JUDGMENT Hon’ble Prafulla C. Pant, J. These two appeals, are directed against the judgment and order dated 08.11.2000 passed by Special Judge, Anti Corruption, U.P., Dehradun, in Sessions Trial (C.B.I. case) No. 26 of 1992 whereby said court has convicted the accused/appellants Satish Karanwal, Harish Chhabra and Shravan Kumar under section 395 of I.P.C., and each one of them has been sentenced to rigorous imprisonment for a period of three years and directed to pay fine of Rs. 25,000/-. 2. Heard learned counsel for the parties and perused the lower court record. 3. Prosecution story in brief is that on 14.09.1989, at about 9.30 a.m., a team of Income Tax Officers led by R.K.Paliwal (PW1) proceeded from Meerut for search of premises of office of accused/appellant Harish Chabra in Nai Mandi, Muzaffarnagar. Said team consisted of Shri S.P.Shukla Income Tax Officer (since deceased) R.K. Sabarwal (Income Tax Officer), S.C.Sharma (Income Tax Inspector), PW9 Nanak Chand Tomar (Income Tax Inspector), PW2 S.K.Gulati (Income Tax Inspector) and PW12 Mayank Kumar (Income Tax Inspector). There were three police constables also with them. They reached in the premises of office of accused/appellant Harish Chabra at about 11.15 am. Accused/appellant Harish Chabra was found in his office PW1 R.K.Paliwal Assistant Commissioner of Income Tax, Muzaffarnagar, introduced himself to said accused and showed the authorization issued under section 132 of Income Tax Act, 1961. When the Income Tax Officers started the search operations accused Harish Chhabra told the team that he has received a telephonic call from his wife and since search operation have started, at his residence also, his wife needs his help immediately. Income Tax Officers asked him to cooperate with the search operation in the office premises, but on his insistence he was allowed to go. Prosecution case is that after sometime accused Harish Chhabra alongwith 25-30 persons which included accused Shravan Kumar and accused Satish Karanwal also came into the premises under search and shouted slogans against the Income Tax Department. They snatched warrant and files from the Income Tax Officers. Accused Harish Chhabra and others assaulted S.P.Shukla (Income Tax Officer) with shoe, belt and slapped and dragged him out of the room. His pant and shirt was torn. He was badly injured. PW12 Mayank Kumar (Income Tax Inspector) was robbed of his purse containing of Rs. 350/- and telephone diary. They snatched warrant and files from the Income Tax Officers. Accused Harish Chhabra and others assaulted S.P.Shukla (Income Tax Officer) with shoe, belt and slapped and dragged him out of the room. His pant and shirt was torn. He was badly injured. PW12 Mayank Kumar (Income Tax Inspector) was robbed of his purse containing of Rs. 350/- and telephone diary. A First Information Report of the incident was lodged against accused/appellant Harish Chhabra, Shravan Kumar and 25-3 0 others at the Police Station Nai Mandi, Muzaffarngar. On the very day (14.09.1989) injuries on person of S.P.Shukla were got examined in the District Hospital Muzaffarnagar. PW10 Dr. U.C. Gaur medically examined S.P.Shukla (Income Tax Officer) and prepared injury report (Ex-A20) he recorded as many as 11 injuries on the person of the injured public servant (S.P.Shukla). Said medical officer opined that the injuries could have been caused on 14.09.1989 between 11.30 and 11.45 a.m. PW11 Dr. R.K.Garg is the Radiologist of Medical College Meerut where 15.09.1989, injured S.P. Shukla was admitted. This witness has proved the fractures suffered by the injured in the incident. It appears that the investigation was transferred from regular police to C.B.I where after PW14 V.N.Mishra S.P. C.B.I., conducted the investigation. After interrogating the witnesses and collecting the evidence the said Investigating Officer submitted charge sheet against accused/appellants Harish Chhabra, Shravan Kumar and Satish Karanwal for their trial in respect of offences punishable under section 147, 149, 332, 353 and 395 of I.P.C. 4. The trial court, on receipt of the charge sheet after giving necessary copies to the accused, heard on the charge on 14.10.1996, and framed charge of offences punishable under section 395 and 397 of I.P.C., against all the three accused namely Harish Chhabra, Shravan Kumar and Satish Karanwal, who pleaded not guilty and claimed to be tried. The trial court, on receipt of the charge sheet after giving necessary copies to the accused, heard on the charge on 14.10.1996, and framed charge of offences punishable under section 395 and 397 of I.P.C., against all the three accused namely Harish Chhabra, Shravan Kumar and Satish Karanwal, who pleaded not guilty and claimed to be tried. On this prosecution got examined PW1 R.K.Paliwal the then Assistant Commissioner of Income Tax (eye witness), PW2 S.K.Gulati the then Income Tax Officer (eye witness), PW3 G.D.Gupta Senior Scientific Officer of Forensic Laboratory (who examined blood stained clothes of injured), PW4 Head Constable Sukhbir Singh (who made necessary entry in the General Diary at Police Station Nai Mandi), PW5 Sub Inspector Om Prakash Tyagi (who sent the injured for medical examination and took blood stained clothes in his possession), PW6 Vinod Khurana the then Deputy Director Investigation of Income Tax Department, PW7 Vijay Bahadur Singh the then Sub Divisional Magistrate (who conducted the Test Identification Parade), PW8 Head Constable H.C.K.Prasad (who was on duty with the Income Tax Officers at the time of search operations), PW9 Nanak Chand Tomar Income Tax Inspector (eye witness), PW10 Dr. Umesh Chand Gaur (who medically examined the person of injured S.P.Shukla), PW1 1 Dr. R.K.Garg (Radiologist), PW12 Mayank Kumar Income Tax Inspector (eye witness), PW13 Constable Mohd. Afsar Khan (eye witness) and PW14 V.N. Mishra S.P. C.B.I. (who investigated the crime). 5. Oral and documentary evidence was put to the accused under section 313 of Cr.P.C., in reply to which the accused persons pleaded that the evidence adduced against them was false. In defence four documents were filed per list 1 75B which included copy of F.I.R, of the same date in respect of another incident, and charge sheet relating there to. 6. The trial court after hearing the parties found that prosecution has successfully proved charge of offence punishable under section 395 of I.P.C., against the three accused Harish Chhabra, Shravan Kumar and Satish Karanwal and convicted them accordingly. After hearing on sentence, each one of the convicts was sentenced to rigorous imprisonment for a period of three years. Aggrieved by said judgment and order dated 08.11.2000, passed by Special Judge, Anti Corruption, U.P., Dehradun, in Sessions Trial (C.B.I. Case) No. 26 of 1992, these appeal are filed by the convicts. 7. After hearing on sentence, each one of the convicts was sentenced to rigorous imprisonment for a period of three years. Aggrieved by said judgment and order dated 08.11.2000, passed by Special Judge, Anti Corruption, U.P., Dehradun, in Sessions Trial (C.B.I. Case) No. 26 of 1992, these appeal are filed by the convicts. 7. Before further discussion, this court thinks it just and proper to mention the injuries found on the person of S.P.Shukla Income Tax Officer on 14.09.1989 examined by PW10 Dr. U.C. Gaur of District Hospital, Muzaffarnagar. Said injuries are reproduced below from Ex-A20 : 1. Traumatic swelling 4 cm x 3 cm on front of base of nose. 2. Abraded traumatic swelling 3 cm x 2 cm on left side head, 10 cm above the ear. 3. Sub conjunctival haemorrhage of right side eye. 4. Contusion 4 cm x 3 cm of left side back of neck erythematous in colour. 5. Trauma tic swelling with contusion 6 cm x 5 cm on back of middle of head. 6. Contusion 8 cm x 6 cm on top of left shoulder. 7. Contusion 7 cm x 6 cm of top of right shoulder. 8. Multiple abrasion in an area of 10 cm x 6 cm of back of left elbow. 9. Abrasion 4 cm x 1 cm of front of left side chest in upper part. 10. Traumatic swelling 2 cm x 2 cm on dorsum of middle of left index finger. 11. Abrasion 0.5 cm x 0.5 cm on dorsum of right index finger on middle part. In the opinion of Medical Officer PW10 (Dr. R.C. Gaur, the injuries were fresh the same could be caused by hard blunt object. Injury No.1, 2 and 5 were kept under observation, rest of the injuries were simple in nature. PW1 1 Dr. R.K.Garg Radiologist of Medical College Meerut, has stated that S.P.Shukla (injured) was admitted in Medical College in 15.09.1989 and radiologist has further stated that after X ray of nose, face, hands and chest it was found that there was depression in nosal bone suggesting fracture. It is pertinent to mention here the S.P.Shukla (Income Tax Officer) after the incident, but before his statement could be recorded died natural death, as such he could not be examined by the prosecution. It is pertinent to mention here the S.P.Shukla (Income Tax Officer) after the incident, but before his statement could be recorded died natural death, as such he could not be examined by the prosecution. In the circumstances, this Court has to see testimony of other eyewitnesses to examine as to whether accused/appellants Harish Chhabra, Satish Karanwal and Shravan Kumar alongwith others caused injuries a person of S.P.Shukla (Income Tax Officer) or not. 8. PW1 R.K.Paliwal the then Income Tax Commissioner has stated that under instructions from the Directorate he reported in the Income Tax Office at Meerut on 13.09.1989 at about 9.30 p.m. On the next day (14.09.1989) at about 6.30 p.m. he again reported in the office in compliance of his superior officers. According to this witness on said date 14.09.1989 at about 9.30 a.m, he was told that he has to lead party no. 7 in connection of search operation. In said party S.P.Shukla Income Tax Officer, R.K.Sabarwal Income Tax Officer and four Income Inspectors namely S.K.Gulati (PW2), Nanak Chand Tomar (PW9), Mayank Kumar (PW12) and one Sharma were the members. The party was given three police officials for assistance. The team proceeded from Meerut towards Muzaffarnagar, and at about 10.45 a.m., in the bus the members of team came to know on opening envelope given to them that they had conduct search operations in the premises of Harish Chhabra at B72 Nai Mandi Muzaffarnagar. According to this witness at 11.15 a.m. he alongwith the other members of the team got down from the bus and entered in the premises of accused/appellant Harish Chhabra. The policemen were asked to guard at the gate. Accused Harish Chhabra who was inside the premises was told about the orders/warrant of search. PW1 R.K.Paliwal further told that accused Harish Chhabra looked annoyed on seeing the papers but took the team members to his office. The witness further told a phone call was received by accused Harish Chhabra whereafter he sought permission to leave the premises as his wife needed him in connection with the search being made in his house. PW1 R.K.Paliwal further told that he (Harish Chhabra) was advised not to go but on his insistence he was allowed to go. As soon as the search operations started according to this witness accused Harish Chhabra entered alongwith a mob in the premises. PW1 R.K.Paliwal further told that he (Harish Chhabra) was advised not to go but on his insistence he was allowed to go. As soon as the search operations started according to this witness accused Harish Chhabra entered alongwith a mob in the premises. The witness further narrated that the mob started beating S.P.Shukla and S.K.Gulati (Officers Income Tax Department). PW1 R.K. Paliwal further told that the papers were snatched from the Income Tax officers. Mayank Kumar (PW12) was robbed to his purse containing ‘ 350. This witness has further told that he sought assistance of Nai Mandi Police Station to rescue the team of Income Tax Officers on which the policemen came there, but by then Shri Shukla has already suffered injuries, and he was bleeding from his nose. This witness has proved that Test Identification Parade was held and he identified the accused (Satish Karanwal). 9. The statement of above eyewitness (PW1) gets further corroboration from the statement of other eyewitnesses namely PW2 S.K.Gulati (Income Tax Officer), PW9 Nanak Chand Tomar the then Income Tax Inspector (eyewitness), PW12 Mayank Kumar Income Tax Inspector (eye witness) and PW13 Constable Mohd. Afsar Khan (who was on duty with the Income Tax Officers). They have also narrated the same prosecution case as stated by PW1 R.K.Paliwal and for brevity is not being repeated. On the point of Test Identification Parade the statement of PW1 R.K.Paliwal gets corroborated from the statement of PW7 Vijay Bahadur Singh the then Sub Divisional Magistrate ( who proved Test Identification Memo Ex-A16). He (PW7) stated that accused Satish Karanwal was correctly identified by S.K. Gulati (PW2) and Nanak Chand Tomar (PW9), constable Mohd. Afsar Khan (PW13). 10. On going through the statements of above mentioned five eyewitnesses read with the injuries suffered by S.P.Shukla (since deceased) proved by PW10 Dr. U.C.Gaur and PW1 1 Dr. R.K.Garg further read with the Test Identification Report, this Court is of the view that it is proved from the evidence on record, that accused/appellants Harish Chhabra, Satish Karanwal and Shravan Kumar alongwith the others formed unlawful assembly and indulged in rioting in order to commit offence and prevent the public servants from discharging their duties, and thereafter they assaulted the public servant S.P.Shukla Income Tax Officer and prevented the team of the Income Tax Officers in discharging of their duties. As such, this Court finds that the offences proved against the accused/appellants are punishable under section 147 and under section 332 read with the section 149 of I.P.C. 11. Learned counsel for the Karanwal accused Harish Chhabra are also accused in the connected case (S.T. No. 27 of 1992) relating to incident of same date, as such, it is not probable that they were present at two places. However, it has come in the testimony of PW14 V.N.Mishra SP C.B.I. (Investigating Officer) that the distance between two places was six/seven kms. It has further come on the record in the statement of PW1 R.K.Paliwal the then Assistant Commissioner of Income Tax who has stated that the bus reached only within 15-20 minutes, at Nai Mandi after another team was left at Sameer Ispat Premises. It is relevant to mention here that one team of Income Tax Officers got down for search operations at Sameer Ispat Limited also belonging to accused Harish Chhabra, and another team conducted operations in Nai Mandi in his office. It cannot be said to be improbable that accused after assaulting Income Tax Officers at Nai Mandi alongwith the mob proceeded to the Sameer Ispat Premises and assaulted members of team of Income Tax Officer there also. 12. It is also contended on behalf of the appellants that the trial court has erred in law in convicting the accused/appellants for commission of dacoity punishable under section 395 of I.P.C. It is argued that from no stretch of imagination the accused can be said to have committed dacoity. Considering the definition of ‘robbery’ given in section 390 of I.P.C., this Court is in agreement with the contention of learned counsel for the appellants to the extent that the acts committed by the accused/appellants does not constitute dacoity. Section 390 clearly provides that in all ‘robbery’ there is either theft or extortion. It further provides a theft is robbery if, in order to committing theft the offender for that end, voluntarily causes or attempts to cause death, hurt or wrongful restraint or fear by instant death or instant hurt or instant wrongful restraint. Para -2 of section 390 further provides that extortion is robbery if the offender at the time of committing extortion puts such person in fear of instant death, instant hurt or instant wrongful restraint and induces the person to deliver up the thing extorted. Para -2 of section 390 further provides that extortion is robbery if the offender at the time of committing extortion puts such person in fear of instant death, instant hurt or instant wrongful restraint and induces the person to deliver up the thing extorted. Needless to say that robbery accused/appellants with other members of the committed by five or more persons is called dacoity as defined under section 391 of I.P.C. In the present case from the evidence on record there appears no intention on the part of the accused/appellants with the other members of the mob to commit dacoity. What has been proved on the record is that the mob constituted unlawful assembly and indulged in rioting in order to commit offence and thereafter assaulted public servants injured S.P.Shukla Income Tax Officer (since deceased) and prevented the entire team of Income Tax Officers from discharging their duties in search operations. As such, the prosecution has successfully proved that the accused/appellants with the help of other members of the mob, committed offences punishable under section 147 and 332 read with section 149 of I.P.C. 13. In the above circumstances, this Court is of the view that accused/appellants deserve to be acquitted from the charge of offence punishable under section 395 of I.P.C, but they are liable to be held guilty under section 147 and 332 read with section 149 of I.P.C. In view of principle of law laid down in Dalbir Singh vs State of U.P. (2004) 5SCC page 334, and Rafiq Ahmad vs. State of U.P. (2011) 8SCC page 300 read with section 464 of Code of Criminal Procedure, after considering the facts and circumstances of the case, this Court is of the opinion that since no prejudice is caused to the accused as they were aware of the allegation of rioting and assaulting the public servants in discharge of their duties, their conviction can be recorded under section 147 and 332 read with section 149 of I.P.C., even if they were not formally charged of said offences. 14. 14. Accordingly, both the appeals are disposed of with the direction that the conviction and sentence recorded by the trial court against the accused/appellants under section 395 of I.P.C is hereby set aside, but they are convicted under section 147 and under section 332 read with section 149 of I.P.C., and each one of them namely Harish Chhabra, Satish Karanwal and Shravan Kumar is sentenced to rigorous imprisonment for a period of one year under section 147 of I.P.C., and rigorous imprisonment for a period of two years under section 332 read with section 149 of I.P.C. Both the sentences shall run concurrently. All the three accused/appellants stand acquitted from the charge of offence punishable under section 395 of I.P.C. However, they shall surrender to serve out the sentence as awarded by this Court in respect of offences punishable under section 147 and 332 read with section 149 of I.P.C. They are on bail. Their bail is cancelled. Lower court record be sent back.