JUDGMENT K.C. Gupta, J. - This judgment shall dispose of above mentioned six appeals filed by Vinod @ Vidu, Raj Kumar, Rishi, Hansa @ Hans Raj and Sushil as the same have arisen out of the common judgment and order dated 17.12.1993 passed by Additional Sessions Judge, Bhiwani. In fact, Raj Kumar, appellant, has filed two appeals bearing Crl. A. Nos. 107 and 165-SB of 1994. 2. Briefly stated, the facts are that on the night intervening 24/25.12.1991, all the afore-mentioned five appellants, namely, Vinod @ Vidu, Raj Kumar, Rishi, Hansa @ Hans Raj and Sushil son of Ved Parkash entered into the shop of PW-3 Sushil Kumar, complainant, situated in Anaj Mandi, Bhiwani with muffled faces. They closed the shop by pulling down the shutter. The appellants were armed with knives and daggers etc. They cut all the telephone cables. The appellants asked the occupants of the shop not to raise alarm. Thereafter, the appellants took out Rs. 450/- from the cash box while one of them started opening the safe box. Then Sushil Kumar, complainant, attacked him and in the struggle, the clothes on the faces of two appellants fell down, with which they had muffled their faces. The complainant, Sushil Kumar identified them as Hansa @ Hans Raj and Rishi Dhanak. Hansa @ Hans Raj was brother of Sajjan, Municipal Commissioner. Hansa @ Hans Raj attacked Sushil, complainant, with knife and caused him injuries while Rishi Dhanak attacked Sandeep, brother of the complainant with his knife and caused him injury. On hearing their noise, father of Sushil came there and on seeing him, the appellants escaped but one of them, namely, Vinod, appellant, was caught at the spot. 3. PW-3 Sushil Kumar reported the matter to the police. 4. PW-8 Rameshwar Kumar, Sub Inspector, took into possession knife, Ex.P1 and Nakab, Ex.P3 vide recovery memo Ex.PG. He prepared rough sketch, Ex.PJ, of the knife before taking the same into possession. On interrogation, Vinod had made a disclosure statement, Ex.PK, and in view of the disclosure statement, got recovered the knife, Ex.P1. 4. PW-8 Rameshwar Kumar, Sub Inspector, took into possession knife, Ex.P1 and Nakab, Ex.P3 vide recovery memo Ex.PG. He prepared rough sketch, Ex.PJ, of the knife before taking the same into possession. On interrogation, Vinod had made a disclosure statement, Ex.PK, and in view of the disclosure statement, got recovered the knife, Ex.P1. Raj Kumar, appellant was arrested and he made disclosure statement, Ex.PJ, and got recovered Barchhi, Ex.P4 and Nakab, Ex.P5, which were taken into possession vide recovery memo mark B. Hansa @ Hans Raj, appellant, on interrogation, also made disclosure statement, Ex.PM and got recovered knife, Ex.P6 and Nakab, Ex.P7, which were taken into possession vide memo mark C. Sushil, complainant, and his brother, Sandeep, were medico-legally examined by PW5 Dr. Kapil Kumar on 24.12.1991 at about 12 mid-night and found the following injuries on the person of Sushil Kumar :- 1. A linear abrasion about 3 inches long on right hypothenar eminence. There was no loss of function. 2. An abrasion .25 cm x .25 cm about 1 inch below and lateral to umbilicus. 5. He also found the following injury on the person of Sandeep Kumar :- A 1 cm x .25 cm skin deep lacerated wound on the posterior aspect of right arm in the middle. There was no loss of function. Dressing was present on the injury. 6. He proved Ex.PE, the carbon copy of the medical report of Sushil Kumar and Ex.PD carbon copy of medical report of Sandeep Kumar. 7. After completion of investigation, PW-9 Inspector Ravinder Kumar put up the challan. Challan was initially put up in the Court of Chief Judicial Magistrate, Bhiwani, on 14.5.1992, who in turn committed the case to the court of Sessions. 8. Having made out a prima facie case, the appellants were charged under Sections 395 and 397 Indian Penal Code on 4.12.1992, to which they pleaded not guilty and claimed trial. 9. In order to prove the allegations, the prosecution examined 9 witnesses. 10. After closure of the prosecution evidence, the statements of the appellants were recorded under Section 313 Criminal Procedure Code wherein they denied the allegations of the prosecution and pleaded false implication. In defence, they examined, DW-1 Hukam Chand. 11. 9. In order to prove the allegations, the prosecution examined 9 witnesses. 10. After closure of the prosecution evidence, the statements of the appellants were recorded under Section 313 Criminal Procedure Code wherein they denied the allegations of the prosecution and pleaded false implication. In defence, they examined, DW-1 Hukam Chand. 11. After hearing learned PP for the State and the defence counsel, Additional Sessions Judge, vide his judgment and order dated 17.12.1993 found the appellants guilty and convicted them under Section 395 and 397 Indian Penal Code and sentenced each one of them to RI for 5 years and a fine of Rs. 500/- under Section 395 Indian Penal Code; in default of payment of fine, the defaulter was further sentenced to undergo RI for 5 months and to RI for 7 years under Section 397 Indian Penal Code. However, both the substantive sentences were ordered to run concurrently. 12. Aggrieved by the said judgment and order, the accused have filed the above-mentioned six appeals which are being disposed of by this common judgment. 13. I have heard S/Shri R.A. Sheoran, S.S. Rana and Dinesh Arora, counsel for the appellants, Shri Sudhir Nehra, AAG, Haryana for the respondent and carefully gone through the record. 14. PW-3 Sushil Kumar son of Hanuman Parshad stated tat on 24.12.1991, he alongwith his brother, Sandeep, was present in his shop at about 6.30 P.M. He next stated that five persons with a muffled face armed with knives entered his shop and one of them cut the telephone wire while another picked up an amount of Rs. 450/- approximately from the cash box. He further contended that the other person took keys from the cash box and started opening the safe kept in this shop. He next stated that two of them first of all picked up him from the Gaddi and thereafter they attempted to put two empty gunny bags on his face but he resisted their attempt to put empty bags on his face and thereafter they started scuffling with him and during scuffling, he and his brother received knife injuries. He next stated that he received injuries on his right hand, palm as well as stomach while his brother received injury on his right arm. He also stated that during the scuffle, the clothes wrapped around their facts fell down and he identified them as Hansa @ Hans Raj and Rishi. He next stated that he received injuries on his right hand, palm as well as stomach while his brother received injury on his right arm. He also stated that during the scuffle, the clothes wrapped around their facts fell down and he identified them as Hansa @ Hans Raj and Rishi. He next stated that Hansa @ Hans Raj, appellant, had caused him knife injuries while Rishi had caused knife injury to his brother, Sandeep. He next stated that their residential house was on the back of the shop and on hearing their Raula, his father came from the house and Ram Narain and Ram Avtar, witnesses, also reached there and on seeing them, the appellants ran away but they over-powered one of the assailants, namely, Vinod, appellant and then many persons collected there. He further stated that he alongwith Ram Narain, PW, went to the Police Station and made statement, Ex.PE, as the police officer met him near Ghanta Ghar Chowk. He further stated that one knife and the cloth, which were used for muffling the face were taken into possession from him. He next stated that the other two appellants had also removed the clothes with which they had covered their facts while running away. He next stated that he and Sandeep were medico-legally examined. In cross- examination, he stated that one of the appellants put the knife on his stomach whereas the other appellants tired to cover his face with gunny bag and he suffered injuries on his hand while trying to snatch knife from the appellants. He further stated that he suffered knife injury on the stomach when one of the appellants pressed it while putting it on his stomach and the name of that appellant is Rishi. He further stated that Hansa @ Hans Raj, appellant, hat tried to cover his face by catching hold of a gunny bag with his hands. He next stated that the other appellants did not throw the clothes used for muffling faces while running. He also admitted that except Hansa @ Hans Raj and Rishi, none of them was known to him prior to the occurrence. He further stated that the appellants were seen while they were running, from the left side of their face. PW-7 Sandeep has corroborated the version of PW-3 Sushil Kumar. He also admitted that except Hansa @ Hans Raj and Rishi, none of them was known to him prior to the occurrence. He further stated that the appellants were seen while they were running, from the left side of their face. PW-7 Sandeep has corroborated the version of PW-3 Sushil Kumar. In cross-examination, he stated that Raj Kumar was not known to him earlier as he had not seen him prior to the occurrence. He next stated that Raj Kumar was arrested by the police on 24/25.12.1991 and was brought to the place of occurrence. He further stated that he had seen three appellants, namely, Hansa @ Hans Raj, Raj Kumar and Rishi, when they were brought to his shop and their faces at that time were not muffled with any cloth or anything else. However, PW-8 Rameshwar Kumar, Sub Inspector, stated that Raj Kumar was arrested by Ravinder Kumar, Inspector, when he was with him on 1.1.1992 and then he interrogated and on interrogation, made disclosure statement, Ex.PL and in pursuance of the disclosure statement got recovered Barcha, Ex.P4 and Nakab, Ex.P5, which were taken into possession vide memo mark B. PW-5 Dr. Kapil Kumar, Medical Officer, medico-legally examined Sushil and Sandeep Kumar on 24.12.1991 and found two simple abrasions on the person of Sushil Kumar and one lacerated wound of dimension of 1 cm. x .25 cm skin deep on the posterior aspect of right arm in the middle or Sandeep Kumar. He admitted that the injuries on both the persons could be self suffered or self inflicted. Certainly, these injuries were declared simple caused by blunt weapon. The prosecution did not put to this witness as to whether the said injuries could be caused with the knives recovered from Hansa @ Hans Raj and Rishi, appellants. Since, these injuries were not caused by sharp edged weapon, so, it cannot be said to be caused by knives. There is no allegation that PW-3 Sushil Kumar and PW-7 Sandeep were inimical to the appellants. They knew Hansa @ Hans Raj and Rishi, appellants, prior to the occurrence because brother of Hansa, namely, Sajjan, was Municipal Commissioner and they used to work in the Anaj Mandi. So, they knew them. In fact, they had no grudge against them. There is no allegation that PW-3 Sushil Kumar and PW-7 Sandeep were inimical to the appellants. They knew Hansa @ Hans Raj and Rishi, appellants, prior to the occurrence because brother of Hansa, namely, Sajjan, was Municipal Commissioner and they used to work in the Anaj Mandi. So, they knew them. In fact, they had no grudge against them. The presence of Hansa @ Hans Raj and Rishi is established at the spot because during struggle, the clothes with which they had muffled their faces had fallen down and they identified them. The presence of Vinod is also established at the time of occurrence because he was arrested at the spot. 15. Now the question to be seen is whether the identity of Raj Kumar and Sushil son of Ved Parkash, appellants, has been proved and they were found present at the time of committing dacoity or not. According to Sandeep, Raj Kumar was arrested on the night of 24/25.12.1991 and he was even brought by the police to their shop alongwith other two appellants on 25.12.1991. However, according to the police, he was arrested on 1.1.1992 and not prior to that. It is doubtful that while running, Raj Kumar and Sushil appellants, had removed their clothes with which they had covered their faces and PW-3 Sushil Kumar and PW7 Sandeep or their father had seen their faces. It is difficult to see their faces from behind while running. PW-3 Sushil Kumar and PW-7 Sandeep were perplexed and as such, there is no question that they had identified them while running. The names of Hansa @ Hans Raj and Rishi only figured in the FIR, Ex.PA. It is further stated that Vinod was apprehended at the spot. Raj Kumar had rightly declined to participate in the identification parade because according to PW-7 Sandeep, he was brought to the shop on 25.12.1991 and at that time, he was not having muffled face, so, he was shown to the witnesses. The very fact that PW-3 Sushil Kumar and PW-7 Sandeep had received some injuries but not by knife blows, suggests that they had tried to exaggerate the version. 16. The very fact that PW-3 Sushil Kumar and PW-7 Sandeep had received some injuries but not by knife blows, suggests that they had tried to exaggerate the version. 16. In such circumstances, I hold that identity of Raj Kumar and Sushil son of Ved Parkash is not established beyond doubt and it is not proved that they were present at the time of occurrence and as such, they are given benefit of doubt and are acquitted of the charges levelled against them. 17. However, it is proved on file that Vinod @ Vidu, Rishi and Hansa @ Hans Raj alongwith their companions had committed dacoity by entering into the shop of Sushil Kumar and robbed him of Rs. 450/-, which were lying in the cash box and at that time they were armed with various type of weapons. However, it is not proved on file that while committing robbery/dacoity, the appellants had used any deadly weapon or had caused grievous hurt to any person or attempted to cause death or grievous hurt to any person because it has already been held that the injuries alleged to had been caused to PW-3 Sushil Kumar and PW-7 Sandeep are superficial injuries and could be self-suffered or self- inflicted. Moreover, the case of the prosecution is that the appellants, Hansa @ Hans Raj, and Rishi had caused them injuries with knives. However, the injuries are stated to be caused by blunt weapon as there is no sharp edged injury. Thus, no offence under Section 397 Indian Penal Code is made out. However, I find that Vinod @ Vidu, Rishi and Hansa @ Hans Raj have rightly been found guilty and convicted under Section 395 Indian Penal Code by the learned Additional Sessions Judge, Bhiwani. 18. Counsel for the appellants next contended that criminal proceedings are pending for the last about 12 years and as such, they are suffering the pain and agony during the aforesaid period and further they were poor persons, so, a lenient view be taken against them. Keeping in view the submission of learned counsel for the appellants, Hansa @ Hans Raj, Rishi and Vinod @ Vidu are sentenced to 3 years RI and a fine of Rs. 500/- under Section 395 Indian Penal Code and in default of payment of fine, the defaulter would further undergo RI for five months. With this modification in the sentence, Crl. Appeal Nos. 500/- under Section 395 Indian Penal Code and in default of payment of fine, the defaulter would further undergo RI for five months. With this modification in the sentence, Crl. Appeal Nos. 27-SB of 1994, 28-SB of 1994 and 74-SB of 1994 filed by Rishi, Hansa @ Hans Raj and Vinod @ Vidu respectively are dismissed while Crl. Appeal Nos. 84-SB of 1994, 107 and 165- SB of 1994 filed by Sushil Kumar son of Ved Parkash and Raj Kumar respectively are accepted as stated above. Appeals dismissed.