ORDER K.N. Srivastava, J. - This is an appeal against the judgment and order of Sri D.D. Agarwal, III Temporary Civil and Sessions Judge, Meerut, convicting the Appellant u/s 394, IPC and sentencing him to ten years' R.I. and further convicting the Appellant u/s 324, IPC and sentencing him to two years' R.I. Both the sentences were ordered to run concurrently. The facts giving rise to this appeal are as follows. 2. A little before noon on 16-6-1964, Sadhu Chhotey Gir was robbed by the Appellant of Rs. 119/- which he had kept in a purse. Jin order to facilitate the commission of the robbery, the Appellant caused a number of injuries to Chhotey Gir with a Daranti. Earlier the Appellant had seen the purse and the money on the person of Chhotey Gir at the house of one Bhagwan Pradhan. This robbery was committed a furlong away from village Haripur Gaonri. After committing the robbery, the Appellant ran away. Chhotey Gir tried to apprehend the Appellant without any success. Certain construction work was going on at a culvert, Chhotey Gir went there and told the labourers about the occurrence. The Appellant was seen running away by, some persons. They chased the Appellant and he was caught. He was then wearing a blood stained pyjama. At the pointing of the Appellant, the money bag was recovered from near a tree which was close to the place of occurrence. A report of the occurrence was lodged by Idu in Thana Hastinapur the same day at 1.30. a.m. On this report, a case u/s 394, IPC was registered against the Appellant. The police investigated the case and challaned the Appellant. He was tried, convicted and sentenced, as stated above. 3. The Appellant denied the charge and pleaded not guilty. In support of its case, the prosecution examined Chhotey Gir, Asghar, Idu, Sher Singh, Ram Krishan and some other witnesses whose statements are of a formal nature. The Appellant examined two witnesses in his defence. 4. When Chhotey Gir reached the culvert, he told Idu about the occurrence. He also gave the name's of the witnesses who had seen the Appellant committing this robbery. These witnesses were named in the FIR which Idu lodged at the Thana. The Appellant examined two witnesses in his defence. 4. When Chhotey Gir reached the culvert, he told Idu about the occurrence. He also gave the name's of the witnesses who had seen the Appellant committing this robbery. These witnesses were named in the FIR which Idu lodged at the Thana. Chhotey Gir stated that the Appellant followed him and attacked him with a 'Daranti' and robbed him of the money which he had kept in the money bag. Idu corroborated the statement of Chhotey Gir and stated that Chhotey Gir went to him and told him as to how he was robbed and he further stated that he gave him the names of the persons who had seen the occurrence. Sher Singh sent certain labourers to arrest the Appellant who was seen running away. Ram Kishan was one of those persons who arrested the Appellant after chasing him. Ram Kishan stated that the Appellant was wearing a pyjama which was stained with blood. The Investigating Officer took this pyjama into his custody. It was sent to the Chemical Examiner for examination and report. The Chemical Examiner reported that the pyjama was stained with human blood. This circumstance would have been an important corroborative evidence of the fact that the Appellant robbed Chhotey Gir, but the Appellant was not asked in his statement u/s 342, Code of Criminal Procedure as to whether he was wearing this pyjama when he was arrested and if so whether it was stained with human blood. In view of this material omission by the trial court, the prosecution cannot rely on the evidence of recovery of the bloodstained pyjama from the person of the Appellant. The trial court ought to have put this important piece of evidence to the Appellant in his statement u/s 342, Code of Criminal Procedure. 5. Chhotey Gir's evidence about the recovery is corroborated by the statement of Idu (P.W. 2) who is an eye witness. The fact that soon after the recovery, the Appellant was arrested with the 'Daranti' is proved by the statements of Idu, Sher Singh and Ram Kishan. Their statements corroborate the statement of Chhotey Gir on very material points. The trial court has, therefore, rightly held that the Appellant robbed Chhotey Gir of the money which he had in his possession at the time of the robbery. 6. Their statements corroborate the statement of Chhotey Gir on very material points. The trial court has, therefore, rightly held that the Appellant robbed Chhotey Gir of the money which he had in his possession at the time of the robbery. 6. It was next urged that the Appellant was deaf and dumb person and therefore, the trial was vitiated as the provisions of Section 341, Code of Criminal Procedure, were not complied with by the trial court and the Committing Magistrate. There is no evidence that the Appellant was a deaf and dumb person. On the contrary, the evidence on the record shows that the Appellant was not a deaf and dumb person. In the trial court, he replied to two of the questions which were put to him about his having robbed Chhotey Gir. He gave a negative reply to these questions. When the trial started, he pleaded before the trial court that he was not guilty of the offence charged. When the Appellant was examined u/s 342 Code of Criminal Procedure he did not reply to the questions which were put to him. Earlier an application was made on behalf of the Appellant that he should be examined if he was a deaf and dumb person. This application was rejected. The Appellant who had spoken earlier could not be said to be dumb person. He replied the questions after hearing them and therefore, it cannot be said that he was a deaf person. The above argument has, therefore, no force in it. 7. The learned trial court convicted the Appellant u/s 394, IPC and u/s 324, IPC. Section 394, IPC applies to cases where during the course of the robbery, voluntary hurt is ^caused. The evidence on the record clearly indicated that the Appellant caused injuries to Chhotey Gir in order to facilitate the commission of the robbery. The assault on Chhotey Gir was made during the course of the commission of the robbery and it was made in order to succeed in robbing Chhotey Gir who had offered resistance at the time of the robbery. The injuries which were found on the person of Chhotey Gir were not caused independently. I am, therefore, of the view that the Appellant who was convicted and sentenced u/s 394, IPC should not have a further conviction and sentence u/s 324, IPC. The injuries which were found on the person of Chhotey Gir were not caused independently. I am, therefore, of the view that the Appellant who was convicted and sentenced u/s 394, IPC should not have a further conviction and sentence u/s 324, IPC. The conviction and sentence u/s 324, IPC, therefore, cannot be maintained. 8. It was next argued that the Appellant was a young boy of 16 years and therefore, he was entitled to a lenient punishment. The Appellant gave his age in his examination u/s 342, Code of Criminal Procedure as 18 years. He had followed Chhotey Gir from the house of the Pradhan right upto the place where he robbed him after fatally injuring him with the 'Daranti'. It was a highway robbery but it was not a fit case where maximum penalty provided u/s 394, IPC should have been awarded to the Appellant. Taking into consideration the facts and circumstances of the case, I am of the opinion that a sentence of five years R.I. will meet the ends of justice in this case. The appeal, therefore, succeeds in part. 9. The conviction and sentence of the Appellant u/s 324, IPC are set aside. The conviction of the Appellant u/s 394, IPC is maintained but the sentence of ten years is reduced to five years RI. The appeal stands dismissed in all other respects. The Appellant who is on bail shall be taken into custody forthwith to serve out the sentence awarded to him.