Judgment B.N.P.Singh, J. 1. Factual matrixAllegedly, in the night of 9th February, 1994, while Shobh Narain Sah (PW 5) was fast asleep in his house along with family members, he got awakened on shouts raised by his wife and children. His wife had been stabbed by one of the miscreants who had gained access along with his associates in inner apartment of the house, and when he wanted to catch hold of them, one of them, in his bid to climb on the roof, dropped injured, pursuant to which he was apprehended. Those, who were standing outside the house, had made good their escape and they resorted to firing, while retreating. A good number of villagers had collected by then who also identified Ram Bhajan Yadav, the appellant, who disclosed complicity of his associates. 2. Police Officer on receipt of information about incident in village Neyazipur, rushed there and recorded fardbeyan of Shobh Narain Sah and also took custody of the appellant and also firearm allegedly held by him. After a police case had been instituted on behest of Shobh Narain Sah, as/usual investigation followed and in the process of collection of evidence, Police Officer recorded statement of witnesses, visited place of occurrence, took steps for apprehension of rest of. the miscreants, whose complicity had been disclosed by the appellant, got Taramuni Devi medically examined by the doctor, and on conclusion of investigation, laid charge sheet before the Court. In the eventual trial that followed, State examined altogether eight witnesses out of whom, though PWs 7 and 8 stated about commission of dacoity in the house of Shobh Narain Sah, but did not disclose complicity of the appellant. The State also examined house inmates including Shobh Narain Sah, who was maker of the fardbeyan, neighbours and also the Police Officer. Defence of the appellant both before this Court and the Court below had been that of innocence and he ascribed false implication for no good reasons. 3. At the outset, it would be appropriate to state that though ten persons were put on trial, while rest were acquitted to the charges by the trial Court, appellant alone suffered conviction under Sections 395/397 of the Indian Penal Code (IPC), for which he was sentenced to undergo rigorous imprisonment for a term of ten years. Defence, however, had not chosen to examine any witness. 4. Defence, however, had not chosen to examine any witness. 4. Narrations made by witnesses may be noticed to appreciate contentions raised. Shobh Narain Sah (PW 5) reiterating his earliest version, stated to have got awakened on shouts raised by his wife. When he came in the courtyard, he noticed three miscreants and one of them, he being the appellant, was apprehended with firearm, when, he in his bid to climb on roof, fell down and got injured. His wife had been stabbed by one of the miscreants and the appellant had disclosed complicity of his associates. He rendered his fardbeyan to the police, made over custody of the appellant to him and also produced firearm, recovered allegedly from the appellant. Bishnu Kumar Sah (PW 1) stated to have rushed to the courtyard on alarm raised by his brother Shobh Narain Sah, when others made good their escape, appellant was apprehended with the firearm who was handed over to the police. Appellant had disclosed complicity of associates also. This witness resides in the same courtyard along with Shobh Narain Sah. Almost similar narrations were made also by Chhathu Sah (PW 4), who stated to have noticed Shobh Narain Sah and Bishnu Narain Sah scuffling with a miscreant who was nabbed when he dropped in the courtyard in his bid to escape. This witness too states about apprehension of the appellant with firearm, who inter alia also disclosed complicity of his associates who were 10 to 12 in numbers. Tara Muni Devi (PW 3) states that three miscreants, who had gained their access in the inner apartment of the house, wanted her to surrender key, and on her resistence, one of them dealt blows with a dagger. When her husband and his brother wanted to apprehended him, he, in his bid to make good his escape, got injured and was apprehended. Ayodhya Prasad (PW 2) happens to be neighbour of Shobh Narain Sah who too states to have witnesses appellant in the courtyard. It would, however, seem from further evidence of this witness that he could get entry in the inner apartment of the house only after appellant had been apprehended. The witness had identified the appellant also in Court which was a substantive evidence about his identification. 5. It would, however, seem from further evidence of this witness that he could get entry in the inner apartment of the house only after appellant had been apprehended. The witness had identified the appellant also in Court which was a substantive evidence about his identification. 5. Mithilesh Kumar Sinha (PW 6), Police Officer, stated to have rushed to village Neyazipur, on tip off about commission of dacoity in a house, after recording entry in station diary. Fardbeyan of Shobh Narain Sah was recorded by him and he also took custody of the appellant with firearm held by him for which production list was prepared. This is all the evidence that has been adduced on behalf of the State. 6. While commenting on credibility of the witnesses and also bona fide of the prosecution version, learned counsel for the appellant would highlight testimony of Taramuni Devi (PW 3) and it is urged that though she is shown to be an injured witness, she has not stated in so many words about there being any firearm with the appellant when he was apprehended by the house inmates. Having given consideration to the submissions, I find that though witness states about apprehension of the appellant with weapon, she was not emphatic about nature of weapon, but that alone would not constitute infirmity in her evidence against weight of mass of evidence adduced by other witness about apprehension of the appellant with firearm. 7. Since there has been no evidence about complicity of other accused persons, who were put on trial, except confessional statement made by the appellant, others were acquitted of the charges by the trial Court. Though it is shown that a good number of villagers had flocked to the place of occurrence shortly after the incident, regard being had to the evidence that has come on the record, their non-examination would be vitiate finding of the trial Court for the reason that they remained outside house and had no occasion to go inside the house till Police Officer had visited the place of occurrence. Yet it is urged that though ten number of accused persons had been put on trial, since nine of them have been acquitted of the charges, conviction of the appellant alone under Sections 395/ 397, IPC would vitiate the findings recorded by the Court below, as offences under Section 395/397, IPC basically postulates complicity of five or more than five persons, and once complicity of others had been suspected by the trial Court and they have been acquitted of the charges, conviction of the appellant on that score was meritless and my attention on this score had been drawn to a decision of the Apex Court of the land reported in (1983) 2 SCC 65 , Ram Lakhan V/s. State of Uttar Pradesh. Distinguishing the ratio of decision, learned counsel for the State while resisting submissions, drawn my attention to a constitution Bench decision of the Apex Court reported in AIR 1973 SC 760 , Saktu and another V/s. State of U.P. and while dilating his submission, it is argued that since 14 accused persons had taken part in dacoity and charge too was framed against eight named persons that hey along with six others had taken part in dacoity, conviction of three of them, was not found bad merely because they were less than five. In the case under consideration, it can be noticed that apart from those whose complicity had surfaced in the fardbeyan of Shobh Narain Sah, complicity of 10 to 12 persons had been stated by the author of the fardbeyan and that apart, similar had been evidence of even Chhathu Sah (PW 4) also and in that view of the matter, conviction of the appellant alone in view of participation of more than six persons, who were shown to have been put on trial, would not vitiate the finding recorded by Court below. Though presence of Chhathu Sah (PW 4) was not shown in the fardbeyan among them, who had apprehended the appellant, his presenee in the courtyard during apprehension of the appellant had well surfaced in evidence of Bishnu Kumar (PW 1), and mere omission of his name in the fardbeyan would not discredit the witness, if he is found otherwise credible and reliable. 8. 8. However, what disturbs me is the finding of guilt recorded by Court below against appellant also under Section 397, IPC, as mischief of Section 397 can be attracted only when offender used any deadly weapon or caused grievous hurt to any person or attempted to cause death or grievous hurt to any person. I am, however, not oblivious of the fact, that Taramuni Devi, one of the house inmates had suffered stab injury but that accusation has not been explicitly attributed to the appellant and in that view of the matter, regard being had to the fact that barring bald assertion made by the witness neither there has been injury report on the record nor any doctor was examined, conviction of the appellant also under Section 397, IPC appears to be bad which is not sustainable in law. However, so fai" conviction of the appellant under Section 395, IPC was concerned, that appears to be well merited and finding of guilt recorded by the Court below as such did not merit interference. It is brought to my notice by the learned counsel for the appellant that the appellant, both during investigation, trial and post trial period, had suffered incarceration for about 3 and 1 /2 years and it is also highlighted that accepting the prosecution version to be true on face value, no where it was shown that any house belonging was ever removed by the miscreants and in that view of the matter, while upholding conviction of the appellant under Section 395, IPC, sentence is reduced to five years and with this modification the appeal is dismissed.