JUDGMENT K. Narayan, J. - Two persons namely, Nanhey son of Kumber Singh and Jalim Singh son of Jai Singh were tried by VIth Additional Sessions Judge, Shahjahanpur in S. T. No. 41 of 1981 on charges under Sections 394/397, I.P.C. and found guilty by judgment and order dated 8-7-1981. The learned Sessions Judge has proceeded to record conviction under both the counts and awarded a sentence of 7 years, R.I. to Nanhey under Section 397 and 4 years, R.I. to Jalim Singh under Section 394, I.P.C. Aggrieved by both the conviction and sentence, they have come up in appeal. 2. I have heard learned counsel for the appellants and also gone through the record of the case. It appears that the prosecution case was that on the date of the incident in september, 1980, Champat Ram, informant, along with Rustam son of Jivan, Bhudhar son of Devi and Prahlad son of Hetram had come back to village from outside and since it was late in the evening, they were proceeding on foot with torches in their hands. When they all reached the Tube-well of Gajadhar Lal, three accused, two appellants and one more came from behind a bush and asked them to hand over whatever they had and make no alarm. According to the first information report, Nanhey was armed with a single barrel gun, Jalim Singh with a Lathi and the third person with a Banka. They all threatened and at the point of gun Nanhey Singh took out Rs. 500/- from the pocket of Rustam, Jalim Singh took out Rs. 50/- from the pocket of Bhudhar and the third person took out some silver ornaments from the bag of Prahlad. After going some distance, they made fire from the gun also and left the place. The spent cartridge was left and the Banka of the third person was also left at the spot. The first information report of the incident was lodged at the police station Banda on the next day at 12.15 p. m. As usual investigation followed and lastly a charge-sheet was submitted. The charges were framed against the accused appellants and after evidence, the learned Sessions Judge recorded the above said conviction and sentences. 3. The findings recorded by the learned Sessions Judge have been challenged before me on more than one count. The charges were framed against the accused appellants and after evidence, the learned Sessions Judge recorded the above said conviction and sentences. 3. The findings recorded by the learned Sessions Judge have been challenged before me on more than one count. His contention has been that the Sessions Judge was not justified in ignoring the enmity between Prahlad and Jalim Singh. There is Ext. Kha-1 on record of the Sessions Judge's Court though of course it has been copied out in the paper book, showing that as back as 1975 Jalim Singh had made complaint to the district authorities against several persons including Prahlad. Ordinarily this stray complaint may not carry much weight but the cumulative effect of the entire evidence is to be seen. This was a case where there was virtually no injury on the person of any of the victim, though even a charge under Section 397, I.P.C. was framed. The only injury upon the person of Bhudhar was complaint of pain with no visible mark of injury as stated by the medical expert. The possibility of one person at least having been falsely implicated on account of enmity cannot be overlooked. 4. The contention of the prosecution as it was also seems to be either concocted or exaggerated from the reading of the first information report itself. It conveyed that on the alarm raised by the victim three accused persons ran towards the south and then after going soma distance Nanhey Singh made a fire. Would a robber makes a fire after leaving the place of occurrence just to make a loud report and announce his crime ? The very contention appears to have been put forward with an idea to exaggerate the offence and to make at least the offence cognizable under the colour of attempt of causing death while there could be no occasion for it. This sort of allegation comes in only when there is a brain well-versed in criminal laws behind the drafting of the first information report, in any case, the very contention is so hollow that it cannot be believed to have happened that way. The evidence in respect of this part was also improved In the statement of P.W. 1 Nanhey, it was given a shape that the accused Nanhey had fired at the victim. The evidence in respect of this part was also improved In the statement of P.W. 1 Nanhey, it was given a shape that the accused Nanhey had fired at the victim. If they had no occasion to fire, a fire by a regular gun could not have been so easily missed, as it did not cause even single pellat injury and if they had gone far away there was no need or occasion for opening a fire. This gun in the statement of P.W. 3 Bhudhar became double barrel gun. This witness had also stated that they had chased the accused persons after the first fire with an impression that the gun was now empty. This could not be a situation when a person should consider the gun to be double barrel one and again if they were not already chasing the accused persons as it seems from his statement, there was no occasion for a fire. If the accused persons including third miscreant had left the spot so easily, where could be an occasion for leaving the Banks on the spot. 5. It may also be mentioned that in the first information report the third miscreant was mentioned as one Musalman with Nanhey Singh. The third person worked out or alleged to be worked out during investigation and shown in the charge-sheet as absconding was Brij Behari. Of course there can be a mistake in placing the caste and religion from his appearance only but it may be a weabaes when considered along with other allegations and evidence mentioned above. 6. Considering all facts and circumstances I am in judgment that the prosecution evidence could not inspire confidence to record conviction. This appeal should, therefore, succeed. 7. In the result, the appeals are allowed. The conviction and sentence recorded by the learned Sessions Judge are hereby set aside. The accused appellants, if in custody, shall be released forthwith unless wanted in some other case.