Judgment R.N.Sahay, J. 1. The judgment shall govern disposal of three criminal appeals which have ariser from the verdict of conviction and sentence passed in S.T. No. 32 of 1992 on the file of 2nd Additional Sessions Judge, Bhojpur in which nine persons were placed for trial having been charged for an offence punishable under Section 396, IPC. One accused Ramnaresh Ram was also charged under Section 412, IPC. 2. The learned Additional Sessions Judge convicted eight accused persons (the appellants) under Section 396, IPC. Appellant Hareshwar Yadav (In Criminal Appeal No. 382/94) has been sentenced to undergo rigorous imprisonment for life. 3. The four appellants in Criminal Appeal No. 290/94, namely, Lallan Dome, Rajendra Dome, Dhobi Dome and Ibrahim Dome and three appellants in Criminal Appeal No. 325/94, namely, Sheodhar Yadav, Bacha Yadav and Rishideo Yadav have been sentenced to undergo rigorous imprisonment for ten years. One accused, namely, Ramnaresh Ram was acquitted for lack of evidence against him. 4. The evidence that emerged during trial was that in the night of 22.9.1990 Ramratan Yadav after taking dinner with his family members retired at 10 p.m. At about midnight his nephew Rampratap started knocking the door of his house and raised alaram. Ramratan came out of his house and was told by Rampratap that burglers had intimated in the house of Mahadeo (brother of Ramratan). Ramratan and his nephew rushed towards the house of Mahadeo. Both of them saw in the torch light three persons fleeing nearby the house of Mahadeo and five to six persons were standing in the field east to the house. Rampratap succeeded in catching one of the criminals. One person who was standing in the field, at the same time, hurled a bomb resulting in serious injury to Rampratap. Ramratan gave a lathi blow to one of the culprits. He apprehended Rishideo Yadav. his co-villaged. Rishideo Yadav raised hulla Maro Maro whereupon son of Hira Dome who was standing in the field hurled a bomb. In order to save himself Ramratan released Rishideo Yadav and started running but he fell down and got injuries on the left had and elbow. On hulla several villagers assembled there with their torch lights and chased the culprits. They had identified Dhobi Dome, Rajendra Dome, Ibrahim Dome and Lallan Dome. Injured Rampratap was carried to Sadar Hospital, Arrah. In order to save himself Ramratan released Rishideo Yadav and started running but he fell down and got injuries on the left had and elbow. On hulla several villagers assembled there with their torch lights and chased the culprits. They had identified Dhobi Dome, Rajendra Dome, Ibrahim Dome and Lallan Dome. Injured Rampratap was carried to Sadar Hospital, Arrah. Rampratap went to the house of his cousin Mahadeo and found a hole cut in the eastern wall. He also learnt that one attache, one iron box and utensils were taken away by the thieves. The box contained Rs. 5000/- and clothes. In the meantime police arrived and they went in pursuit of the criminals. Ramratan was informed that his nephew succumbed to his injuries in Sadar Hospital, Arrah. Ramratan Yadav gave fardbeyan of the occurrence to ASI, Arrah Muffasil than on 22.9.1993 at 3 hours on which a case under Section 396, IPC registered against the named appellants and was investigation proceeded. 5. The learned trial Court found the appellants guilty under Section 396, IPC on the strength of the evidence furnished by Sheo Govind Yadav (PW 1), Tiwary Yadav (PW 2), Mahadeo Yadav (PW 3), Bir Bahadur Yadav (PW 4), Kushma Devi (PW 5) and Ramratan Yadav (PW 6). 6. The I.O. after investigation submitted charge-sheet against the eight named accused persons and one Ramnaresh Ram from whose possession some stolen articles allegedly were recovered. Ramnaresh Ram was acquitted for want of evidence and remaining eight witnesses were convicted and sentenced as indicated above. 7. At the evidence was adduced by the prosecution to establish that the appellants had committed the dacoity in the house of Mahadeo Yadav and in course of dacoity Rampratap was killed by one of the dacoits by bomb blast. The convicted appellants have assailed the legality and propriety of their conviction on various grounds. The main ground is that the evidence of identification against the appellants was extremely doubtful and therefore their conviction was unwarranted and unsustainable in the face of shaky and unconvincing evidence. 8. In order to decide whether the evidence recorded during trial is sufficient for conviction to the appellants, we have to analyse the facts. There are two witnesses who were inside the house at the time of alleged dacoity. The other member of the family were sleeping outside the house of Mahadeo. 9. 8. In order to decide whether the evidence recorded during trial is sufficient for conviction to the appellants, we have to analyse the facts. There are two witnesses who were inside the house at the time of alleged dacoity. The other member of the family were sleeping outside the house of Mahadeo. 9. Kushma Devi (PW 5) is the wife of Mahadeo Yadav, in whose house the dacoity was committed on 22.9.1990. According to this witness he woke up on hearing the sound of utensils being removed from a box. Her sister-in-law (husbands brother wife) Rajkeshra Devi told this witnesses that burglers have entered in the house. (Rajkeshra Devi died during the pendency of the case) After sometime she heard sound of bomb blast. She came out in the Varandah. She did not venture to go out of the courtyard. She learnt that Rampratap (husbands nephew) was injured by bomb blast. He was taken to hospital where he expired. The dacoits took away silver ornaments, clothes and utensils etc. She identified the stolen articles in identification parade. 10. Madadeo Yadav (PW 3) in whose house the dacoity was committed, testified a hole was cut by the dacoits in the eastern side of the wall of his house. The dacoits took out the articles through that hole. Dacoits were flashing torch. Dacoits took away attache, utensils etc. He raised hulla and chased the fleeing dacoits. Rampratap Yadav a cousin of this witness was in his house. This witness also chased the dacoits. This witness was also carrying a torch while chasing the fleeing dacoits. They gave lathi blow on one of the fleeing dacoits. He identified him to be appellant Rishideo Yadav. In the meantime Lallan Dome hurled a bomb. When Rampratap was trying to catch Rishideo Yadav, Rishideo Yadav raised hulla Hareshwar Cha Cha Bomb Maro. On this appellant Haresh threw a bomb on Rampratap. Rampratap fell down. This witness says that number of dacoits was 10 to 15 Rampratap received serious injuries and expired in the hospital. 11. Sheo Govind Yadav (PW 1), son of Mahadeo Yadav, woke upon hulla and rushed towards the field behind his house. He identified all the appellants. 12. Tiwary Yadav (PW 2) is the father of the deceased Rampratap Yadav. This witness deposed that dacoits had entered the house of Mahadeo. 11. Sheo Govind Yadav (PW 1), son of Mahadeo Yadav, woke upon hulla and rushed towards the field behind his house. He identified all the appellants. 12. Tiwary Yadav (PW 2) is the father of the deceased Rampratap Yadav. This witness deposed that dacoits had entered the house of Mahadeo. This witness was also having a torch, identified the appellants in the torch light. He saw Hareshwar throwing the bomb on his son. This witness has further stated that appellant Sheodhar Yadav also threw a bomb. He has further stated that about two days prior to the dacoity he had seen the accused persons standing in the Maidan outside the house of Mahadeo. 13. Bir Bahadur Yadav (PW 4) also claims to have identified the culprits. 14. Ramratan Yadav (PW 6) is the informant who reaffirmed his earliest version in his fardbeyan with some variation. 15. Dr. Surendra Prasad Srivastava (PW 7) conducted post-mortem on the dead-bodv of the deceased (Rampratap Yadav) on 22.9.1990 and found the following mortem injuries : "Lacerated wound with complete evaltion to skin, muscles and pieces of 3rd, 4th and 5th rib and the right upper part of chest 4" x 4" x chest cavity deep on dissection 3rd, 4th and 5th rib with muscle and pieces of upper part of lungs found exulge blood and blood clot present in the right side of the chest laceration of right lung." The doctor opined that cause of death was due to above mentioned injuries caused by bomb blast. 16 Kamleshwar Singh (PW 11) was officer in charge of Arrah Muffasil police station at the relevant time. At about 10.30 to 11 p.m. he was on duty in Chobha Bazar. He heard sound of bomb explosion and proceeded to village Mahuli. He learnt from the villagers that dacoity had been committed in the house of Mahadeo Yadav. He recorded fardbeyan of Ramratan Yadav. He seized some papers and sutli which according to him were remnants of bomb blast. He did not see any torch. He stated that no body produced torch before him. He has stated that he followed the dacoits. He has stated that Tiwari Yadav, father of the deceased, who was examined on 10.11.1990. He had not stated that Rishideo raised hulla Maro Maro. He has further stated that Mahadeo Yadav has not stated that he had seen the dacoits in torch light. He has stated that he followed the dacoits. He has stated that Tiwari Yadav, father of the deceased, who was examined on 10.11.1990. He had not stated that Rishideo raised hulla Maro Maro. He has further stated that Mahadeo Yadav has not stated that he had seen the dacoits in torch light. He had not stated that the dacoits hurled a bomb. He has not stated that Rampratap tried to chase the culprits on which Rishideo asked threw a bomb. He had not stated before I.O. that Rishideo hurled a bomb. Ramratan had not shown him any torch. Ramratan had not stated that Hareshwar threw a bomb on Rampratap. I.O. has stated that no incriminating articles were recovered from the house of Hareshwar. He did not prepare any seizure list of paper and sutli which were found in the place of occurrence. 17. The learned Additional Sessions Judge has given full credence to the evidence of the main witnesses despite the contradictions noticed above. He did not find any infirmity in the prosecution case on account of delay in transmission of the report to Chief Judicial Magistrate. It is significant that FIR was on the same dav of the occurrence was received in the Court of CJM on 24.4.1990. The learned Additional Sessions Judge did not attach much importance to this aspect. He also brushed aside the medical evidence, which did not conclusively established the injuries on the deceased were caused by bomb. So called remnants of bomb was not examined by ballistic expert which serious lacuna in evidence. 18. Shri A.J. Bahadur, learned Counsel for the appellants appearing in Criminal Appeal No. 290/94 has submitted that the investigating of this case by an ASI was vitiated for lack of jurisdiction. He referred to Police Manual and Section 157, Cr PC in support of his contention. Learned counsel had further submitted that there is no reliable evidence against appellants Lallan Dome, Rajendra Dome, Dhobi Dome and Ibrahim Dome to sustain their conviction. 19. Mr. Shakil Ahmad, learned Counsel for the appellants appearing in Criminal Appeal No. 325/94 and Criminal Appeal No. 382/94 has submitted that the conviction of the appellants is illegal and not sustainable. It was quite impossible for the witnesses to identity the criminals at the time they were retreating. He has submitted that in the fardbeyan there is no assertion of any torch light. It was quite impossible for the witnesses to identity the criminals at the time they were retreating. He has submitted that in the fardbeyan there is no assertion of any torch light. The witnesses have not stated that they possessed torch light and they identified the fleeing dacoits in the torch light. 20. Learned Counsel has further submitted that there was in-ordinate delav in despatching the FIR to the Court of CJM. It was received there on 24.4 1990 The occurrence had taken place in the night on 22nd September, 1990. Learned counsel has further submitted that in the fardbeyan the informant has stated that a son of Hira Dome hurled a bomb. There is no mention of names of villagers who had identified the appellants and have so deposed at the trial. 21. The fundamental question for consideration is whether the conviction of the appellants under Section 396, IPC is at all sustainable even if the prosecution case is accepted at its face value. 22. Section 396, IPC provides if any one group (sic) of five or more persons, who are conjointly committing dacoity, commits murder in so committing dacoity, every one of those persons shall be punished with death or imprisonment for life rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine. 23. The essential elements of the offence of dacoity as defined in Section 395 are : "(i) Five or more persons must act conjointly, (ii) Such act must be robbery or attempt to commit robbery. (iii) The five persons must consist of those who themselves commit or attempt to commit robbery and those who are present and aid them in such commission or attempt. In other words, the section contemplates actual participation by every one of the five or more persons in the commission of the robbery AIR 1957 SC 320 ; AIR 1973 SC 760 . There is no robbery or attempt of robbery, there can be no dacoity 1990 PLJR 234." 24. In other words, the section contemplates actual participation by every one of the five or more persons in the commission of the robbery AIR 1957 SC 320 ; AIR 1973 SC 760 . There is no robbery or attempt of robbery, there can be no dacoity 1990 PLJR 234." 24. In Sayam Behari v. State of U.P., reported in1 AIR 1957 SC 320 , it has been held that where the accused and his companions who numbered five or more than five attempted to commit robbery at the house of informant but on a hue and cry being raised took to their heels without committed robbery, the offence of dacoity was completed the moment dacoits took to their heels without any booty. The dacoits were chased by the villagers and one of the dacoits was caught, and to effect his release, one dacoit fired a pistol and killed the chaser it was held that the offence of murder was not one committed in committing dacoity within the meaning of Section 396. An attempt to commit robbery was made by accused persons and one of them shot and killed the owner of the house though in fact no booty was carried by the dacoits. 25. The question that arose for decision was whether the accused person who shot and killed could be held guilty under Section 396, IPC. The Supreme Court considered the decision of Allahabad High Court in Sirajuddin v. State, AIR 1951 All 834 , Kaley v. The States AIR 1955 All 420 and also the decision of Calcutta High Court in Manoranjan Bhattacharuya v. Emperor, AIR 1932 Cal 818 and Bombay High Court in Queen Empress v. Sakharam Kandu, 2 Bomb LR 325. In these decisions it was held that though the dacoits were running away without collecting any booty and one of them committed murder in order to ensure their safe retreat that murder could be said to have been committed in committing the dacoity. 26. The Supreme Court held that the transaction of dacoity had ended the moment the dacoits took to their heels and another and a separate transaction took place when the appellant shot at and killed the owner of the house, therefore the appellant could not be convicted under Section 396, IPC. The accused was convicted under Section 302, IPC. It was held that the charge under Section 396, IPC comprises. The accused was convicted under Section 302, IPC. It was held that the charge under Section 396, IPC comprises. of two ingredients : (a) the commission of the dacoity and (b) the commission of the murder in so committing the dacoity. The first ingredient was proved without any doubt and was not challenged. The second ingredient also was proved in any event as regards the commission of the murder. 27. The present case is on different footing. There is no evidence that the robbery was committed or any force was used by the thieves for committing the theft in the house of Mahadeo Yadav. There is clear evidence that after the articles were removed, then the informant and his relations started chasing the thieves. The villagers, the deceased and the witnesses started chasing the thieves and in course of that Rampratap was injured in explosion. There is no evidence Rampratap was killed by bomb blast. It could be a powerful cracker. The evidence is that it was Hareshwar Yadav who was responsible for the death of the deceased but charge under Section 396, IPC cannot be converted into Section 302, IPC applying the ratio in Shyam Beharis case (supra). 28. The pertinent question for consideration is whether the appellants can be guilty under Section 379, IPC for committing the theft in the house of Mahadeo assuming that they have been identified by the witnesses while fleeing. 29. To secure conviction of more persons than one on the ground that all such persons were in joint possession of stolen property, it must be proved that the stolen property was either in the physical possession of each one of the accused persons or else it was in possession, physical or constructive, of one or more of them on behalf of and to the knowledge of the other accused persons and that each of them intended to possess it for their joint use and to the exclusion of persons other than themselves. 30. In Chandra Mohan Singh and others v. Emperor, AIR 1920 Pat 196, it was held that where the common object of an unlawful assembly was to commit theft but there was no finding as to who were the accused who actually took away the property, as in the instant case, the appellants conviction under Section 379 as also under Section 147, IPC was illegal. 31. 31. In 1996 All Cr R 324 it was held that mere fact that a number of persons are seen going along with stolen bullocks, it cannot be presumed that all of them must necessarily have committed theft from the complainants house. 32. In the instant case since there is no evidence who removed the property, the appellants cannot be convicted under Section 379, IPC. The appellants have remained in custody for about seven years. 33. For the reasons, as stated above, the conviction of the appellants is fit to be set aside. 34. In the result, all the three appeals are allowed and the conviction of the appellants is quashed. The appellants are directed to be released forthwith if not wanted in any other, case.