Research › Search › Judgment

Allahabad High Court · body

2013 DIGILAW 2216 (ALL)

NAUSHAD v. State of U. P.

2013-09-04

KALI MULLAH KHAN

body2013
Kalimullah Khan, J.: 1. Accused appellant Naushad son of Abdul Latif resident of village Akbarpur police station Chandpur District Bulandshahar has filed criminal appeal No. 3081 of 1981 against the impugned judgment and order dated 5.12.81 passed by 2nd Addl. Sessions Judge Bulandshahar convicting him under section 25 of Arms Act and sentencing him to undergo R.I. for one year in S.T. No. 311 of 1980 whereas Criminal Appeal No. 3082 of 1981 has been filed by appellant aforesaid Naushad as well as by appellant Amar Singh son of Naubat resident of Mohalla Burj Khurja police station Khurja City District Bulandshahar against the impugned judgment and order dated 5.12.1981 passed by learned 2nd Addl. Sessions Judge, Bulandshahar convicting both the appellants under section 394 I.P.C. and sentencing them to undergo R.I. for 4 years and also convicting appellant no.2 Naushad under section 307 IPC and sentencing him to undergo 7 years R.I. in S.T. No. 309 of 1980. Both the aforesaid appeals have been filed on the ground that the judgment and order is against the weight of evidence on record; conviction of appellants is illegal and the sentence awarded to them is too severe. 2. Both the aforesaid criminal appeals pertain to one and the same incident. Therefore they are being disposed of by this common judgment. 3. The prosecution case in nutshell is that Smt. Kamla Devi was standing in a street in Mohalla Kayasthwara, Khurja City near the house of first informant Sannumal on 15.3.80 at about 10.30 A.M. Appellant Naushad armed with a country made pistol and appellant Amar Singh armed with a knife approached her and on the point of pistol put by appellant Naushad, Amar Singh appellant snatched a golden chain from her neck. She raised hue and cry by saying that she was robbed and asked for help whereupon first informant Sannumal, his brother Ram Gopal, Kishan Panda and others chased the miscreants. Some other person also followed them. At a short distance, appellant Naushad fired his country made pistol as a result of which Sannumal and Kishan Panda sustained fire arm injuries but still they continued to chase accused persons. Appellant Naushad again fired his country made pistol causing injury to prosecution witness Ram Gopal. Some other person also followed them. At a short distance, appellant Naushad fired his country made pistol as a result of which Sannumal and Kishan Panda sustained fire arm injuries but still they continued to chase accused persons. Appellant Naushad again fired his country made pistol causing injury to prosecution witness Ram Gopal. Hearing the sound of firing number of persons and police constables present at nearby place were attracted and both the accused were apprehended by public after assaulting them with lathies, as a result of which the country made pistol of appellant Naushad and a knife wielded by appellant Amar Singh were broken and Naushad fell unconscious. First informant and others took both the appellants as well as the aforesaid material viz. country made pistol and recovered 9 cartridges from Naushad as well as the knife recovered from Amar Singh to the police station and lodged the report. 4. It was mentioned in the written report Ext. ka. 1 that due to injury sustained by Naushad at spot he had fell unconscious and therefore, his name, parentage and address could not be gathered although it was said to the informant that the said unconscious accused ( Naushad) was the resident of Bulandshahar whereas the other accused was Amar Singh son of Naubat resident of Mohalla Burj Khurja police station Khurja City District Bulandshahar. The case was registered in the General Diary dated 15.3.1980 at 11.30 A.M. at Crime No. 119, 120, 121 of 1980 under section 392, 307 I.P.C. and 25, 25/4 Arms Act at police station. Khurja City district Bulandshahar which lies at a distance of two furlong from the scene of incident. 5. Chik report was prepared. Both the appellants accused were sent for medical examination. Out of these 3 injured witness Kishan Panda was sent to hospital from spot in view of the serious injuries sustained by him, while rest of the witnesses namely Sannumal ( first informant) and his brother Ram Gopal were sent to hospital from the police station. All these three injured witnesses were examined by the doctor. The injury report of Sannumal is Ext. ka. 3 and the injury report of Ram Gopal is Ext. ka. 4 while injury report of Kishan Panda is Ext. ka. 5. Both the accused were medically examined, however, their injury reports have not been proved by the prosecution although they contain number of injuries therein. The injury report of Sannumal is Ext. ka. 3 and the injury report of Ram Gopal is Ext. ka. 4 while injury report of Kishan Panda is Ext. ka. 5. Both the accused were medically examined, however, their injury reports have not been proved by the prosecution although they contain number of injuries therein. Being not proved they cannot be read in evidence. 6. The country made pistol and 9 live cartridges along with cartridge in its barrel and the knife handed over by Sannumal to the police at police station concerned were sealed separately. Investigation followed, after completing the investigation I.O. submitted charge sheet against accused Amar Singh and Naushad under section 394/307 I.P.C. ( Ext. ka. 9). Another charge sheet ( Ext. ka. 10) was filed against accused Naushad under section 25 Arms Act whereas charge sheet ( Ext. ka. 13) was filed against accused appellant Amar Singh under section 25/4 Arms Act. 7. Learned Magistrate took cognizance and after satisfying himself that the provisions contained under section 207 Cr.P.C. have been complied with, he committed the case to the court of Sessions. Under the order of the learned Sessions Judge the case reached to the file of learned 2nd Additional Sessions Judge, Bulandshahar 8. Having heard the learned counsel for the parties he framed the charge against Amar Singh and Naushad under section 394 and 307 I.P.C. A separate charge under section 25 of Arms Act was framed against accused Naushad whereas the separate charge was framed against accused Amar Singh under section 25 of Arms Act. Both the accused persons denied the charge and claimed their trial. 9. In order to prove its case prosecution examined first informant Sannumal P.W. 1, Ram Gopal PW 2, Smt. Kamla Devi PW 3, and Udaivir P.W. 4 on facts. All the aforesaid 4 witnesses have deposed on facts. Rest of the prosecution witnesses Shri Kishan Agrawal PW 5, Mahendra Singh SI, P.W. 6 and Harish Chandra Singh, SI ( C.W.1) are of formal nature. Sri Kishan Agrawal PW 5 is the medical officer who had subjected all the aforesaid three prosecution injured witnesses Sannumal, Ram Gopal and Kishan Panda to medical examination and has proved their injury reports as stated above. Sri Kishan Agrawal PW 5 is the medical officer who had subjected all the aforesaid three prosecution injured witnesses Sannumal, Ram Gopal and Kishan Panda to medical examination and has proved their injury reports as stated above. Mahendra Singh SI, PW 6 was posted at police station Khurja as Head Moharrir during relevant days and he has proved the recovery memo of country made pistol and cartridges and knife while Harish Chandra Singh SI ( CW 1) has proved the investigation. 10. Accused Naushad and Amar Singh were examined under section 313 Cr.P.C. wherein they denied their perpetration into the crime, they claimed their innocence. They were called upon to enter into their defence. They examined Shri Kishan Gupta, D.W.1 who was the clerk posted in the court of Ist Addl. Munsif Magistrate, Bulandshahar. He has deposed that in the month of June, 1980 he was posted as Ahalmad to the court of learned C.J.M. Bulandshahar and he has worked with him for about 1 ½ year. An order was passed on the application dated 4.6.1980 which is Ext. ka. 1. The said order was passed by Shri Rameshwar Singh Incharge C.J.M. with whose writing and signature he is acquainted. He claimed to have given the aforesaid order to the I.O. 11. The said application was made by Naushad before the court of learned C.J.M. concerned for a direction to the I.O. to conduct his test identification parade by witnesses claiming himself that the prosecution witnesses are not known to him nor they recognise him and his implication is false whereupon the court concerned passed the following order " inform the I.O. to do the needful". 12. Having heard the learned counsel for the parties, learned trial court held accused Amar Singh not guilty under section 25 Arms Act on account of defective charge because the contravention of the Notification which has made possession of the knife of a prohibited length an offence was not mentioned in the charge. Likewise he found him not guilty under section 307 IPC because there was no evidence on record that he shared a common intention with co-accused Naushad, in his attempt to commit murder of eye witnesses and accordingly he acquitted him for the charge punishable under section 307 IPC and 25 Arms Act. However aforesaid accused Amar Singh and Naushad were found guilty under section 394 IPC. However aforesaid accused Amar Singh and Naushad were found guilty under section 394 IPC. Apart from it, accused Naushad was found guilty under section 307 IPC as well as 25 Arms Act. 13. Having heard them on the quantum of sentence learned trial court awarded a sentence of 7 years RI under section 307 IPC to accused Naushad, and awarded a sentence of 4 years RI to both the accused Naushad and Amar Singh under section 394 IPC. Apart from it, accused Naushad was further sentenced to undergo RI for one year under section 25 Arms Act. The aforesaid conviction and sentences were awarded vide impugned judgment and order dated 5.12.1981. All the sentences were to run concurrently. 14. Feeling aggrieved these aforesaid two separate Criminal appeals have been filed as stated above. 15. I have heard learned counsel for both the appellants as well as the learned A.G.A. at length and perused the record. 16. Learned counsel for the appellants have submitted that admittedly appellant Naushad is not named in the F.I.R. prosecution says that after being assaulted by public after his arrest he fell unconscious and therefore his name, parentage and address could not be ascertained. The G.D. pertaining to the registration of the case at police station Khurja City, district Bulandshahar as well as the chik report drawn there do speak that his name was not there in the report meaning thereby till registration of case and preparation of chik report his name could not be ascertained. Chitthi Majroobi prepared for accused Naushad to be sent for his medical examination do not contain his name, therefore, it was the boundened duty of prosecution to conduct identification test by the witnesses especially when the appellants applied for his identification by the witnesses and the order was passed by learned court of C.J.M. to I.O. to do the needful but he did nothing causing prejudice to him and therefore, he should be acquitted especially when Sannu Mal ( P.W.1) has not correctly identified him in the court. He has further submitted that Naushad was unconscious when he was brought to the police station then how it could be known to the prosecution that he belonged to Bulandshahr. Written report contain that one accused is resident of Bulandshahar. He has further submitted that Naushad was unconscious when he was brought to the police station then how it could be known to the prosecution that he belonged to Bulandshahr. Written report contain that one accused is resident of Bulandshahar. He has further submitted that the case of the prosecution is that the country made pistol in a broken condition and the cartridges were recovered from him and the knife was recovered from Amar Singh by public at spot and all these arms and ammunition including knife were handed over to the police at police station by Sannumal PW 1 and the recovery memo at the police station was prepared by Head Moharrir, but prosecution witnesses first informant Sannumal PW 1 and Udaivir PW 4 have deposed in the court that in the police station accused Naushad was personally searched by police and from his possession the aforesaid country made pistol and the cartridges were recovered, therefore, the case of the prosecution that the aforesaid arms and ammunition were recovered at the spot is belied by their testimony recorded in the court. He has further submitted that there is no link evidence as to how the name of Naushad could be known later on and on the strength of this submission he has submitted that Naushad was not arrested at spot and he was falsely implicated in this case especially when informant PW 1 Sannumal could not identify him in the court when he was mixed up along with 4-5 persons on the request of his learned counsel and he wrongly identified one Latif vice accused Naushad. Lastly, he submitted that the incident had taken place in the year 1980. Now, about 35 years have elapsed. Considering the aforesaid aspect of the matter, according to him, the sentence awarded to the appellants is severe. 17. Per contra, learned A.G.A. has argued that it is a day light incident, the F.I.R. is prompt, specific role has been assigned to both the accused which is fully proved by the evidence of Smt. Kamla Devi PW 3, Ram Gopal PW 2 and Sannumal PW 1. In the incident three prosecution witnesses Sannumal, Ram Gopal and Kishan Panda have sustained fire arm injury caused by Naushad who was apprehended there at spot at a short distance by public and their injuries are not superficial. In the incident three prosecution witnesses Sannumal, Ram Gopal and Kishan Panda have sustained fire arm injury caused by Naushad who was apprehended there at spot at a short distance by public and their injuries are not superficial. Blackening, charring and tattooing are present around the injury sustained by the prosecution witnesses due to which an eye of Kishan Panda was damaged. Therefore, it cannot be said that these injuries to prosecution witnesses were fabricated. Blackening, charring and tattooing are present around the injury sustained by the prosecution witnesses due to which an eye of Kishan Panda was damaged. Therefore, it cannot be said that these injuries to prosecution witnesses were fabricated. Prosecution has succeeded in establishing its case beyond doubt that the incident occurred on the date, time and place and in the manner as embedded in the F.I.R. As regards the submissions made by learned counsel of accused Naushad that since he was unconscious at the time of lodging him in the lock up of police station, therefore there is possibility of his false implication in the case, he argued that the submission made by learned counsel of accused Naushad that he was arrested from a place other than the place pointed out by the prosecution may be in his special knowledge and therefore the burden of proof under section 106 of the Indian Evidence Act, 1872 lies on him but he has failed to discharge his burden especially when prosecution has proved his case beyond reasonable doubt that it was Naushad accused who had put the pistol at Smt. Kamla Devi to snatch her golden chain whereupon co-accused Amar Singh armed with knife snatched the same and they began to ran away but when they were chased it was Naushad accused who fired his country made pistol twice causing injury to three prosecution witnesses and it was Naushad accused who was apprehended by public after assaulting him with lathi as a result of which he fell unconscious there and it was Naushad accused from whose possession the arms and ammunition were recovered and it was Naushad accused who was taken to police station who was lodged there in police lock up and it was he who was sent for medical examination and it was he who was challaned before the court and it was he who was remanded to custody from time to time and it was he who faced the criminal trial and it was he who was convicted and it was he who has filed this criminal appeal, therefore, it cannot be said that he was not arrested at spot after being beaten badly rendering him unconscious. 18. Learned counsel for accused Amar Singh has argued that Amar Singh was arrested from his house. He was brought to police station and falsely roped in this case. 19. 18. Learned counsel for accused Amar Singh has argued that Amar Singh was arrested from his house. He was brought to police station and falsely roped in this case. 19. Learned A.G.A. has repelled his submission and argued that there is not single iota of evidence or circumstance on record substantiating the submission of learned counsel for accused Amar Singh that he was arrested from his house. According to him both the criminal appeals lack merit and deserves dismissal. 20. On the point of sentence he argued that the dare devil manner in which the incident occurred throughout does not warrant any kind of leniency in the matter of imposing sentence. 21. I have given my anxious judicial thought over the findings given by learned trial court, the reason thereof and the submissions made by the learned counsel for the parties and the evidence on record. 22. The incident took place on 15.3.1980 at 10.30 A.M. and the report was lodged the same day at 11.30 a.m. after covering a distance of two furlong from the spot to police station concerned. There is no delay at all in lodging the F.I.R. The written report lodged by first informant Sannumal gives clear and complete prosecution story therein without any kind of doubt or ambiguity. The prompt lodging of F.I.R. with clarity of the incident without any ambiguity is by itself sufficient to rule out any kind of concoction, fabrication, manipulation and false implication of accused. 23. Sannumal ( P.W.1) has deposed in the court that he was sitting on the terrace of his house. Smt. Kamla Devi raised hue and cry that she was robbed which attracted him and his brother Ram Gopal, Kishan Panda and other and they saw the miscreants running away. They chased them whereupon accused Naushad fired at him with his country made pistol causing injury to him and Kishan Panda but still they continued to chase and then another shot was fired by Naushad causing injury to Ram Gopal, but the public and the police both succeeded in apprehending him and Amar Singh causing number of injuries with lathi at their persons. Naushad fell unconscious but Amar Singh was conscious. Both the accused persons are the resident of Bulandshahar. Naushad fell unconscious but Amar Singh was conscious. Both the accused persons are the resident of Bulandshahar. He has been cross examined at length but nothing material could be fetched out from his mouth to hold him wholly unreliable witness except the contradiction on the point of place from where the country made pistol and cartridges were recovered from the possession of Naushad. The prosecution case is that the arms and ammunition were recovered at spot where they were arrested and it was taken by Sannumal to police station and when he handed it over to the police, recovery memo was prepared there but in his deposition he stated in the court that accused Naushad was personally searched at police station then the aforesaid arms and ammunition were recovered. There appears substance in the contention of learned A.G.A. that the possibility of the aforesaid fact being taken out from the mouth of this witness by dint of cross examination by expert learned Advocate for defence cannot be ruled out. The entry in the G.D.; chik report and the contents of recovery memo do make it crystal clear that in fact these arms and ammunitions were handed over to the police by Sannumal ( P.W. 1) which is supported by the evidence of Ram Gopal PW 2, Smt. Kamla Devi, PW 3 that the country made pistol and arms and ammunition were recovered at spot therefore in the facts and circumstances of the case no undue weight should be given to these contradictory statement occurred in the testimony of first informant and written report. He is injured witness, his presence cannot be doubted at spot. The injury report shows that he sustained a number of fire arm injury at his person as pointed out by learned trial court. His testimony is corroborated by the contents of F.I.R. as well as medical evidence coupled with the testimony of other witnesses on facts. The duty of the court is to take out the grain from the chaff. The trial court has rightly held this witness as wholly reliable witness although he could not correctly identify accused Naushad in the court due to laps of time. 24. Ram Gopal PW 2 has proved the prosecution case by deposing in the court that on the alarm raised by Smt. Kamla Devi that she was robbed he chased miscreants. The trial court has rightly held this witness as wholly reliable witness although he could not correctly identify accused Naushad in the court due to laps of time. 24. Ram Gopal PW 2 has proved the prosecution case by deposing in the court that on the alarm raised by Smt. Kamla Devi that she was robbed he chased miscreants. He followed Sannumal and Kishan Panda who were chasing the miscreants. The fire made by Naushad hit all the three prosecution witnesses but ultimately with the aid of public and police they succeeded in apprehending both the accused Naushad and Amar Singh by assaulting them with lathi rendering accused Naushad unconscious at spot of arrest. This witness is also an injured witness and his evidence is corroborated by the medical evidence and also by the evidence of his brother first informant Sannumal. This witness has correctly identified both the accused before the court and his evidence is intact and fully proves the prosecution story. He is wholly reliable witness. 25. Smt. Kamla Devi PW 3 has deposed that she was standing near the Santoshi Ma Mandir when both the miscreants reached there. Pointing out towards Naushad accused in the dock, she deposed that it was he who had put the pistol at her ( causing fear of instant death or instant hurt or instant wrongful restraint) to deliver her chain of Gold and after extending threat with knife Amar Singh accused snatched her said chain from her neck. Both of them ran away with booty. During incident she shrieked, out of fear, and sat down, which attracted the witnesses who chased the miscreants and apprehended them. She did not chase them but when he heard that the miscreants were arrested she went there and saw that both the miscreants were overpowered by public at large. She returned. She claimed that she had seen the country made pistol there. She has been cross examined at length. She admitted that during the course of snatching the chain from her neck no injury was caused to her rather chain was broken down. There does not appear substance in the contention of the learned counsel for the appellant that the theory of snatching chain does not inspire confidence because the said chain was not recovered from the possession of either of the accused although they were continuously chased by public and ultimately apprehended. There does not appear substance in the contention of the learned counsel for the appellant that the theory of snatching chain does not inspire confidence because the said chain was not recovered from the possession of either of the accused although they were continuously chased by public and ultimately apprehended. Be it known that the finding of the learned trial court on this point that throwing of chain during running by the appellant to save their own skin and to disappear the incriminating evidence cannot be ruled out. In the facts and circumstances of the case the non-recovery of golden chain from the possession of either of the accused is immaterial. There is nothing in her evidence to disbelieve her. She too is a wholly reliable witness. The evidence of Kamla Devi P.W. 3 lends corroborative support to the testimony of Ram Gopal P.W. 2 and Sannumal PW 1. 26. Learned counsel for the appellant has given much stress on the testimony of Udaivir PW 4. He has argued that Udaivir PW 4 has stated that he was sitting in the police station for 1 ½ hour in connection with his own business and he stood the witness of recovery memo prepared at police station. He has stated that police had made personal search of accused Naushad and accused Amar Singh. From accused Naushad a country made pistol and cartridges were recovered whereas from the possession of accused Amar Singh a knife was recovered. Therefore, according to him, the version made in the written report that the aforesaid arms and ammunitions were recovered from the possession of Naushad and Amar Singh at the place where they were apprehended by public belies. Be it known that he is a witness of preparation of the memo and not of the recovery. His aforesaid version given in his evidence in the court is self contradictory which is not supported by recovery memo itself of which he is a witness therefore the submission of learned Counsel for the appellants bear no substance and the evidence of this witness in connection to the recovery cannot be acted upon and it cannot belie F.I.R. version and the deposition of P.W. 2 and P.W. 3. 27. 27. Learned Trial Court has rightly held that all the three witnesses Sannumal P.W. 1, Ram Gopal P.W. 2 and Kishan Panda P.W. 3 are wholly reliable witnesses and rightly concluded that prosecution has proved its case beyond all reasonable doubts. No interference of this Court is called for. 28. Now coming to the aspect that what offence has been committed by both the accused. Trial Court has convicted both the appellants u/s 394 IPC whereas, he has convicted appellant Naushad u/s 307 IPC and 25 Arms Act. 29. For the criminal prosecution of the accused u/s 25 Arms Act for having found in possession of a country made pistol and 9 live cartridges, apart from a cartridge in the barrel prosecution sanction by the District Magistrate is necessary. The said sanction appears to have been obtained by Investigating Officer on the back of the charge sheet Ext. ka. 10 filed u/s 25 Arms Act against accused Naushad but the perusal thereof shows that there is no application of judicial mind by the authority sanctioning the prosecution. Apart from it no date of giving sanction is mentioned therein. Who has given that sanction is also not clear. The name of the District Magistrate was initially mentioned as Baljeet Singh but for the reason best known to prosecution it has been struck down. Investigating Officer C.W. 1 has deposed that he has obtained sanction order of the District Magistrate Ext. Ka-11 on the charge sheet Ext. Ka-10 but he does not recollect the name of sanctioning authority. He said that there was some Dubey D.M. by caste. Thereafter he said that some Dubey had the charge of District Magistrate who gave the sanction but later on he deposed that it is not in his knowledge that there was any Dubey District Magistrate in District Bulandshahar. Under the aforesaid facts and circumstances this I.O. C.W.1 could not prove the prosecution sanction Ext. ka. 1.K.11. Hence it is no sanction in the eye of law and therefore, appellant Naushad deserves his acquittal u/s 25 Arms Act and the conviction and sentence recorded against him on that count by learned Trial Court is liable to be set aside. 30. ka. 1.K.11. Hence it is no sanction in the eye of law and therefore, appellant Naushad deserves his acquittal u/s 25 Arms Act and the conviction and sentence recorded against him on that count by learned Trial Court is liable to be set aside. 30. As regards the conviction and sentence of 4 years to both the appellants for offence punishable u/s 394 IPC, it has to be observed that under the facts and circumstances and evidence available on record the appellants do not appear to have committed the offence punishable u/s 394 IPC. Section 394 IPC reads as under: Section 394 - Voluntarily causing hurt in committing robbery - If any person, in committing or in attempting to commit robbery, voluntarily causes hurt, such person, and any other person jointly concerned in committing or attempting to commit such robbery, shall be punished with [imprisonment for life], or with rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine. 31. The aforesaid penal provision reveals that if the offender: i. in committing or ii. In attempting to commit robbery voluntary causes hurt to any person he shall be punished as stated above, meaning thereby that to punish the appellant's under this section it is necessary that some voluntary hurt was caused by them in committing or in attempting to commit Robbery. The term robbery has been defined u/s 390 IPC which reads as under: Section 390 - Robbery - In all robbery there is either theft or extortion. When theft is robbery. - Theft is "robbery" if, in order to the committing of the theft, or in committing the theft, or in carrying away or attempting to carry away property obtained by the theft, the offender, for that end, voluntarily causes or attempts to cause to any person death or hurt or wrongful restraint, or fear of instant death or of instant hurt, or of instant wrongful restraint. When extortion is robbery. When extortion is robbery. - Extortion is "robbery" if the offender, at the time of committing the extortion, is in the presence of the person put in fear, and commits the extortion by putting that person in fear of instant death, of instant hurt, or of instant wrongful restraint to that person or to some other person, and, by so putting in fear, induces the person so put in fear then and there to deliver up the thing extorted. 32. In the facts and circumstance of this case it has been proved by evidence on record as stated above that appellants did not commit theft rather they committed an offence of extortion. The said extortion has been defined u/s 383 IPC which reads as under: Section 383 - Extortion - Whoever intentionally puts any person in fear of any injury to that person, or to any other, and thereby dishonestly induces the person so put in fear to deliver to any person any property or valuable security, or anything signed or sealed which may be converted into a valuable security, commits "extortion". 33. Appellant Naushad is said to have intentionally put Smt. Kamla Devi P.W. 3 in fear of injury and thereby dishonestly induced her so put in fear to deliver her golden chain to co accused Amar Singh who snatched the said chain from her neck, hence the offence of extortion was complete. Prior to the aforesaid completion of offence of extortion, appellant Naushad is not said to have inflicted any injury to Smt. Kamla Devi. Till then none of the prosecution witnesses Sannumal, Ram Gopal and Kishan Panda had sustained any injury rather, they sustained injury after completion of the offence of extortion when miscreants were running away from the spot. The legal position that as to when the extortion becomes robbery is not the same as in the case of theft. Admittedly as per the statement of Smt. Kamla Devi she did not sustain any injury during the course of snatching of golden chain as per her own saying. The legal position that as to when the extortion becomes robbery is not the same as in the case of theft. Admittedly as per the statement of Smt. Kamla Devi she did not sustain any injury during the course of snatching of golden chain as per her own saying. To make it more clear, that as per the provision of Section 390 IPC "theft" is "robbery" if in order to commit theft, or in committing the theft, or in carrying away or attempting to carry away property obtained by the theft, the offender, for that end, voluntarily causes or attempts to cause to any person death or hurt or wrongful restraint or fear of instant death or of instant hurt, or of instant wrongful restraint. In view of the aforesaid legal provision, if the offender assaults or voluntary causes hurt to some one after committing robbery by extortion that would be a separate offence beyond the purview of definition of robbery by extortion but the legal position is not the same if the offender voluntarily causes or attempt to cause any person death or hurt or wrongful restraint or fear of instant death or of instant hurt while carrying away or attempting to carrying away property obtained by the theft. But if he voluntarily causes hurt to some person while he was carrying away or attempting to carry away the property obtained by extortion, it cannot be said that the hurt was caused during the course of commission of the robbery or in attempting to commit the robbery. Such causing of hurt by appellant Naushad to Sannu Mal and two others is punishable under different section of I.P.C. unconnected with the offence punishable under section 394 I.P.C. None of the appellants appear to have committed the offence of 394 IPC rather, the offence committed by them goes upto the extent of robbery punishable u/s 392 IPC. 34. For the injuries caused to the prosecution witnesses Sannumal, Ram Gopal and Kishan Panda they have to be held guilty under other section of the IPC but not u/s 394 IPC, therefore, the conviction and sentence recorded u/s 394 IPC against both the appellants are hereby set aside and they are held guilty punishable u/s 392 IPC. 35. 34. For the injuries caused to the prosecution witnesses Sannumal, Ram Gopal and Kishan Panda they have to be held guilty under other section of the IPC but not u/s 394 IPC, therefore, the conviction and sentence recorded u/s 394 IPC against both the appellants are hereby set aside and they are held guilty punishable u/s 392 IPC. 35. As regards the conviction and sentence recorded u/s 307 IPC it is to be observed that both the appellants have been charged under this section for causing fire arm injury to Sannumal and Ram Gopal, they have not been charged for causing fire arm injury to Kishan Panda therefore, they cannot be held guilty for the injuries sustained by Kishan Panda who has not been examined in this case. 36. To find out as to which offence is constituted against the appellants for inflicting fire arm injury to Sannumal and Ram Gopal, the perusal of their injury reports, their depositions as well as the deposition of the doctor P.W. 5 is necessary. Both the aforesaid prosecution witnesses Sannumal and Ram Gopal have testified that they were caused fire arm injuries by appellant Naushad when appellants were being chased by them. In the scenario of fact the intention to commit murder of Sannumal and Ram Gopal or any other person in the act of accused Naushad is lacking. Within all human probability accused Naushad appears to have fired at public to save himself from being caught by them and this firing does not tantamount to intention to commit murder. Dr. Kishan Agarwal P.W. 5 deposed that he medically examined Sannumal on 15.03.1980 at 12.30 hour and noticed following injuries at his person. Examined Sannu Mal S/o Sri Bankey Lal aged about 42 years, R/o 63 Mohalla Kaithwada Khurja PSR at 12.30 a.m. on 15.03.1980 B/B C-548 Rushtam Singh at P.S. Khurja Daihat. M.I.Raised brown mole on Lt. side lenear 10 c.m. face top of lt shoulder. Injury: ( 1) Lacerated wound 1/4 cm x 1/4 cm in front of head 11 cm above brij of nose. Tattooing and charing present. ( 2) L.W. 1/4 cm x 1/4 cm on Rt lower lid.............. ( 3) 2 L.W. 1/4 cm x 1/4 cm on back of Rt. Hand. T & C present in between Rt. Thumb and index finger. Injury fresh caused by Gun shot kept U.O. Advise X-ray. Tattooing and charing present. ( 2) L.W. 1/4 cm x 1/4 cm on Rt lower lid.............. ( 3) 2 L.W. 1/4 cm x 1/4 cm on back of Rt. Hand. T & C present in between Rt. Thumb and index finger. Injury fresh caused by Gun shot kept U.O. Advise X-ray. He has proved this injury as Ext. Ka-3. 37. Same day he has examined the injury of Ram Gopal at 11.50 a.m. and following injuries were noticed at his person. Examined Ram Gopal S/o Sri Bankey Lal aged about 36 years, R/o 63 Mohalla Kaithwada Khurja at 11.30 a.m. on 15.03.1980 B/B C-548 Rushtam Singh at P.S. Khurja Daihat. M.I. Black mole of frong of nose Injury: ( 1) L.W. 1/4 cm x 1/4 cm on Rt. Side cheak 6 cm in front of Rt ear. Tattooing and Charring present ( 2) L.W. 2 1/2 cm x 1/2 cm on Rt side cheak 3 cm below inj no. 1. Tattooing and charring present ( 3) L.W. 1/4 cm x 1/4 cm in front of Rt upper arm 13 cm above Rt. elbow T & C present ( 4) L.W. 2 in no. present on Lt forearm on back of forearm 3 cm apart to each other, 11 cm above Lt wrist. ( 5) L.W. 1/4 cm x 1/4 cm in front of Lt palm of hand. T & C present ( 6) Abrasion 3 cm x 1 1/2 cm in front of Lt knee joint. Injury fresh caused by some fire arm. Kept U.O. advise X-ray except inj no. 6 caused by some fire-arm. 38. The aforesaid injuries were proved by this witness as Ext. Ka-4. The doctor P.W. 5 has not stated that either of the injury of these two injured Sannumal and Ram Gopal was found grievous. There is nothing on record to suggest that there injuries were either grievous or dangerous to life, therefore, they cannot be convicted and sentenced u/s 307 IPC rather they are liable to be held guilty u/s 324 IPC which provide maximum sentence of 3 years, or fine or both. Therefore, the conviction and sentence awarded to appellant Naushad u/s 307 IPC deserves to be set aside. The impugned judgment and order deserves to be modified accordingly. Accused Naushad is found guilty u/s 324 IPC. 39. Therefore, the conviction and sentence awarded to appellant Naushad u/s 307 IPC deserves to be set aside. The impugned judgment and order deserves to be modified accordingly. Accused Naushad is found guilty u/s 324 IPC. 39. In the result Criminal Appeal No. 3081 of 1981 is allowed and conviction and sentenced awarded against appellant Naushad under section 25 of Arms Act is set aside. He is acquitted under section 25 Arms Act. 40. Criminal Appeal No. 3082 of 1981 is partly allowed. Conviction and sentence recorded against both the appellants Naushad and Amar Singh under section 394 I.P.C. is hereby set aside. However, they are found guilty under section 392 I.P.C. They are convicted and sentenced on that count to go R.I. for 2 years. 41. The conviction and sentence recorded by the trial court against accused appellant Naushad under section 307 I.P.C. is set aside rather he is convicted under section 324 I.P.C. and sentenced to go R.I. for one year. The period of detention already undergone by both the appellants shall be adjusted towards their sentence awarded. Both the sentences awarded against accused Naushad shall run concurrently. Accused Naushad is in jail, he be released forthwith unless wanted and detained in some other case. Accused Amar Singh is on bail, his bail bonds are cancelled. He is directed to surrender before the court of learned Chief Judicial Magistrate concerned within two month, failing which learned C.J.M. shall issue warrant of arrest and get him arrested and send him to jail to serve out the sentence awarded to him.