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30. These become relevant to the present case in light of the first line of the provision of Section 390 as per which in all robbery, there is either theft or extortion. It simply means that when elements (death/instant death, hurt/instant hurt, wrongful restraint/instant wrongful restraint etc.) are combined with either the offence of theft or the offence of robbery, only then the offence of robbery can be constituted. Section 390 contemplates when theft is considered robbery and when extortion is considered robbery. It is considered apt to reproduce the provision of Section 390 herein below:

(25 of 32) [CRLA-863/2001] 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.

Explanation.--The offender is said to be present if he is sufficiently near to put the other person in fear of instant death, of instant hurt, or of instant wrongful restraint.

31. As per the first part, theft would be considered robbery when in the course of committing the theft or while carrying away or attempting to carry away the property obtained by theft, the offender either voluntarily causes or attempts to cause death/hurt/wrongful restraint or causes fear of instant death/instant hurt/instant wrongful restraint to any person in order to achieve his/her/their end of committing the theft or carrying away the stolen property. The second part prescribes when the offence of extortion would translate into an offence of robbery and the important aspects are the presence of the person inducing the fear, the delivery of the extorted thing right there and then and the manner in which the extortion is being committed. When the offence of extortion is being committed and the offender is in the presence of the person whom he is inducing with the fear and the offender commits extortion by way of putting the said person in fear of instant death, instant hurt or instant wrongful restraint of that person himself or any other person and inducing the said person to deliver the thing being extorted right in that (26 of 32) [CRLA-863/2001] moment, then the offender is said to have committed the offence of robbery borne out of extortion.

36. Here, in the case at hand, the learned judge has convicted the accused-appellants for the offence of dacoity but without pondering over the vital legal issue of presence of essential elements of loot.

37. A plain reading of statements of the two star witnesses, namely PW-2 Hanuman Singh and PW-3 Chhotu Khan, does not (28 of 32) [CRLA-863/2001] indicate that either a force was used upon them while taking the bag from their possession or they were induced to deliver the property by putting them under fear. On the contrary, even the fact of the bag going amiss came into their notice on the next day at Ahmedabad. As deposed by them, throughout the way, from Bhim to Ahmedabad (around 412 kms), the absence of the bag containing the currency and the demand draft was not in their knowledge and this very fact clearly rules out the very application of either commission of the offence of theft or extortion as enunciated above. There is no evidence in the slightest that could prove or show that the accused-appellants either took away the property in question or induced the two witnesses, P.W. -2 Hanuman Singh and P.W.-3 Chhotu Khan, to deliver the same to them, thus, the offences of theft and extortion and by default, the offence of robbery are not made out against the accused- appellants by any stretch of imagination. The offence of theft or the offence of extortion augment into the offence of robbery and robbery is nothing but an aggravated form of theft or extortion. When an offence of robbery is not traceable from the evidence available on record, there would be no question of invoking the offence of dacoity. Dacoity is not an offence separate from robbery; it is just an offence of robbery committed by five or more persons. The only difference between Section 390 and Section 391 is that of the number of accused required to constitute the two offences. No other form of act of an accused has been envisaged in the Penal Code which may attract commission of an offence of robbery in the given facts and circumstances of the case.