JUDGMENT G.D. Kamat, J. - By his petition through jail, the petitioner challenges his conviction under sections 324, 327, 394, 506 and 511 of the Indian Penal Code by the Judicial Magistrate, First class, Vasco-da-Gama, in Criminal Case No. 244/1985 and' which conviction was upheld by the learned Additional Sessions Judge by the order dated 24th of March, 1987 in Criminal Appeal No. 4 of 1987. 2. The major thrust in this petition is that the petitioner has been wrongly implicated in the criminal case and further, that he has not been identified by the prosecution. The learned counsel for the petitioner, urges that if he is able to establish some discrepancies in the matter of the identification of the petitioner, however minor they may appear to be, they are bound to be taken into consideration for giving the benefit of doubt to the petitioner. 3. The essential controversy, therefore, being the identity of the petitioner, it will be necessary to refer to the prosecution story and thereafter, revert to the findings of the two Courts below if necessary refer to the evidence if it is shown that the findings arrived at by the two courts below are either against the record or so perverse that no reasonable person could have taken on that evidence the identification of the petitioner. 4. To put the facts tersely, it may be mentioned that the petitioner was the accused No.1 and the other co-accused are Ravindra Sina Setti and Ramesh Krishna Swami who had been accused Nos. 2 and 3, respectively in that criminal case. The charge-sheet disclosed that at the early hours of 31st October, 1985, all these three persons with the common intention with a view to commit robbery/theft tried to unfasten the grill of the kitchen window of the house occupied by P.W. 1 and opened the same. 2 and 3, respectively in that criminal case. The charge-sheet disclosed that at the early hours of 31st October, 1985, all these three persons with the common intention with a view to commit robbery/theft tried to unfasten the grill of the kitchen window of the house occupied by P.W. 1 and opened the same. When the inmates of the house were alarmed and the front door was opened, the accused, armed with razor blades and pistol, tried to effect entry into the house and, in the process caused injury on the forearm of the complainant and on finding that they were not being successful in entering the house, broke window glasses flower pots, rear glass screen of the car, cut wire cables of the T.V. booster and further that, when the complainant (P.W. 1) along with the security officer (P.W. 3) went on search, the security Officer was also assaulted with a sharp cutting instrument as a result of which he had an injury on his chin. 5. In support of the charge-sheet, though the prosecution led the evidence of a number of witnesses, for the purposes of appreciating the present controversy involved, suffice it to say that only three witnesses are relevant and they are P.W. 1 D. K. Vassu, his wife P.W. 4 and P.W. 3 Pravil S. Parek who is the security officer of Zuari Agro Chemicals Ltd. 6. On the basis of the evidence and having regard to the depositions of these three witnesses, the trial Court has rendered findings that it has been clearly established that the petitioner was one of the three persons who was involved in the offences in the early hours of 31st October, 1985. This finding was the subject, matter of the attack before the lower appellate court and the lower appellate court also had no reasons to hold that there was any misgiving insofar as the identification of the petitioner is concerned. After having gone elaborately through the evidence and the judgment of the trial court, the lower appellate court has held that P W. 1 D. K. Vassu who is a mechanical engineer of Zuari Agro Chemicals Ltd., identified the accused including the petitioner as the petitioner was found to have barber razor in his hand when he first encountered him and that too in full light and. when P.W. 1 and his wife P.W 4 had opened the front door to see whether anybody was around on realisation that grill of the kitchen window had been unfastened and a person was able to enter through the same and this was done after the security agency of the Zuari Agro Chemical Ltd. had been altered. The second factor was that the petitioner was having a bag or what is otherwise called as neck-shoulder bag when for the first time he was seen by P. W. 1 D. K. Vassu and the petitioner when detected and brought to the police station at Vasco-da-Gama in the early morning of the same day, the petitioner was having the same bag on his shoulders. For that matter, the courts held that, that bag contained articles like one torch, Johnson's adhesive tape, one hand glove, long socks, one string, cotton caps and about half kilogram of chilli powder. The Judgment of the lower appellate court proceeds that, admittedly, no identification parade had been held but, however, that was held to be not fatal. It further held that the fact remains that P.W. 1, P.W. 3 and P.W. 4 have identified the petitioner during the trial before the Magistrate and from the description given when the F.IR. was recorded which was admittedly prior to the arrest of any of the accused in the case including the petitioner, such description tallied not only with their persons but also with regard to the dresses worn by them. I will advert to the details of this a little later in their judgment as a substantial argument has been raised by the learned counsel for the petitioner but, it is sufficient for the present to say that several aspects of the identification to which the trial court has addressed itself, cannot be lightly brushed aside. I will, however, come now to what is urged by the learned counsel for the petitioner. 7. Shri B. Palha has pinpointed before me three circumstances and in the light of these three circumstances he proceeds to criticise the judgment of the lower appellate court to say as to how the identification is not plausible on the material existing before the court and, in any event, according to him, even if there is a semblance of a doubt, it must go in favour of the petitioner. He mentions that at about 230 a.m. on 31st October, 1985, when Mr. D. K. Vassu (P.W. 1) and his wife (P.W.4) realised that there was some noise on the side of the kitchen they put on the lights and in fact found out that a grill had been unfastened and a person could effect entry into the kitchen from the grill left open. According to him, once when P.W. I telephoned his Security Officer provided by the Company and by the time the security personnel arrived, it is impossible to accept that P.W. I and his wife will expose themselves to the miscreants at such an hour and when nobody else was in the house or around and open the front door. He, therefore, suggests that this part of the tell tale of the prosecution will have to be viewed as nothing but an embellishment with a view to prove the identity of the accused or somehow to show that a particular accused or/and the petitioner is involved in the crime and for no other reasons. Such unnatural conduct cannot be expected on the part of the persons like D. K. Vassu and his wife. The second circumstance, according to Shri Palha, is that eve in the so-called bag which was discovered from him, no instruments worth the name in the matter of commission of such offences have been detected and the so called chilli powder which is alleged to have been recovered is in the first instance highly doubtful for, admittedly, chilli powder was not used in the entire transaction and the other reason being that chilli powder was found to be palmful as spoken to by the panch witness and which is negligible compared to the quantity of half Kg. as spoken to by P.W. 6, police constable. The third circumstance, according to the learned counsel, is that the petitioner does not have a history of any adverse background of commission of offences or being a habitual offender unlike the other two co. accused' Ravindra Sina Setti and Ramesh Krishna Swami. 8. as spoken to by P.W. 6, police constable. The third circumstance, according to the learned counsel, is that the petitioner does not have a history of any adverse background of commission of offences or being a habitual offender unlike the other two co. accused' Ravindra Sina Setti and Ramesh Krishna Swami. 8. The argument now advanced is that, having regard to all these three circumstances, the petitioner in reality remained to be identified as one of the culprits in the gang of three persons and, in any event, the vague and otherwise unworthy description disclosed in the F. I. R. by D. K. Vassu, in the early hours of 31st October, 1985, at Vasco-da-Gama Police Station, is that all the three persons were tall, medium built and having fair complexion. There can be no quarrel that neither of these attributes can be any clue to the detection of individuals, His next attack is that D. K. Vassu who is supposed to have encountered all these three persons twice within a span of an hour has clearly made a statement that all the three accused, including the petitioner, were wearing dark 'safari suits, blue in colour. What, therefore, he urges now is that Shanti Vassu (P W. 4) who is the wife of P.W. 1 who had equally an opportunity of seeing the accused along with her husband, on opening of the front door, once they realised that the window grill had been unfastened, she however, does not support her husband in the matter of the dresses worn by ail the three accused. He, therefore, suggests that if such discrepancy is made good then whatever benefit resulting therefrom ought to go in favour of the petitioner. In his evidence, P.W. 1 D.K. Vassu, clearly mentions: “At the relevant time all the three accused were in blue safari dress with white cotton gloves." That his wife (P.W. 4) in her deposition before the Court says that two of the accused were wearing safari suits but the third one was wearing a jean pant and a check shirt. But, she further clarifies that the petitioner (accused No.1 before the Magistrate) and accused No. 3 Ramesh Krishna Swami were wearing safari suits and the accused No.2 Ravindra Sina Setti was wearing a jean pant and check shirt. It is true that such discrepancy is there but, however, the discrepancy does not concern the petitioner. But, she further clarifies that the petitioner (accused No.1 before the Magistrate) and accused No. 3 Ramesh Krishna Swami were wearing safari suits and the accused No.2 Ravindra Sina Setti was wearing a jean pant and check shirt. It is true that such discrepancy is there but, however, the discrepancy does not concern the petitioner. What is further required to be seen is that in the small hours of the very morning of that day, the petitioner while at police station identified the petitioner who had been apprehended by the police and brought there. He also identified the neck-shoulder bag which the petitioner was holding. Therefore, in my view, it is just not possible to say to at on the aspect of the dress the - petitioner has not been identified. Despite the fact that there is discrepant statement between the husband and the wife that can only be in relation to the aforementioned co-accused Ravindra Sina Setti. 9. The next aspect is Mr. Palha says that there is no clear statement or at the most a discrepant statement in relation to the holding of the razor blade by the petitioner and even on that count the petitioner has not been identified satisfactorily. Insofar as this aspect of the matter is concerned, the prosecution case is that Ravindra Setti was holding a toy pistol and the petitioner and Ramesh Krishna Swamy were holding razor blades in their bands. The counsel also next points out that neither at the house of D. K. Vassu nor when they were subsequently sought to be apprehended near - Salgaonkar Medical Research Centre, the petitioner at all used the knife or the razor blade. It is true that despite the incident in front of the house at the entrance or at the junction of the road opposite Salgaonkar Medical Research Centre, it is not alleged that the petitioner has used razor blade or any weapon and for that matter even the chilli powder. In my view, there is no discrepancy in what P.W. 1 D. K. Vassu has stated. According to him, two accused out of the three were holding razor blades and Ravindra Setti had a toy pistol. P.W. 4 made similar statement and to my mind there is no discrepancy whatsoever. In my view, there is no discrepancy in what P.W. 1 D. K. Vassu has stated. According to him, two accused out of the three were holding razor blades and Ravindra Setti had a toy pistol. P.W. 4 made similar statement and to my mind there is no discrepancy whatsoever. An argument was sought to be raised that it was alleged against the petitioner that he was limping when he was running away when sought to be apprehended by the Security Officer of Zuari Agro Chemicals Ltd. (P.W. 3) but no injury was detected on him. This by itself does not advance the case of the petitioner. 10. For the reasons mentioned above, it is not possible to hold that the accused has not been identified by the prosecution witnesses and, therefore, having regard to the totality of the circumstances and the fact that even when the trial commenced and was over within a few months from the date of commission of the offence, I do not find any cogent material to give rise to any suspicion that the petitioner has been implicated or that he is sought to be identified by overt means. From the evidence it is clear that he was identified at the very police station at Vasco-da-Gama alongwith his bag which was also identified. His wearing apparel was also identified and in that view of the matter I can do no more in this revision but to say that I confirm those findings to be validly made. 11. Apart from this aspect of the matter, it may be seen that Shri D K. Vassu who is a mechanical engineer working for the Zuari Agro Chemicals Ltd., and who was sought to be burgled, was living in the quarters of Zuari Complex. He is well placed man in life. The next person who inentified the petitioner is his wife and these two person!! can in no manner be said to be persons who with oblige the police in the matter of implicating wrong persons in the crime or be amenable to their dictates. Even the deposition of P.W. 3, Mr. Parek, is not altogether irrelevant in the matter of identification. I am, therefore, unable to interfere on these grounds. 12. But, however, there are two aspects which are required to be dealt with. There is some substance in what Mr. Even the deposition of P.W. 3, Mr. Parek, is not altogether irrelevant in the matter of identification. I am, therefore, unable to interfere on these grounds. 12. But, however, there are two aspects which are required to be dealt with. There is some substance in what Mr. Palha mentions that, considering the allegations disclosed in the charge-sheet and the evidence tendered, and the charge under section 506 Indian Penal Code against the petitioner cannot arise. He mentions that in the matter of commission of the offence the main thrust is sections 394 and 511 of the Indian Penal Code. Robbery did not take place but there was an attempt and in the process voluntary hurt was caused to D.K. Vassu. With the weapon shown, an attempt was said to have been made at the house for committing the offence of robbery and if in the process the accused had mentioned that, if P.W. 1 and P.W. 4 shouted they would kill them, this by itself would not be sufficient to drive home a charge under section 506 Indian Penal Code this threat is pad of the main charge of section 394 levelled against them, which is duly held to be proved against them. Mr. Palha also points out that it is not the petitioner who mentions that threat nor evidence disclosed the same. The question is not whether the petitioner has personally mentioned that threat as common intention can be imputed but that charge does not arise. Having regard to the circumstances of this case the charge under section 506 Indian Penal Code and the conviction made thereunder as against the petitioner will have to be quashed and is set aside though, in my view the petitioner is liable to be held guilty for the other offences under sections 324, 327, 394 and 511 Indian Penal Code, as held by the trial Court. The next aspect is that there is some force in the contention of Shri Palha that the co-accused in this case Shri Ravindra Setti and Ramesh Krishna Swami had been charged with additional charge under section 211(7) of the Criminal Procedure Code and in that it was mentioned that Ravindra Sina Setti had been convicted in criminal case No. 280 of 82 for offences under section 379 and had already undergone 8 months of Rigorous Imprisonment and a fine of Rs. 500/- by the Judicial Magistrate. 500/- by the Judicial Magistrate. First Class. Vasco. He was already convicted by the Judicial Magistrate, First Class, Margao on 19th July, 1984 in criminal case No. 199 of 83 for offences under Ss. 457 and 380 of the Indian Penal Code and made to undergo Rigorous Imprisonment for two years and fine of Rs. 1000/- i/d to undergo 6 months R.I. and again convicted on 5th September, 1986 for offences under section 379 Indian Penal Code in criminal case No. 3/S/86 to undergo 1 year and 6 months. Insofar as Ramesh Krishna Swamy is concerned the additional charges against him were that in criminal case No. 111/79 he was convicted for offences under sections 457 and 380 Indian Penal Code by the Judicial Magistrate, First Class, Mapusa, on 5th July, 1979 to undergo 6 months' Rigorous Imprisonment; in criminal case No. 82 of 79 for the same offences convicted for 3 months Rigorous Imprisonment; in criminal case No. 83 of 79 for similar offences to undergo 3 months' Rigorous Imprisonments in criminal case No. 110 of 79 by the Judicial Magistrate. First Class, Mapusa for similar offences to undergo 6 months and fine of Rs. 100, i/d to undergo one month's Rigorous Imprisonment and in criminal case No. 105 of 79 for similar offences, by the Judicial Magistrate, First Class, Mapusa, on 12th March, 1980 to undergo 9 months Rigorous Imprisonment. Both these co-accused have accepted and pleaded guilty to the additional charges. 13. From the above, it is clear that these co-accused had a number of convictions for offences of theft, house trespass and there had been no previous conviction against the petitioner or at least nothing is brought on record. Despite the fact that there were several convictions duly proved, yet, the learned Judicial Magistrate, First Class, dealt with the petitioner and the two co-accused with the same yard-strick, which, in my view, is unreasonable. The learned Magistrate ought to have seen that the co-accused, habitual offenders, with such history were liable to be punished more severely than the petitioner who was only the first offender. Since I am unable to re-open the cases of the other co-accused, in interest of justice I would, however, reduce the sentence of the petitioner and to that extent interfere with the sentence. Since I am unable to re-open the cases of the other co-accused, in interest of justice I would, however, reduce the sentence of the petitioner and to that extent interfere with the sentence. The conviction of the petitioner under sections 324, 327 and 394 read with section 511 of the Indian Penal Code is maintained. However, for the offence under sections 394 and 511 Indian Penal Code the petitioner is sentenced to two and half years. The rest of the sentences in relation to conviction under sections 324 and 327 shall remain unchanged and, as ordered, they shall run concurrently. Subject to the modification of the sentences for the offences under section 394 read with section 511 of the Indian Penal Code, this revision application is accordingly partly allowed and the rule is accordingly partly made absolute. Application partly allowed.