JITENDRA NATH CHAUDHURI, J. ( 1 ) THE appeal arises from convictions under Section 395 IPC and under Sections 395/397 I. P. C. of the two appellants and a sentence of 8 years R. I. with a fine of Rs. 500/- each, in default, R. I. for 6 months for the offence under Section 395 IPC and a sentence of 7 years R I under Section 395/397 IPC, both the sentences to run concurrently. The appeal arises out of Sessions Trial No. 4 of July 1982 held by the learned Additional Sessions Judge, Birbhum. The two appellants had further been charged under Section 148 IPC the learned trial Judge in his judgment has held that the said charge was redundant and as such both the appellants were found not guilty of the said charge under Section 148 IPC. ( 2 ) THE prosecution case in short is as follows: -the informant, Kanailal Datta (P. W. 10) resides at village Laksmibati, P. S. Rampurhat, in a two storied building which is east facing consisting of two rooms in each floor. The building is mud built. On the eastern side there are verandahs on each floor and the house is bounded in all sides by a mud wall. At about 2-00 a. m. on 30. 6. 78 about 12/14 persons entered into the inner court yard of the house, after breaking open both the outer and the inner doors leading to the court yard. At that time, PW 1 (son of PW 10), PW 2 and PW 3 were sleeping on the ground floor verandah. P. Ws 2 and 3 are agricultural labourers employed by PW 10. P. Ws. 1, 2 and 3 made futile efforts to prevent the dacoits from entering into the court yard, but they were overpowered and tied up with rope and confined in a place in the ground floor verandah. According to them, the two appellants for some time stood on guard near them with Bhojalis. Two bombs were exploded, the second one being thrown upstairs as a result of which PW 12, the daughter of PW 10 aged about 9/10 years, Khudirani by name, was injured and had to be ultimately taken to Rampurhat Hospital. According to them, the two appellants for some time stood on guard near them with Bhojalis. Two bombs were exploded, the second one being thrown upstairs as a result of which PW 12, the daughter of PW 10 aged about 9/10 years, Khudirani by name, was injured and had to be ultimately taken to Rampurhat Hospital. The dacoits also broke open the staircase door leading to the first floor and went upstairs and assaulted PW 10, who was sleeping on the first floor and demanded articles from him. It is the evidence of PW 10 that the two appellants for sometime stood on guard with Bhojalis near him after he was tied up with rope. The dacoits took away various gold articles/ornaments, utensils, two wrist-watches, clothes, wall clock, some money and grocery articles from the house. Apart from PW 10, P. Ws. 1, 2 and 3 were also beaten up by the dacoits during the dacoity. It is the prosecution case that P. Ws. 1, 2, 3 and 10 recognised the two appellants in the electric light burning in the premises at the time. P. Ws. 1, 2 and 3 recognised the two appellants in the light of a 60 watt bulb which was burning in the court yard and which was after sometime broken by the dacoits, PW 10 recognised the two appellants in the electric light of the verandah on the first floor. After committing the dacoity, the dacoits left with the booty and shortly thereafter, P. Ws. 4, 5, 6, 7, 8, 9 and 11, all being neighbours came to the house of PW 10 and saw the articles there in a scattered condition and also heard about the dacoity from PW 10. P. Ws. 1, 2, 3 and 10 were untied by the neighbours after the dacoits had left. PW 5, one of the neighbours, has specifically deposed that PW 10 told him then and there that he could recognize two persons in the electric light and that subsequently he would be able to identify them. PW 6, who is a resident of a near-by house was asked by his uncle (P. W. 4) to inform the Thana over phone about the dacoity, as soon as they woke up on hearing the Halla and explosion of bomb. PW 6, who is a resident of a near-by house was asked by his uncle (P. W. 4) to inform the Thana over phone about the dacoity, as soon as they woke up on hearing the Halla and explosion of bomb. Rampurhat P. S. was at a distance of 10 K. M. from the village concerned and on receipt of the message that a dacoity had taken place in village Lakshmibati, a police party comprising of P. Ws 19, 21 and 23 (who was the then Officer-in-Charge) came out to investigate in a jeep. On the way to the village of Lakshmibati, when the jeep reached near the Protappur village, 4/5 persons were noticed proceeding towards Rampurhat along the pucca road. As the police jeep slowed down, these persons began to run through the field but the two appellants were apprehended by the Police party after a chase. Thereafter, the two appellants were taken back to the Police Station in custody in a police vehicle by PW 21 and force. After the jeep had gone back with the appellants to the Police Station, PW 23 with some members of the force went to the village Lakshmibati and on seeing a crowd collected in front of the house of PW 10 went to the house. Then and there, PW 23 recorded the FIR of PW 10 and the same was forwarded to the Police Station. Thereafter, PW 23 took up investigation of the case, prepared the sketch map (Ext. 5) sent P. Ws 12, 1, 2, 3 and 10 to hospital for treatment. Thereafter, on the same day, he recorded the statement of the witnesses who have deposed in this case. He seized under a seizure list (Ext. 1/3) a number of articles, including 4 pieces of door leaves, one Khil made of wood, 3 suitcases, one are with a wooden handle, one pillow cover stained with blood, one tin suitcase, one Shaval, some remnants of exploded bombs, one broken Khil, one rope of jute and one old umbrella. In due course, PW 23 Prayed for holding of TI parade which was held by PW 16 on 10. 7. 78, in which P. Ws 1, 2, 3 and 10 all identified the two appellants, and each of them described before P. W. 16 the parts played by the two appellants. In due course, PW 23 Prayed for holding of TI parade which was held by PW 16 on 10. 7. 78, in which P. Ws 1, 2, 3 and 10 all identified the two appellants, and each of them described before P. W. 16 the parts played by the two appellants. The position of the suspects at the T. I. parade was changed after identification by each witness and according to the evidence of P. W. 16, the same was held precluding the possibility of collusion. ( 3 ) THE prosecution examined 23 witnesses. Defence did not examine any. The defence case both in the cross-examination of witnesses and in their answers under Section 313 Cr. P. C. was that they were shown to the identifying witnesses both at the house of P. W. 10 on the morning of 30. 6. 78 and also at the police station before the T. I. parade was held. The defence case is one of innocence. ( 4 ) MR. Roy, learned Advocate for the appellants, has submitted mainly a two fold arguments. According to him, no reliance should be placed on the evidence of P. Ws. 1, 2, 3 and 10 having been able to recognize the two appellants at partial or total absence of electric connection in the house or alternatively insufficiency of electric light. His second submission is that the two appellants were shown to the identifying witnesses both at the house of P. W. 10 and as well as at the police station before the T. I. parade was held. In support of his argument that the two appellants were shown to the witnesses at the house of P. W. 10 on the morning of 30. 6. 78, he has mainly relied on the evidence of P. W. 18, an s. I. of Police attached to the Rampurhat P. S. at the relevant time, according to whose evidence, he submits P. W. 23 returned to the Thana with the two appellants. Since, before returning to the Thana, P. W. 23 had conducted the investigation at the house of P. W. 10 that morning, he argues, that the two appellants must have been with P. W. 23 at the time of such investigation. In his reply to the argument advanced by Mr. Mukherjee, learned Advocate for the State, Mr. Since, before returning to the Thana, P. W. 23 had conducted the investigation at the house of P. W. 10 that morning, he argues, that the two appellants must have been with P. W. 23 at the time of such investigation. In his reply to the argument advanced by Mr. Mukherjee, learned Advocate for the State, Mr. Roy, learned Advocate for the appellants has drawn our attention to the fact that against the printed portion at the top of the form meant for recording the examination under Section 313 Cr. P. C. , age of the appellant Maizul Sk. Is recorded as about 18 years while that of the appellant Nasir Sk. is recorded as being about 19 years and also that although in the judgment of the learned trial Judge there is a mention that the accused were heard on the question of sentence, there is no note to that effect in the learned Judge's order-sheet. The examination u/s. 313 Cr. P. C. took place on the 12th February, 1983. The incident occurred on 30th June 1978. ( 5 ) MR. Roy, learned advocate for the Appellants, in support of his argument regarding the value of T. I. parade, has cited the case reported in 1968 Cr. L. J. , 1320, State of U. P. vs. Jagnoo, 1968 Cr. L. J. 40, Panchu Gopal Das vs. The State and the case reported in 1961 Cr. L. J. 22, Anwar and another vs. The State. ( 6 ) MR. Mukherjee, learned Advocate for the State, has submitted that in the F. I. R. itself there is mention of electric light and the ability of the witnesses to identify the appellants, the dacoits, if seen again by P. W. 10. He has further submitted that although in cross-examination the question of the power of the bulb and the non-seizure of remnants of any broken bulb have been hinted at, there is no cross-examination to the effect that the house of P. W. 10 did not have any electric connection at all in the cross-examination of P. Ws. 1, 2, 3 and 10 or for that matter of P. W. 12. He has also submitted that no complaint was made to P. W. 16, who held the T. I. parade that the appellants or any of them had been shown at any point of time to any identifying witness. 1, 2, 3 and 10 or for that matter of P. W. 12. He has also submitted that no complaint was made to P. W. 16, who held the T. I. parade that the appellants or any of them had been shown at any point of time to any identifying witness. ( 7 ) IN this case there is very clear and graphic evidence of P. W. 1, 2, 3 and 10 as to what happened during the dacoity. There is ample evidence which really is un-challenged that in fact a dacoity took place at that hour of the night in the house of P. W. 10. In fact, Mr. Roy, learned Advocate has not challenged the factum of dacoity occurring as alleged by the prosecution. Mr. Roy, learned Advocate has submitted that it was not possible for the two appellants to be both on guard both on the ground floor as well as on the first floor. However, the evidence is that the two appellants stood on guard with Bhojalis for sometime on the ground floor and thereafter they were also on guard for sometime on the first floor. Accordingly, this argument of Mr. Roy, learned Advocate appears to be without any substance. In the F. I. R. , lodged very shortly after the occurrence in the early morning of 30. 6. 78, there is mention of electric light and also that P. W. 10 would be able to recognize the dacoits. The T. I. parade was held in about 10 days' time from the date of the dacoity and the statements of P. Ws 1, 2, 3 and 10 to 16, who held the T. I. parade corroborate their testimony regarding the presence of the two appellants amongst the dacoits. P. W. 10's evidence is corroborated by his F. I. R. , particularly on the question of electric lights burning and the fact that he was in a position to identify the dacoits. It is significant that P. W. 10 told P. W. 5 shortly after the occurrence that P. W. 10 could recognize the two persons in the electric light and that subsequently he would be able to identify them. This evidence of P. W. 5 has not been shaken in cross-examination. ( 8 ) THE evidence of P. Ws. It is significant that P. W. 10 told P. W. 5 shortly after the occurrence that P. W. 10 could recognize the two persons in the electric light and that subsequently he would be able to identify them. This evidence of P. W. 5 has not been shaken in cross-examination. ( 8 ) THE evidence of P. Ws. 1, 2, 3 and 10 regarding the fact that electric lights were burning, one in the court yard and the other on the first floor verandah, has not been shaken in cross-examination. This, coupled with the fact that in the F. I. R. there is mention of electric light leaves no room for doubt that electric lights were in fact burning at the time of the dacoity. It is recorded that even after recording the F. I. R. of P. W. 10, the I. O. (P. W. 23) who was himself the Officer-in-Charge of Rampurhat P. S. did not think it fit to note in his sketch map (Ext. 5) the electric connection or light points in the house of P. W. 10. P. W. 23 has deposed that he personally saw electric connection in the house of P. W. 10, although he has admitted that there is no note in his case diary as to whether there was any service connection in that house. Since the dacoity had occurred at night, P. W. 23 should have realized the importance of the electric lights in the house. ( 9 ) SO far as the question of reliance on T. I. parade is concerned, apart from suggestions to the witnesses that the two appellants had been shown to them, both at P. W. 10's house and at the police Station before the T. I. parade, were not accepted by the witnesses, there is nothing to support the defence contention. In fact, what really goes against the defence contention is the fact that no complaint was made (at the earliest opportunity) to P. W. 16 at the time of the holding of the T. I. parade. Obviously, the case of the two appellants that they had been shown to the witnesses developed only at the time of the trial and not before. Obviously, the case of the two appellants that they had been shown to the witnesses developed only at the time of the trial and not before. So far as the evidence of P. W. 18 is concerned who had deposed that P. W. 23 with force returned to the Thana along with the two appellants, it is significant that he himself never left the Police Station on that day and in fact in the absence of the Officer-in-Charge remained in charge of the Thana. He has deposed that he cannot even exactly remember whether the two appellants are the very persons who were brought by the Officer-in-Charge to the Thana. From this it can be seen that his recollection as to the bringing of the two appellants to the Police Station on that date is not very clear. On the other hand, the evidence of P. Ws. 19, 21 and 23 very clearly indicate that after the apprehension of the two appellants at Protappur, the two appellants were sent back to the Police Station in the company of P. W. 19 and some other members of the force in the jeep, while P. W. 23 with some other members of the force left for the place of dacoity, namely, Lakshmibati village. ( 10 ) THE apprehension of the two appellants at that hour of the night and their conduct on seeing the police party is a relevant factor in this case. It is true that no incriminating articles was recovered from them, but the evidence is that along with the two appellants there were some other persons who managed to escape. Bearing this in mind, the non-finding of any booty or any weapons with the two appellants does not appear to be of any significance. In their answers under Section 313 Cr. P. C. the two appellants have denied that they were arrested in the fashion as alleged by the prosecution. In cross-examination of the police witnesses, however it was not challenged that the two appellants had not been apprehended as deposed to by the Police Officers. ( 11 ) THE lodging of the F. I. R. very soon after the occurrence, the examination under Section 161 Cr. P. C. , and the recording of the statements of the witnesses on 30. 6. ( 11 ) THE lodging of the F. I. R. very soon after the occurrence, the examination under Section 161 Cr. P. C. , and the recording of the statements of the witnesses on 30. 6. 78, and the holding of the T. I. parade within 10 days of the occurrence, coupled with the circumstances under which the two appellants were arrested in the early hours of the morning, and their conduct on seeing the Police Party and the unshaken evidence of P. Ws. 1, 2, 3 and 10 who have identified the appellants both in court and in T. I. parade without any hesitation, all ensure the truth of the prosecution case. It is true, as we have indicated, that P. W. 23 should have been more careful in drawing the sketch map indicating relevant electric light points in the house of P. W. 10. However, the articles seized by him which include an axe and a Shaval and the remnants of exploded bombs all show that a dacoity with deadly weapons was committed in the house of P. W. 10 on the night in question. There is also the evidence of P. Ws. 1, 2, 3 and 10 of the two appellants participating in the dacoity in their presence. On the materials before us we are satisfied that the prosecution has proved beyond all reasonable doubt the presence of the 2 appellants with Bhojalis at the time of the dacoity in question when two bombs were exploded. The report of the Controller of Explosives, (Ext. 7) confirm that home-made throw-down type bombs which contained an explosive mixture of Chlorate of Potassim and Sulphide of Arsenic had exploded which could endanger life on explosion. This is also corroborated by the injuries suffered by P. S. 12, Khudirani, regarding which, not only P. W. 12, but also P. W. 20, the doctor have deposed. ( 12 ) WE uphold the conviction of both the appellants under Section 395 read with Section 307 I. P. C. The conviction of both the appellants under Section 395 I. P. C. , which is a lessor offence than the offence under Section 395 read with Section 397 I. P. C. , is set aside as the same is unnecessary. In fact, in view of the fact that a charge under Section 395/397 I. P. C. or under Section 148 I. P. C. should have been framed against the appellants. The learned Sessions Judge should have realised that when a charge under Section 395 I. P. C. read with section 397 I. P. C. had been framed against the appellants. He should not have framed any charge either under Section 395 I. P. C. or under Section 148 I. P. C. against them. The offence under Sec. 395/397 I. P. C. is an aggravated form of the offence contemplated under Section 395 I. P. C. In the event of the ingredients of Section 397 I. P. C. not being present, but the ingredients of Section 395 being present, an accused can always be convicted of the lesser offence under Section 395 I. P. C. , although charged with the offence under Section 395/397 I. P. C. No prejudice has, however, been caused to any of the appellants because of the said unnecessary charges and in fact, no prejudice was alleged by Mr. Roy. ( 13 ) WITH regard to the question of age of the appellants no plea regarding age was taken at the trial and there is nothing in evidence or in any suggestion to show that any of them was below the age of 18 years at the time of the incident. None of them stated the age in the actual answers in the examination under Sec. 313 Cr. P. C. The age of the appellants only appear against the printed column relating to age at the top of the form used for recording the examination and before the actual questions by the Court and the answers to the same by the appellants. This formal printed portion is invariably in practice filled up by the Court Officer and then the same is handed over by him to the learned Judge for recording the Court's questions under Section 313 Cr. P. C. and the answers to them by the accused. This portion does not really form any part of the actual statement of the accused under Sec. 313 Cr. P. C. , in answer to the questions put to him by the Court since that portion is filled up by the Court Officer before any questions under Section 313 Cr. P. C. and the answers to them by the accused. This portion does not really form any part of the actual statement of the accused under Sec. 313 Cr. P. C. , in answer to the questions put to him by the Court since that portion is filled up by the Court Officer before any questions under Section 313 Cr. P. C. are actually put by the Court to the accused. A Court is hardly expected to act only on such material which really forms no part of the actual statement under Sec. 313 Cr. P. C. made by the accused to the Court in answer to question from the Court. Even in the grounds of appeal before us no point regarding age has been taken by the appellants. In fact, in paragraph 8 of the joint petition of appeal, it has been stated that both the appellants are married and have their wives and children to maintain. With regard to the sentence passed under Section 395 I. P. C. by the learned trial Judge, namely, 8 years r. I. , and the fine of Rs. 500/- in default R. I. for 6 months, since we have set aside the conviction of the two appellants under Section 395 I. P. C. , we also set aside the sentence of 8 years R. I. and the fine of Rs. 500/-, in default, R. I. for six months on the appellants passed under Section 395 I. P. C. We, however, maintain the conviction of both the appellants under Section 395/397 I. P. C. and the sentence of 7 years R. I. Passed on each of them. The sentence of 7 years R. I. is the minimum sentence for conviction under Section 395/397 I. P. C. In the result, the appeal is dismissed save s to the modifications indicated above. The appellants will be entitled to the benefit of any set off to which they may be entitled to under Section 428 Cr. P. C. N. G. Chaudhuri, J. :i agree.