KUNDAN SINGH, J. ( 1 ) THE appellant Jaggu has preferred this appeal from Jail against the judgment and order dated 3 1. 3. 1981, passed by Sri S. R. Sagar, the then IVth, Additional Sessions Judge, Pilibhit, whereby he has been convicted under sections 399 and 402 I. P. C. and sentenced to seven years and five years R. I. respectively, with a direction to run both the sentences concurrently. ( 2 ) THE prosecution case, in brief, is that Rajendra Singh along with Jagdev Singh, Munendra Singh, Munney Singh, Ram Bhahorey Lal and Babu Singh were returning to his village Sabalpur from Puranpur. When they reached near the Junior High School at about 7. 00 P. M. on 23. 10. 1979, they heard some murmuring in one of the rooms of the Junior High School. They suspected the presence of some persons inside the room. They tried to hear them and heard one of the persons, inside the room, saying that it was complete darkness and the informer had not returned hence the trucks on the Assam Road should be looted. He was also saying that number of persons, arms and ammunitions were sufficient for that purpose. After the dacoity on the road, they will think of the house of Sarnam Singh. Meanwhile, all of them stood up. The informant Rajendra Singh and other persons believing that the persons inside the room of the Junior High School near the village were miscreants and they were to loot the trucks on road, the witnesses flashed torches and challenged them for their arrest. One of the dacoits fired a shot but the witnesses could not sustain any injury. Meanwhile, Babu Singh one of the witnesses, who was armed with his licensed gun, fired a shot. On hearing the noise of the complainant and his colleagues, Hon Lal Chaukidar and Asghar andvarious persons rushed towards the place of occurrence. One of the dacoits again fired a shot which hit Hon Lal Chaukidar and Asghar, of the complainant;s village, and Bhola Nath, Ayodhia Nath and Neel Kanth of Mohanpur. They sustained injuries. After giving some necessary beating to one of the dacoits, namely Jaggu appellant he was arrested at the spot and others succeeded in making good their escape. From the possession of the appellant, one country made pistol and 3 live cartridges were recovered. They sustained injuries. After giving some necessary beating to one of the dacoits, namely Jaggu appellant he was arrested at the spot and others succeeded in making good their escape. From the possession of the appellant, one country made pistol and 3 live cartridges were recovered. He also disclosed the names of certain other persons as his companions who succeeded in making good their escape. After the arrest, village people in the company of Rajendra Singh, took the arrested person to the police station where he was handed over along with the bag containing the country made pistol and three live cartridges to the police of police station of Puranpur which scribed the report of Rajendra Singh informant. After lodging the report, the accused appellant was taken into custody and recovery memo was prepared at the police station which is Ext. Ka 2. The injuries of Balak Ram, Lok Nath, Neel Kanth, Asghar, Hori, Bhola Nath, Ayodhiya Nath and the injuries of accused Jaggu were examined by Dr. Arun Prakash Dixit P. W. 4. Chandra Mani, Subinspector was entrusted with the investigation who recorded the statements of the witnesses, prepared the recovery memo and site plan and after completion of the investigation submitted the charge sheet against the accused persons including the appellant. However, the two persons, namely; Hon Lal and Chootey Bux were also charge sheeted on the basis of the evidence of identification. ( 3 ) THE accused appellant pleaded not guilty and claimed to be tried. In his statement under section 313, Cr. P. C. , the appellant stated that he was working on the floor mill of one Brij Nandan where the witness Rajendra Singh had come to get ground his wheat forcibly to which the appellant had refused and due to that enmity he has been falsely implicated in the present case. ( 4 ) THE prosecution examined Rajendra Singh P. W. 1, Jagdev Singh P. W. 2, Munney Singh P. W. 5, asghar Khan P. W. 6 as witnesses of the factum of incident, while the P. W. 4 Dr. Arun Prakash Dixit was examined in order to prove the injuries sustained by the witnesses at the time of incident. P. W. 7 Chandra Mani, Sub-Inspector Investigated the case while Sri R. C. Bhardwaj P. W. 3 and Rajvir Singh P. W. 9 were examined regarding the identification of other co-accused. Arun Prakash Dixit was examined in order to prove the injuries sustained by the witnesses at the time of incident. P. W. 7 Chandra Mani, Sub-Inspector Investigated the case while Sri R. C. Bhardwaj P. W. 3 and Rajvir Singh P. W. 9 were examined regarding the identification of other co-accused. Munna Lal Constable P. W. 8 was examined to prove chik report etc. ( 5 ) TRIAL court after considering the evidence on record found the appellant guilty on both the counts, namely under sections 399 and 402, I. P. C. and convicted and sentenced him as mentioned above. However the other co-accused namely Hon Lal and Chhotey Bux were acquitted of the charge levelled against them. The appellant being aggrieved from his conviction and sentences awarded by trial court has filed this present appeal from Jail. ( 6 ) THE learned counsel for the appellant argued that in case the appellant had been arrested at the spot as alleged by the prosecution, he must have caused much more injures on his person. The injury report of the appellant shows that only one traumatic swelling was found on the back of his Lt. forearm and he contended that he has been falsely implicated in the present case due to some enmity against the prosecution witnesses. ( 7 ) I examined the evidence on record carefully. P. W. 4 Dr. Arun Prakash Dixit had medically examined Bhola Nath, Hori, Asghar, Neel Kanth, Balak Ram, Lok Nath, Ayodhiya Nath and the appellant Jaggu, who found the following injuries on their persons: bhola Nath: fire arm entry wound 0. 25 x 0. 25 cm x muscle deep on front of Lt. Leg 11 cm below the left knee bend one pellet palpable. No blackening, tattooing and scorching present. Hori: 1. Abrasion I em x 1-1/2 cm over Rt. side of chest 11 cm above the nipple at 12 oclock. 2. Abrasion 1-1/2 cm x 1-1/2 cm over Rt. side of chest front 9 cm below the Rt. nipple at 5 otclock. Asghar: 1. Fire arm entry wound 0. 25 cm x 2. 25 cm x muscle deep over Rt. side of face 2. 5 cm above the angle of mouth. No blackening or tattooing. One pellet palpable. 2. Fire arm entry wound (3) in an area of 23 cm x 25 cm over the front medial 14 lateral aspect of Rt. Asghar: 1. Fire arm entry wound 0. 25 cm x 2. 25 cm x muscle deep over Rt. side of face 2. 5 cm above the angle of mouth. No blackening or tattooing. One pellet palpable. 2. Fire arm entry wound (3) in an area of 23 cm x 25 cm over the front medial 14 lateral aspect of Rt. leg extending from knee and below 16 cm above the ankle. No blackening or tattooing present, measuring each 0. 25 cm x 0. 25 cm x muscle deep slight swelling and right around each wound. Pellet not palpable. 3. One firm arm entry wound 0. 25 cm x 0. 25 cm x muscle deep on the front of Rt. leg 20 cm below the knee bend. Pellet not palpable. 4. One fire arm entry wound 0. 25 cm x 0. 25 cm x muscle deep over the scrotum Lt. side middle. No blackening or tattooing present. Pellet not palpable. Neel Kanth:1. Small laceration 0. 25 cm x 0. 25 cm x skin deep 5 cm below the Rt. knee bend, serum. Referred to Distt. Hospital for X-ray x expert opinion regarding the cause of injury. Balak Ram: 1. Lacerated wound 1-1/2 cm x 1-1/2 cm x muscle deep over Rt. side of nose, just 1 cm to midline and 1 cm above the middle of upper lid (serum ). 2. Swelling over whole of upper lip measuring 3 cm x 3 cm ovated with abrasion 2 cm x 1 cm over Rt side and abrasion 1 cm x 1/2 cm over Rt. side gums teeth normal. 3. Abrasion 1-1/2 cm x 1-1/2 cm, 1-1/ 2 cm below the middle of Lower Lip. 4. Abrasion 1/2 cm x 1/4 cm over front of Lt. leg 24 cm below the knee bend. bk Nath: 1. Abraded contusion 1. 5 cm x 1/2 cm over top of Rt. shoulder (Rt middle ). 2. Abraded Red contusion 6 cm x 1-1/ 2 cm on the back of chest Lt. Middle part. 3. 5 cm x left to vertebral column. 3. Abraded Red contusion 2 cm x 1/4 cm 6 cm below the Injury No. 2. 4. Abraded Red contusion 2 cm x 1-1/2 cm over Lt knee. 5. Traumatic swelling over Rt. thumb (whole) Movement restricted and painful. Advised X-ray Rt. thumb at Distt. Hospital. Ayodhiya Nath: 1. Small laceration 0. 3. 5 cm x left to vertebral column. 3. Abraded Red contusion 2 cm x 1/4 cm 6 cm below the Injury No. 2. 4. Abraded Red contusion 2 cm x 1-1/2 cm over Lt knee. 5. Traumatic swelling over Rt. thumb (whole) Movement restricted and painful. Advised X-ray Rt. thumb at Distt. Hospital. Ayodhiya Nath: 1. Small laceration 0. 25 cm x 0. 25 cm x skin deep over the chin Lt 2. 5 cm below the angle of mouth Lt. front. 2. Small laceration 0. 25 cm x 0. 25 cm x skin deep over front of neck (rt) 2 cm above the medial and of Rt. Collar Bone. Referred to Distt. Hospital Philibhit for expert opinion regarding cause of injury. Jaggu: 1. Traumatic swelling 14 cm x 6 cm on the back of Lt. fore arm including wrist 8 cm below the elbow bend (Lt) movement restricted and painful. 8. Rajendra singh stated in his statement before the trial court that he was returning from Puranpur to his village Sabalpur in the company of Jagdev Singh, Munendra Singh, Ram Bahorey Lal and Babu Singh. As soon as they reached near the Junior High School building which is towards north side of the village, they suspected the presence of some persons inside one of the rooms of the building and they heard the talks of the persons inside the room of the Junior High School. One of them was saying that the informant has not come, they are sufficient in number and have enough arms and ammunitions hence they should loot the trucks on the Assam road, and thereafter they will think of looting the house of Sarnam Singh. It was also stated that the witnesses were convinced that they were dacoits and they would rob the trucks on the road and as soon as the persons inside the school boundary stood up for going, the witnesses flashed their torches whereupon one of the miscreants fired a shot towards them. The witnesses narrowly escaped. It was also stated that the witnesses were convinced that they were dacoits and they would rob the trucks on the road and as soon as the persons inside the school boundary stood up for going, the witnesses flashed their torches whereupon one of the miscreants fired a shot towards them. The witnesses narrowly escaped. Meanwhile, Babu Singh also fired a shot towards the miscreants and as some hue and cry was made in arresting the miscreants, Hon Lal and Asghar of the complainants village and Bhola Nath, Ayodhiya, Neel Kanth and Lok Nath of Mohanpur also reached thereon hearing the noise and in the encounter, Bhola Nath, Ayodhiya, Asghar, Balak Ram, Lok Nath, Neel Kanth and Hon Lal also sustained injuries. One of the miscreants was arrested on the spot while other succeeded in making good their escape. The person arrested, disclosed his name as Jaggu. From his possession, one bag containing a country made pistol and three live cartridges was recovered. Thereafter an F. I. R. was prepared and it was lodged by Rajendra Singh at the police station and the accused Jaggu and the article recovered from him were handed over to the police there. Similar statements were made by Jag Dev Singh P. W. 2, injured Munney Singh P. W. 5 and injured Asghar Khan P. W. ( 8 ) THE consistent evidence of the P. Ws. Rajendra Singh, Jagdev Singh, Munney Singh and Asghar Khan clearly established the factum of incident and the arrest of the appellant at the spot with the articles alleged to have been recovered from his possession. Nothing could be elicited from the statements of the witnesses to show that the appellant Jaggu was not arrested at the spot and the alleged articles were not recovered from his possession at the time of his arrest. The argument of the learned counsel for the appellant that the appellant sustained a few injuries, in all probability shows that the appellant was not arrested at the spot has no substance. The argument of the learned counsel for the appellant that the appellant sustained a few injuries, in all probability shows that the appellant was not arrested at the spot has no substance. As soon as the appellant was arrested and he disclosed his name as also the names of the companions, the village people had thronged there who were interested only to know the name of the arrested person and his companions who had fled away from the scene of the occurrence and since their purpose was served, there was no necessity of inflicting much more injuries to the appellant. It was further argued on behalf of the appellant that in case the incident would have taken place in the manner alleged by prosecution some other incriminating articles must have been recovered from the scene of the occurrence and as nothing was recovered, so the incident does not appear to have taken place at the time and place alleged by the prosecution. In my opinion, this argument is unsustainable inasmuch as his other companions had fled away after inflicting the injures to various persons of the village including the witnesses, as stated above. ( 9 ) IN the last, the learned counsel for the appellant argued on the question of the sentence and stated that the sentence awarded to the appellant by trial court is too severe as the appellant is not a previous convict, and was a young person of 23 years of age at the time of the incident and his antecedents were also not alleged to be bad. I considered this argument carefully and feel that it should prevail. Even according to the prosecution it does not appear that the appellant fired any shot as a result of which the witnesses and other villagers sustained injuries though he is said to be possessed of a country made pistol and three live cartridges. It is no where in the evidence that the empty country made pistol recovered from his possession was smelling of firing from it. Hence it could not be said that any firing was made by him towards the witnesses and he was responsible for the injuries suffered by them and their fellow villagers. It is no where in the evidence that the empty country made pistol recovered from his possession was smelling of firing from it. Hence it could not be said that any firing was made by him towards the witnesses and he was responsible for the injuries suffered by them and their fellow villagers. However, from the evidence on record it cannot be gainsaid that he was a member of an unlawful gang which had assembled with a common intention to commit dacoity and in my opinion, considering the facts and circumstances of case, age of the accused, his past antecedents and also that he had not caused any injury it is such a case where some lenient view may be taken and his sentences be reduced. ( 10 ) CONSEQUENTLY, the appeal succeeds in part. The conviction of the appellant on both the counts is maintained but his sentence under sections 399 and 402, I. P. C. is reduced to three yearss rigorous imprisonment each, making them concurrent. From the record it appears that after he was convicted and sentenced by the Court below, he was not granted bail by this Court and he has already undergone even the full term of sentence awarded by the learned Sessions Judge. Be that as it may, if he is still in Jail in connection with this case and has suffered three years R. I. he shall be set at liberty forthwith unless wanted in any other case. In case the appellant was on bail and has not undergone the period of sentence of three years as reduced by this court, he shall be taken into custody forthwith to serve out his sentence. ( 11 ) THE appeal has been argued by Sri Phool Chandra Mishra, Advocate, who was appointed as amicus curiae. He will be entitled to get his fee which is assessed at Rs. 250/- (Rs. Two Hundred Fifty only ). Appeal partly allowed. .