V. GOPALASWAMY, J. ( 1 ) THE appellants preferred this appeal against the judgment dated 20-12-1982 passed by the learned Sessions Judge, Balasore in S. T. No. 46 of 1982 convicting them under S. 395, Indian Penal Code and sentencing each of them to seven years' R. I. ( 2 ) THE prosecution case, briefly stated, is that on 9-11-1981 at about 5 to 5. 30 P. M. as P. Ws. 1 to 6, 10 and others were returning from Raibania weekly market crossing the road by the side of the jungle near Dhanghera, the appellants along with several others numbering about 15 to 20 persons armed with deadly weapons like lathis, tangia, bows and arrows, attacked and assaulted the said P. Ws. and others and carried away the various articles such as cycles etc. , belonging to them and after the dacoits had left, P. W. 1 reported about the occurrence at the Raibania P. S. and the said report was treated as the FIR in the case and on the basis of that FIR police proceeded with the investigation of the case and ultimately sent up the appellants for trial. ( 3 ) THE appellants plead that they were in no way involved in the occurrence of dacoity said to have taken place on 9-11-1981 near the Raibania weekly market, but they were falsely implicated. They did not examine any witness in support of their case. ( 4 ) THE prosecution had examined in all 16 P. Ws. to prove its case. P. Ws. 1 to 6 and 10 claim to have suffered at the hands of the dacoits on the relevant evening. The evidence of P. Ws. 1 to 6 and 10 shows that on the relevant evening as they along with others were returning from Raibania weekly market, several persons armed with deadly weapons attacked them and assaulting them carried away some of the articles belonging to them. P. Ws. 12 and 13 are the doctors who examined some of the persons who received injuries in the course of the occurrence of dacoity. The evidence of the doctor, P. W. 12, shows that he had examined P. Ws. 3, 5 and 6 and found injuries on them. Likewise, the doctor, P. W. 13, had examined P. W. 2 and found injuries on his person. The evidence of the doctor, P. W. 12, shows that he had examined P. Ws. 3, 5 and 6 and found injuries on them. Likewise, the doctor, P. W. 13, had examined P. W. 2 and found injuries on his person. So the medical evidence in the case also lends corroboration to the evidence of P. Ws. 1 to 6 and 10 that during the course of the occurrence of dacoity some of them were assaulted. Nothing substantial was elicited in the cross-examination of the prosecution witnesses to the occurrence, to doubt their testimony that more than 5 persons armed with deadly weapons were involved in the occurrence of dacoity that took place on the relevant evening near the Dhanghera jungle. The appellants also do not seriously challenge the occurrence of dacoity, though they plead that they were in no way involved in the said occurrence. ( 5 ) THIS is the proper stage to consider whether the prosecution has been able to prove that the appellants were also involved in the occurrence of dacoity. It is in the evidence of P. W. 1 that the occurrence had taken place on 9-11-1981 at about 5. 30 P. M. near Dhanghera jungle, as he and others including P. Ws. 2, 3, 4 and 10 were returning from the Raibania weekly market. He deposed that a truck was coming from the opposite direction with its headlight switched on at that time and in that light he could mark the features of 3 to 4 persons who were near him. It is in his evidence, that about 25 persons armed with lathis, bows and arrows attacked them and forcibly took away their properties after assaulting them and that the occurrence had taken place for about an hour. P. W. 1 had stated that appellant Gaya with a bow and arrow threatened him, keeping the arrow near his chest for about 10 to 15 minutes, when he had to surrender his articles to him, and the later, while returning his comb and pen, stole away his other articles. From his evidence it is seen that he has given a graphic picture of the part played by appellant Gaya so far as he is concerned and his testimony on this aspect could not be shaken in the cross-examination. From his evidence it is seen that he has given a graphic picture of the part played by appellant Gaya so far as he is concerned and his testimony on this aspect could not be shaken in the cross-examination. P. W. 1 promptly reported about the occurrence and it was his report which was treated as the FIR (Ext. 1) in the case. ( 6 ) P. W. 4 Paramananda Das is another material witness for the prosecution and the substance of his evidence is that on the relevant evening near Dhanghera jungle, 15 to 20 persons armed with deadly weapons attacked him and several others including P. Ws. 1 to 3 and looted away their properties. His evidence shows that as motor vehicle was coming from the opposite direction with its headlight on he could see two persons who forcibly took away his articles and the appellants were the persons involved in the occurrence. There is nothing in the evidence of P. W. 4 to doubt his competency to identify the appellants to be amongst the culprits involved in the occurrence of dacoity as his evidence discloses that he was in a position to identify them as they came near him. The nature of the evidence of P. Ws. 1 and 4 is such that their testimony implicating the appellants in the occurrence of dacoity can be safely relied on even without independent corroboration. ( 7 ) APART from identifying appellant Gaya in Court as one of the culprits who were involved in the occurrence of dacoity, P. W. 1 had identified him in the T. I. Parade also. P. W. 4 is the other eye-witness to the occurrence who identified in court the appellants as two of the culprits who had also taken part in the occurrence of the dacoity on the relevant evening. He identified them in the T. I. Parade also. P. W. 11 is the Magistrate who conducted the T. I. Parade and his evidence shows that in the T. I. Parade P. W. 1 had identified appellant Gaya whereas P. W. 4 had identified both the appellants. Thus, the evidence of P. W. 11 corroborates the version of P. Ws. 1 and 4 regarding the identification of the appellants in the T. I. Parade. Thus, the evidence of P. W. 11 corroborates the version of P. Ws. 1 and 4 regarding the identification of the appellants in the T. I. Parade. From the evidence of P. W. 11 it is seen that he had conducted the T. I. Parade after duly observing all the procedural formalities and nothing was elicited in his cross-examination to undermine the value of the T. I. Parade. P. W. 1 was a resident of Mauza-Maharaguna and P. W. 4 was a resident of Mauza-Kanpur and both the villages are of Raibania Police Station. The appellants were detained in the first instance in Jhadgram jail, and from there they were produced before the C. J. M. , Balasore, whereafter they were remanded to Balasore Jail, where the T. I. Parade was held. So I agree with the finding of the learned Sessions Judge that there was no opportunity for the identifying witnesses to see the appellants before the date of the. T. I. Parade. Even otherwise also there is no material on record to suggest that the prosecution had made any attempt to show the appellants to P. Ws. 1 and 4 at any time prior to the conducting of the T. I. Parade. The very fact that P. W. 1 could identify only appellant Gaya in T. I. Parade reveals that no clandestine manipulation was made in the investigating agency in the matter of identification, as otherwise P. W. 1 would have been in a position to identify both the appellants. ( 8 ) THE evidence of P. W. 2 shows that during the course of the occurrence of dacoity the culprits had taken away his umbrella and he states on oath that M. O. I, is the umbrella so taken away by them. The evidence of P. W. 7 reveals that an umbrella was seized from the house of appellant Gaya. The evidence of P. W. 14 established that the umbrella, M. O. I was seized from the house of Gaya during the course of his house-search. Nothing substantial was elicited in the cross-examination of P. W. 14 to discredit his testimony regarding the recovery of the umbrella, M. O. I from the house of appellant Gaya. Hence, relying on the evidence of P. Ws. Nothing substantial was elicited in the cross-examination of P. W. 14 to discredit his testimony regarding the recovery of the umbrella, M. O. I from the house of appellant Gaya. Hence, relying on the evidence of P. Ws. 2,7 and 14 it can be safely held that the umbrella M. O. I which was stolen during the course of the dacoity was recovered from the house of appellant Gaya and this is another circumstance which strongly corroborates the version of P. Ws. 1 and 4 regarding the involvement of appellant Gaya in the occurrence of dacoity. ( 9 ) THE evidence of P. Ws. 7 and 14 establishes that the green model Raleigh bicycle bearing No. 007020 was recovered from the house of accused Gaya. The evidence of P. Ws. 4 and 10 shows that the said bicycle was purchased by one Nityananda Das, brother of P. W. 4 and uncle of P. W. 10, and Ext. 2/1 is the cash-memo relating to it. On a perusal of Ext. 2/1 it is seen that it is a cash memo for the green cycle bearing No. 007020 and from that it can be safely inferred that the cycle M. O. II recovered from the house of appellant Gaya belongs to the said Nityananda Das. But then there is no evidence from the side of the prosecution that the said bicycle was also one of the articles stolen during the course of the occurrence of dacoity and so I have ignored the said recovery of the cycle from appellant Gaya's house while assessing the evidence against him in the present case. Even ignoring this, as earlier pointed out, there is sufficient reliable evidence to show that appellant Gaya was one of the culprits who took part in the occurrence of dacoity on the relevant evening. ( 10 ) APART from the convincing evidence of P. W. 4 implicating appellant Suna Bhakta in the occurrence of dacoity, there is also the evidence of P. W. 10 showing that he (appellant No. 2) was also involved in the occurrence of dacoity. P. W. 10 identified appellant Suna in court as one of the persons who committed dacoity on the relevant evening. P. W. 10 identified appellant Suna in court as one of the persons who committed dacoity on the relevant evening. The defence suggestion to P. W. 10 that he identified Suna as he happened to be in the dock was denied by him and the very fact, that he (P. W. 10) did not identify both the appellants, as the culprits involved in the occurrence of dacoity, reveals that he is a truthful witness, who is prepared to identify on oath only that person whom he was actually in a position to identify. But then P. W. 10 did not participate in the T. I. Parade. But all the same his evidence identifying appellant No. 2 Suna as one of the culprits, corroborating the evidence of P. W. 4 on the aspect of the identification of appellant Suna as one of the culprits involved in the occurrence of dacoity, cannot be ignored altogether. ( 11 ) ON a careful consideration of the entire material on record, as discussed above, I hold that the prosecution could successfully bring home to the appellants the charge under S. 395, I. P. C. as found by the lower court. I confirm the order of conviction passed by the learned Sessions Judge against the appellants under S. 395 I. P. C. ( 12 ) THE learned Sessions Judge while convicting the appellants under S. 395, I. P. C. finding that in the facts of the case S. 397, I. P. C. is applicable, sentenced each of the appellants to 7 years' R. I. holding that that is the minimum sentence that can be awarded under S. 397, I. P. C. On a perusal of the charge framed against the appellants, it is seen that they were charged only under S. 395, I. P. C. when the prosecution case discloses at the outset, as in the present case, that the accused persons had used deadly weapons in the course of the occurrence of dacoity, the application of S. 397, I. P. C. is attracted. But then S. 397, I. P. C. does not create a substantive offence and the court, therefore, should have framed a charge under S. 395, I. P. C. read with S. 397 I. P. C. So the framing of the charge only under S. 395, I. P. C. is defective and it cannot be said that the same is not without prejudice to the appellants, in the facts of the present case, as they are ultimately sentenced under S. 397, I. P. C. Likewise, before S. 397 I. P. C. was invoked for sentencing the appellants, they should have been convicted under S. 395, I. P. C. read with S. 397 I. P. C. but not merely under S. 395, I. P. C. as done by the learned Sessions Judge. In the circumstances, appellants are liable to be sentenced only under S. 395, I. P. C. as the learned Sessions Judge had convicted them thereunder, which is presently confirmed by me. While imposing the sentence of 7 years' imprisonment on the appellants, the learned Sessions Judge was prompted by the consideration that as S. 397, I. P. C. is applicable, the minimum sentence of 7 years thereunder, ought to be imposed on them. But now that it is found that the appellants can be sentenced only under S. 395 I. P. C. , I feel it is just and proper that the sentence imposed on them should be less than seven years. So I hold that sentencing each of them to 5 years' R. I. would sufficiently meet the ends of justice. Hence, while upholding the conviction of the appellants under S. 395, I. P. C. I sentence each of them, thereunder, to undergo rigorous imprisonment for a period of 5 years. ( 13 ) IN the result, I find no merit in the appeal except on the aspect of the quantum of sentence imposed and, therefore, the sentence is reduced as indicated above and accordingly, with the above reduction in the sentence imposed, the appeal is dismissed. Ordered accordingly. .