JUDGMENT V.P. Mathur, J. - Mr. P.N. Lai the then IV Additional Sessions Judge, Muzaffarnager while disposing of Sessions Trial No. 172 of 1982 of his Court found the Appellant guilty on charges under Sections 398, 324, 323 read with Section 34 IPC and Section 25 of the Arms Act. He convicted him on all these charges and sentenced him to seven years' rigorous imprisonment on the first charge, to two years rigorous imprisonment on the second charge, to six months rigorous imprisonment on the third charge and to one year's rigorous imprisonment on the fourth charge. Against this order, the present appeal has been filed. 2. The prosecution story, as it emerges from the first information report Ext. Ka-3 and the testimony of the witnessses is that one Shabbir owned a Kolhu in the village Kamhed towards the west of the village abadi. This area lies within the P.S. Jansath in district Muzaffarnagar. The occurrence took place in the month of February, 19 2 on the 3rd day at about 11-15 P.M. The Kolhus had not yet started crushing but preparations for the same were afoot. In the night in question, three persons engaged by Sabbir Khan were present in the Kolhu, taking warmth from the burning khoi. They were Ishlam PW 2 Bhajjar PW 3 and one Udaiveer, who were all labourers engaged for the running of the crusher. Suddenly four persons, out of whom three were armed with country made pistols and one with lathi, came from the western side and immediately on arriving they asked those three laborers to stand up and give their searches. Then two persons out of the four culprits, started the search of the persons of Islam and Udaiveer, while two others started search for valuables and cash etc. in a cannister which was kept there and in which the clothes etc. of Islam had been stored. Meanwhile Bhajjar got an opportunity to slip off and he rushed to the village. The site plan shows that the village abadi is not very far away from the scene of occurrence and Bhajjar on reaching there, raised a hue and cry and attracted the village people. He immediately returned back to the scene of occurrence while the search of Islam etc. was still going on. The site plan shows that the village abadi is not very far away from the scene of occurrence and Bhajjar on reaching there, raised a hue and cry and attracted the village people. He immediately returned back to the scene of occurrence while the search of Islam etc. was still going on. Hukum Chand PW 4 who was also lying in the nearby Gher of Lala Jagdish heard the cries and came out. Some more persons including Shabbir and Sida came on the spot. The culprits were encircled. They started firing. Bhajjar received a shot. Then it is said that one other shot also hit him and it was fired by the present accused Furkan. The lathi-wala culprit gave a few lathi blows to Hukum Chand. Meanwhile Bhajjar who is a young man, took courage and with his lathi, he hit Furkan on his head. This accused fell down. By that time a number of village people had collected there and with the help of them and after giving a thorough beating, Furkan was arrested on the spot. He gave out the names of his other associates. 3. Furkan was searched. He was found possessed of a country made pistol, in the barrel of which one spent cartridge was embedded. One live cartridge was found in the pocket of his Kurta. Arrangement of a tractor was made. Furkan was tied with a rope and placed on the tractor and then Islam along with Bhajjar etc. went to the thana and lodged the report at 2.45 A.M. on 4-2-1982. The distance of the place of occurrence from the thana is of five miles. Investigation was made and the case was charge sheeted. 4. The three eye witnesses who have been examined are Islam, Bhajjar and Hukum Chand (PWs 2, 3 and 4). The doctor who carried out the medical examination of the injuries of Bhajjar and Hukum Chand and the accused Furkan is Dr. B.S. Panwar and he has been examined as PW 1. 5. Bhajjar had two gun shot wounds of entry-one on the front of left thigh and the other on the back of the left thigh. 6. Hukum Chand had two abrasions-one in the area of 7 1/2 cm. x 1 1/2 cm. on the front of the right leg with a dry soft scab and the other 3 cm. x 11/2 cm. 6. Hukum Chand had two abrasions-one in the area of 7 1/2 cm. x 1 1/2 cm. on the front of the right leg with a dry soft scab and the other 3 cm. x 11/2 cm. on the front of the left leg again with a dry soft scab. 7. Furkan had so many as 14 injuries on his person. Seven of them were lacerated wounds, one was an incised wound, there was one contusion, one abraded contusion and the remaining were abrasions. 8. The doctor and the Investigating Officer as well as other police personnel who have been examined are all formal witnesses. 9. In his statement the accused denied the entire occurrence and gave out that he had been falsely implicated because of Ranjish. His contention is that Bhajjar, Islam, Udaiveer and Shabbir wanted to collect at the house of Smt. Jamila, but since these were all of bad character, he objected and hence they became angry. It was Shabbir's son who approached this accused at the house of Smt. Jamila, where this accused was in service, and at his instance the accused reached Shabbir's house, where Islam, Bhajjar, Hukum Chand and Shabbir were present and he was got arrested through policewalas and falsely implicated in this case. He also says that Bhajjar was previously a dacoit and has now become a police informer. He further says that he was given a thorough beating in the Thana by the policewalas, as a result of which he become unconscious and actually he was never injured in any other incident. He does not know whether he was ever presented before any doctor. 10. No defence evidence has been adduced. 11. The charge is u/s 398 of the IPC. This provision of the law clearly applies to cases in which the robbery is not got complete and there is only an attempt to commit it, and during the course of this attempt if the offender is armed with a deadly weapon, then the imprisonment with which he is to be met, according to Section 398 IPC, is not to be less than seven years. The section does not by itself create a substantive offence but only regulates the measurement of punishment when certain facts are found to exist in the commission of the substantive offence of an attempt robbery. The section does not by itself create a substantive offence but only regulates the measurement of punishment when certain facts are found to exist in the commission of the substantive offence of an attempt robbery. This section will not be applicable in a case in which robbery has actually been committed. To such of the offenders as are armed with deadly weapons during their attempt to commit robbery, even if they do not use them in the attempt to rob, an imprisonment of not less than seven years has to be awarded. In the present case the learned Sessions Judge framed a charge u/s 393/398 of the IPC and this could be the right charge because the substantive offence would be u/s 393 IPC but in his judgment where conviction has been returned, no mention of Section 393 IPC has been made and out right conviction has been returned u/s 398 IPC and the sentence has also been passed under that provision of the law. This is a technical mistake. Then further I find conviction has now been made u/s 324 and 323/34 IPC. If an attempt to commit robbery is made and in committing it some body voluntarily causes hurt to another person, then he as well as other persons jointly concerned in committing it shall be punishable u/s 394 of the IPC and the imprisonment may be for a term which may extend to ten years and they may also be liable to pay fine. Therefore the proper section which could apply to this case would have been Section 394 IPC, as it is said that Furkan has caused hurt to Bhajjar and one of his associates had caused hurt to Hukum Chand. No charge u/s 394 IPC has been framed against the accused-Appellant. Although framing of such a charge would have done away with the need to frame additional charges Under Sections 307, 324 and 323 of the IPC Section 394 provides punishment to the person who voluntarily causes hurt or also to such other person who is jointly concerned in attempting to commit robbery. 12. Although framing of such a charge would have done away with the need to frame additional charges Under Sections 307, 324 and 323 of the IPC Section 394 provides punishment to the person who voluntarily causes hurt or also to such other person who is jointly concerned in attempting to commit robbery. 12. Since the learned Sessions Judge has not framed the charge u/s 394 IPC, the next best course open for the learned Sessions Judge would, therefore, have been to frame a charge u/s 393 read with 398 IPC and also separate charges u/s 324 impliciter and Section 323/34 of the IPC in respect of the injuries caused by his associate to Hukum Chand. This is permissible in view of Section 220(4) of the Code of Criminal Procedure and illustration (m), which lays down that when 'A' commits-robbery on 'B' and in doing so voluntarily causes hurt to him, he may be separately charged with and convicted of offences under Sections 323, 392 and 394 of the IPC. 13. I have been taken through the first information report and the statement of Islam who is the lodger of this report. The clear case is that there was no actual robbery on the spot and what had actually taken place was a mere attempt to commit robbery. Naturally, therefore the learned Judge rightly framed one charge u/s 393 read with Section 398 of the IPC during the course of evidence however, Bhajjar has exaggerated the matters and during cross examination it was elicited from him that he was the first to be searched and from his pocket a sum of Rs. 51/- was already robbed before he ran away to the village. I will discard this part of his statement as unreliable, because it finds no support either from the first information report or from the testimony of other witnesses, and even in his examination in chief he has not spoken about having been robbed at all. On the contrary from the statement of Islam and Hukum Chand and from the examination in chief of Bhajjar it appears that he could not be searched on the spot. The culprits on their arrival, started the search of Islam and Udaiveer and the search of the cannister. On the contrary from the statement of Islam and Hukum Chand and from the examination in chief of Bhajjar it appears that he could not be searched on the spot. The culprits on their arrival, started the search of Islam and Udaiveer and the search of the cannister. Meanwhile, Bhajjar found an opportunity to slip off and after covering a small distance he reached the village abadi and raised an alarm and then returned back to the scene of occurrence. Almost along with him three persons came. Hukum Chand came from the northern side where he was sleeping in the gher of Lala Jagdish at a distance of about more than 30 or 40 paces. Shabbir and Saida came from the village side. By that time the search of Udaiveer and Islam was still going on and all these persons came back to the scene of occurrence and tried to apprehend the cluprits. Three of them who were armed with pistols, fired and the 4th wielded his lathi. Hukum chand was injured as a result of the lathi blows and Bhajjar was injured as a result of firing. One of the persons who had fired, was the present accused-applicant. Bhajjar gave him a blow on his head which made him to reel and fall, then he was nabbed. Meanwhile other village people came and gave him a thorough beating and arrested him. This story is established from the entire testimony of the witnesses on record and whatever exaggeration Bhajjar has tried to make, has got to be ignored. There is no enmity between Hukum Chand and Islam on the one nand and the accused-Appellant on the, other. The suggestions put to Islam are that the accused was in service with Smt. Jamila who was running a milk business and that he has been falsely implicated after having been called from the house of Smt. Jamila to the house of Shabbir. No reason for this false implication has come forth in this suggestion. To Bhajjar a suggestion was put that he was hand in glove with the dacoits who used to collect at his place and they wanted a new place for them at the house of Smt. Jamila and since the accused-Appellant refused to oblige him, he was called at the house of Shabbir and got arrested through policewalas. To Bhajjar a suggestion was put that he was hand in glove with the dacoits who used to collect at his place and they wanted a new place for them at the house of Smt. Jamila and since the accused-Appellant refused to oblige him, he was called at the house of Shabbir and got arrested through policewalas. In his statement the accused himself also says the same thing but he has not adduced any evidence. Even Smt. Jamila has not come to the witness box to say that the accused was in service with her. It is not explained as to how police walas were present in the village to apprehend the accused. It is not proved that he has been arrested from the house of Shabbir, The explanation of his injuries has been given by the prosecution. It is very much possible that one of the village people might have been armed with a sharp edged weapon and hence one of the injuries of the accused was an incised wound. There is no explanation of the injuries of Bhajjar and Hukum Chand on defence side. It is impossible fo believe that these injuries could have been got manufactured and were not in existence in fact. After going through the entire evidence on the record, I find the prosecution version established beyond doubt. 14. The learned Counsel says that during the course of an attempt to commit robbery, use of fire-arm was not made and it is not proved that at that time the present Appellant was possessed of a deadly weapon. It was only subsequently when he was arrested that he was found possessed of a pistol. That is not a correct appreciation of the evidence. A pistol was taken from his custody after he was apprehended and prior to that he had fired with it. An attempt to commit robbery was made and it continued even up to the stage that the culprits tried to make good their escape; and they were resisted by the village people. Therefore, a charge u/s 393 read with 398 IPC is well made out. 15. Charge u/s 25 of the Arms Act is also made out from the entire evidence on the record and on this aspect of the matter; the learned Counsel has not advanced any argument. 16. Therefore, a charge u/s 393 read with 398 IPC is well made out. 15. Charge u/s 25 of the Arms Act is also made out from the entire evidence on the record and on this aspect of the matter; the learned Counsel has not advanced any argument. 16. Similarly charges under Sections 324 simpliciter and Section 323 read with 34 IPC are also made out and the sentences awarded cannot be said to be harsh. 17. In the result, the appeal will fail. It is accordingly dismissed. The conviction of the Appellant on all the charges, as made by the learned Sessions Judge, and the sentences awarded to him are upheld and confirmed. The Appellant is already in jail custody. He shall continue to serve out his sentences which all shall be concurrent.