Theft becomes robbery only when Section 390’s specified violence or instant-fear elements are proved.

The prosecution alleged that five persons robbed complainant Ram Yadav of ₹30,000 while he was travelling by bus.

Three accused—Mohd. Saleem, Arshad and Asmat Ali—were apprehended; ₹19,000 was allegedly recovered from Saleem, while the remaining amount was said to have been passed to an associate who escaped.

The Sessions Court convicted all three under Section 395 IPC and Saleem additionally under Section 412 IPC, sentencing them to ten years’ rigorous imprisonment under Section 395 and Saleem to five years under Section 412.

The accused appealed, challenging, among other matters, proof of robbery and the participation of five or more persons.

Whether the prosecution proved robbery under Section 390 IPC, a necessary foundation for dacoity under Section 395 IPC.

Whether the evidence established that five or more persons conjointly committed or attempted to commit robbery, as required by Sections 391 and 395 IPC.

Whether Saleem’s conviction under Section 412 IPC could stand if the prosecution failed to establish that the property was stolen in the commission of dacoity.

Whether the evidence nevertheless established theft under Sections 378 and 379 IPC.

Section 390 IPC requires that, in order for theft to constitute robbery, the offender must voluntarily cause or attempt to cause death, hurt or wrongful restraint, or fear of instant death, hurt or wrongful restraint, for one of the purposes specified in that section.

As explained in Mohd. Wajid v. State of Uttar Pradesh, (2023) 20 SCC 219, the required consequence must have the statutory nexus to committing the theft or carrying away the stolen property; its mere occurrence during the same transaction is insufficient.

Section 391 IPC requires five or more persons conjointly committing or attempting robbery, including persons present and aiding; Section 395 punishes dacoity.

Sections 378 and 379 IPC define and punish theft, respectively: dishonest moving of movable property out of another’s possession without consent constitutes theft.

The Court treated proof that the property was stolen in the commission of dacoity as necessary to sustain Saleem’s Section 412 conviction.

The Court found that the complainant’s account did not establish that the accused caused or attempted to cause any of the consequences specified in Section 390, or that he feared instant death, hurt or wrongful restraint; his general apprehension that the accused might have weapons and could harm him was insufficient to elevate the alleged taking to robbery.

Since robbery was not proved, the foundational requirement for dacoity was absent, irrespective of the allegation that five persons participated; the Section 395 convictions therefore could not stand.

On the Court’s reasoning, the failure to prove dacoity also defeated the Section 412 conviction.

The Court nevertheless accepted the evidence that ₹19,000 was recovered from Saleem and that it had been taken from the complainant without consent, finding the ingredients of theft established.

The Court set aside the convictions under Section 395 IPC and Saleem’s conviction under Section 412 IPC.

It held the appellants guilty under Section 379 IPC and sentenced them to the period already undergone, directing their release if not required in another case.

The Court’s reasoning on theft specifically identifies Saleem and the ₹19,000 recovery, although the operative order states that the appellants were held guilty under Section 379.