Judgment Shiva Kirti Singh, J. 1. The name of appellant No. 1, Ram Chandra Pradhan has been expunged by order dated 17.7.2007 recording the fact of death of that appellant during the pendency of this appeal and the consequent abatement of appeal in respect of that appellant. 2. By the judgment under appeal dated 16th January, 1988 passed by learned 4th Additional Sessions Judge, Arrah in Sessions Trial No. 170 ofl979, all the five appellants have been convicted for the offence under Section 396 of the Indian Penal Code on a finding that they participated in the offence of committing murder of Hari Prasad Rai and taking away a box containing ornaments and cash. They were acquitted of the charge under Section 302 read with Section 149 of the IPC on a finding that this charge is not proved against the accused persons as they had not come to commit murder of Hari Prasad Rai. The appellants have been awarded life imprisonment for the offence under Section 396 of the IPC. 3. The FIR of this case (Simri P.S. Case No. 2 dated 4.7.1976) was lodged for the offence under Sections 147, 148, 149, 307, 326, 302 and 380 of the IPC and Section 27 of the Arms Act on the basis of fardbeyan of Jainath Rai recorded at Simri Hospital at 5.45 a.m. on 4.7.1976. As per fardbeyan the prosecution case, in brief is that in the night of 3-4 July, 1976 at about midnight while the informant was sleeping at his darwqja along with his father Hari Prasad Rai (the deceased), Baijnath Rai Sidhnath Rai (PW 8) Uma Shankar Rai (PW 9) and some others. Suddenly his co-villagers Shestnath Pandey and Ram Nath Pandey along with the appellants and 30 and 40 unknown persons came to his darwqja and they started assault. Shest Nath Pandey and Ram Nath Pandey (both died during trial) had gun in their hands. Shankar Pradhan had garasa. Shri Krishna Jee Pradhan had bhala. Ram Nath Pandey had farsa and others were armed with lathi. They were identified in the light of lantern and torch. The informant and his men wanted to catch hold of the accused persons but due to assault they could not do so. Hari Prasad Rai was shot by Shest Nath Pandey. As a result he fell down and died instantaneously. They were identified in the light of lantern and torch. The informant and his men wanted to catch hold of the accused persons but due to assault they could not do so. Hari Prasad Rai was shot by Shest Nath Pandey. As a result he fell down and died instantaneously. Radha Rai (PW 6), Sidh Nath Rai (PW 8), Uma Shankar Rai (PW 9) and Baijnath Rai (PW 11) also received injures and had to go to hospital for treatment. The informant had received a lathi injury on the hand. On hulla Shri Ram Rai (PW 4), Ram Chandra Rai (PW 2), Rajmahi Rai (PW 5) , Rama Shankar Rai (PW 7) and others came and identified some of the accused persons who managed to flee away. The miscreants carried away a box from the house of the informant which contained jewellery, clothes and cash. He claimed that he could identify other miscreants on seeing them. The details of jewellery and clothes were to be supplied after enquiry from members of the family. Allegedly the occurrence had taken place on account of enmity which was detailed in the fardbeyan to the effect that there was litigation between the prosecution party and accused Shest Nath Pandey and Ram Nath Pandey, the co- villagers of the informant which was pending in Court and two days earlier the aforesaid two accused had threatened the informant. 4. The case was investigated by SI Murari Sharan Prasad (PW 12). On finding the case true charge-sheet was submitted against the accused/appellants. After cognizance the case was committed to the Court of Sessions. Charge under Section 396, IPC was framed against all the five accused/appellants along with co-accused Shest Nath Pandey who subsequently died. Charge under Section 302, IPC was framed against the said Shest Nath Pandey and against the five accused/appellants alternative charge was also framed under Section 302/149 of the IPC. The accused pleaded not guilty to the charges and were put on trial. 5. In order to prove its case the prosecution examined altogether 13 witnesses. PW 1 Dr. Biman Chandra Kumar had held autopsy on the dead body of deceased Hari Prasad Rai. He proved the post-mortem report as exhibit-1 and deposed that a single fire arm injury on the scapular region with black charring margin was the cause of death. 5. In order to prove its case the prosecution examined altogether 13 witnesses. PW 1 Dr. Biman Chandra Kumar had held autopsy on the dead body of deceased Hari Prasad Rai. He proved the post-mortem report as exhibit-1 and deposed that a single fire arm injury on the scapular region with black charring margin was the cause of death. PW 2 Ram Chandra Rai is a brother of the deceased and has supported the occurrence as an eye-witness. He claims to identify the accused/appellants in the torch light and in the light of a lantern kept at darwqja. He has specified that the deceased was shot by Shest Nath Pandey and that door of the house was broken with tangi and the miscreants came out with a box and on hulla they fled away. He admitted that the occurrence of assault took place earlier which started when the deceased and his family members were still sleeping. The door was broken later on and it was door of "Mardani Kita" (the mens quarter). He has admitted that the main house of the deceased and the informant where the female members reside was at a distance of 2-3 rassi from the place of occurrence. Contrary to the prosecution case that only a box was removed by the miscreants, he claimed that in the room wherefrom a box was removed he also saw a broken box kept there. PW 3, Jainath Rai is the informant who has supported his earlier version given out in the fardbeyan. He has claimed that a box as removed by the miscreants which contained ornaments and Rs. 5,000/-. However, details of ornaments have not been furnished by him. He has claimed that detais were given by him. He woke up on hearing noise and in torch light he saw about 50 persons out of whom he identified Shest Nath Pandey, Ram Nath Pandey, Ram Chandra Pradhan (appellant No. 1) an Raj Kumar Pradhan (appellant No. 2). He has stated that due to fear he did not come down from the room but saw Shest Nath firing at the deceased. He came near the deceased when the miscreants had gone away. He has not stated anything about a box being carried by any miscreants. PW 4 Sri Ram Rai has supported the prosecution case of assault upon deceased and others as an eye-witness. He came near the deceased when the miscreants had gone away. He has not stated anything about a box being carried by any miscreants. PW 4 Sri Ram Rai has supported the prosecution case of assault upon deceased and others as an eye-witness. But he has not mentioned anything regarding breaking of door or removal of a box by the miscreants. PW 5, Rajmani Rai has not stated anything in his examination-in-chief but has been tendered only for cross- examination. PW 6, Radha Rai, PW 8 Sidhnath Rai, PW 9 Uma Shankar Rai and PW 11 Baijnath Rai are eye-witnesses and like the informant they also received injuries in the occurrence which has been proved by Doctor Krishna Nand Singh (PW 13). They have supported the prosecution case of assault on the deceased and against the injured and have claimed to have identified the accused persons. PW 6 has not claimed to have seen anybody removing or going with box. PW 8 Sidhnath Rai has simply stated that Rs. 5,000/- and jewellery was taken away by the accused persons. PW 9 has claimed that door was broken and money and jewellery was looted away. PW 11 has stated that door was broken and all articles were looted away. 6. PW 7 Rama Shankar Rai admittedly arrived at the place of occurrence after some delay on hearing sound of firing. He saw Hari Prasad Rai lying dead and he heard from the informant the names of the accused persons/appellants. He has not claimed that he saw door of the room broken or that the informant disclosed to him about loot of any box containing money and ornaments. PW 10 Rama Kant Rai is a formal witness who has proved his signature on the inquest report. 7. PW 12, SI Murari Sharma Prasad has deposed that on 4.7.1976 as Officer-in-charge of Simri police station he received information from the hospital regarding the injured who had gone to the hospital and on going to the hospital he saw the injured. He recorded the fardbeyan (Exthibit-2) of Jainath Rai. On that basis he prepared formal FIR (Exhibit-4). From there he went to the village Akauna where the occurrence had taken place and saw the dead body and prepared inquest report (Ext.-3). He sent the dead body for post-mortem examina tion and inspected the place of occurrence which was dalan of the informant. On that basis he prepared formal FIR (Exhibit-4). From there he went to the village Akauna where the occurrence had taken place and saw the dead body and prepared inquest report (Ext.-3). He sent the dead body for post-mortem examina tion and inspected the place of occurrence which was dalan of the informant. The dalan consisted of a big verandah and a room in which he found wheat and rice kept. There he saw an old tin box. The chain fitted in the door of the room was found removed from its hook and the door was also found broken. He found blood out-side the dalan where the dead body was lying. He also found an empty cartridge. He seized bloodstained earth and the empty cartridge and prepared seizure list. After recording statement of witnesses he completed investigation and submitted charge-sheet. He has admitted that PW 2 Ram Chandra Rai told him that due to fear he (Ram Chandra Rai) had not lighted his torch and did not identify any one. but he had stated that he learnt the names of the accused persons from the informant. PW 2 had not stated about the box or theft of ornaments. He also stated that the informant had disclosed about theft of ornament and Rs. 5,000/- but he had not said that the dacotts had broken the door and entered the house. Regarding PW 4 and PW 6 the IO has admitted that they had not stated that they had lighted any torch nor they had shown torch to the IO. In respect of PW 8 the IO has stated that before him this witness had not claimed regarding taking away of Rs. 5,000/- or regarding specific weapons in the hands of other accused except Shest Nath Pandey. He also admitted that PW 11 Baijnath Rai had not disclosed regarding breaking of the door in his statement before him. 8. The defence in this case has not challenged the occurrence at the alleged time and place in which Hari prasad Rai father of the informant was killed by fire arm. The injuries sustained by the informant as well as by PWs 6, 8, 9 and 11 are also not under challenge. 8. The defence in this case has not challenged the occurrence at the alleged time and place in which Hari prasad Rai father of the informant was killed by fire arm. The injuries sustained by the informant as well as by PWs 6, 8, 9 and 11 are also not under challenge. Even the claim of the informant and some other witnesses that a lantern was burning at the darwqja at the time of the occurrence and that informant had a torch in which he saw the accused and he had shown that torch to the IO has not been challenged. The only challenge appears to be the involvement of the accused/appellants. Besides that the most serious contention raised on behalf of the appellants in course of hearing of this appeal is a mixed question of facts and law as to whether in the light of facts alleged and proved by the prosecution the offence would be under Section 396 or under Section 302 or other minor offences of the IPC. The other contention is that if it is found that offence was not under Section 396, IPC then whether the appellants can be convicted for the offence under Section 302 read with Section 149 of the IPC or for any other minor offence when the trial Court had recorded a specific finding of acquittal under Section 302 read with Section 149 of the IPC in their favour and the State or any other person has not challenged such acquittal by filing any appeal or revision. 9. So far as the issue : whether the appellants were involved in the alleged occurrence or not is concerned on a careful" appraisal of evidence of the witnesses particularly that of the informant as well as other injured witnesses i.e. PWs 6, 8, 9 and 11, it is found that their involvement in the occurrence has been proved beyond any reasonable doubts as there was lantern as well as torch available atleast with the informant as means for identification. Therefore, sufficient opportunity was available to those witnesses to see the miscreants from close quarters in course of assault upon them in which they received injuries. In respect of this issue the judgment under appeal requires no interference. 10. Therefore, sufficient opportunity was available to those witnesses to see the miscreants from close quarters in course of assault upon them in which they received injuries. In respect of this issue the judgment under appeal requires no interference. 10. How the main issues which require consideration are (i) Whether in the light of facts alleged and proved by the prosecution the offence would fall under Section 396 or under some other sections of the IPC and if offence is found to fall under other sections of the IPC can appellants be convicted for such offence when the trial Court has recorded a finding of acquittal under Section 302 read with Section 149 of the IPC and there is no appeal against such acquittal. In respect of issue No. (i) it was highlighted on behalf of the appellants that since the very beginning, as would appear from the fardbeyan of the informant, the prosecution case is consistent that the named accused persons including the appellants along with 30-40 unknown persons came to the darwqja of the informant on account of enmity and the father of the informant was shot dead. Evidence adduced on behalf of prosecution is to the same effect. There is mention in the fardbeyan that before fleeing away the miscreants carried away a box from the house of the informant which contained jewellery, clothes and cash. Subsequently , some of the witnesses claimed in Court that the door of a room attached with "Mardani Kitta" (the mens quarter) was broken and from that room a box was removed. The witnesses are not consistent on the point of breaking of the door and removal of the box or regarding its contents. A detailed discussions on this aspect of the matter in the light of evidence of the witnesses has been made earlier. The IO (PW 12) has stated that he found that the chain fitted in the door of the room was removed from its hook and the door was also found broken. There was no broken lock at the place of occurrence and it is not the case of the witnesses that the chain fitted in the door had been locked. In absence of any lock it is not understandable why the miscreants would take the trouble of removing the chain from its hook or breaking the door. There was no broken lock at the place of occurrence and it is not the case of the witnesses that the chain fitted in the door had been locked. In absence of any lock it is not understandable why the miscreants would take the trouble of removing the chain from its hook or breaking the door. It is not the case of the prosecution that anybody was sleeping inside the room and had bolted the room. The contradictions on this point and the aforesaid discussion creates a doubt in respect of the allegation that miscreants broke the door of a room and removed a box containing jewellery, cash etc. The room contained agricultural produce like wheat and rice which was found kept there. It was part of a dalan containing a big varandah used as mens quarter. It also does not stand to reason that jewellery and valuables would be kept in such a room which clearly will not have requisite security and privacy which is available in case of a room in the main house where the female inmates reside. It is admitted case of the prosecution that the miscreants made no attempt to go to the main house of the informant. 11. On a plain reading of Section 378 onwards up to Section 396 of the IPC it is clear that theft or extortion are necessary ingredients of robbery or dacoity and only when anyone of 5 or more persons, who are conjointly committing dacoity, commits murder in so committing dacoity, everyone of those persons shall be liable for the offence under Section 396 of the IPC. Since the offence of theft or extortion are essential ingredients for such an offence, the facts and circumstances proved by the prosecution must show that the main purpose or intention was to commit theft or extortion and in course of commission of such offences anyone of the miscreants committed murder. The prosecution has to establish that the miscreants were committing dacoity and in course of the same anyone of them committed murder. On careful consideration of the materials available on record and in the light of discussions made above it is found that in this case the purpose, motive or intention was clearly to commit assault and murder and the same was committed as soon as the miscreants arrived at the darwqja of the informant. On careful consideration of the materials available on record and in the light of discussions made above it is found that in this case the purpose, motive or intention was clearly to commit assault and murder and the same was committed as soon as the miscreants arrived at the darwqja of the informant. The murder took place when the miscreants were not committing dacoity. In fact it is doubtful, as stated earlier, that any box containing valuable was removed by any of the miscreants. Even if this part of the occurrence is accepted, clearly it was an individual act of theft, after the main offence of murder and assault, by someone among the miscreants who could not be identified. 12. These facts do not show that murder of Hari Prasad Rai, father of the informant took place in course of commission of dacoity by the miscreants. Clearly, the offence under Section 396, IPC is not attracted in this case. This view is supported by the judgment of a Division Bench of this Court in the case of Shambhu Rai v. State of Bihar, reported in 1987 BLJ 331 , on which reliance was placed by learned counsel for the appellants. Finding to the contrary, of the trial Court in the judgment under appeal, is therefore set aside. The appellants cannot be held guilty of the offence under Section 396 of the IPC. 13. The next issue arising for consideration is whether in the facts and circumstances of the case and the findings given earlier, and in the light of the findings of the trial Court at the end of paragraphic) of the judgment under appeal that the accused persons had participated with the offence of committing murder of Hari Prasad Rai, the appellants can be convicted for the offence under Section 302 read with Section 149 of the IPC or any other minor sections of the IPC or not. As noticed earlier, it has to be kept in mind that in paragraph-11 of the judgment under appeal the learned trial Court has given a finding that charge under Section 302 read with Section 149 of the IPC is not proved against the accused persons as they had not come to commit murder of Hari Prasad Rai. There is no appeal against the aforesaid finding of the trial Court recording acquittal of the accused persons of the aforesaid charge. There is no appeal against the aforesaid finding of the trial Court recording acquittal of the accused persons of the aforesaid charge. However, in this connection the finding of the trial Court at the end of paragraph-10 of the judgment under appeal noticed above is of considerable importance. Further in paragraph-11 of the same judgment the trial Court has held that "there is unanimous evidence to show that the accused persons had come armed with bhala, garasa and lathi at the house of Hari Prasad Rai. They also took away a box containing ornaments and cash. It further appears that Hari Prasad Rai was done to death by gun shot of Shest Nath Pandey. (He died during trial)." 14. Learned senior counsel Mr. Rana Pratap Singh submitted that the law is well settled that if accused persons have been acquitted of the charge under Section 302 then in absence of any appeal against such acquittal the appellate Court cannot convicted the accused persons of such charge. He placed reliance upon judgment of the Supreme Court in the case of Lakhan Mahto v. State of Bihar, reported in AIR 1966 SC 1742 and on a Division Bench judgment of this Court in the case of Shambhu Rai v. State of Bihar (supra), particularly paragraph-12 thereof. 15. In the case of Lakhan Mahto v. State of Bihar (supra) the facts were quite different. Sevral accused persons had been convicted under Section 302/149 of the IPC and one of them specifically charged under Section 302, IPC was acquitted of that charge and there was no appeal against such acquittal. The High Court set aside the conviction under Section 302/149 of the IPC in respect of some of the appellants and the conviction of one under Section 302/149 of the IPC was altered into a minor offence under Section 326, IPC. The Supreme Court held that conviction under Sections 302/149, IPC could not be altered into one under Section 302 or Section 326, IPC because Section 149 creates a specific and distinct offence. In the case of Shambhu Rai v. State of Bihar (supra) the High Court found that the evidence in that case did not disclose the offence under Section 396, IPC because the criminals had the intention to assault and kill and the theft was an individual act of a deceased accused. In the case of Shambhu Rai v. State of Bihar (supra) the High Court found that the evidence in that case did not disclose the offence under Section 396, IPC because the criminals had the intention to assault and kill and the theft was an individual act of a deceased accused. In paragraph-12 of that judgment the Court merely observed that unfortunately there had been acquittal of the appellants in respect of charge under Sections 302/149, 147, 148 and 324 of the IPC. No further discussion was made regarding ingredients of the offence under Section 396, IPC and whether in a case where conviction had been recorded under Section 396, IPC, in appeal the conviction could be altered to one under Section 302 or any other minor offence or not. This issue was not discussed or addressed at all. 16. On behalf of appellants a judg-ment of the Supreme Court in the case of Ramdeo Rai v. State of Bihar, reported in AIR 1990 SC 1180 , was cited only to distinguish the same by pointing out that in that case the Supreme Court held that conviction under Section 396, IPC could be validly altered to Section 302, IPC, the charge in alternative for which the appellants had been charged and therefore had suffered no prejudice on account of such alternation. It was pointed out that in that case the principle of alteration of conviction from Section 396 to Section 302, IPC was affirmed and upheld only because the trial Court had not acquitted the accused of the alternative charge expressly or impliedly as indicated at the end of paragraph-11 of the judgment. It has been submitted that in that view of the matter the contention that in absence of appeal against the acquittal no conviction can be made under Section 302, IPC was not accepted by the Supreme Court. Since the actual findings of the trial Court in that case were not clear from the reported judgment of the Supreme Court, this Court called for the original records of the trial Court. On a perusal of the same it was found that after recording conviction under Section 396, IPC the trial Court had in fact omitted to consider the alternative charge under Section 302 and there was no express or implied acquittal for the alternative charge under Section 302, IPC. On a perusal of the same it was found that after recording conviction under Section 396, IPC the trial Court had in fact omitted to consider the alternative charge under Section 302 and there was no express or implied acquittal for the alternative charge under Section 302, IPC. It was submitted that in the present case since the trial Court has expressly recorded acquittal for the charge under Sections 302/149, IPC, the aforesaid judgment in the case of Ramdeo Rai v. State of Bihar, cannot be of any help to the State. 17. On the other hand, on behalf of State it was submitted that alternative charges are framed only where there is uncertainty as to which offence may ultimately be established on the basis of evidence that may be adduced in course of trial. A charge under Section 396, IPC contains within itself a charge under Section 302, IPC and therefore, according to learned counsel for the State it has been consistently held that a conviction under Section 396, IPC can be converted into a conviction under Section 302 or other allied sections of the IPC. Reliance was place upon judgment of the Supreme Court in the case of W. Slaney v. State of Madhya Pradesh, reported in AIR 1956 SC 116 , to submit that alteration of charge from Section 302 read with Section 34, IPC to one under Section 302, IPC was upheld on a finding that validity of conviction by such alteration cannot be affected adversely unless a prejudice was caused to the accused. Learned counsel for the State also placed strong reliance upon a judgment of the Supreme Court in the case of Shyam Behari v. State of U.P., reported in AIR 1957 SC 320 , where it was held that even if the accused could not be convicted under Section 396, he could be convicted under Section 302, IPC, it being one of the ingredients of offence under Section 396, IPC and this ingredient having been proved against the accused. It was further submitted that following the said principle a Division Bench of this Court in the case of Kanhaiya Nonia v. State of Bihar, reported in 1986 PLJR492, converted conviction under Section 396, IPC into one under Section 302, IPC. 18. It was further submitted that following the said principle a Division Bench of this Court in the case of Kanhaiya Nonia v. State of Bihar, reported in 1986 PLJR492, converted conviction under Section 396, IPC into one under Section 302, IPC. 18. On considering the case laws cited on behalf of both the parties, it is found that while there is full acceptance of the general law that once acquittal has been recorded for a particular offence, no conviction can be made for that offence in absence of appeal against such acquittal, there is a special principle of law well established by judicial pronouncements including judgment by a Constitution Bench of the Supreme Court in the case of Shyam Behari (supra) that even if the accused cannot be convicted under Section 396, IPC, he can be convicted under Section 302, IPC murder being one of the ingredients of the offence under Section 396,IPC, if such ingredient has been proved against the accused. Such principle specially applicable to offence under Section 396, IPC cannot be ignored on the ground of general principle applicable to other offence prohibiting conviction if there has been acquittal and there is no appeal against such acquittal. Such principle advances the cause of justice and is found to be more preferable than the option of invoking revisional jurisdiction to set aside the judgment under appeal for completing the formality of fresh decision by the trial Court after so many years. 19. On facts it is found that the trial Court at the end of paragraph-10 of the -judgment under appeal has given a finding sufficient to make the appellants liable for the offence under Section 302/149 of the IPC but since it found the appellants guilty of the offence under Section 396, IPC instead of holding the alternative charge under Section 302/149, IPC redundant, it preceded to acquit the appellants of the alternative charge without any finding that they cannot be held guilty for the charge under Section 302/149, IPC on account of evidence or any material on record. In such circumstances, even on the basis of finding of the trial Court itself given in the judgment under appeal there is no difficulty in converting the conviction of the appellants from one under Section 396 to that under Section 302 read the Section 149, IPC. In such circumstances, even on the basis of finding of the trial Court itself given in the judgment under appeal there is no difficulty in converting the conviction of the appellants from one under Section 396 to that under Section 302 read the Section 149, IPC. Accordingly, the remaining four appellants are held guilty of the offence under Section 302 read with Section 149 of the IPC by way of conversion of their conviction recorded under Section 396, IPC. Since they had been charged with this offence also hence there is no question of prejudice to them on account of such conversion. The sentence of life imprisonment awarded to them is found appropriate for the offence under Section 302/149 of the IPC. With this modification in the conviction the appeal stands dismissed. Since the appellants 2 to 4 are on bail, there bail bonds are cancelled and they are directed to be taken into custody to serve out the remaining sentence in accordance with law. SYED MD.MAHFOOZ ALAM, J. 20 I agree.