JUDGMENT 1. - This appeal has been preferred by the accused-appellant against the judgment and order dated 28.7.1987 passed by the learned Additional Sessions Judge, Bali in Sessions Case No. 82/86, by which he acquired the accused-appellant of the charges for the offence u/ss. 302 & 394 IPC, but convicted him for the offence u/s. 411 IPC and sentenced to undergo 18 months RI. 2. It maybe stated here that by the same judgment and order, the learned Additional Sessions Judge, Bali acquitted co-accused-Moti of the charges for the offences u/ss. 302 & 394 IPC. 3. The necessary facts giving rise to this appeal, in short, are as follows:- On 15.7.1986, PW-1 Aamba lodged, a written report Ex.P/1 before PW-16 Anop Singh, SHO, Police Station Bali stating inter alia that on 13.7.1986 his son Joga (hereinafter referred to as 'the deceased') went to the jungle alongwith the flock of he-goats and she-goats for the purpose of grazing them and deceased did not return in the evening. It was further stated in the report that when deceased did not return in the evening, his elder-brother PW-2 Thakri and nephew PW-11 Bhagaram went in the jungle to search deceased, but they did not find him. It was further stated in the report that on the next day i.e. on 14.7.1986, Balaram, PW-6, who used to work in the factory near Falna Station, returned to his village and told him that flock of he-goats and she-goats was in the house of Ibrahim, PW-14, who was butcher dealing with sale and purchase of he-goats and he further told that he was informed about that fact by PW-15 Abdul Karim, who is brother of PW-14 Ibrahim. It was further stated in the report that thereafter, PW-1 Aamba, PW-2 Thakri and PW-11 Bhagaram went to the house of PW-14 Ibrahim and PW-14 Ibrahim told them that flock of he-goats and she-goats was handed over to him by accused-appellant-Samiya and he further told them that at the time when flock of goats was handed over to him by the accused-appellant, the accused-appellant;told him that this flock of goats belonged to his father-in-law and he brought flock of goats for the purpose of sale and he demanded some money, but PW-14 Ibrahim refused to give money to accused-appellant at that time and asked him to come on next day morning and accused-respondent went after leaving flock of goats at his house. It was further stated in the report that PW-1 Aamba identified his. flock of he-goats and she-goats and thus, his son deceased was murdered by the accused-appellant. On this report, police registered the case and started investigation. The post-mortem of the dead body of the deceased was got conducted and the accused-appellant was arrested on 15.7.1986 through arrest memo Ex.P/8. The police recovered the flock of he-goats and she-goats from PW- 14 Ibrahim through fard P/15 as he produced them in Thana and motbirs of this recovery are PW-13 Dilawar and PW-15 Abdul Karim. During investigation, police came to the conclusion that one Moti was also involved in the case. After usual investigation, police submitted challan against accused-appellant and one Moti in the Court of Magistrate, from where the case was committed to the Court of Session. On 21.10.1986, the learned Additional. Sessions Judge, Bali framed charges for the offence u/ss. 302 & 394 IPC against the present accused-appellant and accused-Moti. The charges were read over and explained to the accused persons, who pleaded not guilty and claimed trial. During the course of trial, the prosecution in support of its case examined as many as 16 witnesses and got exhibited some documents. Thereafter, statements of accused persons u/s. 313 Cr.P.C. were recorded. In defence, one witness was produced by the accused persons. After conclusion of trial, the learned Additional Sessions Judge, Bali through his judgment and order dated 28.7.1987 came to the conclusion that prosecution has not been able to prove its case beyond all reasonable doubts against the present accused-appellant and accused-Moti for the offence u/ss. In defence, one witness was produced by the accused persons. After conclusion of trial, the learned Additional Sessions Judge, Bali through his judgment and order dated 28.7.1987 came to the conclusion that prosecution has not been able to prove its case beyond all reasonable doubts against the present accused-appellant and accused-Moti for the offence u/ss. 302 & 394 IPC and thus, he acquitted them of the said charges, but so far as the present accused-appellant is concerned, the learned Additional Sessions Judge came to the conclusion that he was guilty of the offence u/s. 411 IPC as flock of goats belonging to deceased was handed over by him to PW-14 Ibrahim and thus, he convicted and sentenced the present accused-appellant for the offence u/s. 411 IPC in the manner as indicated above. Aggrieved from the said judgment and order dated 28.7.1987 passed by the learned Additional Sessions Judge, Bali, the accused-appellant has preferred this appeal. 4. In this appeal, the following submissions have been made by the learned counsel appearing for the accused-appellant : 1. That once the learned trial Judge has come to the conclusion that the charges for the offence u/ss. 302 & 394 IPC have not been proved by the prosecution against the present accused-appellant, the conviction of the present accused-appellant for the offence u/s. 411 IPC is illegal and without jurisdiction as no formal charge for the offence u/s. 411 IPC was framed. 2. That learned trial Judge has further committed illegality in convicting the accused-appellant for the offence u/s. 411 IPC, as the flock consisting of he-goats and she-goats was not recovered from the possession of the accused-appellant, but it was recovered from PW-14 Ibrahim and from this point of view also, the case against the accused-appellant for the offence u/s. 411 IPC could not be said to have been proved and thus, the findings of the learned trial Judge convicting the accused-appellant for the offence u/s. 411 IPC be set aside and this appeal be allowed. 5. On the other hand, the learned Public Prosecutor supported the impugned judgment and order passed by the learned Additional Sessions Judge, Bali. 6. I have heard the counsel for the accused-appellant and the learned Public Prosecutor and perused the record of the case. 7. In the present case, the facts are not in dispute. 5. On the other hand, the learned Public Prosecutor supported the impugned judgment and order passed by the learned Additional Sessions Judge, Bali. 6. I have heard the counsel for the accused-appellant and the learned Public Prosecutor and perused the record of the case. 7. In the present case, the facts are not in dispute. So far as the charge for the offence u/s. 302 IPC for death of the deceased is concerned the same was not found proved against the present accused-appellant and another accused-Moti and similarly, the charge for the offence u/s. 394 IPC was also not found proved against the accused-appellant and another accused-Moti and the charge for the offence u/s. 394 IPC consists that accused-appellant stolen the flock of goats after murdering deceased. 8. The pertinent question that arises for consideration in this appeal is whether when the accused-appellant and other accused have been acquitted of the charges for the offence u/ss. 302 & 394 IPC , which were framed against them and for the said charges, they have faced trial, can accused-appellant be convicted for the offence u/s. 411 IPC or not especially when no formal charge for the offence u/s. 411 IPC was framed against him. 9. The necessary ingredients, which are required to be proved by the prosecution in order to bring home the guilt of a person u/s. 411. IPC, are as follows : (i) That the stolen property was in the possession of the accused; (ii) That some person other than the accused had possession of the property before the accused got possession of it, and (iii) That the accused had knowledge that the property was stolen property. 10. So far as the possession of the flock of he-goats and she-goats is concerned, the prosecution has not been able to prove that flock of he-goats and she-goats was in possession of accused-appellant and the recovery of flock of goats was made from PW-14 Ibrahim by PW-15 Anop Singh, SHO through fard Ex.P/15. The case of the prosecution is that flock of goats was handed over by accused-appellant to PW-14 Ibrahim on 13.7.1986. The charge for the offence u/s. 394 IPC is similar and of the some effect and accused-appellant has been acquitted of the charge u/s. 394 IPC. Thus, in my considered opinion; his conviction for the offence u/s. 411 IPC appears to be not good. 11. The charge for the offence u/s. 394 IPC is similar and of the some effect and accused-appellant has been acquitted of the charge u/s. 394 IPC. Thus, in my considered opinion; his conviction for the offence u/s. 411 IPC appears to be not good. 11. It is true that in certain circumstances an offence u/s. 411 and one u/s. 379 TPC may come within the purview of Section 211(1) Cr.P.C. and the accused may be charged with having committed one or the other of these two offences and by virtue of Section 221(2) of the Criminal Procedure Code, even if the accused is charged with an offence u/s. 379 IPC, he may be convicted of an offence u/s. 411 IPC. 12. Thus, there is no dispute that a person charged for the offence u/s. 379 or 380 IPC can be convicted for the offence u/s. 411 IPC without framing a formal charge for the offence u/s. 411 IPC. But that would depend upon the circumstances of the case. 13. In the present case, the accused-appellant has been acquitted of the charge for the offence u/s. 394 IPC apart from the main offence u/s. 302 IPC and in these circumstances, without his being given an opportunity to meet the case u/s. 411 IPC, which requires the proof of several ingredients to constitute the offence, viz. knowledge or belief that the property in question is stolen and dishonest intention in receiving and retaining the stolen property, it cannot be said that his conviction for the offence u/s. 411 IPC is proper and thus, the conviction of the accused-appellant for the offence u/s. 411 IPC cannot be sustained, especially when flock of goats was not recovered from the possession of the accused-appellant and he was not charged for the offence u/s. 411 IPC. 14. The Hon'ble Supreme Court in Shabad Rulla Reddy v. State of A.P., AIR 1997 SC 3087 : (1997) 8 SCC 495 has held that accused u/s. 396 IPC could not be convicted u/s. 411 IPC on his acquittal of offence u/s. 396 in the absence of framing of any charge u/s. 411 IPC. 15. The above dictum of law as stated by the Hon'ble Supreme Court also helps this Court to determine the present question in the light that since in present case also, the accused-appellant was facing trial for the offence u/ss. 15. The above dictum of law as stated by the Hon'ble Supreme Court also helps this Court to determine the present question in the light that since in present case also, the accused-appellant was facing trial for the offence u/ss. 302 & 394 IPC and when he was acquitted of both the charges, he should have not been convicted for the offence u/s. 411 IPC, as no charge for the offence u/s. 411 IPC was framed against him. 16. In another case in Kedar Nath v. State of M.P., AIR 1991 SC 1224 , the Hon'ble Supreme Court came to the conclusion that in a murder trial where no charge was ever made u/s. 411 IPC, no conviction could be made u/s. 411 IPC after several years. 17. No doubt, in the above case, the Hon'ble Supreme Court was of the opinion that after several years, accused should not be convicted u/s. 411 IPC in absence of any charge in respect of incident which occurred 17 years ago. But, the position of law as stated by the Hon'ble Supreme Court in that case also helps in the present case in the manner that without formal charge, accused should not have been convicted u/s. 411 IPC. 18. There is one more aspect that should be discussed here. Robbery is a special and aggrieved form of either theft or extortation. The punishment for simple robbery is found in Section 392 IPC and if hurt is caused in committing robbery, Section 394 IPC is applicable. 19. In the present case, the accused was charged for the offence u/s. 394 [PC and he was acquitted of the said charge. When he has been acquitted of the charge u/s. 394 IPC, he cannot be convicted for the simple theft also or alternatively for stolen property. From this point of view also, the findings of the learned Additional Sessions Judge, Baili convicting the accused-appellant for the offence u/s. 411 IPC cannot be sustained. 20. When he has been acquitted of the charge u/s. 394 IPC, he cannot be convicted for the simple theft also or alternatively for stolen property. From this point of view also, the findings of the learned Additional Sessions Judge, Baili convicting the accused-appellant for the offence u/s. 411 IPC cannot be sustained. 20. For the reasons stated above, the conviction of the accused-appellant for the offence u/s. 411 IPC cannot be sustained and thus, the findings of the learned Additional Sessions Judge, Bali convicting accused-appellant for the Li/s. 411 IPC are liable to be set aside and he is entitled to acquittal and this appeal is liable to be allowed.Accordingly, this appeal filed by the accused-appellant-Samiya is allowed and impugned judgment and order dated 28.7.1987 passed by the learned Additional Sessions Judge, Bali convicting and sentencing the accused-appellant for the offence u/s. 411 IPC are set aside and he is acquitted of the said offence.Since he is on bail, he need not surrender and his bail bonus are hereby cancelled.Appeal allowed. *******