JUDGEMENT 1. The appellant stands convicted under Section 397/34, I.P.C. and has been sentenced thereunder to undergo R.I. for 7 years. He has also been held guilty under Section 25 of the Arms Act and has been sentenced thereunder to undergo R.I. for one year. The above mentioned sentences have been ordered to run concurrently. 2. The prosecution case, in short, is that the appellant along with 7 or 8 other persons, being armed with deadly weapons such as pistols and knives, committed dacoity in the house of P.W. 3, and in course of committing the said offence the appellant with his pistol opened fire and inflicted injuries on P.W. 2, the son of P.W. 3. On the allegation stated above the appellant and three others only were put on trial for charges under Section 397/34 I.P.C. and the appellant and another person since acquitted were also charged under Section 25 of the Arms Act. Five other persons who allegedly associated themselves with the said four persons in the commission of the said crime, according to the prosecution, absconded and were not available for trial along with the four persons charged and tried as stated above. The trial Court acquitted three of the four accused persons and convicted only the appellant as stated above. 3. The gist of the prosecution case, bereft of unnecessary details, is that on 18-6-1969 P.W. 1 and his family members were sleeping at different places in their house. P.W. 1 was lying on his bed on the verandah of his house, but was not asleep when he heard and saw some persons entering into the courtyard of his house. He sat up on his bed and found that one of the intruders focussed a torch light on his face and another of them came and stood in front of him holding the pointed end of a knife close to his throat. The intruders moved here and there in the courtyard and one of them went near the cot of P.W. 3 the father of P.W. 1, and hit him on his belly with a stick. At this point of time P.W. 1 ran out of the house raising an alarm. Thereafter one of the intruders dragged P.W. 3 from his cot and asked him to disclose where he had kept his cash and valuables. At this point of time P.W. 1 ran out of the house raising an alarm. Thereafter one of the intruders dragged P.W. 3 from his cot and asked him to disclose where he had kept his cash and valuables. At this P.W. 3 pointed towards the room in which P.W. 2 and his wife were asleep. On getting that indication, 3 or 4 of the intruders forced open the door of the said room in spite of the resistance from P.W. 2 from inside. As soon as the intruders entered into that room P.W. 2 and his wife came out of the room. As P.W. 2 started moving towards his father, one of the intruders waiting outside fired a shot from the fire arm in his possession and the bullet hit P.W. 2 on his left arm pit. P.W. 2 then ran out of the house. Both P.Ws. 1 and 2 remaining outside the house raised alarm, but none came to their help. They, therefore, concealed themselves by the side of a broken wall. After some time the intruders with the booty collected from the house came out of the house and started moving away. The appellant was the last person to come out of the house. When the appellant alone was passing by the side of the place where P.Ws. 1 and 2 were concealing, P.W. 1 hit him with a Lathi. On receiving the blow the pistol M.O. XI and the torch light M.O. X., in the hands of the appellant fell down and he stumbled down at that place. A few of his companions came to his help, but P.Ws. 1 and 2 attacked them, as a result of which they also filed away from that place leaving the appellant behind. The appellant could not make good his escape and P.Ws. 1 and 2 further assaulted him. Just then P.Ws. 12 and 13 arrived at that place and these four P.Ws. caught hold of the appellant. Very soon thereafter ten or fifteen other villagers arrived at that place and all of them brought the appellant to a place named Tato Bazar and detained him there. P.W. 13 came to the Karanjia Police Station and lodged the F.I.R., Ext. 10/1, at 10.30 in the night. caught hold of the appellant. Very soon thereafter ten or fifteen other villagers arrived at that place and all of them brought the appellant to a place named Tato Bazar and detained him there. P.W. 13 came to the Karanjia Police Station and lodged the F.I.R., Ext. 10/1, at 10.30 in the night. P.W. 28, the Officer-in-charge of the Karanjia P. S. accompanied by the A.S.I. P.W. 26 and some constables came to the spot immediately and they arrested the appellant at Tato Bazar. On search of the person of the appellant, four cartridges were recovered and they were seized as per the seizure list Ext. 11/2. The appellant was sent to the Primary Health Centre for medical examination. The Investigating Officer along with his party went to the house of P.W. 3 and seized the two wooden boxes (M.O. I and II) lying broken in the courtyard and the brass cap (M.O. IX) of a cartridge lying there, and some other articles. A pistol (M.O. XI), a torch light (M.O. X), a broken umbrella (M.O. XII), a cartridge (M.O. X/A) and a pair of shoes were seized from a place a little away from the house of P.W. 3 where P.Ws. 1 and 2 grappled with the appellant. P.W. 2 was sent for medical examination to the Primary Health Centre, and P.W. 26 and some constables were sent to search for the other culprits in the nearby jungle. Accused Amiruddin (since acquitted) was later on arrested from a place near about a tank at Tato Bazar. Thereafter the other two accused persons were arrested from different other places. It is needless for me to narrate other details relating to the other accused persons as I am not concerned with that aspect of the case in this appeal. 4. The appellant has taken the plea that apart from his employment in Telco, Jamshedpur he was also doing business in milk powder and that P.W. 1 was connected with him in the same trade and in that connection he (P.W. 1) owed Rs. 1400/- to the appellant. On the date of occurrence the appellant came to collect his above dues from P.W. 1, but P.Ws. 1 and 2, with a view to evade payment of the aforesaid dues of the appellant, got him drunk and assaulted him, and thereafter they falsely accused him of dacoity. 5. 1400/- to the appellant. On the date of occurrence the appellant came to collect his above dues from P.W. 1, but P.Ws. 1 and 2, with a view to evade payment of the aforesaid dues of the appellant, got him drunk and assaulted him, and thereafter they falsely accused him of dacoity. 5. With regard to the conviction of the appellant under Sec. 25 of the Arms Act, it has been urged by Mr. Chowdhury, the learned counsel appearing amicus curiae for the appellant, that the said conviction cannot be maintained as the requisite sanction for prosecution under Section 39 of the Arms Act was not obtained by the prosecution in this case. Mr. Swamy appearing for the State conceded that the conviction of the appellant under the said Section and the sentence passed against him thereunder could not be maintained in view of the undisputed fact that no such sanction to prosecute the appellant was obtained by the prosecution. Accordingly, as rightly submitted by counsel for both the sides, the conviction of the appellant under Section 25 of the Arms Act and the sentence passed against him thereunder are liable to be set aside. 6. On a perusal of the evidence on record I am satisfied that the prosecution allegation against the appellant that he was one of the persons who took part in committing dacoity in the house of P.W. 3 in the night of occurrence has been established beyond reasonable doubt. In this respect P.Ws. 1, 2 and 3 corroborate each other on all important and material particulars. Apart from their consistent evidence to that effect the injuries on the persons of P.Ws. 2 and 3 lend corroboration and assurance to their sworn testimony. P.W. 11, the doctor of the Primary Health Centre at Tato, examined P.W. 2 within a short time of the occurrence and found on the person of P.W. 2 multiple penetrating wounds with charred margins on his chest and also near his left arm pit. P.W. 11 opined that the injuries were caused by fire arm. He advised P.W. 2 to take medical aid at Baripada where P.W. 10, the Surgical Specialist attached to the Baripada Hospital examined P.W. 2 on 19-6-1969 and treated the injuries. P.W. 10 is also of the opinion that the multiple penetrating wounds were caused by fire arm pellets. Different aspects of the evidence of P.Ws. He advised P.W. 2 to take medical aid at Baripada where P.W. 10, the Surgical Specialist attached to the Baripada Hospital examined P.W. 2 on 19-6-1969 and treated the injuries. P.W. 10 is also of the opinion that the multiple penetrating wounds were caused by fire arm pellets. Different aspects of the evidence of P.Ws. 10 and 11 to the above effect have been duly considered by the court below and I am satisfied that the court below has arrived at the correct finding that the wounds on the person of P.W. 2 were caused by fire arms. The appellant in his statement under Section 342 Criminal P.C. in the committing court, which the appellant admitted to be correct and can be taken into consideration in this case, took the plea that when he demanded his dues from P.Ws. 1 and 2 in the night of occurrence, P.W. 2 and his brother assaulted him and so he retaliated by hitting P.W. 2 with the pointed end of an umbrella and thereby caused the injuries on his person. From the above-mentioned plea taken by the appellant it is quite evident that he admitted his presence in the house of P.W. 3 in the night of occurrence and that he had some cause for a tussle with P.Ws. 1, 2 and 3 in which incident he assaulted P.W. 2. He however does not explain the aforesaid charred injuries on P.W. 2. P.W. 3 had swelling, bruises, hematoma and abrasions on his chest, belly and left side of the back as found by the doctor P.W. 11. These injuries fit in with the evidence of P.W. 3 that he was hit by a stick on the chest and belly and dragged from the cot by the intruders who committed dacoity in his house in the night of occurrence. The injuries on P.Ws. 2 and 3 lend support to their evidence. 7. The evidence of P.Ws. 1, 2 and 3 that the appellant and seven or eight others entered into their house and committed dacoity is of very consistent and convincing nature. Their evidence also gets support from the evidence of P.Ws. 12 and 13 which is to the effect that in the night of occurrence they found that the appellant had been caught by P.Ws. 1, 2 and 3 that the appellant and seven or eight others entered into their house and committed dacoity is of very consistent and convincing nature. Their evidence also gets support from the evidence of P.Ws. 12 and 13 which is to the effect that in the night of occurrence they found that the appellant had been caught by P.Ws. 1 and 2 at a little distance away from their house and they all caught hold of the appellant and brought him to Tato Bazar. The court below has discussed in detail other relevant evidence in the impugned judgement in a satisfactory manner. Mr. Chowdhury has not been able to successfully assail the prosecution evidence to the above effect. On a perusal of the relevant evidence and its discussion in the impugned judgement I have absolutely no doubt that the appellant and seven or eight others associated themselves in the commission of the dacoity in the house of P.W. 3. 8. It has been urged by Mr. Chowdhury, the learned counsel for the appellant, that the charge under Section 397 I.P.C. read with Section 34 I.P.C. framed against the appellant is defective in various ways and it vitiates the trial. In this connection he states that Section 397 I.P.C. merely prescribes the minimum punishment for an offence and does not by itself constitute an offence and so a person cannot be charged of committing an offence under Section 397 I.P.C. He further submits that the charge is misleading as it does not give any notice of the fact that an offence of dacoity was committed by the appellant. True it is that Section 397, I.P.C. does not by itself constitute an offence. It merely prescribes the minimum penalty to be imposed on an accused if he at the time of committing robbery or dacoity uses any deadly weapon or causes any grievous hurt to any person or attempts to cause any grievous hurt or death to any person. As Section 397 has reference not only to an offence of dacoity but also to an offence of robbery, Sec. 395 or Sec. 392, I.P.C. as the case may be should be mentioned in the charge so that the accused persons may know exactly what they have to meet. The proper course, therefore, would be to mention Sec. 395 or Section 392. The proper course, therefore, would be to mention Sec. 395 or Section 392. I.P.C. as the case may be along with Section 397 I.P.C. to give proper notice in the charge itself to the accused persons so that they may know as to whether a charge of dacoity or of robbery read with the provisions of Sec. 397 I.P.C. is brought against them. In this view of the matter the charge framed against the appellant is no doubt defective. But in the F.I.R. and throughout the trial there is ample mention about the fact that the appellant was charged for an offence of dacoity. In the F.I.R. it is clearly alleged that the appellant along with other accused persons committed dacoity in the house of P.W. 3 in the night of occurrence. All the prosecution witnesses have consistently alleged that the appellant, the other accused persons and some others, consisting in all of about eight or nine persons, raided the house of P.W. 3 in the night of occurrence to commit dacoity. In the examination of the accused the allegation of dacoity was put to the appellant. On the facts consistently alleged against the appellant from the beginning of the trial and all throughout, there is absolutely no doubt that the appellant had sufficient notice of the fact that an offence of dacoity was alleged against him. So though Section 395 I.P.C. was not specifically mentioned in the charge, the appellant had sufficient notice of the fact that an offence of dacoity of the nature punishable under Section 397, I.P.C. was alleged against him and so for the aforesaid omission in the charge no prejudice has been caused to the appellant in this case. 9. Mr. Chowdhury has further submitted that the provisions of Section 397, I.P.C. cannot be applied constructively to an accused who in course of committing robbery or dacoity, actually used any deadly weapon or did not cause any grievous hurt to any person or did not personally attempt to cause death or grievous hurt to any person. There is substantial force in the aforesaid contention. There is substantial force in the aforesaid contention. A plain reading of Section 397, I.P.C. clearly shows that the provisions of this section cannot be applied constructively as the said section relates only to the offender who, in course of committing robbery or dacoity, actually used any deadly weapon himself or himself caused any grievous hurt to any person or attempted to cause grievous hurt or death to any person. The above view is supported by the Division Bench decision of the Patna High Court reported in AIR 1947 Pat 157 (Hazara Singh v. Emperor) and the single Judge decision reported in AIR 1971 Manipur 43 : (1971 Cri LJ 1759). (The Union Territory of Manipur v. Moirangthem Khomei Singh). But merely because of the aforesaid defect in the charge framed against the appellant, the trial of the case is not vitiated as no prejudice has been caused to the appellant due to the said defect. It was specifically alleged against the appellant that he had in his possession a fire arm and he used the same in course of his committing dacoity in the house of P.W. 3 in the night of occurrence. From the evidence on record and the questions put to the appellant in his examination under Section 342 Criminal P.C. it is absolutely clear that the appellant had clear notice of the abovementioned prosecution allegation against him. So, though the charge was framed in the said manner the prosecution consistently made the appellant personally responsible for committing an offence of dacoity punishable under Section 397, I.P.C. So on the material on record it cannot be said that the appellant was misled or prejudiced in any manner due to the above defect in the charge, and I am satisfied that the trial of the case has not been vitiated thereby. 10. Mr. Chowdhury has further submitted that on the charge framed against the appellant he could not have been prosecuted and/or convicted for an offence of dacoity as it is stated in the charge that the appellant along with the other accused persons, i.e. only the three other accused persons, committed the said offence. In the charge framed against the appellant it is of course stated that he "along with the other accused persons" committed the crime. But in the F.I.R. it is stated that about 8 persons committed the dacoity in the house of P.W. 1. In the charge framed against the appellant it is of course stated that he "along with the other accused persons" committed the crime. But in the F.I.R. it is stated that about 8 persons committed the dacoity in the house of P.W. 1. The relevant prosecution witnesses have all through specifically alleged that 8 or 9 persons, including the appellant, raided the house of P.W. 1 in the night of occurrence and committed the dacoity in question. The Investigating Officer, P.W. 28, has stated that in spite of attempts made by him, the other accused persons, excepting the four put up for trial, absconded and could not be apprehended, and so he submitted the charge-sheet only against those four accused persons declaring the others as absconders. The copious evidence on record clearly shows that the appellant knew fully well that he was being prosecuted for an offence of dacoity committed by him along with seven or eight others, and I am satisfied that the appellant had sufficient notice of that fact from the beginning of the trial, and there was absolutely no scope for the appellant to doubt that aspect of the case against him. 11. On a perusal of the evidence on record I am however satisfied that the prosecution allegation that the appellant in course of committing dacoity in the house of P.W. 3 in the night of occurrence had in his possession a fire arm and he used the same against the inmates of the house, is not of a very convincing nature. P.W. 1 in his examination-in-chief in the committing court stated that out of the 8 or 9 persons who came to his house in the night of occurrence to commit dacoity, only two of them were armed with guns. He has not named the appellant as a person holding a fire arm. In the Sessions Court P.W. 1 did not state if any of the dacoits was armed with a gun. He also did not state if the appellant had a gun in his hand when he was attacked by P.Ws. 1 and 2 outside their house. This witness in his cross-examination by the appellant, however, at one place has stated that the appellant was carrying a gun and a torch light and the same fell down on the ground when he was hit by P.Ws. 1 and 2. 1 and 2 outside their house. This witness in his cross-examination by the appellant, however, at one place has stated that the appellant was carrying a gun and a torch light and the same fell down on the ground when he was hit by P.Ws. 1 and 2. But in the next sentence he stated that he noticed the said gun and the torch light on the ground only when the villagers came to that place with a Petromax light. He at another place stated that when the dacoits were in his house only one of them had a torch light in his left hand and a knife in his right hand and he could not say if any other dacoit had anything in his hand. He could not say if the two dacoits, who came to help the appellant when he was attacked by P.Ws. 1 and 2 outside their house, had any weapon with them or not. P.W. 3, the father of P.Ws. 1 and 2, who was the first inmate of the house to be attacked by the dacoits has not stated anywhere that it was the appellant who had a gun and fired the same in course of committing dacoity in his house. In view of the deficient evidence of P.Ws. 1 and 3 to the above effect the evidence of P.W. 2 regarding the possession of a fire arm by the appellant does not inspire confidence. Moreover, in his examination-in-chief he at first in a general manner stated that one of the two dacoits who were standing near his father fired a gun and the bullets hit him (P.W. 2) on his left side. He did not then specifically name the appellant as the person who fired that gun. His later statement that it was the appellant who fired that shot is not of a very convincing nature as P.W. 3, who was close to the appellant, does not name or identify the appellant as the person to have fired that shot. On a perusal of the evidence of the abovementioned witnesses it is difficult to say beyond reasonable doubt that the appellant actually had a gun in his hand and that he used the same while he participated in the commission of the dacoity in the house of P.W. 3 in the night of occurrence. On a perusal of the evidence of the abovementioned witnesses it is difficult to say beyond reasonable doubt that the appellant actually had a gun in his hand and that he used the same while he participated in the commission of the dacoity in the house of P.W. 3 in the night of occurrence. As the prosecution evidence to the above effect is not of a very convincing nature the appellant cannot be held guilty for an offence of dacoity punishable under Section 397 I.P.C. But it has been established beyond reasonable doubt that the appellant actively associated himself in the commission of dacoity in the house of P.W. 3 in the night of occurrence, and so he is guilty of an offence of dacoity punishable under Section 395, I.P.C. only. 12. For reasons stated above the conviction of the appellant under Section 397/34 I.P.C. as found by the Court below and the sentence passed thereunder are set aside, and instead he is convicted under Section 395 I.P.C. and is sentenced thereunder to undergo R.I. for six years. The conviction of the appellant under Section 25 of the Arms Act and the sentence passed against him thereunder are set aside. The appeal accordingly, is partly allowed. 13. Before parting with this judgement it must be stated that Mr. Chowdhury, the learned Advocate who was engaged amicus curaie by this Court to appear for the appellant, spared no pains to put forward with all sincerity all that could be placed on behalf of the appellant and in his interest. Appeal partly allowed.