Judgment A.K.Prasad, J. 1. The appellants have been convicted under Sec. 395 read with Sec. 397, IPC and sentenced to RI for seven years vide judgment and order, dated 29-4-1992 in S.T. No. 35/89 passed by Sri AK. Sinha, the then Addl. Sessions Judge, Palamau at Daltonganj. 2. Briefly stated, the prosecution case as made out in the fardbeyan (Ext. 9) of Ramesh Chandra Tripathy, a RPF Constable (PW 5), recorded on 24-4-1988 at 10.35 a.m. at Barwadih Saba Chowk Railway Colony by SI of Police, S.N. Singh, is as under: On 15-4-1988, the informant was posted at Barwadih Pay Office. He along with another RPF Constable Ram Jash Singh (PW1) and Cashier Kapildeo Rout (PW 2) was proceeding towards signal office for disbursement of salary to the Railway employees with the cashbox. As soon as they moved ahead of liabe Chowk, around at 9.15 a.m., on way to the Railway signal office and descended on the slope they saw five persons standing at a short distance from each other and when they moved a bit further a bomb was hurled from behind causing injury to the informant on his left thigh. Immediately another bomb was hurled by the culprits which wounded his left hand, while the cashier (PW 2) suffered bomb wound on his right hand. The informant thereupon fired two rounds of bullets from his rifle in self - defence and for the safety of the cash - box. On the sound of firing one of the miscreants, namely, accused - appellant Nehal Haidar fell down in the nearby bush and he was apprehended. In the meantime, Laxman Prasad Yadav (PW 6), a BMP Havildar with his Jawans and GRP Constable Lakshman Sah (PW 18)-, Chiteshwar Dubey (PW 4), an officer-in-charge of Barwadih PS, Chandra Sekher Singh (PW 13), an ASI of Barwadih PS rushed to the spot on the sound of firings and the other four culprits fleeing were chased and one of them, while fleeing, was apprehended who disclosed his name as accused - appellant, Kamaluddin. The other three culprits could not be apprehended and they escaped by opening fire. The accused -appellants disclosed the names of co -accused Bangali Ansari, Gangloo Kahar and Md. Aslam as their associates, who had succeeded in fleeing away. The other three culprits could not be apprehended and they escaped by opening fire. The accused -appellants disclosed the names of co -accused Bangali Ansari, Gangloo Kahar and Md. Aslam as their associates, who had succeeded in fleeing away. It is alleged that the culprits had attempted to commit dacoity for looting Government cash and rifles of the escort party and had wounded the informant (PW 5) and the cashier (PW 2) by bomb explosions. 3. On getting information about the incident on telephone from Laxman Sah, GRPS Constable (PW 18) from Barwadih Railway Station, on duty at Barwadih, PW 15, Ram Naresh Singh, the then officer-incharge, GRPS, Daltonganj after making station diary entry No. 467, dated 4-4-1988 (Ext. 14) arrived on the place of occurrence, the officer-in-charge Barwadih PS handedover the fardbeyan (Ext.9) and both the apprehended accused-appellant to him, On the basis of the fardbeyan, the present case came to be instituted, the formal FIR (Ext. 10) was drawn up, PW 15 assumed and commenced investigation, he Visited and inspected the place of occurrence injured informant (PW 5) and the cashier (PW 2) were sent for medical examination, the 10 affected the seizure of the rifle and the fired bullets, under seizure memo (Ext. 11) and made over the seized rifle on Jimrnanama to the informant (PW5) (vide Ext. 12), he seized the remnants to the bomb explosions at the spot (vide Ext. 13) and on completion of the investigation charge - sheet was laid in Court against the accused - appellants and co - accused, Md. Aslam, Nasim Ahmad and Sujit Kumar. 4. The case was ultimately committed to the Court of Sessions by Sri R.N.R Mahto, the then Chief Judicial Magistrate, Daltonganj on 25-1-1989. Charges under Sec. 395 read with Sec. 397. IPC was framed against all the five accused charge-sheeted in the case, they pleaded not guilty and claimed to be tried. 5. At this juncture, it may be stated that co-accused Sujit Kumar @ Gangloo. Nasim Ahmad @ Bangali Ansari and Md. Aslam were acquitted by the trial Court mainly on the ground that they had been named by the co - accused in their confession before the police and they had not been subjected to TIP and in absence of their TIP the identification of co - accused. Sujit Kumar, Nashim Ahmad and Md. Nasim Ahmad @ Bangali Ansari and Md. Aslam were acquitted by the trial Court mainly on the ground that they had been named by the co - accused in their confession before the police and they had not been subjected to TIP and in absence of their TIP the identification of co - accused. Sujit Kumar, Nashim Ahmad and Md. Ashlam, by the witnesses in Court for the first time at the trial was valueless and as such the charge under Section 395 read with Sec. 397. IPC was not proved against them. It has been submitted at the bar that State has not appealed against the acquittal of the three co - accused. 6. The main defence of the accused -appellants is of innocence and false implication. 7. In support of its case the prosecution examined 19 witnesses. Out of them PWs 11, 12 and 19 are tendered witness, whereas PWs 14. 16 and 17 are formal witnesses. The other PWs are: PW1 Ram Jash Singh. PW 2 Kapildeo Raut, the injured and peon-cum-cashier. PW 3 Dr. Lalit Mohan Singh, Who, had examined the injured. PW 5 informant, PW 6 Laxman Prasad Yadav, BMP Havildar, PW 7 Tarni Prasad Singh, a BMP Constable, PW 9 Krit Nandan Singh, PW 10 Saleshwar Dubey, a BMP Havildar. PW13 Chandra Shekher Singh, the then ASI, Barwadih PS. PW 15 Ram Naresh Singh, 10 and PW 18 Laxman Sah, a, GRPF Constable, who gave information to officer-in-charge, Daltonganj, GRPS about the incident. 8. The defence, on the other hand, examined four DWs, namely, DW1 Ganesh Singh, DW2 Hira Sao, DW3 Bishun Dev prasad and DW 4 Mohan Prasad on the point that the accused persons including the appellants are of good character. 9. On consideration of the evidence and materials on record, the trial Court held the accusedappellants guilty of the charge under Sec. 395 read with Sec. 397, IPC and convicted and sentenced them as stated above. 10. While assailing the impugned conviction Mr. P.S. Dayal, learned Senior Counsel for the appellants has submitted that when three out of the five accused put on trial were acquitted by the trial Court the conviction of the two appellants under Sec. 395. 10. While assailing the impugned conviction Mr. P.S. Dayal, learned Senior Counsel for the appellants has submitted that when three out of the five accused put on trial were acquitted by the trial Court the conviction of the two appellants under Sec. 395. IPC cannot be sustained and for this proposition he has relied on a decision of the Apex Court reported in Ram Lakhan V/s. State of U.P.1 which lays down that before an offence under Sec. 395, IPC can be made out there must be assembly of five or more persons. He has further contended that there is no evidence that appellants had aided in the commission of the crime no recovery of any incriminating article, is alleged to have been made from the possession of the appellants and there was no attempt by the culprits to snatch the cash - box. In the alternative, he further urged that even if it is believed that the appellants had hurled bombs Sec. 397. IPC is not applicable because simple and not grievous injuries by bomb splinters are" alleged to have been suffered by PWs 2 and 5. 11. Mr. N.N. Mahto, learned APP, the other hand, has supported the impugned judgment and in the alternative he has urged that in the facts and circumstances of the case the appellants are liable for the offence of robbery under Sec. 392, IPC. 12. The point which arises for consideration is whether the impugned conviction of the appellants is liable to be set aside or modified. 13. Broadly speaking, there are two sets of witnesses, namely, the eyewitnesses to the occurrence and those, who had arrived on the scene of occurrence as soon after the bomb explosions and sound of firing and had assisted in the apprehension of the appellants. PWs 1, 2 and 5 are the eyewitnesses to the occurrence. PWs 4,6,7, 9 and 10 are the other category of witnesses. At this juncture, one may proceed to discuss and analyse the evidence of the eye - witnesses to the occurrence. P.W. 5 Rameshwar Tripathy, the informant, has testified to the effect that on 24-4-1988 at, about 9.15 a.m. he alongwith Ram Jash Singh (PW1), another RPF Constable was escorting, Kapildeo Raut. At this juncture, one may proceed to discuss and analyse the evidence of the eye - witnesses to the occurrence. P.W. 5 Rameshwar Tripathy, the informant, has testified to the effect that on 24-4-1988 at, about 9.15 a.m. he alongwith Ram Jash Singh (PW1), another RPF Constable was escorting, Kapildeo Raut. (PW2), the cashier, who was carrying cash-box for disbursement of pay to the Railway employees of signal department at Barwadih and when, on the way, they came on a slope ahead of Baba Chowk he saw five persons standing at a short distance and when they moved a bit further from them a bomb was exploded from behind which caused wounds on his left thigh and in left elbow, while Kapildeo Raut (PW2) suffered wound in his right hand and in self-defence he turned round and fired one round from his rifle and when appellant, Nehal Haider hurled the second bomb, he fired another shot from the rifle, whereupon BMP Havildars and Jawans, GRP Constables, ASI of Police of local Barwadih PS (PW13) rushed to the spot and he apprehended appellant, Nehal Haider, one of the culprits, while hiding himself in the bushes at a short distance from the place of occurrence, while the BMP Jawans nabbed appellant, Kamaluddin while fleeing from the scene of occurrence and after chase. He admits in the cross - examination that he did not state before the police that Nehal Haider had hurled the bomb on the escort party. Therefore, his evidence in the chief examination that appellant Nehal Haider had hurled the second bomb on the escort party is an exaggeration, which is to be excluded from consideration. He has further stated that two bombs were hurled in quick succession on the escort party and it is true that he cannot say as to who had lobbed the first bomb on them and he gave his fardbeyan to the police officer of local Barwadih PS about the incident which was recorded by the police officer and had made over his burnt full pants (Ext. 110 and underwear (Ext. IV) to the 10 (PW 18) and was treated for the injuries sustained by him. 14. 110 and underwear (Ext. IV) to the 10 (PW 18) and was treated for the injuries sustained by him. 14. PW1, Ram Jash Mahto, another member of the escort party and PW2 Kapildeo Raut, the cashier arid an injured in substance have supported the testimony of PW5 on the attack made by the culprits on them by hurling two bombs in which PW2 and PW5 were injured, PW5 fired two rounds from the rifle whereupon appellant Nehal Haider, who had fallen in the nearby bush and hid himself was apprehended by PW5 with the assistance of BMP Jawans and on the explosions and fire sound BMP, Jawans, GRPF personnel and the local police arrived and had chased the other four culprits and succeeded in apprehending the appellant, Kamaluddin while the other three culprits escaped firing shots from the revolver. They have further stated to the effect that cash-box could not be snatched by the culprits because PW2 kept it within his hold with PW 1 standing by him. In spite of searching cross - examination PW s 1, 2 and 5 are consistent in their evidence on the point that they were attacked with bombs and the cash - box could be saved and the bid to rob it was foiled due to swift action taken by PW5 and firing made by PW5 and both the appellants were arrested on the spot. PW3 Dr. Lalit Mohan Singh, has testified to the effect that he had found simple splinter wounds on the persons of PWs 2 and 5. The medical evidence corroborates the testimony of PWs 1 and 5 that they had suffered bomb injuries in the incident. The finding of remnants of exploded bombs (Exts. VI and VII) by the 10 (PW15) on the spot lends assurance to the evidence of PWs 1, 2 and 5. There is no reason to disbelieve the testimony of PWs 1, 2 and 5 on the occurrence and the apprehension of both the appellants on the spot. 15. The finding of remnants of exploded bombs (Exts. VI and VII) by the 10 (PW15) on the spot lends assurance to the evidence of PWs 1, 2 and 5. There is no reason to disbelieve the testimony of PWs 1, 2 and 5 on the occurrence and the apprehension of both the appellants on the spot. 15. PW4 Chiteshwar Dubey, a GRPF Constable, PW6 Laxman Prasad Yadav, a BMP Havildar, PW7 Tarni Prasad Singh, a BMP Constable, PW9 Krit Nandan Singh, another BMP Constable and PWI0 Sateshwar Dubey, a BMP Havildar have testified to the effect that on the sound of bomb explosions they rushed from their nearby barrack(s), they had found injuries on PWs 2 and 5 and had chased on the line of retreat and had apprehended appellant, Kamaluddin, one of the culprits and had brought him to he place of occurrence, while the other culprits Succeeded in fleeing away, whereas appellant Nehal Haider was apprehended hiding in a bush by the informant (PW5) with the assistance of others. It has come in the evidence ofPW4 that barrack is at a distance of 30 yards from the place of occurrence. There is no reason to discard their evidence on the apprehension of both the appellants soon after the bomb explosions and the firings made by PW5. In spite of searching cross - examination, in substance they are consistent in their evidence on the apprehension of the appellants. 16. PW13 Chandra Sekhar Singh the then ASI of Police, Barwadih PS has testified to the effect that he Vas on duty and on way at Kutamu more he heard sound of bomb explosion and firing whereupon he went to Baba Chowk, he found PWs 2 and 5 injured and both apprehended culprits - appellants were there and on the direction of officer-in charge. S.N. Singh he had scribed his fardbeyan (Ext. 1). PW 15 has stated that when he arrived on the spot, the fardbeyan (Ext. 9) and the apprehended appellants were made over to him by the officer-in-charge, Barwadih PS. 17. It is true that no incriminating article was recovered from possession of the appellants on the apprehension. It is equally true that there is no positive evidence that they had lobbed the bomb on the escort party. 9) and the apprehended appellants were made over to him by the officer-in-charge, Barwadih PS. 17. It is true that no incriminating article was recovered from possession of the appellants on the apprehension. It is equally true that there is no positive evidence that they had lobbed the bomb on the escort party. But, the fact remains that PWs 1, 2 and 5 have stated that the had seen these two appellants in the group of five persons, who were standing near the slope and when they had moved a bit further from that point they had been attacked with bombs. There is the circumstances that soon after the bomb explosions appellant, Nehal Haider was apprehended while lying hidden in the dense bushes at a short distance from the seen of occurrence and appellant, Kamaluddin was nabbed while fleeing from the scene of occurrence. This is a strong circumstantial evidence against them. It may be that they had lobbed the bombs on the escort party or had thrown away weapon if any, in their possession while escaping or hiding the bush. As they were arrested on the spot there was no requirement of putting them on TIP. They have been identified by the PWs, including the eye - witnesses, in Court as the culprits involved in the incident. They are named in the fardbeyan itself. 18. Co-accused, Sujit Kumar @ Gangloo, Nashim Ahmad @ Bangali Ansari and Md. Ashlam were not apprehended on the spot, they were not subjected to TIP, they were identified by PWs 1, 2 and 5 for the first time in Court and in such a situation they were acquitted in the case. But, the case of the appellants stands entirely on a different footing. When three out of the five named accused have been acquitted by the trial Court and it is not the case that some other unknown miscreants were involved in the incident, the conviction of the appellants under Sec. 395 read with Sec. 397, IPC cannot be sustained because the charge under Sec. 395, IPC contemplates that five or more persons commit or attempt to commit a robbery (Ref: Ram Lakhan V/s. State of U.P. (supra) and Om Prakash V/s. State of Rajasthan). Hence the conviction of the appellants under Sec. 395 read with Sec. 397, IPC cannot be sustained. Hence the conviction of the appellants under Sec. 395 read with Sec. 397, IPC cannot be sustained. But, there is sufficient evidence to show that the appellants were involved in the incident and made an attempt to commit robbery. Hence, in the facts and circumstances of the case, their conviction is altered to one under, Sec. 393, IPC and the sentence is reduced from seven years RI to four years RI. 19. In the result, the criminal appeal is allowed in part with modification in the conviction and sentence as indicated above. Appellants are on bail by the order of this Court, dated 26-5-1992 and they are directed to surrender forthwith in the Court below and if the appellants are found to have already served the sentences awarded by this Court then they should be released forthwith, if not wanted in any other case(s) but if they have not served the awarded sentence then the trial Court shall take all coercive steps to secure their attendance to serve out the remaining part of their sentence and in accordance with law.