Judgment I.P.Singh, J. 1. Both the appeals arise from the single judgment and have been heard together and are being disposed of by this common judgment. 2. The appellant, Tokhan Yadav, has been convicted under sections 395 and 397 of the Indian Penal Code and has been sentenced to undergo rigorous imprisonment for 10 years. Appellants, namely, Bhola Yadav and Ramashish Yadav, have been convicted under sections 395 and 397 of the Indian Penal Code and have been sentenced to undergo rigorous imprisonment for 7 years. 3. The prosecution case, in short, is that on t.1.1989 at about 5.15 P.M. the informant, Krishna Prasad (P.W. 7) was sitting in his grocery shop situated at Ekangersarai, District-Naianda. The said shop was opened to the east of Ekangersarai Ishlampur road and the electric bulb was burning therein. It has been stated that all of a sudden five persons entered into his shop, who all were armed with country made pistol. One of them, who was wearing blue full pant and white full shirt pointed his pistol at the informant and enquired about the cash and the other man who was wearing green full pant and black sweater, took out money amounting to Rs. 400/- from his cash box and also a calculator. They after taking the same left the shop. At the same time the informant heard the sound of firing from north direction. It has been further alleged that the dacoits had fled away towards south of his shop after committing dacoity. It has been further alleged that when the informant came out of his shop while raising alarm he saw Ashok Kumar Keshar (P.W. 6) who had sustained gun shot in his abdomen and who also stated that at that time 4 to 5 persons had entered into his shop also and looted away the box containing cash and caused gun shot injury to him. The informant met Dinesh Prasad Jain (P.W. 5) also who reported that the dacoits had looted a watch and some cash from his shop also. It was stated by the informant in the Fardbeyan that the dacoity had been committed in ail the three shops by 7 to 8 persons who all fled away towards west from the lane leading to west. It has been further alleged that the dacoity in all the three shops was committed within a period of 5 to 6 minutes. It was stated by the informant in the Fardbeyan that the dacoity had been committed in ail the three shops by 7 to 8 persons who all fled away towards west from the lane leading to west. It has been further alleged that the dacoity in all the three shops was committed within a period of 5 to 6 minutes. The informant also claimed to identify the dacoits, by their face. The fardbeyan was recorded by S.I. Ram Vyash Singh (P.W. 1) at the shop of the informant, itself on 1.1.1989 at 7 P.M. on the basis of which the police instituted a case. The police after completion of the investigations submitted charge sheet and thereafter cognizance was taken and the case was committed to the court of session for trial where the trial concluded with the result as indicated above. 4. The appellants pleaded not guilty and have stated that they have been falsely implicated in this case. 5. The prosecution in order to prove its case has examined altogether 12 witnesses out of whom P.W. 3, Shyam Kishore Prasad, was tendered. P.W. 1 is Surendra Prasad. P.W. 2 is Kishore Prasad. P.W. 4 is Dilip Kumar Keshan. P.W. 5 is Dinesh Prasad Jain. P.W. 6 is Ashok Kumar Keshari. P.W. 7, Krishna Prasad, is the informant of this case. P.W. 8 is Arun Kumar Gupta. P.W 9 is Nand Kishore Sharma. P.W. 10, Ram Vyash Singh, is the I.O. of this case. P.W. 11, Hare Kishun Ojha, is a formal witness. P.W. 12 is Dr. Y.A. Lall who has examined the injured. 6. P.W. 1, Surendra Prasad, has supported the factum of dacoity although he has not identified any one of the accused. According to him while he was in his utensils shop on 1.1.1989 at about 6 P.M. he had heard the sound of firing and he came out of his shop and he saw some persons fleeing away towards south. He had also found Ashok injured who had sustained gun shot in his abdomen. He has stated that the dacoity was committed in the shop of Dinesh Kumar, Krishna Prasad and Dilip Kumar. 7. P.W. 2, Kishori Prasad has also supported the case of the prosecution as stated by P.W. 1. 8. P.W. 7, Krishna Prasad, the informant of this has also supported the case of the prosecution as stated in his fardbeyan. He has stated that the dacoity was committed in the shop of Dinesh Kumar, Krishna Prasad and Dilip Kumar. 7. P.W. 2, Kishori Prasad has also supported the case of the prosecution as stated by P.W. 1. 8. P.W. 7, Krishna Prasad, the informant of this has also supported the case of the prosecution as stated in his fardbeyan. According to him while he was in his shop at about 5.45 P.M. on 1.1.1989 five persons entered into his shop who all were armed with pistols. There were mercury tube light and bulb both in his shop. Among the dacoits who was of fair complexion and wearing blue full pant and white shirt and covering his body with Shawl pointed his pistol at him and asked about the money. In the meanwhile the other man took out an amount of Rs. 400/- from his cash box and calculator. He was also of fair complexion wearing full pant and shirt and covering his neck with Muflar. The other three persons were wearing Dhoti Kurta and they were healthy and of dark com-plexioned. He has further stated that there was dacoity in the shop of Dinesh Jee and Ashok Jee also. The dacoits fled away while looting towards south. According to him Ashok had sustained gun shot injury also in his abdomen during the course of dacoity. He has further stated that the shop of Ashok is situated in north of his shop intervened by a Gali and the shop of Dineshi is situated in south of his shop at a distance of 20 to 25 feet. The dacoits took away the cash and watch from their shop also. The injured Ashok was taken to Ekangersarai Hospital from where he was taken to P.M.C.H. Patna.The occurrence in all the shops took place within 5 to 6 minutes. According to him after sending the injured Ashok to Patna he came to his house where his statement was recorded by P.W. 10. He has further stated that he had been to Hilsa Jail in connection with T.I.P. also and he had identified four of them and he also identified the accused Bhola Prasad, Ramashish Prasad, Tokhan Prasad and Brijial Prasad by face in the court. 9. P.W. 6, Ashok Kumar Keshari, has fully corroborated the version of the informant. He has further stated that he had been to Hilsa Jail in connection with T.I.P. also and he had identified four of them and he also identified the accused Bhola Prasad, Ramashish Prasad, Tokhan Prasad and Brijial Prasad by face in the court. 9. P.W. 6, Ashok Kumar Keshari, has fully corroborated the version of the informant. According to him on 1.1.1989 at about 5.45 P.M. he was sitting with his brother Dilip Kumar in his shop. He has further stated that four persons entered into his shop who all were armed with pistol. He identified the miscreants in the electric light. He has further stated that the fair complexioned man pointed his pistol at his chest and asked him not to raise alarm otherwise would be shot dead. However, then he caught hold of his wrist and there was scuffle between them and he went out of his shop upto the road dragging him but he (dacoit) shot on his stomach and he fell down sustaining injury in his abdomen and became senseless. Thereafter he was taken to Ekangersarai Hospital from where he was sent to P.M.C.H. Patna. He has further stated that he had not attended the T.I.P. of the accused as he was not in a position to move and he was advised not to move by the doctors. 10. P.W. 4, Dilip Kumar Keshari, is the full brother of P.W. 6 and he has also supported the version of eye witnesses, P.Ws. 5, 6 and 7. He also further stated that his younger brother Ashok Kumar was also with him at that time. He has further stated that his brother Ashok wanted to catch hold of one of them who went out of the shop while dragging his brother to the road and thereafter any one of them shot his brother hitting on his abdomen who later was sent to Patna, for treatment. 11. P.W. 5, Dinesh Prasad Jain, has stated that at the time of occurrence he heard the sound of gun firing from the north and he tried to close his shop by shutting the wooden plank but in the meantime three persons entered into his shop and they caught hold of his wrist while coming from behind and as such he could not close the shop. He has further stated that there was electric bulb and mercury tube in the shop. He has further stated that there was electric bulb and mercury tube in the shop. Thereafter one of them took away his wrist watch also which he was wearing at that time and he identified all the miscreants. They also took away cash from his box and another articles. 12. P.W. 8, Arun Kumar Gupta, was posted as Judicial Magistrate, Hilsa on 25.1.1989 on which date he had conducted the T.I. Parade of appellants Ramashish Yadav, Bhola Yadav in Hilsa jail as per the direction of the Additional Chief Judicial Magistrate, Hilsa. He had conducted the T.I. Parade in presence of Uday Narain Singh Officer of the jail according to the rules laid down for the same. According to him in the T.I. Parade witness Krishna Prasad had identified Ramashish Yadav and Bhola Yadav and Krishna Prasad while identifying Ramashish Yadav had also stated before him that Ramashish Yadav had a pistol in his hand at the time of the occurrence. According to him Dilip Kumar (P.W.4) identified the appellant, Ramashish Yadav only. 13. P.W. 9, Nand Kishore Sharma, was also posted as Judicial Magistrate, Hilsa had conducted the T.I. Parade of accused Sharmajee Yadav and Tokhan Yadav on 6.2.1989 in Hilsa Jail in presence of Udai Narain Singh. He has further stated that he conducted the T.I.P. according to the rule laid down for the same. Witness, DiIip Kumar Keshari, had identified appellant, Tokhan Yadav only in his presence who had been identified by the witness Krishna Prasad. The witness Dinesh Prasad Jain did not identify the appellant, Tokhan Yadav. 14. P.W. 2, Dr. Y.A. Lall, has examined the injured Ashok Kumar Keshari (P.W. 6) on 1.1.1989 and found the following injuries on his persons : Wound of entry 2" laterly towards left half inch below umbilieu. Diameter of the wound was 3/4" round with lacerated margine, scoarching and tattooing present, bleeding present. Wound of exit was not found. Injury was caused by fire arms such as pistol. According to him the injured was referred to P.M.C.H. Patna for necessary treatment and x-ray. 15. P.W. 10 is the I.O. of this case. He has fully supported the case of the prosecution. According to him he visited the place of occurrence and has given the description of the place of occurrence. According to him the injured was referred to P.M.C.H. Patna for necessary treatment and x-ray. 15. P.W. 10 is the I.O. of this case. He has fully supported the case of the prosecution. According to him he visited the place of occurrence and has given the description of the place of occurrence. He has further stated that three shops situated in one row in east of Ekangersarai islampur road facing west The titled grocery shop of Dilip Prasad was first while coming from north. He had found a bulb of 100 watt was burning at the time of his inspection. He had also found the empty cash box lying on a Chouki the shop. The grocery shop of the informant Krishna Prasad was in south of the shop of Dilip Prasad intervened by a Gali. He has further stated that on the confidential information he had examined Budhani Yadav and Judge Yadav Tandam owners on 9.1.1989 and on the basis of their statement deputed spy to gather information about the whereabout of Brijlal. He also conducted the T.I.P., and in that T.I.P. the accused persons were identified by some of the witnesses. Thereafter he arrested the appellants. 16. Learned counsel appearing on behalf of the appellants has submitted that the police who examined Ramadhin Prasad and whose statement was recorded under section 164 of the Code of Criminal Procedure on the basis of which the appellants were arrested and were put on T.I.P. has not been examined by the prosecution. The two other witnesses whose name also appears in the charge sheet as a witness has not been examined which has prejudiced the case of the defence. He has further submitted that the appellant, Bhola Yadav, had been convicted on a single identification and without any corroborating evidence. 17. The name of Ramadhin Singh figures in the charge sheet as a witness ould not be examined. However, his statement under section 164 of the Code of Criminal Procedure has been recorded and made exhibit. I.O. has also mentioned in his deposition that he got the statement of Ramadhin Singh recorded under section 164 of the Code of Criminal Procedure before a Magistrate. However, his statement under section 164 of the Code of Criminal Procedure has been recorded and made exhibit. I.O. has also mentioned in his deposition that he got the statement of Ramadhin Singh recorded under section 164 of the Code of Criminal Procedure before a Magistrate. It is true that he could not be examined but he simply disclosed the name of the accused persons who came in a group of 8 persons to commit dacoity and on his statement appellant Tokhan Yadav, Bhola Yadav and Ramashish Yadav were arrested and were put on T.I.P. where they were identified by P.Ws. 4, 5, 6 and 7. As such even he could not be examined his non-examination has not prejudiced the case of the defence. It has been also submitted that the appellants have been falsely implicated at the instance of Ramadhin Singh who has given statement under section 164 of the Code of Criminal Procedure. But the court below has discussed in detail by observing that nothing has been showed about the enmity between Ramadhin Singh and the appellants and if Ramadhin Singh was on inimical term he would have been more careful and certainly would have appeared in the court for examination, as such there is no force in the submission of the false implication on the ground of enmity. Though it has been submitted that they used to visit the shop and were known to, the shop keepers from before but the defence put forth no suggestion in this regard as well. All the shop keepers including P.Ws. 4, 5, 6 and 7 have supported the case of the prosecution and have stated that P.W. 6 was dragged by one of the appellants and he was identified as Tokhan Yadav as a person who fired on his abdomen. P.Ws. 8 and 9 are the Judicial Magistrate who held T.I.P. and have fully supported the identification done by the witnesses. However, appellant, Bhola Yadav, has been identified by only one witness i.e. P.W. 7. The other two appellants namely, Ramashish Yadav and Tokhan Yadav, were identified by two witnesses. 18. To sum up, the appellant, Bhola Yadav, was identified by only one witnesses, as such it would not be safe to convict him on single identification and he deserves benefit of doubt. Accordingly he is acquitted of the charge framed against him. The other two appellants namely, Ramashish Yadav and Tokhan Yadav, were identified by two witnesses. 18. To sum up, the appellant, Bhola Yadav, was identified by only one witnesses, as such it would not be safe to convict him on single identification and he deserves benefit of doubt. Accordingly he is acquitted of the charge framed against him. The other two appellants, namely, Tokhan Yadav and Ramashish Yadav were identified by two witnesses and they also mention their over tact during the commission of dacoity, as such they have been rightly convicted by the court below for the offence punishable under sections 395 and 397 of the Indian Penal Code. 19. Coming to the question of sentence the learned counsel appearing on behalf of the appellants has submitted that the occurrence took place in the year 1989 and there is no criminal antecedent and previous conviction against these appellants, therefore, some lenient view may be taken while awarding sentence to the appellants. 20. Having regard to the submissions raised on behalf of the learned counsel for the appellants and in the facts and circumstances of the case, it will be expedient in the interest of justice, if the sentence awarded to the appellant, Tokhan Yadav, is reduced to 7 years from 10 years and the sentence awarded to the appellant, Ramashish Yadav, is reduced to 5 years from 7 years. 21. In the result appeal of appellants, Tokhan Yadav and Ramashish Yadav, is dismissed with the modification in the sentence and appeal of appellant, Bhola Yadav, is allowed.