JUDGMENT 1. - This is a jail appeal filed by Hanja against the judgment of the Additional Sessions Judge, Jalore, dated 20 March, 1976, whereby he was convicted under sections 392 and 323. Indian Penal Code and sentenced to undergo rigorous imprisonment for three years' and to pay a fine of Rs. 500/-, in default of payment of fine to further undergo rigorous imprisonment for three months on first count and on the second to undergo rigorous imprisonment for one year and pay fine of Rs. 500/-, in default of payment of fine to further suffer rigorous imprisonment for three months Substantive sentences on both the counts were, however, ordered to run concurrently. 2. The prosecution case against the appellant was as follows On 29th September, 1975 Amba son of Raminga Chaudary resident of village Kuka was grazing his cattle at the outskirts of the village. He was wearing gold 'Murkis' in his ears and a silver Hansali on his neck. The appellant also was grazing his cows nearby. At about sunset on that day Hanja appellant asked Amba to accompany him to the enclosure of one Biraji for digging out tomato plants. Amba readily agreed to go with the appellant for the aforesaid purpose. Then both of them went to the enclosure of Biraji. Thereafter the appellant, all of a sudden, caught hold of the neck of Amba from the backside, threw him down and gave him fist blows on his mouth. Amba began to weep and the appellant then forcibly deprived him of his silver 'Hansali' and gold `Murkis' after pressing his throat with his hands. On account of the blow dealt by the appellant on the mouth of Amba, blood came out and Amba became unconscious Hanja appellant then disappeared from the place of occurrence. After sun-set the cattle, which Amba was grazing came back to Amba's house but Amba was not with them Chunna & Hukka saw Amba was lying unconscious in the enclosure of Biraji. So they informed Amba's elder brother Pura about this fact. Pura accompanied by some persons rushed to the enclosure of Biraji and found his younger bother Amba lying there in an unconscious state having scratches on his throat. Pura noticed that his younger brother's gold 'Murkis' and silver 'Hansali' were missing. Pura brought him to his house and then took him to the hospital at Bhinmal in a bullock-cart. Pura accompanied by some persons rushed to the enclosure of Biraji and found his younger bother Amba lying there in an unconscious state having scratches on his throat. Pura noticed that his younger brother's gold 'Murkis' and silver 'Hansali' were missing. Pura brought him to his house and then took him to the hospital at Bhinmal in a bullock-cart. On the way he met his brother-in-law Vardha at village Durngarva and related the whole of the incident to him. He directed Vardha to make a report of this incident to the police at police station, Bagora. Vardha, accordingly reported the matter in writing to the police at the aforesaid police station. The Station House Officer, Bagora, registered a case under sections 307 and 392, Indian Penal Code on the basis of the report lodged with him by Vardha and took-up the usual investigation. He rushed to the spot and prepared the site inspection memo and a site-plan and recorded the statements of Chuna, Jiwa and Hukka. The Station House Officer then arrested Hanja appellant vide memo of arrest Ex P 5. After his arrest, the appellant give the Station House Officer an information that he had concealed one pair of gold 'Murkis' and one silver 'Hansali' beneath a stone slab lying in the court yard inside his shop and that he was ready and willing to get them recovered at his instance. The Station House Officer recorded the above information in a memo Ex P.6 and then recovered the aforesaid ornaments from the place mentioned by the appellant in his memo of information. These, articles were dull sealed in the presence of Motbirs and were, later on, put up for identification in a test-parade held by the Tehsildar and Executive Magistrate, Bhinmal. The gold 'Murkis' and the silver `Hansali' were correctly identified by Pura in the parade to be the same 'Murkis' and `Hansali which his brother used to wear on his body. The Station House Officer then got the injury report of Amba from the Medical Officer, in charge, Primary Health Centre, Bhinmal, who examined the injured on 27th September, 1975 at 8.15 a.m. and found the following external injuries on his person : 1. linear abrasion extending from lateral angle of left eye to tragus of left ear; 2. abrasion three in number linear ⅓" on left cheek obliquely placed; 3. linear abrasion extending from lateral angle of left eye to tragus of left ear; 2. abrasion three in number linear ⅓" on left cheek obliquely placed; 3. multiple abrasion 1/2" to one and half inches over right molar region intermingling each other; 4. abrasions three in number half inch cresentric one above each other-over anterior border of sterno-mastoid muscle left side; 5. abrasion 1 x 1/2" anterior triangle of neck right side; 6. multiple abrasions 1/2" x 3" right scapular region intermingling each other; 7. abrasion 1/2" x 1/2" right knee posterior surface; 8. eplglotis swollen and oedematus with oedema glottis patient having dyspnea and difficulty in speech. All these injuries were simple in nature and were caused by blunt weapon. Their duration was about 24 hours at the time a of medical examination. The Sta ion House Officer collected other necessary evidence in the case and, eventually, filed a charge-sheet against Hanja appellant in the court of the Judicial Magistrate, First Class, Bhinmal, under sections 307, 392 and 397, I.P.C. The learned Magistrate upon finding a prima-facie case exclusively triable by the Court of the Sessions, committed the appellant to the court of the Additional Sessions Judge, Jalore for trial for the aforesaid offence. The learned Additional Sessions Judge tried the appellant and convicted and sentenced him under sections 392 and 323, I. P.C only in the manner stated above. Aggrieved by his conviction and sentence, the appellant has preferred this appeal through the Superintendent, Central Jail, Jodhpur. 3. The appeal was admitted by this Court on 19th November, 1976. As the appellant was not in a position to engage any lawyer, Mr. G.S. Bapna was appointed as Amicus-curiae to represent him in this Court. Mr. G.S. Bapna shifted to Jaipur Bench and so this Court appointed Mr. B Advani, as Amicus-curiae it. his place under the Legal Aid Programme to argue the appeal on behalf of the appellant. Notice of the date of hearing of the appeal was given to the appellant also through the jail authorities but the appellant did not appear before me despite due service of notice. 4. I have carefully gone through the record including the memo of the appeal and heard Mr. B. Advani far the appellant and Mr. K.C. Bhandari, Public Prosecutor, for the State. 4. I have carefully gone through the record including the memo of the appeal and heard Mr. B. Advani far the appellant and Mr. K.C. Bhandari, Public Prosecutor, for the State. It has been contended on behalf of the appellant that there is no independent witness to corroborate the statement of child witness Amba relating to the incident and the identity of the appellant and so Amba's uncorroborated and unsworn evidence should not be acted upon as a rule of prudence or caution. The above contention has no force, because upon close scrutiny of the evidence of Amba, I have come to the conclusion that no infirmities are found therein. On the other hand, the evidence of this child witness is truthful and there is nothing in the way of its acceptance. The trial court put certain questions to Amba before recording his evidence presumably for the purpose of ascertaining his capacity to understand and give rational answers to the questions that might be put to him in examination-in chief and in cross-examination. Amba understood the preliminary questions and gave rational answers to them. The trial court, therefore, recorded its opinion that the child was intelligent enough to understand the questions that might be put to him. After going through Amba's evidence, I am also of the view that Amba was competent to testify and he understood the duty of speaking the truth. 5. As stated earlier, his evidence on merits inspires confidence. He stated, in clear and definite terms, that no other person but the appellant had thrown him on the ground after catching hold of his neck and forcibly deprived him of his gold 'Murkis' and 'Silver 'Hansali'. As a result of the force used to Amba, the latter became unconscious at the place of occurrence and was, later on, taken to his house by his brother Pura. Amba was cross-examined at length in the trial court by the learned counsel for the appellant but nothing could be elicited from his cross-examination which may tend to destroy the value of his evidence or to impeach his credit. Hence, I have no hesitation in holding that the trial court rightly relied upon Amba's. evidence in convicting the appellant for the offences punishable under sections 392 and 323 I.P.C. 6. Hence, I have no hesitation in holding that the trial court rightly relied upon Amba's. evidence in convicting the appellant for the offences punishable under sections 392 and 323 I.P.C. 6. It is no doubt true that the evidence of a child witness must be received with caution, as he can be easily tutored or threatened to speak a lie. I am also aware of the sound rule in practice not to rely on the uncorroborated evidence of a child witness whether sworn or ursworn unless it is believed to be true. As a matter of law, corroboration of the evidence of a child witness is not necessary but as a rule of caution, the Court may look for some corroboration of his evidence before acting upon it. In the instant case, the testimony of Aruba, child witness, is fully corroborated by the evidence of recovery of gold 'Murkis' and silver 'Hansali' from the shop of the appellant at the latter's instance and in consequence of his information recorded under section 27 of the Evidence Act. The prosecution has succeeded in proving from the evidence of Anop singh. S.H.O P.W. 4 and that the appellant, while under police custody, gave him an information that he had concealed a pair of gold 'Murkis' and a silver 'Hansali' underneath a stone slab lying inside his shop in the courtyard under a 'Neem' tree and that he was prepared to get it recovered at his instance. The prosecution further proved that Anop Singh, station House Officer, recorded the above information in a memo Ex. P and recovered the aforesaid ornaments in pursuance thereof from the court and of the shop of the appellant, in the presence of Galla Motbir, P.W. 7. The evidence of Galla. P W. 7 fulls proves the recovery of the ornaments and corroborates the testimony of Anop Singh, S.H.O. on this point. The gold 'Murkis' and the silver 'Hansali' recovered from the shop of the appellant were, later on, put up in a test identification parade held by Kazim Ali, Tehsildar and Executive Magistrate, Bhinmal on 4th October, 1975. The statement of Kazim Ali reveals that the aforesaid ornaments were correctly identified by Pura to be the same ornaments which his younger brother Amba used to wear on his body. The statement of Kazim Ali reveals that the aforesaid ornaments were correctly identified by Pura to be the same ornaments which his younger brother Amba used to wear on his body. Pura also appeared in the witness-box and stated on oath that the gold 'Murkis' and silver 'Hansali' were of his younger brother Amba. Hence, the recovery of these ornaments from the shop of the appellant at the latter's instance and in consequence of his information recorded under section 27 of the Evidence Act soon after the occurrence lends assurance to the statement of Amba child witness that the appellant had robbed him of his ornaments. The evidence of Amba is further corroborated by the testimony of Dr. S.C. Mathur, P W. 6, who had medically examined the former on 27th September, 1975. The Doctor, besides other injuries, noticed three attractions half an inch cresentric one above each other over anterior for border of sterno-mastoid muscle left side, and another abrasion on anterior angle of the right neck. In the opinion of the Doctor, these abrasions could be caused by throttling by hand. As for injuries Nos. 1, 2 and 3 he opined that they could be caused during struggling and dragging Amba clearly stated in his deposition at the trial that Hanja appellant caught hold of his neck from the hack side and threw him on the ground and thereafter pressed his neck for the sake of depriving him of his ornaments. The medical evidence corroborates his version, as indicated above. Consequently. I have no reluctance in holding that the appellant in order to the committing of the theft and in committing the theft of the ornaments voluntarily caused simple hurts to Amba for that end without any lawful excuse. He was rightly convicted of the aforesaid offences by the trial Judge and I see no reason to take a different view. 7. As regards sentence, it may be observed that the appellant is not a previous convict for similar offence. He has already undergone rigorous imprisonment for more than one year and nine months Besides he has undergone detention during investigation inquiry and trial of this case since 28.9.75. In my opinion, the ends of justice would be met if the substantive sentence of imprisonment awarded to him by the trial court under section 392, Indian Penal Code is reduced to a term already undergone by him. In my opinion, the ends of justice would be met if the substantive sentence of imprisonment awarded to him by the trial court under section 392, Indian Penal Code is reduced to a term already undergone by him. However, the sentence if fine of Rs. 500/- imposed on him under section 392, I.P.C. and in default of payment of fine to suffer rigorous imprisonment for three months is maintained The appellant has already served out the sentence of one year's rigorous imprisonment awarded to him by the trial court tinder section 323 I.P.C because the sentence of one years rigorous imprisonment was ordered to run concurrently with the sentence passed against him for the offence under section 392, I.P.C. The appellant was also sentenced to pay a fine of Rs. 500/-, in default of payment of fine to suffer three months rigorous imprisonment under section 323, IPC. The sentence of fine under section 323, I.P.C. a spears to be excessive. Hence, it deserves to be set aside. 8. The result of the above discussion is that partly accept the appeal filed by Hanja appellant, and, while maintaining his conviction under section 302, Indian Penal Code reduce the substantive sentence of imprisonment awarded to him under this section to a term already undergone by him The sentence of fine of Rs. 500/- and in default of payment of fine to undergo rigorous imprisonment for three months under section 392, IPC. is, however, maintained. Like. wise, the conviction of the appellant under section 323, Indian Penal Code and the substantive sentence of one year s rigorous imprisonment awarded to him by the trial court are maintained but the sentence of fine of Rs. 500/-, in default of payment of fine to suffer rigorous imprisonment for three months under section 323, I P C is set aside. As the appellant has already served out the substantive sentence of one year's rigorous imprisonment awarded to him under section 323, I.P.C. on account of having been ordered to run concurrently with the substantive sentence under section 392. I.P.C. and as his substantive sentence of rigorous imprisonment under section 392, IPC. is reduced to a term already undergone by him, he shall be released forthwith if not required in connection with some other case. Two months' time is given to the appellant to deposit the fine of Rs. I.P.C. and as his substantive sentence of rigorous imprisonment under section 392, IPC. is reduced to a term already undergone by him, he shall be released forthwith if not required in connection with some other case. Two months' time is given to the appellant to deposit the fine of Rs. 500/-, imposed on him under section 392, I.P.C. in the trial court, failing which necessary action shall be taken against him in accordance with law. The appellant may be informed accordingly.Appeal partly accepted. *******