JUDGMENT
R.N. Sahay, J.
1. The appellant Md. Firoz @ Afroj Alam was, at the relevant time, the resident of Mohalla Gwalbigha in the district of Gaya. He has been convicted for an offence under Section 395 I.P.C. in S.T. No. 76 of 1994, on the file of 3rd Assistant Sessions Judge. Jehanabad and has been sentenced to imprisonment for ten years.
2. The case of the prosecution was that on 19.10.93 Sheo Ram Singh, Cash Overseer and Ashish Kumar Cashier, Jehanabad main post office after taking the orders of Arjun Prasad Sharma, the then incharge postmaster went to the State Bank of India, Jehanabad to bring 4 lacs rupees from the Bank. They took Treasury Voucher Book No. A.H./63434 receipt No. 21, dated 19.10.93 also with them for obtaining the aforesaid cash of Rs. 4 lacs from the Bank. As per order of the post master they reached the State Bank of India, Jehanabad and they obtained 4 lacs rupees cash and put them in a black bag. It is also said that out of 4 lacs rupees two and half lacs of rupees were 100 rupees notes and one and half lac of rupees were 50 (fifty) rupees notes. After taking four lacs of rupees they were coming to post office by rickshaw and when they reached at about 11.15 a.m. in front of main building of the post office they saw coming two persons towards them bearing full pants and shirts who came before them and asked them to stop the rickshaw and then seeing them they wanted to go towards the post office but they pushed them and they took out their iron pistol and abused them and threatened and asked them to handover the bag otherwise they would shoot them. Further case of the prosecution is that they assaulted Sheo Ram Singh the informant twice on his head by the front portion of the pistol, as a result he sustained injuries and there was bleeding. Both the criminals snatched the bag from the hand and began to flee away and then they raised hulla as “Chor Chor” and then other two criminals who also came there threatened them to kill and they also ran behind the other two criminals. Hearing hulla a lot of people came towards the place of occurrence and they began to chase the criminal and there was hue and cry in the town. In the meantime the police was also informed. The people of the town shopkeeper and cashier and others chase the criminals towards Kachi Maszid, The criminals were obstructed by the people near Kachi Maszid from two sides and while fleeing the criminals were diuided there in two groups and one of the criminal was caught by the villager. The criminal who was caught was assaulted with slaps and fists by the public. The criminal who was caught firstly stated his name falsely as Sunil Kumar but subsequently he disclosed his name as Afroj son of Md. Tahir of village Gwalbigha Police Station and district-Gaya. The criminal who was caught stated that Gohar Ali son of Waso Mian, Garerakhand, police station and District Jehanabad called two persons in order to kill one Firoj and when he could not be available he got the dacoity committed. He stated also that bag containing money was taken by Gohar Ali and his associates. Further case of the prosecution is that out of the villagers Md. Sahabuddin, Nir Alam, Shaukat Ali, Nanhe Mian and others helped to catching the criminals and they handed over the pistol and cartridge to the police as by that time the police reached there. The informant and cashier Ashish Kumar who were also following the criminal from behind also reached also there and they clearly identified the dacoit who was caught that it was he who along with another criminals snatched the bag of money from them. The informant gave his fardbeyan regarding the occurrence to Sri R. Razak, Police Inspector-cum-Officer In charge, Jehanabad police station on 1910-93 at 12.15 hours at post office More, Jehanabad. On the basis of which the First information report was drawn under Section 394 I.P.C. but subsequently the same was converted under Section 395 1PC. Thereafter the police started investigating and after completing investigation the police submitted charge-sheet against the three accused persons under Sections 395 IPC and 120(B) IPC and so cognizance of the offence was taken under Section 395 and 120(B) IPC against the accused persons and the case of these accused persons was separated from the case of other accused persons against whom investigation is still pending and the case of these accused persons has been committed to the Court of Sessions.
3. The appellant along with Parvaiz Alam and Chandu Mishra were charged under Section 395 IPC, for allegedly committing dacoity of rupees four lakhs on 19th October, 1993, in front of Jehanabad post office. It is surprising that only 3-4 persons were involved in the robbery as is obvious from the narration of the prosecution case, the charge under Section 395 IPC was framed.
4. The learned Assistant Sessions Judge, Gaya, found that there was overwhelming evidence against the appellant. There was no legal evidence against the remaining accused. The other two accused, namely, Parviaz Alam and Chandeshwar Kumar Mishra were acquitted, of the charge. It cannot be disputed that there was an occurrence of robbery on 19th October, 1993 at 11 a.m. in front of the post office of Jehanabad police station. There is sufficient and convincing evidence that two persons approached post office and employees were carrying huge cash. They threatened them and pushed them to deliver the cash on pistol point. One of the miscreants was carrying pistol but could not use it. The bag containing of cash was snatched from Shiv Ram Singh. The cashier was hit by butt of the pistol. Hulla was raised. The people started chasing the criminals. One of the criminals was caught. He was assaulted. It was appellant who was arrested by the people and assaulted. The bag containing cash was not recovered from the possession of the appellant. The appellant disclosed that money has been taken away by Gohar AM and his associate. All the material witnesses, namely, Ashish Kumar, the cashier of the main post office, Shiv Ram Singh the cashier who is the informant of the case, Mangat Pandit, an employee of the post office, Binod Kumar Singh, an employee of Jehanabad post office have stated about the occurrence. There can be no doubt that the appellant was arrested soon after the chase.
5. Learned Counsel for the appellant submitted that the evidence against the appellant is not free from doubt since no money was recovered from the possession of the appellant. It is true that nothing was recovered from the possession of the appellant. Money was probably taken away by the companion of the appellant.
6. The evidence against the appellant was full proof and the learned Assistant Sessions Judge correctly came to the conclusion that the appellant was involved in this case. However, the conviction of the appellant under Section 395 I.P.C. is illegal as there is no evidence that five or more persons were involved in the robbery. The appellant should have been charged under Section 392 IPC. The conviction under Section 395 IPC cannot stand. He is convicted under Section 392 IPC. As the appellant remained in custody for about five years considering the facts and circumstances of the case the sentence is reduced to the period already undergone by him.
7. The appeal is disposed of accordingly. The appellant shall be released from custody forthwith if not wanted in any other case.