JUDGMENT 1. - This appeal is directed against the judgment dated 27-6-1987 passed by the learned Additional Sessions Judge, Bikaner whereby he has convicted the accused appellants Ratanlal, Manphool Ram Ratan Singh, Maharchand, Anshilal and Binder Singh under Sections 397 450 and 457 Indian Penal Code and sentenced them under Section 397 Indian Penal Code to 7 years rigorous imprisonment, under Section 450 Indian Penal Code two year's rigorous imprisonment and under Section 457 Indian Penal Code two year's rigorous imprisonment and a fine of L 500/- each and in default of payment to further undergo six month's rigorous imprisonment. Learned Additional Sessions Judge also convicted the accused appellants Anshi Lal and Ratan Lal under Section 27 of the Arms Act and sentenced them to two year's rigorous imprisonment with fine of L 200/- each and in default of payment of fine to further undergo rigorous imprisonment for two months. All the sentences were directed to run concurrently. 2. The brief facts giving rise to this appeal are that on 5-6-1985 Jeeta Ram ASI Police Station Mahajan received an information of dacoity in village Lakhor and went to village Lakhor at 5 p.m. and he recorded the statement of one Hanumanaram Ex P 1 where in it was alleged that they are four brothers and his younger brother is Sheolal. All the four brothers live separately, Sheolal along with his wife went to village Khanisar for some religious ceremony. At the relevant time at the house of Sheolal, his mother Mst. Mahi and Sheolal's two daughters Mst. Indu and Guddi were sleeping At about 11 p.m. his mother and children started weeping and crying After hearing this noise he came down to the house of Sheolal and he found that one person has fired a shot from the house top of Sheolal and shouted that no one shall come near then otherwise they will be shot. After hearing this whole village woke up. He went out to the persons for help but no body had arms. At about 1.30 a m. all the dacoits went out after committing the dacoity leaving behind his mother and children. After hearing this whole village woke up. He went out to the persons for help but no body had arms. At about 1.30 a m. all the dacoits went out after committing the dacoity leaving behind his mother and children. After some time some more persons, i.e. Surjaram Jat, Bajrang Devi lal Magdas Bairagi, collected and went to the house of Sheolal and there they found that mother and both the children were sitting in the chowk, all the boxes were lying helter-skelter and their locks were open. The mother informed that the dacoits have taken away the silver anklets and Guddi informed that the golden necklace which was in her neck, has been snatched away. The children further informed that there were six persons out of them one was Sikh and he was speaking in that language. Out of them four persons were wearing Pajama and Kamij and the remaining two accused persons were wearing shirt and Chaddar. One of them was on the roof of the house and firing one person took out a pistol and threatened them that if any one raised a cry then they will be shot. A detailed list could not be prepared as wife of Sheolal has gone out for religious ceremony. This First information Report was recorded and investigation was taken up by the Police. The Investigating Officer reached at the scene and during the course of investigation all the six persons were apprehended It is alleged that these accused persons were pursued by the villagers and they were apprehended and they were produced at the Police Station. Thereafter a proper identification parade of the accused persons was held. After arrest of these accused persons certain articles were recovered from them. The articles which were seized were also identified. One 12 Bore country made pistol was also recovered at the instance of the accused appellant Ratanlal and one 12-Bore local made pistol was also recovered from Anshi Lal. After close of the investigation, a challan was submitted and the accused persons were committed to the court of Sessions for trial under Sections 395, 397, 450 and 457 read with Section 109, Indian Penal Code and Section 27 of the Arms Act. 3. The prosecution examined PW 1 Hanumanaram PW 2 Mst. Indu PW 3 Guddi, PW 4 Mst. Mahi, PW 5 Magdas as witnesses of dacoity. Out of them, PW 2 Mst. 3. The prosecution examined PW 1 Hanumanaram PW 2 Mst. Indu PW 3 Guddi, PW 4 Mst. Mahi, PW 5 Magdas as witnesses of dacoity. Out of them, PW 2 Mst. Indu, PW 3 Mst. Guddi and PW 4 Mst. Mahi were the eye witnesses. How ever. PW 4 Mst. Mahi was an old lady but PW 2 Mst. Indu and PW 3 Mst. Guddi were grown up children and they identified the accused persons during the identification parade. The learned Additional Sessions Judge after due trial convicted and sentenced the accused appellants as aforesaid. Aggrieved against this, the accused appellants have preferred this appeal before this Court. 4. Mr. Garg, learned Counsel for the appellants submitted that in the present situation the conviction of the accused appellants Under Section 397, Indian Penal Code the punishment can only be given when the offender at the time of committing robbery or dacoity uses any deadly weapon or causes grievous hurt to any person. Learned counsel submitted that no hurt has been caused to any person in the present case and it has not been pointed cut that as to which of the accused persons was armed with deadly weapon. The accused have been identified during the identification parade as well as in the court, but it has not been pointed out as to which of the accused persons were having deadly weapon. In the absence of that all the accused persons cannot be held guilty under Section 397, Indian Penal Code. 5. The contention of the learned Counsel appears to be sustainable in the present case. It is true that it has not been pointed out as to which of the accused persons was armed with the gun and fired from that gun, though there is the bald allegation that two of the accused persons were armed with guns and the same were fired at the house top. This allegation is not sufficient to bring home the guilt of the accused. The prosecution has to further prove that a particular person was armed with a deadly weapon and he used the same in the commission of the offence. But in the present case there is no such evidence. It is true that two country made 12-Bore pistols have been recovered at the instances of Anshilal and Ratan Lal accused appellants. The prosecution has to further prove that a particular person was armed with a deadly weapon and he used the same in the commission of the offence. But in the present case there is no such evidence. It is true that two country made 12-Bore pistols have been recovered at the instances of Anshilal and Ratan Lal accused appellants. But it is not known whether these accused persons used them during the commission of the dacoity or not. Thus, in this view of the matter, I think the contention of the learned Counsel for the appellants appears to be sustainable and all the accused persons cannot be convicted under section, 397 Indian Penal Code. 6. But so far as commission of offence under Section 395, Indian Penal Code is concerned, there is sufficient evidence on the record i.e. statements of PW 2 Mst. Indu and PW 3 Mst. Guddi. Both of them have correctly identified all the six accused persons during the identification parade and recovery has also been made at the instance of the accused parsons. Therefore, so far as offence under Section 395 is concerned the same cannot be out. 7. Likewise the conviction under Sections 450 and 457, Indian Penal Code is also sustainable as the accused persons have committed house trespass in order to commit offence and they are also guilty of lurking house trespass or house-breaking by night in order to commit-offence. 8. Next, learned Counsel submitted that the conviction of the accused appellants Anshilal and Ratan Lal under Section 27 of the Arms Act cannot be sustained for the simple reason that there is no evidence that these arms were intended to be used for any unlawful purpose. Learned counsel submitted that so far as the conviction of the accused appellants under the Arms Act is concerned the same cannot be sustained. 9. It is true that there is no evidence to show that these guns were used by the accused persons. As such it is difficult to say that these arms were used for any unlawful purpose. But in any case the accused persons have not produced any licence to show that they had a legal right to possess these guns. Therefore they are guilty under Section 25 of the Arms Act for illegal possession of the arms. 10. As such it is difficult to say that these arms were used for any unlawful purpose. But in any case the accused persons have not produced any licence to show that they had a legal right to possess these guns. Therefore they are guilty under Section 25 of the Arms Act for illegal possession of the arms. 10. In the result, I allow this appeal in part and acquit the accused appellants under section, 397 Indian Penal Code and convict the accused appellants under Section 395, Indian Penal Code and sentence each one of thein to undergo five year's rigorous imprisonment with fine of L 500/- each and in default of payment to further undergo rigorous imprisonment for 6 month's. I also convict the accused appellants under Section 450 & 457, Indian Penal Code and sentence them to imprisonment for a period of a two year's with fine of L 500/- each and in default of payment of fine to further undergo rigorous imprisonment for 6 month's on each count I convert the conviction of the accused appellants from under Section 27 to under Section 25 of the Arms Act and sentence them to undergo 3 year rigorous imprisonment with fine of L 200/- each and in default of payment of fine to further undergo two months rigorous imprisonment. All the substantive sentences are directed to run concurrently.Appeal partly allowed. *******