JUDGMENT Prafulla C. Pant, J. 1. All these three appeals are directed against the judgment and order dated 08.11.2000, passed by Special Judge (Anti Corruption) U.P. Dehradun, in Sessions Trial No. 27 of 1992, whereby said court has convicted accused/appellants Satish Karnwal, Harish Chhabra, Devender Kumar @ Pinku, Vijay Singh, Om Prakash and Rajneesh Mittal under section 395 IPC. 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 11:00 a.m. a search party from Income Tax Department consisting of Shri P.K. Banerjee, Income Tax Officer, Shri R.K. Jain, Income Tax Officer, P.W.5 Shri Ajay Kumar Sonkar, Income Tax Inspector (injured eye witness), P.W.4 Vinod Johri, the then Income Tax Inspector (another injured eye witness), A.K. Dhondiyal, Income Tax Inspector, A.B. Srivastava, Income Tax Inspector and K.N. Tiwari, Income Tax Inspector with two police constables namely P.W. 10 Constable Suresh Pal Singh and one Constable A.P. Chandrapal entered in the premises of M/s Sameer Ispat Private Ltd. Meerut Road, Muzaffarnagar with search warrant and other necessary papers. The team of Income Tax Officials deployed the constables at the main gate of factory premises. They met one Sandeep Maini, Production Manager of the factory to whom they introduced themselves and disclosed the purpose of the search. After warrant was shown, Sandeep Maini was asked to provide two witnesses to be present during the proceedings of the search. However, he did not co-operate and asked for time on the pretext that accused/appellant Harish Chhabra, the owner of the factory is likely to reach there. After waiting for sometime, accused/appellant Satish Karanwal came to the factory thereafter accused/appellant Satish Karanwal and one Sandeep Sharma agreed to be witnesses of the proceedings of the search. As the search proceedings started, accused/ appellants Satish Karanwal requested for leaving the premises on the pretext that he had to deposit tax on which he was allowed to leave only after he substituted one Kapoor, storekeeper as a witness. Half an hour therafter, a mob of 100-150 persons led by accused/appellant Satish Karanwal entered in the premises raising slogans against Income Tax Department. Some of the persons in the mob armed with Lathis and Dandas. Half an hour therafter, a mob of 100-150 persons led by accused/appellant Satish Karanwal entered in the premises raising slogans against Income Tax Department. Some of the persons in the mob armed with Lathis and Dandas. The mob forcibly entered into the premises. Accused/appellants who were with the mob hurled abuses at the Income Tax Officials, manhandled them and assaulted them. Not only this, the mob led by accused Satish Karanwal forcibly stripped of clothes of the Income Tax Officials and compelled them to apologize before accused/ appellant Harish Chhabra who had also come with the mob. The Income Tax Officials were thereafter made to leave the premises without clothes and papers. They somehow reached back to Income Tax office at Meerut. Injured Income Tax Officials namely P.W.4 Vinod Johri, P.W.5 Ajay Kumar Sonkar, P.K. Banerjee, R.K. Jain, K.N. Tiwari, and A.K. Dhondiyal were medically examined by P.W.1 Dr. Dushyant Tyagi of Medical College Meerut. First Information Report (Ex. A13) was given on the very day (14.09.1989) at Police Station Medical College Meerut, which was transmitted from there to Police Station Mansoorpur of District Muzaffarnagar. Later, the case was handed over to Central Bureau of Investigation (for short CBI). P.W.15 Sohrat Singh, Inspector CBI started investigation and the same was concluded by P.W.14 Inspector Yogendra Singh who submitted charge sheet against accused/appellants Satish Karanwal, Harish Chhabra, Devendra Kumar @ Pinku, Vijay Singh, Sandeep Maini, Omprakash and Rajneesh Mittal for their trial in respect of offences punishable under section 147, 149, 353, 332 and 395 IPC. 4. The trial court, after hearing the parties on 14.10.1996, framed charge of offences punishable under section 147, 332/149 and 395 IPC, against all the seven accused namely Satish Karanwal, Harish Chhabra, Devender Kumar @ Pinku, Vijay Singh, Sandeep Maini, Omprakash and Rajneesh Mittal to which they pleaded not guilty and claimed to be tried. On this, prosecution got examined P.W.1 Dr. Dushyant Tyagi (who medically examined injuries on person of Income Tax Officers), P.W.2 Constable Manveer Singh, P.W.3 Vinod Khurana, the then Dy. On this, prosecution got examined P.W.1 Dr. Dushyant Tyagi (who medically examined injuries on person of Income Tax Officers), P.W.2 Constable Manveer Singh, P.W.3 Vinod Khurana, the then Dy. Director Investigation, Income Tax Department, P.W.4 Vinod Johri, the then Income Tax Inspector (injured eye witness), P.W.5 Ajay Kumar Sonkar, Income Tax Inspector (another injured eye witness), P.W.6 Vijay Bahadur Singh the then City Magistrate (who conducted Test Identification Parade in respect of accused Rajneesh Mittal and Om Prakash), P.W.7 Rajeev Rautela the then Sub Divisional Magistrate (who conducted Test Identification Parade in respect of accused Devender Kumar @ Pinku), P.W.8 Sultan Singh Chauhan, the then Sub Divisional Magistrate (who conducted Test Identification Parade in respect of accused Harish Chhabra, Vijay Singh and one Surendra Singh), P.W.10 Constable Suresh Pal (eye witness), P.W. 11 Om Prakash (male nurse of private hospital where injured Ajay Kumar Sonkar remained admitted), P.W.12 Dwarkesh Puri (record keeper of Medical College, Meerut), P.W.13 Baig Raj Singh (who made entry in the General Diary at Police Station Mansoorpur, District Muzafffarnagar, after FIR was sent from Medical College Meerut to Mansoorpur), P.W.14 Inspector Yogendra Singh Investigating Officer (who completed investigation) and P.W.15 Inspector Sohrat Singh of CBI (who started investigation after the case was transferred to said agency for investigation). 5. Oral and documentary evidence was put to the accused under section 313 Cr. P.C. in reply to which the accused pleaded that evidence adduced against them was false. They further pleaded that their photographs were shown before Identification Parade. Accused Harish Chhabra further pleaded that he was not present with the mob in the premises of Sameer Ispat. In defence, on behalf of the accused three documents were filed per list paper no. 172/B which included copy of first information report of crime no. 266 of 1989 registered at Police Station Nai Mandi in respect of another raid and copy of charge sheet in respect thereof, and copy of India Today issue 1-15 October, 1989, in which photograph of accused Harish Chhabra were published. 6. The trial court, after hearing the parties found that prosecution has successfully proved charge of offence punishable under section 395 IPC, against six accused namely Satish Karanwal, Harish Chhabra, Devender Kumar @ Pinku, Vijay Singh, Om Prakash and Rajneesh Mittal. However, the trial court did not find any of the charge proved against accused Sandeep Maini and acquitted him of the charge. However, the trial court did not find any of the charge proved against accused Sandeep Maini and acquitted him of the charge. After hearing on sentence, each one of the six convicts was sentenced to rigorous imprisonment for a period of three years and directed to pay fine of Rs. 25,000/-. Aggrieved by said judgment and order dated 08.11.2000, passed by Special Judge (Anti Corruption) U.P. Dehradun, in Sessions Trial No. 27 of 1992, these three appeals are filed by the convicts. 7. Before further discussion, this Court thinks it just and proper to mention the injuries suffered by the Income Tax Officials which are mentioned in injury reports Ex. A1 to Ex. A6 prepared by P.W.1 Dr. Dushyant Tyagi on 14.09.1989. Ex. A1 proved by said medical officer discloses observations made on examination of person of Vinod Johri (P.W.4) on 14.09.1989 at 4:30 p.m. which reads as under:- “No external injury mark. Complaint of pain in the cervical region. No H/O giddiness. No. H/O unconsciousness. Advised to attend OPD no. 11.” Ex. A2 prepared by P.W.1 Dr. Dushyant Tyagi regarding injuries found on person of K.N. Tiwari (Income Tax Inspector) At 4:40 p.m., on 14.09.1989, discloses following injuries on his person:- (i) Contused swelling 13cm X 2.5cm on the back of chest 20cm below the base of skull. (ii) Contused swelling 21cm X 2cm on the back of chest 2cm below injury no. 1. (iii) Complaint of pain in mid axillary line of left side chest. (iv) Contused swelling 3cm X 2cm, 8cm above the left ear on left side head.” The same medical officer also examined P.K. Banerjee, the then Income Tax Officer and prepared injury report (Ex. A3) regarding injuries found on his person which are as under:- “Complaint of pain on right elbow. Advised X-ray. Abraded contusion 4cm X 2cm on the left shoulder joint. Advised X-ray. Contused swelling 13cm X 2cm on the left scapular region.” On the person of A.K. Dhondiyal the then Income Tax Inspector , P.W.1 Dr. Dushyant Tyagi found following injuries mentioned in injury report (Ex. A4):- Multiple abraded contusion on the back of chest (whole) in an area measuring about 35cm X 19cm just below the base of skull. Contused swelling 3cm X 2cm on the left side forehead, 2cm above the eye brow. On examination of person of Ajay Kumar Sonkar (P.W.5) the then Income Tax Inspector, Dr. A4):- Multiple abraded contusion on the back of chest (whole) in an area measuring about 35cm X 19cm just below the base of skull. Contused swelling 3cm X 2cm on the left side forehead, 2cm above the eye brow. On examination of person of Ajay Kumar Sonkar (P.W.5) the then Income Tax Inspector, Dr. Dushyant Tyagi (P.W.1) found following injuries and observed the same in injury report (Ex. A5):- (i) Multiple abraded contusion in an area of 40cm X 14cm on the back of abdomen 28cm below the base of skull. Advised X-ray. (ii) Contusion 4cm X 3cm on the back of head 8cm above the base of skull. (iii) Contusion 4cm X 1cm on the left knee joint. Advised X-ray. Last injury report prepared by P.W.1 Dr. Dushyant Tyagi on 14.09.1989, at 5:30 p.m., relates to Income Tax Officer R.K. Jain. The injury mentioned therein reproduced below from Ex. A6:- “(i) Contused swelling 4cm X 4cm below the left eye on left side face, Reddish blue in colour. (ii) Complaint of pain in chest and abdomen.” All the above injuries as stated by P.W.1 Dr. Dushyant Tyagi could have been caused at about 12:30 p.m. on 14.09.1989 by using Lathis, Dandas, Fists and other hard blunt objects. 8. The injures on person of P.W.5 Ajay Kumar Sonkar are further corroborated by document (Ex. A28) which is the case sheet of M. Prakash Nursing Home, Meerut. Said document has been proved by P.W.11 Om Prakash male nurse of said hospital who has stated that Ajay Sonkar (P.W5) was admitted in the nursing home on 19.09.1989 and discharged from the hospital on 30.09.1989. From the above medical evidence on record, it is established that the Income Tax Officials did suffer injuries on their person on 14.09.1989 at about 12:30 p.m. Now, this Court has to examine as to whether the accused/appellants by forming an unlawful assembly alongwith others, with common object assaulted Income Tax Officials as suggested by prosecution or not. It is further required to be seen as to whether the accused/ appellants committed any dacoity or not. 9. The star witnesses of this case are P.W.5 Ajay Kumar Sonkar (injured eye witness), and P.W.4 Vinod Johri (another injured eye witness). It is further required to be seen as to whether the accused/ appellants committed any dacoity or not. 9. The star witnesses of this case are P.W.5 Ajay Kumar Sonkar (injured eye witness), and P.W.4 Vinod Johri (another injured eye witness). Both these witnesses have stated that under the directions of thier superior officers on 14.09.1989 in the morning hours they assembled in the office of Income Tax Department at Meerut where they were told that they were part of party no. 9. They were further told that Mr. P.K. Banerjee, R.K. Jain, A.K. Dhondiyal, K.N. Tiwari, and A.B. Srivastava were other members of their team. The aforesaid two witnesses further told that two police constables were also provided to the team to conduct search. According to these witnesses at about 9:30 a.m., they proceeded from Meerut towards Muzaffarnager and on the way they were allowed to open envelopes given to them at 10:45 a.m., whereafter they came to know that they have to search premises of Sameer Ispat in Muzaffarnagar. Soon the bus reached the destination and by 11:00 a.m. they got down from the bus which proceeded further taking other parties to other destination. According to these witnesses they alongwith other members of team entered in the premises of Sameer Ispat leaving two police constables at the main gate. Inside the premises they met Sandeep Maini Production Manager and the search warrant was shown to him. According to the witnesses he (Sandeep Maini) did not made endorsement of his signatures in the warrant and he did not co-operate. P.W.4 Vinod Johri further told that Sandeep Maini asked the team of the officers to wait for arrival of accused/appellant Harish Chhabra. Sandeep Maini initially did not provide independent witnesses to watch the proceedings, but later accused/appellant Satish Karanwal was provided as witness but he (Satish Karanwal) left the premises and after about half an hour came alongwith about 150 persons who were armed with DANDAS, SARIAS etc. They were shouting slogans. They assaulted the members of the team of the Income Tax Department. They stripped them of their clothes and compelled them to apologize to accused/ appellant Harish Chhabra. Similar statement has been made by P.W. 5 Ajay Kumar Sonkar who was beaten badly then taken to furnace and attempt was made to throw him in the furnace but instead he fell on a pit. They stripped them of their clothes and compelled them to apologize to accused/ appellant Harish Chhabra. Similar statement has been made by P.W. 5 Ajay Kumar Sonkar who was beaten badly then taken to furnace and attempt was made to throw him in the furnace but instead he fell on a pit. This witness has specifically stated that accused Satish Karanwal and Harish Chhabra also assaulted him. The witness has further stated that after the members of the team were driven from the premises of Sameer Ispat they came to Meerut Medical College for their medical treatment. P.W.5 Ajay Kumar Sonkar has further proved the fact that he participated in the Test Identification Parade of accused Harish Chhabra, Devender Kumar @ Pinku and Om Prakash who were identified by him. He proved Ex. A17, Ex. A18 and Ex. A19 in this connection. 10. On the point of identification P.W.6 Vijay Bahadur Singh, the then City Magistrate, P.W.7 Rajeev Rautela, the then Sub Divisional Magistrate, P.W.8 Sultan Singh Chauhan, the then Sub Divisional Magistrate who conducted Test Identification Parades on 30.01.1990, 19.12.1989 and 27.10.1989, respectively corroborated the prosecution story. P.W.6 Vijay Bahadur Singh, the then City Magistrate has stated that accused/appellant Rajneesh Mittal was correctly identified by P.K. Banerjee, Constable Chandrapal and Constable Suresh Pal (P.W.10). P.W.7 Rajeev Rautela the then Sub Divisional Magistrate has stated that accused Devender Kumar @ Pinku was correctly identified by Ajay Kumar Sonkar (P.W.5) and K.N. Tiwari. P.W.8 Sultan Singh Chauhan, the then Sub Divisional Magistrate stated that accused/appellant Vijay Singh (deceased) was correctly identified by Constable Chandrapal and Constable Suresh Pal (P.W.10). 11. The statements of the two injured Income Tax Officers as narrated above are not only corroborated from the medical evidence on record but also from the statements of the Magistrates who conducted Test Identification Parades and also from the statements of other eye witness namely constable Suresh Pal (P.W.10) who had gone with the Income Tax Officials and was asked by the Income Tax Department team to stay at the gate during the search operation. 12. On behalf of the appellants it is argued that P.W.4 Vinod Johri, P.W.5 Ajay Kumar Sonkar and P.W.10 Suresh Pal have not identified the accused/ appellants in the court. However, on going through the lower court record this Court finds no force in the argument advanced on behalf of the appellants. 12. On behalf of the appellants it is argued that P.W.4 Vinod Johri, P.W.5 Ajay Kumar Sonkar and P.W.10 Suresh Pal have not identified the accused/ appellants in the court. However, on going through the lower court record this Court finds no force in the argument advanced on behalf of the appellants. The order sheet of Sessions Trial (C.B.I. case) No. 27 of 1992 shows that on 28.07.1997, attendance of all the accused was got exempted by the defence counsel through him by moving application 97B. On said date statement of P.W.4 Vinod Johri was got recorded by the prosecution. Similarly on 29.07.1997, the order sheet shows that the defence counsel got personal appearance of all the accused exempted through him by moving application 101B. On said date not only statement of P.W.4 Vinod Johri was concluded but the statement of P.W.5 Ajay Kumar Sonkar was recorded. Similarly on 30.04.1998, when the statement of P.W.10 Constable Suresh Pal was recorded, the personal appearance of all the accused was got exempted through the defence counsel by moving application 120B. As such, when accused were not present in the court, and got their personal appearance exempted through their counsel there was no question on the part of the witnesses to identify them in the court. 13. It is also argued on the behalf of the accused/appellants that accused/appellant Satish Karanwal and accused/appellant Harish Chhabra are made accused in two cases of the same date. The present case (numbered as Sessions Trial (C.B.I. case) No. 27 of 1992) relates to the incident said to have taken place in Sameer Ispat Private Ltd, Muzaffarnagar, and another case i.e. Sessions Trial (C.B.I. case) No. 26 of 1992 relates to the incident of same date in Nai Mandi Muzaffarnagar. Record of said case (Sessions Trial No. 26 of 1992) shows that another team of Income Tax Officials had gone to the office of accused/ appellant Harish Chhabra in Nai Mandi in connection with the search operation and was also assaulted. It has come on the record as stated by the Investigating Officer B.N. Mishra (in Sessions Trial No. 26 of 1992) that the distance between the two places was not more than 6-7 km. It has come on the record as stated by the Investigating Officer B.N. Mishra (in Sessions Trial No. 26 of 1992) that the distance between the two places was not more than 6-7 km. Witness Rakesh Kumar Paliwal who led the team of Income Tax Officials to Nai Mandi has also stated in said case that it took the bus about 15-20 minutes in reaching from Sameer Industries to Nai Mandi office. As such, it cannot be said that the mob which assaulted the team of the Income Tax Officials at Nai Mandi could not have reached after some time in the premises of Sameer Ispat which was not far away from the office of accused/appellant Harish Chhabra, whereafter they assaulted the team of officers at said place. 14. It is also submitted on behalf of the appellants that on same set of evidence accused Sandeep Maini has been acquitted by the trial court as such with the same evidence it cannot be said that the charge stood proved against accused/appellants. However, on careful reading of the evidence on record, this Court finds that accused Sandeep Maini was already inside the premises of Sameer Ispat Ltd. and he had not come with the mob inside the premises to assault Income Tax Officials as such the trial court found sufficient reason to come to the conclusion that charge as against him was not proved beyond reasonable doubt. Accused/appellants who were part of the mob and after forming unlawful assembly assaulted the public servants and stopped them from discharging public duties cannot claim parity with accused Sandeep Maini. 15. However, having gone through the entire evidence on record, and after considering the submissions of learned counsel for the parties this Court is of the view that what has been proved in the present case as against accuse/appellant Satish Karanwal, Harish Chhabra, Devender Kumar @ Pinku, Om Prakash and Rajneesh Mittal is that they alongwith others formed unlawful assembly in order to commit an offence and thereby committed rioting punishable under section 147 IPC. It is further proved on the record that the aforesaid accused/appellants with common object with others assaulted six Income Tax Officials including P.W.4 Vinod Johri, P.W.5 Ajay Kumar Sonkar and voluntarily caused hurt, deterred the public servants from discharging their duties and thereby committed offence under section 332 read with section 149 IPC. It is further proved on the record that the aforesaid accused/appellants with common object with others assaulted six Income Tax Officials including P.W.4 Vinod Johri, P.W.5 Ajay Kumar Sonkar and voluntarily caused hurt, deterred the public servants from discharging their duties and thereby committed offence under section 332 read with section 149 IPC. As far as offence punishable under section 395 IPC is concerned, in the opinion of this Court there does not appear any intention on the part of the accused/appellants to commit robbery. Section 390 IPC while defining the robbery provides that a theft is robbery if, in order to committing theft the offender for that end, voluntarily causes or attempts to cause to any person death or hurt or wrongful restraint or fear by instant death, or instant hurt or instant wrongful restraint. It 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 so put in fear to deliver the thing extorted. This Court is of the view that neither it is a case of theft, nor that of extortion as such the accused/appellants are deserve to be acquitted from the charge of offence punishable under section 395 IPC. 16. For the reasons as discussed above, these three appeals are disposed of with the direction that conviction and sentence recorded by the trial court against the accused/ appellants under section 395 IPC is set aside and they stand acquitted of said charge but they are convicted under section 147 and 332 read with section 149 IPC (with regard to which also they were charged and the trial court has mentioned that said offences are implicit within section 395 IPC at the time of conviction). Considering the facts and circumstances of the case and after hearing the parties each one of the accused/ appellants namely Satish Karnawal, Harish Chhabra, Devender Kumar @ Pinku, Om Prakash and Rajneesh Mittal is sentenced to rigorous imprisonment for period of one year under section 147 IPC and rigorous imprisonment for a period of two years under section 332 read with section 149 IPC. Both the sentences shall run concurrently. Accused/appellants namely Satish Karnawal, Harish Chhabra, Devender Kumar @ Pinku, Om Prakash and Rajneesh Mittal are on bail. Both the sentences shall run concurrently. Accused/appellants namely Satish Karnawal, Harish Chhabra, Devender Kumar @ Pinku, Om Prakash and Rajneesh Mittal are on bail. Their bail is cancelled and they shall surrender before the trial court to serve out the sentence as awarded by this Court, from which the period already undergone shall be adjusted. The appeal of accused/appellant Vijay Singh stands abated due to his death during the pendency of the appeal. Lower court record be sent back.