findings arrived at by the trial Court on this aspect. 17. The learned Sessions Judge himself has omitted the evidence from consideration regarding removal of part of the chain by the accused and part remaining with Mst. Sunita for the reasons mentioned therein. It will be no use making this judgment lengthy as I am in concurrence with the findings arrived at by the trial Court on this aspect. 17. There is also dispute about the fact as to who produced the chain before the Investigating Officer and, as mentioned above, Investigating Officer has not been produced in the case to prove this aspect. 18. There is yet another aspect of the matter which cannot be lost sight of and that is that accused was not known by name to any of the two girls and was apprehended by the villagers after the occurrence and alleged encounter. The story of the alleged encounter has been dis-believed by the learned Judge resulting in acquittal of the appellant and the co-accused of various offences, therefore, that story again cannot be taken note of and the Court is left along with the evidence of two girls viz., Meena and Sunita to whom accused have not been put to test identification during investigation. Hence, there is no proper identification of the accused in this case to connect them with the crime. In totality, the evidence is falling short of the proof required for conviction of the accused even for offence Under Section 379 IPC. 19. The result is that the appeal of the appellant is allowed, his conviction and sentence for offence Under Section 392 Indian Penal Code is set aside and he is acquitted of that charge. He is in jail and he shall be released forthwith if not required in any other case. 20. Before parting with the case, I would like to observe that learned Additional Sessions Judge has made adverse comments on the conduct of the Investigating Officer which, in my opinion, are fully justified. The conduct of the Investigating Officer in this case has been far from satisfaction and requires to be taken note of by the department. The copy of the judgment along with the copy of the judgment of the trial Court be sent to IGP, Head Quarters.Appeal Allowed. *******