JUDGMENT - M.S. APTE, J.:---The first revision application has been filed by the original accused against the order passed on appeal by the Sessions Judge on Parbhani confirming the order of conviction and sentence passed against the petitioner by the Assistant Sessions Judge, Parbhani, for an offence under section 307 of the Indian Penal Code and sentencing him to suffer R.I. for 4 years. 2. When this revision came up for admission before my learned brother Joshi J., while granting rule, he issued a show cause notice to the accused as to why the punishment should not be enhanced in view of the fact that the minimum sentence for the offence under section 397 was imprisonment for 7 years and that notice has come to be numbered as Revision Application No. 102 of 1976. Prosecution witness Munaji Balaji Bhale resides with his family which consists of his father, two brothers and other members in Warik Lane at Pathari. They have two houses which are situate in front of each other. One of the houses is used by the brothers for their studies, while the other house is used for the purpose of residence. 3. On the nigth between 15th and 16th June, 1974, Munjaji had slept on the Ota in front of the house used for studies by his brothers. His brother Ramdas had slept inside that house, while their father Balaji had slept in the residential house in front of the first mentioned house. 4. Round-about 2 or 3 a.m., Munjaji woke up and came out on the road to ease himself when he noticed 5 persons standing in the some lane at one distance from him. He accosted them, whereupon they replied that they were police constables on patrol duty. 5. After urinating, Manjaji returned and slept on his bed on the Ota which, it appears, is open from the front side. Soon thereafter, all those five persons who were found to be armed with sticks, came to Munjaji and threatened him not to raise shouts. One of them flashed a torch which was with him and tried to snatch away the golden ring from the right hand index finger of Munjaji by attempting to cut it with the help of his teeth. One of them flashed a torch which was with him and tried to snatch away the golden ring from the right hand index finger of Munjaji by attempting to cut it with the help of his teeth. He, however, did not succeed in cutting it and Munjaji caught hold of him and raised an alarm which alerted his father, who was sleeping in the other house as well as his brother who was sleeping in the same house. Some neighbours also were attracted by the shouts and they also rushed to the spot. In the meantime, Munjaji continued to hold the accused fast, while the other culprits made their escape good. When the accused was caught, he tried to escape by inflicting injuries with a knife on the father of Munjaji. However, with the help of the neighbours, they succeeded in apprehending the accused and he was immediately taken to the local Police Station where information was lodged at about 4.30 a.m. on the same night. Before they took the accused to the Police Station, these persons had, in a fit of anger, given some beating to the accused, with the result that the accused had also sustained some injuries. The Police, therefore, after recording first information, referred Munjaji as well as his father and also the accused to the Medical Officer. Munjaji was found to have sustained three injuries, on the left index finger which appeared to have been caused by teeth, the other was on the scapular region and the third was on the buttock. Similarly, his father Babaji had also received four injuries viz. one incised wound on the side of the nostril, another incised wound on the right zhygoma, the third was a contusion on the upper lid of the right eye and the fourth was sticks mark on the back. Similarly, the accused had also received as many as 10 injuries. 6. The Police then attempted to trace the remaining four culprits, but they did not succeed in tracing them. Hence the present accused alone was separately prosecuted for committing an offence under section 397 of the Indian Penal Code. 7. Similarly, the accused had also received as many as 10 injuries. 6. The Police then attempted to trace the remaining four culprits, but they did not succeed in tracing them. Hence the present accused alone was separately prosecuted for committing an offence under section 397 of the Indian Penal Code. 7. The defence of the accused was that on the night in question, he had arrived at Pathari from his village Kasapuri and he was proceeding to Takali to see his brother-in-law and while he was proceeding to Takali, these people suspected him to be a thief and, therefore, they assaulted him. 8. The prosecution examined Munjaji, his father Balaji and Munjajis brother Ramdas as well as one Shankar, a neighbour who had arrived on the scene. The Medical Officer was also examined and the medical certificates were put in evidence. On this evidence, the learned Assistant Sessions Judge found that the prosecution story was true and that in fact the accused along with four others had attempted to commit dacoity and while committing dacoity, the accused used a deadly weapon like knife on Balaji. The learned Judge disbelieved the defence of the accused that he was an innocent person just passing by the road to go to his brother-in-law at Takali. Consequently, the accused was found guilty of the offence under section 397 of the Indian Penal Code and was sentenced to suffer R.I. for 4 years. The Appellate Court also confirmed the sentence. 9. Mr. Gangal, who has been appointed for the undefended accused, took me through the entire evidence and he pointed out that the evidence would disclose that the accused has been falsely implicated. In particular, he pointed out that although Munjaji stated that the gold ring was on his right hand finger, actually tooth marks were found by the doctor on his left hand finger. He also submitted that the ring has not been attached, nor was it produced before the police and therefore, it is doubtful whether really the incident happened as alleged by the prosecution. Mr. Gangal also submitted that since it was a dark night as stated by the witness themself it was not possible for them to identify the other culprits and, therefore, it is not possible to hold that they could have ascertained the number of the other persons who were present. No doubt, as pointed out by Mr. Mr. Gangal also submitted that since it was a dark night as stated by the witness themself it was not possible for them to identify the other culprits and, therefore, it is not possible to hold that they could have ascertained the number of the other persons who were present. No doubt, as pointed out by Mr. Gangal, there is some discrepancy in respect of the injuries on the finger of Munjaji. However, that discrepancy is not such as would materially affect the credibility of the witness. In fact, all the witnesses have deposed to the incident as it happened. Indeed, two of the witnesses viz., Munjaji and Balaji had sustained injuries and the accused, as disclosed by the evidence, was undeniably caught on the spot and was produced at the Police Station. It is difficult to imagine that if the accused was really as innocent as he wants us to believe, these persons would have falsely involved him. He hails from a different village and it does not appear from the evidence that he was in any way known to these persons before. There was, therefore, no possibility of any ill will on the part of the witnesses against the accused so as to induce them to rope him in this serious charge. The evidence of these witnesses is further corroborated by the presence of injuries on two witnesses mentioned above as also the recitals in the first information which was lodged almost without losing any time. 10. So far as the argument that the number of culprits has not been proved to be 5 or more is concerned, it is not doubt true that Ramdas has stated that there were four persons. But it appears that he, when he referred to four persons referred to those who were standing at some distance. Balaji, the father of Munjaji as well as Munjaji have however, stated that besides the accused, there were four other persons who escaped. Therefore, there can be no doubt that in all there were five persons who tried to commit this offence and as the number was 5, certainly the offence amounted to dacoity. Now, in the commission of this dacoity, it appears that knife was used by the accused. In fact, knife was recovered from the pockets of the accused and it was found to be blood-stained. Now, in the commission of this dacoity, it appears that knife was used by the accused. In fact, knife was recovered from the pockets of the accused and it was found to be blood-stained. The conviction of the accused under section 397 is, therefore, correct. For an offence under section 397, the section lays down punishment of not less than 7 years. There is no discretion, therefore, vested in the Court to award a sentence less than 7 years. The result, therefore, is that the sentence required to be enhanced. Rule in Revision Application No. 93 of 1976 is discharged, but the Rule in Revision Application No. 102 of 1976 is made absolute and the sentence awarded to the accused is enhanced to R.I. for 7 years. -----