Surya Nath Upadhaya and Others vs The State of Bihar

S.N. Jha, J.—The Appellants have been convicted u/s 396 of the Indian Penal Code and sentenced to rigorous imprisonment for life. One of them namely Appellant No. 4 Bhola Dusadh is reported to have died during pendency of the appeal. Accordingly the appeal was pressed on behalf of rest of the Appellants alone.

The prosecution case briefly stated, is as follows. In the night of 11/12th December 1974 Behari jee Upadhaya of Village Bithani within Dawat Police Station of Rohtas district was sleeping in the eastern room of his house along with his son Birendra Nath Upadhaya. His father Brij Kishore Upadhaya was sleeping in the eastern passage along with grand son Kanhaiya Upadhaya. At about midnight Behari Jee Upadhaya heard sound on the roof and awoke his son Birendra Upadhaya. When he came out of the room on eastern varandah he flashed torch light and saw 10-12 dacoits armed with guns, dagger and bhala in the courtyard. He identified the Appellants amongst them. Gupteshwar Upadhaya had dagger, others were armed with guns. Bhola Dusadh and Ram Chandra Choudhary pointed their guns towards Birendra Upadhaya giving threat not to shout otherwise they would be killed. Other miscreants entered northern, eastern and western rooms and started taking clothes, ornaments, cash box and a new Atlas Cycle worth Rs. 7.320/-. After taking these articles the miscreants went towards the eastern passage of the house. They opened the door and reached the passage where Brij Kishore Upadhaya and Kanhaiya Upadhaya were sleeping. Seeing the miscreants they fled away towards the cowshed on the east. They were chased by Surya Nath Upadhaya, Rang Nath Upadhaya, Gupteshwar Up.adhya and Behari Thakur. Behari jee Upadhaya heard sound of three gun shots. Soon after Kanhaiya Upadhaya told him that Brij Kishore Upadhaya had been killed. The miscreants thereafter left the place.

Behari Jee Upadhaya lodged fardbeyan narrating the above occurrence at the Dawath Police Station at 9 AM on the next day i.e. 12th December 1974. In the fardbeyan he stated that the miscreants had climbed over the roof of the house from behind with the help of bam-'' boo ladder and then came downstairs by the staircase inside the house. Thereafter they opened the door of the southern passage and the eastern passage. They remained in the house for about half an hour. While retreating they took away his torch and the gun belonging to his father. He also stated about the enmity with the accused persons. He stated that the accused persons were inimical from before on account of pendency of a murder case against some of them of which his father i.e. Brij Kishore Upadhaya was complainant. On the basis of above fardbeyan the police registered pawath PS Case No. 5/ 74 dated 12.12.1974. After completing the investigation chargesheet was submitted against Appellants 1 to 5 and they were put on trial. Later [after three prosecution witnesses were examined the trial court summoned Appellant No. 6 to face trial in terms of Section 319 of the Code of Criminal Procedure and he too thus was put on trial.

At the trial the prosecution examined seven witnesses to prove its case. Four out of whom are eye witnesses namely Kanhaiya Upadhaya as PW 2, Behari Jee Upadhaya (informant) as PW 3, Thakurdas Devi as PW 5 and Lalmuni Devi as PW 6. The village Mukhiya Shyam Bihari Singh who had gone to the police station along with the informant was examined as PW 1. The remaining two witnesses namely PW 4 Bobban Singh and PW 7 Bhagwan Singh were examined as formal witnesses. They proved respectively the Postmortem Report and certain paragraphs of the case diary etc. The Appellants did not examine any witness in defence, they simply pleaded innocence and false implication. At the end of the trial, the trial court convicted and sentenced the Appellants as stated at the outset.

Shri Rana Pratap Singh, learned Counsel for the Appellants, submitted that the prosecution has not come out with true case. Though the informant did not see the actual occurrence, in the fardbayan he projected himself as an eye witness without disclosing that he had learnt the material facts regarding killing of Brij Kishore Upadhaya from PW 2 Kanhaiya Upadnaya The occurrence took place in the middle of night and though the witnesses claimed to have identified the Appellants in the light of lantern burning at the Niksar (passage) and the Dibri burning on the wall, the evidence in this regard is discrepant and not adequate. All material witnesses are relatives of the deceased/ informant and being on inimical terms with the Appellants, the chance of their false implication cannot be ruled out. The only witness to have seen killing of deceased is PW 2 Kanhaiya Upadhaya and being closely related to the deceased as his grand-son, his evidence has to be scrutinised with due care and caution. No independent witness was examined nor the Investigating Officer or the doctor was examined causing prejudice to the Appellants.

Shri Singh further submitted that from the evidence on record it appears that the miscreants came to the informant''s house in order to kill his father Brij Kishore Upadhaya and committing dacoity was not their intention. In any view, the deceased not having been killed in course of commission of dacoity the Appellants cannot be convicted u/s 396 of the Penal Code.

Before considering the submissions of the Appellants'' counsel it would be appropriate to briefly notice the nature of the evidence. Reference to the evidence of PW 2 Kanhaiya Upadhaya and PW 3 Bihari Jee Upadhaya, the informant, would suffice. He reiterated his fardbeyan version. He stated that in the night of occurrence he was sleeping in a room at the south of Janani Kita along with his son Birendra Upadhaya. His father Brij Kishore Upadhaya and nephew Kanhaiya Upadhaya were sleeping in the eastern passage. He woke up on hearing some found on the roof. He awoke Birendra Upadhaya. After he opened the room he saw 10-12 persons standing in the courtyard. A lantern was burning in the varandah of the Court yard. In the light of the torch he identified the Appellants, three of whom Surya Nath, Rang Nath, Gupteshwar and Birjari Thakur were residents of the same village while remaining three were residents of another village. He described the weapons they were carrying. As soon as he flashed the torchlight Bhola and Ram Chandra aimed their guns at his son Birendra threatening that if he shouts he would be killed. Thereafter they entered the western, northern and eastern rooms and took out clothes, ornaments and a new Atlas bicycle, and started packing them in the courtyard. They then entered the passage after opening the western door where his father Brij Kishore Upadhaya and nephew Kanhaiya Upadhaya were sleeping. Two miscreants namely Ram Chandra Choudhary and Bhola Dusadh remained there while other miscreants went towards his father. After some time he heard the sound of three firing. Thereafter Ram Chandra and Bhola also went away. He along with other family members came out. They did not find Brij Kishore or Kanhaiya there. When they moved ahead they found Kanhaiya coming with tears in his eyes. He told them that Brij Kishore Upadhaya had been killed. He further told them that he had identified Surya Nath, Rang Nath, Gupteshwar and Bihari, three of them had fired shots while one had given a dagger blow. He also informed that they had taken away gun of Brij Kishore Upadhaya. Thereafter they proceeded towards the Goshala shouting. On hearing the shout, Jugal Kishore Upadhaya, Ram Khelawan, Raj Narayan and others came there. Jugal Kishore informed them that he had seen 10-12 persons in the torchlight and identified the Appellants (except Bihari Thakur). He also told that from the voice he could identify Surya Nath and Rang Nath when they ran past his house.

PW 2 Kanhaiya Upadhaya stated in his evidence that he was sleeping along with his grand-father Brij Kishore Upadhaya in the passage of the Janani Kita in the night of the occurrence. He woke up when after removing the door six-seven miscreants reached there. He identified Surya Nath, Rang Nath, Gupteshwar and Bihari amongst them. Gupteshwar was carrying dagger, other three had guns. He identified them in the light of the Dibri which was � burning on the wall. By that time Brij Kishore Upadhaya had also woken up. They fled towards the Goshala on the east. His grand-father was carrying his single barrel gun. The miscreants chased them. While the grand-father entered the Goshala, he (PW 2) fled towards the room on the south of the Goshala which had no door and from there he saw the four miscreants killing his grand-father. While three of them who had guns fired from the guns, the one who had dagger gave dagger blow at the neck. His grand-father fell down. The miscreants thereafter left the place. He then came to the other part of the house and narrated the incident to the informant and others.

The above two witnesses were cross examined at length but the cross examination yielded little to the advantage of the accused. Their account of occurrence appears to be consistent with each other and their earlier version. It is true that they, and, indeed, P Ws 5 and 6 are close relatives of the deceased but being close relatives of the deceased does not mean that their evidence should be rejected as evidence of interested witnesses.

Only, it has to be scrutinised with due care and caution. So called independent witnesses are rarely available these days and so far as the present case is concerned, considering that the occurrence took place in the dead of night inside the house, there was no question of the outsider witnesses seeing the occurrence. The occurrence could be seen only by the inmates of- the house. The other aspect is that close relatives of the deceased are not expected to implicate innocent persons and thereby allow the real guilty to escape, and therefore the fact that in the instant case all the material witnesses happen to be close relatives of the deceased is of little consequence.

The Appellants were identified in the light of the Jantern burning at the varandah of the court-yard as well as Dibri burning on the wall of the passage, besides the torchlight. As seen above, while three of the Appellants are co-villagers, the other three were residents of the nearby village and known from before. The question of identification of some unknown in the light of lantern or Dibri may be open to doubt, but it is easier to identify a known person. Therefore there being sufficient means of identification the prosecution case of the witnesses identifying the Appellants does not appear to!be doubtful.

I do not find any substance in the submission that in the fardbeyan the informant claimed to be eye witness. The occurrence took place in two parts and at two places. The first part of the occurrence took place after the informant and his son came out of the room and saw the miscreants taking clothes, ornaments and a bicycle from the rooms adjacent to the courtyard. The second part of the occurrence took place In the Goshala where four of the Appellants chased the deceased and PW 2 Kanhaiya Upadhaya. The informant did not claim to see later part of the occurrence, he claimed to see the only first part, and therefore, in a sense if he claimed to be eye witness, he cannot be said to be wrong. So far as latter part of the occurrence is concerned, he clearly stated to have learnt about the same from his nephew i.e. PW 2 Kanhaiya Upadhaya.

It is true that the Investigating Officer or the Doctor was not examined in this case. So far as the Investigating Officer is concerned where evidence of the witness is contrary to his previous statement before the police but he denies to have made any contrary statement or a materially different statement, after his attention is drawn to his previous statement, it may be said that non-examination of the I.O. causes prejudice to the accused, fori! deprives him of the opportunity to get the contradiction proved by the Investigating Officer. But where the evidence of the witness is consistent with his previous statement, or his attention is not drawn to his previous statement, non-examination, of the I.O. may not cause any prejudice to the accused. Similarly the non-examination of the doctor may not cause prejudice to the accused in a case if the postmortem report has been proved without objection. As a matter of fact u/s 204 Code of Criminal Procedure it is open to the Court to read the Postmortem Report in evidence without formal proof where the genuineness of the report is not disputed. Neither genuineness of the postmortem report has been disputed nor any argument has been made as to how the accused suffered any prejudice on account of non-examination of the doctor. Whether the accused has suffered prejudice or not is a question of fact and cannot be inferred as strait jacket formula.

In my opinion the evidence of P Ws 2 and 3 read together is enough to complete the chain of events. While PW 3 gave account of the first part of the occurrence, PW 2 narrated the manner of second part of occurrence. It may be recalled that after removing the clothes and the ornaments in the court-yard two out of the six Appellants remained there while rest four went towards Niksar and finally to Goshala. After hearjng sound of gun firing those two persons too left the place in that direction.

However I find merit in the submission of the Appellants'' counsel that in the instant case the Appellants cannot be convicted u/s 396 of the Penal Code. Section 396 of the Penal Code Provides that:

If any one of five or more persons, who are (conjointly committing dacoity, commits murder in so committing dacoity, every one of those persons shall be punished with death, or imprisonment for life, or rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine.

From bare reading it is clear that the offence u/s 396 can be said to have been committee when murder is committed while committing dacoity. ''Dacoity'' is defined in Section 391 of the Penal Code as under:

When five or more persons conjointly commit or attempt to commit a robbery, or where the whole number of persons conjointly Committing or attempting to commit a robbery, and persons present and aiding such commission or attempt, amount to five or more, every person so committing, attempting or aiding, is said to commit dacoity.

The essential ingredient of offence of dacoity, it would appear, are that five or more persons should be involved in the commission of the crime and they should either commit or attempt to commit robbery. ''Robbery'' has been defined u/s 390 of the Penal Code as under:

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.

(rest part of Section 390 has been left out in the quotation)

Coming to the instant case, it would appear that after the miscreants took clothes, ornaments and a bicycle, the offence of dacoity was complete. Some of the miscreants thereafter turned towards the passage where the deceased and PW 2 Kanhaiya Upadhaya were sleeping. When the deceased and PW 2 tried to escape they were chased by the miscreants and eventually the deceased was done to death by them. Murder thus does not seem to have been committed while committing dacoity. It seems to be an independent act or transaction. They are no doubt said to have taken away the gun of the deceased but there is no evidence that while taking away the gun, forcibly or otherwise, they killed the deceased. The evidence rather suggests that they first killed the deceased and thereafter took the gun. On the point of completion of the offence of dacoity at a certain stage and commission of murder thereafter being a separate transaction reference may be made to the case of AIR 1976 400 (SC) vide para 14 of the judgment where their Lordships observed as under:

There is, therefore, considerable force in the contention urged on behalf of the Appellant before us that, in the facts and circumstances of the present case, the transaction of dacoity had ended the moment the dacoits took to their heels and another and a separate transaction took place when the Appellant shot at Mendal while crossing the ditch of the Pipra. Farm and that, therefore, the Appellant could not be convicted of having committed the offence u/s 396, Indian Penal Code. Learned Counsel for the Appellant strenuously contended that the conviction of the Appellant u/s 396, Indian Penal Code should be quashed and that on the concurrent findings of fact recorded by both the Courts below the conviction should be altered to one u/s 395, Indian Penal Code.

As a matter of fact I am inclined to think that the intention of the miscreants was to kill the deceased and not to commit dacoity. The miscreants removed the clothes, ornaments and bicycle but there is no evidence that they took away these articles. May be, they wanted to give a different look to the occurrence and therefore stage managed the show of dacoity. In any view as I have observed above, at the stage when they removed the articles, offence of dacoity was complete. Even an attempt to do so was enough to complete the offence. There was then no occasion for the miscreants to chase the deceased and fire three shots at him. Apparently, they wanted to be sure that the deceased is killed. The factum of chase and then firing three shots etc. makes it clear that they had come with the intention to kill the deceased. At this stage I may refer to the injuries found on the deceased in the postmortem as under:

Gun shot wound 3/4" diameter x 2" with wad inside-left neck near angle of mandible (wound of entry).

Gun shot wound 1" diameter x through and through (wound of exit).

Gun shot wound 1/4" x 2" (quite deep down) right side of abdomen (wound of entry)

Gun shot wound 2" x 2" x through and through on the front of abdomen just near naval with (illegible) of a portion of (illegible) (wound of exit.

Four pellets allocking just on the left side of the abdomen-exit of injury No. 1.

Abrasion 1" diameter on front of left shoulder.

It is to be kept in mind that according to the informant himself vide his fardbeyan the Appellants were ill disposed towards the deceased who happened to be complainant of a murder case against some of the accused which was pending. Thus the miscreants/Appellants had a definite motive to kill the deceased and therefore in order to eliminate him they came to his house along with some unknown persons and accomplished their mission.

However my conclusion that the facts and circumstances do not make out of a case of dacoity with murder and do not constitute the offence punishable u/s 396 of the Penal Code does not mean that the Appellants are entitled to acquittal. As held in the case of AIR 1976 400 (SC) the offence of murder is part of the charge u/s 396 of the Penal Code and therefore in an appropriate case where the accused is not likely to suffer any prejudice he may be convicted u/s 302 of the Penal Code it stead of Section 396 with which he had been originally charged. It would be useful to quote the relevant passage from the judgment as under:

It is, however, unnecessary to do so because in the facts and circumstances of the present case the Appellant is liable to be convicted of the offence u/s 302 Indian Penal Code without anything more. The charge u/s 396 Indian Penal Code comprised of two ingredients:- (1) the commission of the dacoity, and (2) the commission of the murder in so committing the dacoity. The first ingredient was proved without any doubt and was not challenged by the learned Counsel for the Appellant. The second ingredient also was proved[ in any event as regards the commission of the murder because the attention of the accused was focused not only on the commission of the offence while committing the dacoity but also on the individual part which he took in the commission of that murder. So far as he was concerned, he knew from the charge which was framed against him that the was sought to be made responsible not only for the commission of the dacoity but also for the commission of the murder in committing such dacoity. The evidence which was led on behalf of the prosecution specifically implicated him and he was named by the prosecution witnesses as the person who shot at Mendai while crossing the ditch of [the Pipra Farm. His examination u/s 342 of the Code of Criminal Procedure also brought out that point specifically against him and he was questioned in that behalf. Both the Courts below recorded their concurrent findings of fact in regard to the part taken by the Appellant in the commission of murder of Mendai. Under these circumstances it could not be urged that the Appellant could not be convicted of the offence u/s 302, Indian Penal Code if such a charge could be made out against him (Vide our decision in Willie (William) Slaney Vs. The State of Madhya Pradesh,

Reference may also be made to a decision of this Court in Kanhaiya Nonia and Ors. v. State of Bihar 1986 PLJR 492.

Shri Rana Pratap Singh submitted that the present case stands on different footing and the Appellants cannot be convicted u/s 302. He pointed out that unlike the case of Shyam Behari or Kanhaiya Nonia, there is no specific charge against any of the Appellants nor there is any evidence to suggest as to which Appellant or Appellants killed the deceased. He submitted that though both P Ws. 2 and 3 stated that three shots had been fired, from the postmortem report it would appear that the doctor found evidence of only two gun shots. Further, though there is allegation of Gupteshwar Upadhayay giving dagger blow no such injury was found on the deceased. The deceased having sustained only two gun shots, the assailants being four-three armed with guns and one with dagger, they cannot be convicted u/s 302 of the Penal Code. He referred to the charge and statements of the Appellants u/s 313 Code of Criminal Procedure and pointed out that neither in the charge name(s) of the Appellant(s) was mentioned as assailant nor any specific question was put to the concerned Appellants about the overt act(s) allegedly committed by them. In these circumstances, conviction of the Appellants u/s 302 of the Penal Code without re-trial on the same evidence would be illegal.

As held by the Supreme Court in the case of Shyam Behari (supra) and by this Court in the case of Kanhaiya Nonia (supra), an accused can be convicted for the offence u/s 302 even if he or they have been charged with committing the offence u/s 396 provided it does not cause any prejudice to him. The question is whether in the instant case this can be done.

In the instant case the charge framed against the accused-Appellants was as under:

That you committed dacoity in the house of Behari Upadhaya and that in the commission of such dacoity, murder of Brij Kishore Upadhaya was committed by some of you and thereby committed the offence punishable u/s 396 of the Indian Penal Code.

(emphasis added)

The distinction would be apparent from perusal of the charge framed in the case of Kanhaiya Nonia (supra), which may be quoted as under:

You all committed dacoity and that in the commission of the said dacoity murder of Ram Naresh Sah was committed by Kanhaiya Nonia one of the member of dacoits conjointly committing dacoity.

The charge framed in the case of Shyam Behari (supra) has not been quoted in the judgment but from para 17 of the judgment quoted above it is clear that from the charge the Appellant knew that he was sought to be made responsible for committing murder of Mendai.

It would thus appear that in stead of framing charge against the particular accused/Appellant(s) by name(s), unlike the case of Shyarh Behari or Kanhaiya Nonia, in the instant case, the charge is that murder was committed by "some of them". Kanhaiya Upadhaya in his evidence did not mention the names of the assailants, he simply said that those who had guns fired, meaning thereby, the shots were fired by. Surya Nath Upadhaya, Rang Nath Upadhaya and Behari Thakur (who according to him were the three carrying guns), the accused who had dagger gave dagger blow, meaning thereby, Gupteshwar Upadhaya gave dagger blow. This is the maximum upto which the case of the prosecution can be stretched.

I have already referred to the nature of evidence against the Appellants. So"far as their examination u/s 313 Code of Criminal Procedure is concerned, no question was put to any of the four alleged assailants namely Surya Nath Upadhaya, Rang Nath Upadhaya, Gupteshwar Upadhaya and Behari Thakur to the effect that they had fired or given dagger blow on the deceased. The question framed was that different accused had injured Brij Kishore Upadhaya by their respective arms in the courtyard of the Goshala as a reuslt of which he died. Curiously, specific question to the effect that Surya Nath Upadhaya, Rang Nath Upadhaya and Gupteshwar Upadhaya had injured Brij Kishore Upadhaya by gun and dagger, was put to Bhola Dusadh and Ram Chandra Choudhary who are not assailants. They had remained standing near the informant. They proceeded towards Goshala after the shots were fired.

It would thus appear that neither in the charge nor in the evidence nor in the examination u/s 313 Code of Criminal Procedure the alleged assailants were made aware of the charge. In view of the ratio of the decisions in the cases of Shyam Behari and Kanhaiya Nonia where the accused has been made aware of the charge he can be convicted for the individual act or acts committed by them, but where neither they are made aware of the charge nor injuries can be attributed individually to them they cannot be convicted u/s 302 of the Penal Code. The question would ansa as to whether they can be convicted with the aid of Section 34 or Section 149 of the Penal Code? Where the number of assailants is more and it is not possible to identify the assailant(s) who caused the fatal injury, they may be so convicted Whether such a conviction can be awarded to the Appellants in the instant case?

Section 34 of the Penal Coda lays down that when a criminal act is done by several persons in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if it were done by him alone. Section 149 of the Penal Code lays down that if an offence is committed by any member of the unlawful assembly in prosecution of the common object of that assembly, or such as the members of that assembly knew to be likely to be committed in prosecution of the object every person who, at the time of the committing of that offence, is member of the same assembly, is guilty of that offence.

It would appear that both Sections 34 and 149 incorporate the concept of vicarious liability Even if the offending act is not committed by the particular person, where the act is done by several persons in furtherance of the common intention, or the act is committed by any member of the unlawful assembly in prosecution of the common object of that assembly or such as the members of that assembly knew to the likely to be committed in prosecution of the common object, every concerned person is guilty of the offence as it was committed by him alone. In my opinion, while it is permissible to convict an accused charged with committing the offence u/s 396, u/s 302 of the Penal Code for the individual act done by him, or his conviction u/s 396 awarded by the trial Court can be altered to Section 302 of the Penal Code by the appellate court, there can be no such conviction with the aid of Section 34 or Section 149. Section 34 envisages existence of ''common intention'' on the part of several persons (of- committing murder) in furtherance of which the act is committed making others liable for that act in the same manner as if it were done by him alone. Similarly for applying Section 149, existence of unlawful assembly, a common object of that assembly (to commit murder) or knowledge of the members of the assembly that the offence (of murder) is likely to be committed in prosecution of the common object, have to be proved apart from framing an appropriate charge. Where no such charge has been framed nor any evidence led at the trial the accused cannot be convicted for the act committed by another person or persons with the aid of Section 34 or Section 149 as the case may be. So far as Section 149 is concerned it may be mentioned that being member of the unlawful assembly is itself an offence punishable u/s 142 of the Penal Code. In the instant castes per the charge, the common object of the Appellants was to commit dacoity and while so committing dacoity, the murder was committed. In the above premises, in the facts and circumstances of this case, the Appellants cannot be convicted u/s 302/34 or 302/149 of the Penal Code. That is, perhaps, why this Court in the case of Kanhaiya Nonia observed.

Those who committed dacoity along with Kanhaiya Nonia but since on the facts proved the murder was not committed in so conjointly committing the dacoity, may suggest that in their case a failure of justice may take place if they are convicted without trial u/s 302/34 or 302/149 of the Indian Penal Code. Kanhaiya Nonia, however, cannot say so.

(emphasis added)

However, Section 396 is a combination of the charge of dacoity and murder. Where the murder is committed while committing dacoity, Section 396 gets attracted and where murder is not so committed while committing dacoity, the offence u/s 396 is not made out. But the accused can be convicted u/s 395 for committing dacoity or u/s 302 for committing murder as already discussed above. In the instant case, as I have observed, though the primary intention of the Appellants seems to be committing the murder of Brij Kishore Upadhaya, nonetheless when they removed the articles and collected them in the courtyard, the offence u/s 395 was complete and therefore while they may not be convicted for offence u/s 302 simpliciter or with the aid of Sections 34 or 149 of the Penal Code, for the reasons mentioned above, they may be convicted u/s 395 of the Code. This was the argument of the accused in the case of Shyam Bihari vide para 14 of the judgment quoted above; the Supreme Court considered it unnecessary to alter the conviction u/s 395 of the Penal Code because the Court was satisfied that he could be convicted u/s 302. The evidence on record leaves little room for doubt that offence u/s 395 was complete when they removed the articles from the different rooms using force. As a matter of fact even attempt to forcibly take away the articles was enough to constitute the offence u/s 395. However considering that the occurrence took place 28 years ago, I do not think it would be proper to send the Appellants to jail convicting them u/s 395 of the Penal Code. It would serve ends of justice to convict the Appellants u/s 395 of the Penal (Code and sentence them to the period already undergone. They are convicted and sentenced accordingly.

In the result, the appeal is dismissed but subject to modification in the conviction and sentence. The Appellants are on bail. They pre discharged from the liability of bail bonds.

T.P. Singh, J.

I agree.