Judgment P.N. Goel, J. 1. CHANNA resident of village Musaria and Ram Sewak resident of village Durauli Viswa have been convicted under sections 395 read with section 397 IPC to undergo RI for 9 years. Villages Musaria and Durauli are within the limits of police station Musa Nagar, district Kanpur. 2. THE incident of dacoity took place at about midnight between 13th and 14th September, 1978, at the house of Chhotey Lal, PW 1, and Kumbh Karan, PW 2 in village Rasulpur, police station Shognipur, district Kanpur. THE police station is 6 miles from the village of occurrence. THE bad characters who committed dacoity were 10-12 in number. THE dacoits looted the articles from inside the house of Chbotey Lal. They also tortured and caused injuries to Chhotey Lai, Kumb Karan, s/o Chhotey Lal, Smt. Ram Dulari and Ram Ratan, wife and son of Chhotey Lal. These persons were sleeping in the inner court-yard of their house. THE dacoity lasted for a little more than one hours. On 14-9-1978 at 8.15 A. M. Chhotey Lal lodged written report at the police station. Munshi Singh, SI, PW 5, was entrusted with the investigation of the case. 3. ON 14-9-1978 between 9.15 A.M. and 1.00 P.M. Dr. A. K. Awasthi, PW 4, examined the 4 injured persons,, ON the person of Chhotey Lal, there were two lacerated wounds, one on the right clavicle and another on the right palm, one contusion, abraded contusion and some abrasions. 4. ON the person of Kumbh Karan there were two lacerated wounds, one on the left parietal region and another on the left thigh, two contusions and some abrasions. On the person of Smt. Ram Dulari there were gun shot wound, a lacerated wound, a contusion, two abraded contusions and an abrasion. 5. ON the person of Ram Ratan there were 7 contusions. 6. ON 22-9-1978 Munshi Singh was returning after making investigation in crime No. 340 under section 345 IPC. At about 9.30 A. M. he reached the Tiraha of Nonapur Road. ON seeing him and the police constables with him. Ram Sewak took to his heels. Munshi Singh felt suspicious and therefore, he arrested him and on interrogation he came to know of his participation in this occurrence of dacoity. At about 9.30 A. M. he reached the Tiraha of Nonapur Road. ON seeing him and the police constables with him. Ram Sewak took to his heels. Munshi Singh felt suspicious and therefore, he arrested him and on interrogation he came to know of his participation in this occurrence of dacoity. Consequently he was made under cover and brought to police station Bhognipur at 10 A. M. ON the same day he was sent to jail at 10.45 A.M. Munshi Singh came to know of the participation of Channa from Ram Sewak. Hari Shanker Soni, SI, PW 7 had gone to village Rania. When he was returning from Rania on 29-9-1978, an informer told him that Channa was at the door of Karuna Shanker in village Haramau. Consequently Hari Shanker proceeded and arrested Channa from village Haramau at 11.30 A.M. Then he took Channa to police station Bhognipvr where they reached at 4.45 P. M. On the next day Channa was sent to jail. 7. ON 10-11-1978 both the appellants were put up for test identification. Ram Sewak was idetified by Chhotey Lal, Kumbh Karan, Jagannath, PWs 1 to 3 and Jagdeo Singh. Channa was identified by Chhotey Lal, Kumbh Karan, Jagannatb, PWs 1 to 3 and Ajaipal Singh. 8. BOTH the appellants denied their participation in the dacoity. Ram Sewak asserted that be was shown to the witnesses at the police station, that he was not kept bapardah, that Chhotey Lal, PW 1 was a native of Bamerauli, that he was living in his Sasural in village Rasulpur, that his sister was married in his village and that his relations got him falsely implicated. 9. CHANNA asserted that the prosecution witnesses knew him from before, that his relations as well as the relations of the prosecution witnesses were in the same village, that he was not kept bapardah and that he was shown to the witnesses at the police station. 10. THE prosecution examined Chhotey Lal, Kumbh Karan and Jagannath as eye witnesses of the occurrence and Dr. A.K. Awasthi, Munshi Singh, Babu Lal? head constable and Hari Shanker Soni. THE prosecution tendered affidavits of Girja Singh, Shesh Narain, Munnu Lal, Deo Nath and Shaukat Ali, constables attached to police station Bhognipur. On behalf of Channa, his sister's husband Baldi and Sita Ram, residents of village Katri (DWs 2 and 1) were examined. 11. A.K. Awasthi, Munshi Singh, Babu Lal? head constable and Hari Shanker Soni. THE prosecution tendered affidavits of Girja Singh, Shesh Narain, Munnu Lal, Deo Nath and Shaukat Ali, constables attached to police station Bhognipur. On behalf of Channa, his sister's husband Baldi and Sita Ram, residents of village Katri (DWs 2 and 1) were examined. 11. ON an appraisal of the evidence on record, the learned X Additional Session Judge, Kanpur found that the case of the prosecution against the appellant was proved beyond doubt and that the defence of the appellants had no substance and therefore, the appellants were convicted. 12. LEARNED counsel for the parties have been heard and the record has been perused with their assistance. The learned Additional Sessions Judge has not only convicted the appellants under section 397 IPC, but has also sentenced them to undergo RI for 8 years. The Additional Sessions Judge convicted the appellants under section 395 IPC separately and also sentenced them to undergo RI for 8 years. The sentences under sections 395 and 397 were made to run concurrently. The Additional Sessions Judge has committed an error in convicting the appellants under section 397 IPC and in sentencing them to undergo RI for 8 years thereunder. Section 397 simply lays down that the sentence in the case of dacoity or robbery shall not be less than 7 years if the offender uses any deadly weapon or causes grievous hurt to any person or attempts to cause death or grievous hurt to any person. This section simply lays down the quantum of sentence. This section is not the punishing section. The punishing section is 395 or 392 or 394 IPC. Section 397 does not constitute any offence. No charge under this section simpliciter can be framed. The Additional Sessions Judge committed an error in framing charge against the appellants under section 397 simpliciter in addition to the charge under section 395 IPC simpliciter. The Additional Sessions Judge should have better framed charge under section 39.5, read with section 397 IPC. 13. IT will next be noticed that [none of the 4 injured persons received any grievous hurt at the hands of the appellants in the occurrence. There is also no evidence to show that any of the appellants attempted to cause death or grievous hurt to any person. 13. IT will next be noticed that [none of the 4 injured persons received any grievous hurt at the hands of the appellants in the occurrence. There is also no evidence to show that any of the appellants attempted to cause death or grievous hurt to any person. The Additional Sessions Judge has mentioned that at the time of occurrence Ram Sewak was in possession of a gun and Channa was in possession of an axe. IT will be noticed that none of the prosecution witnesses stated in examination-in-chief that Ckanna had an axe and Ram Sewak a gun. Chhotey Lal stated in chief examination that one bad character had gun, 4-5 bad characters had kattas (country made pistols) and the remaining bad characters had lathis and axes. He did not specifically state that gun was with Ram Sewak and axe was with Channa. Kumbh Karan stated in cross-examination that there was axe with Channa. Jagannath also stated in cross-examination that there was axe with Channa. He further stated in cross-examination that there was gun with Ram Sewak and that he was on the roof of the house of Chhotey Lal with gun. This part of his statement is not corroborated by any witness. Kumbh Karan and Jagannath appear to have attributed weapons to Channa and Ram Sewak for the first time before the trial judge. Therefore, it can be an after-thought. 14. TAKING into consideration all what has been said above, the appellants should not have been convicted under section 397 IPC. Inside the house of Chhotey Lal, there was light of lantern. Outside his house some village people had torches and Jagdeo Singh had burnt fire in the outer sahan of Chhotey Lal. Then the night of occurrence was a moonlit night. Therefore, there was sufficient light in which faces of the dacoits could be marked. 15. CHHOTEY Lal remained inside his house throughout the dacoity. He had more than sufficient time to mark the features of the dacoits. His injuries were not such as to enable him to mark the faces of the dacoits. Kumbh Karan remained inside the house for sometime. Then he ran out of the house and stood infront of the entrance door of his house. Thus he too had sufficient opportunity to mark the faces of the dacoits. His injuries were not such as to enable him to mark the faces of the dacoits. Kumbh Karan remained inside the house for sometime. Then he ran out of the house and stood infront of the entrance door of his house. Thus he too had sufficient opportunity to mark the faces of the dacoits. Jagannath Singh and some other village people had gathered outside the house of CHHOTEY Lal on hearing noise. After finishing the act of looting the dacoits came out of the house of CHHOTEY Lal and collected in the outer sahan of CHHOTEY Lal. Then they took to their heels. In this period Jagannath marked their faces in the light of fire, moon-light as well as the light of torches. Hence, he also had sufficient time and opportunity to mark the faces of the dacoits. 16. THE learned counsel for the appellants read over the statements of the three prosecution witnesses. He could not point out that these three witnesses did not have sufficient time, opportunity and light to mark the faces of the dacoits. Ram Sawak : The case of Ram Sewak, appellant may now be dealt with. He was arrested on 22-9-1978 at 9.30 A. M. by Munshi Singh. He reached the police station at 10 A. M. and was sent to jail at 10.45 A. M., vide statement of Munshi Singh and affidavit of Girja Singh. The village of occurrence as said above is 6 miles from the police station. Hence, there was hardly any time for Munshi Singh to have brought the witnesses to the police station and show Ram Sewak to them. 17. THERE is no material to indicate that the prosecution witnesses know him from before the occurrence. Chhotey Lal was a native of Bamerauli. He is living in his Sasural in Rasulpur. He has denied the suggestion that his father's sister was married to Bhogi in village Durauli, the village of Ram Sewak. Then he stated that he did not know if his uncle's daughter was married in village Durauli. THERE is no evidence worth the name that the cousin sister of Chhotey Lal is married in village Durauli and that Chhotey Lal used to come to village Durauli. In these circumstances it cannot be held that Ram Sewak was known to the prosecution witnesses from befor the occurrence. 18. THERE is no evidence worth the name that the cousin sister of Chhotey Lal is married in village Durauli and that Chhotey Lal used to come to village Durauli. In these circumstances it cannot be held that Ram Sewak was known to the prosecution witnesses from befor the occurrence. 18. RAM Sewak did not examine any witness in support of his defence. For what has been said above, the case of the prosecution has been fully proved against Ram Sewak. Cbannna : 19. THE case of Channa is taken up next. It has been indicated above that all the three prosecution witnesses had sufficient time, opportunity and light to mark the faces of the dacoits. He was arrested on 29-9-1978 at 11.30 A. M. by Hari Shanker Soni from village Haramau. Rasulpur is 18-20 K. M. from Haramau. Channa reached the police station Bhognipur on the date of arrest at 4.45 P. M. He was sent to jail on the next day at 8.25 A. M. THE prosecution has tendered affidavits of Shesh Narain, Munnu Lal, Deo Nath and Shaukat Ali constables who remained on guard duty. Their statements indicate that Channa remained in the lock up under cover and no person was allowed to see him. There is no material on record to show that he was actually shown to the prosecution witnesses at the police station. THE contention of Channa that he was not kept bapardah is negatived by the affidavits of the constables named above. 20. CHANNA's sister's husband,, Baldi, DW 2, resident of Katri has stated that two sons of Chhotey Lal, PW 1 were married in his village, that one of them Ram Ratan was married in the family of Har Kishan and another Kumbh Karan was married in the family of Mammi, that his Bakhari and that of Har Kishan is common, that Chhotey Lal, Rami Ratan, Kumbh Karan and others had seen CHANNA in his village. In cross-examination he denied the suggestion that Kumbh Karan was married in the family of Mammi of village Dharhara. Baldi brought Sita Ram, DW 1, give statement in favour of Channa. Sita Ram has stated that Chhotey Lal's one son was married in the family of Har Kishan and another son was married in the family of Mammi in village Katri. His cross-examination shows that he does not know the names of the sons of Chhotey Lal. Baldi brought Sita Ram, DW 1, give statement in favour of Channa. Sita Ram has stated that Chhotey Lal's one son was married in the family of Har Kishan and another son was married in the family of Mammi in village Katri. His cross-examination shows that he does not know the names of the sons of Chhotey Lal. He has shown ignorance about village Dharhara. He does not know Mammi Lal of village Dharhara. Kumbh Karan, PW 2, has clearly stated that he was married in village Dharhara and that he was not married in village Katri. Chhotey Lal, PW 1, also stated that his son Kumbh Karan was married in village Dharhara in the family of Mammi and that he was not married in village Katri. No question was put to Chhotey Lal and Kumbh Karan that Ram Ratan was married in village; Katri. 21. THERE is nothing to show that the alleged relations of Ram Ratan and Kumbh Karan in village Katri were hostile to Baldi and Channa. Therefore, it does not stand to reason that the prosecution witnesses would falsely implicate Channa. 22. TAKING into account all what has been said above, it is not proved that the prosecution witnesses knew Channa from before the occurrence. The appellants' counsel painted out that Chhotey Lal stated in cross- examination that Channa is resident of village Musaria. He urged that this statement goes to show that Chhotey Lal knew Channa from before. This contention is not correct. The occurrence took place in September, 1978. Identification proceeding was held in November, 1978. Evidence in the case started from March, 1980. No question was [put to Chhotey Lal as to how he knew that Channa is resident of village Musaria. It is probable that after the identification proceeding and before his evidence in the trial court he may have heard that Channa is resident of village Musaria. 23. THE position that follows from the above discussion is that the case of the prosecution has been proved against Channa also beyond doubt. 24. THE result is that Ram Sewak and Channa are liable to be convicted under section 395 IPC. THE sentence of 8 years' RI under Section 395 IPC needs no interference. Both the appeals are dismissed. Conviction of the appellants under section 395 IPC is affirmed. The sentence of 8 years' RI awarded to them is also affirmed. 24. THE result is that Ram Sewak and Channa are liable to be convicted under section 395 IPC. THE sentence of 8 years' RI under Section 395 IPC needs no interference. Both the appeals are dismissed. Conviction of the appellants under section 395 IPC is affirmed. The sentence of 8 years' RI awarded to them is also affirmed. Conviction and sentence of the appellants under section 397 IPC are, however, set aside. Channa, appellant: is on bail. He shall surrender and serve out sentence. Ram Sewak is in jail. Me shall serve out the sentence. Appeals dismissed.