Research › Search › Judgment

Patna High Court · body

2005 DIGILAW 764 (PAT)

Harendra Manjhi v. State of Bihar

2005-08-25

body2005
JUDGMENT C.K. PRASAD, J. Appellants, being aggrieved by their conviction under Sections 395 and 396 of the Indian Penal Code and sentence of rigorous imprisonment for life passed by the 3rd Additional Sessions Judge, Muzaffarpur in Sessions Trial No. 196 of 1998, have preferred this appeal. 2. Prosecution started on the basis of a fardbeyan given by Amola Devi, since deceased, on 30.8.1997 at 10 a.m. before the Officer-in-charge of Siwaipatti Police Station in the District of Muzaffarpur. According to the first information report, in the night between 29-30 of August, 1997, she and her married daughter Manju Devi were sleeping in the varanda and room of the house and at about 1.30 a.m., five persons including the two appellants and four unknown persons entered in her house and appellant Gauri Shankar Manjhi snatched nose pin (khotil) and necklace (hasuli) which she was wearing. 3. According to the first information report, informant caught hold of appellant Gauri Shankar Manjhi, whereupon he started abusing her and when she raised the alarm, appellant Harendra Manjhi assaulted her by lathi which fractured her left hand. According to the prosecution, thereafter the dacoits entered into the room of her daughter and stolen her nose pin, locket and anklet (payal) besides the clothes and the utensils by breaking open the box. According to the report, at the time of occurrence it was drizzling and easterly wind blowing. 4. On the basis of the aforesaid report. Siwaipatti P.S. Case No. 25 of 1997 was initially registered under Section 395 of the Indian Pena: Code against five known and four unknown persons. Later on the informant dying on 14.9.1997, Section 396 of the Indian Penal Code was added. 5. It is relevant here to state that P.W.7 Bijali Prasad, after the death of her mother Amola Devi had given a statement at SK Medical College and Hospital, Mazaffarpur on 14.9.1999 at 11 •a.m. before the Assistant Sub-Inspector of Police of Ahiyapur Police Station, which was later on forwarded to Siwaipatti Police Station. According to the aforesaid statement while he was at his grand father's village (nanihal) he learnt that in the night of 29th of August, 1997, 8-9 criminals entered in his house and tried to snatch the nose pin and the necklace from her mother which she resisted and raised alarm. According to the aforesaid statement while he was at his grand father's village (nanihal) he learnt that in the night of 29th of August, 1997, 8-9 criminals entered in his house and tried to snatch the nose pin and the necklace from her mother which she resisted and raised alarm. He had further stated that her mother identified five criminals including the appellants and he further stated that appellant Gauri Shankar Manjhi caught her mother from the waist and on raising alarm by her all the criminals started beating her which led to fracture of her left hand. He also stated that the criminals assaulted her on her abdomen which caused servere injury to her and she became unconscious. According to the said report, the criminals removed silver and gold ornaments, cash and cloths. In the report, P.W.7 Bijali Prasad had further stated that after the occurrence villagers collected and took his mother to Minapur Primary Health Centre from where she was brought to S.K.S. Medicial college for treatment on 1.9.1997 and ultimately she died on 14.9.1997. 6. The police after investigation submitted charge-sheet only against the two appellants under Sections 395 and 396 of the Indian Penal Code and investigation in respect of the three named accused and four unknown accused was kept pending. The learned Magistrate took cognizance of the offence and ultimately the appellants were committed to the Court of Sessions to face the trial. During the trial the appellants were charged as follows:- Paras Nath Additional Sessions Judge III. Thereby charge you, (1) Gauri Shankar Manjhi, (2) Harendra Manjhi. First: That you in between the night of 29/30th of August, 1997 at village Kodaria P.S. Siwaipatti District Mazaffarpur committed dacoity in the house of the informant Amola Devi, and thereby committed an offence punishable under Section 395 of the Indian Penal Code; Secondly: That you, on or about the same day at same place and time committed dacoity in the house of Amola Devi and in the commission of dacoity, murder of said Amola Devi was committed by one of you members and thereby committed an offence punishable under Section 396 of the Indian Penal Code. 7. Appellants pleaded not guilty and claimed to be tried. Prosecution in support of the case had examined altogether nine witnesses. No defence witness has been examined. 8. 7. Appellants pleaded not guilty and claimed to be tried. Prosecution in support of the case had examined altogether nine witnesses. No defence witness has been examined. 8. P.W.1 Sukan Bhagat is the neighbour of the Amola Devi, who reached her house on her alarm. P.W.2 Shanti Devi is the sister-in-law of informant Amola Devi whereas, P.Ws.3 Gumani Prasad and P.W.5 Lakshman Bhagat are her brothers-inlaw. P.W.4 Naresh Kumar, P.W.6 Ganesh Kumar and P.W.7 Bijali Prasad are the sons of the informant. P.W.8 Md. Shabbir Alam is a formal witness, who had proved the injury report (Exhibit.2) given by the Medical Officer of Minapur Hospital where the informant for the first time taken for treatment. P.W.9 is Dr. Mumtaz Ahmad who had proved the post mortem report (Exhibit.3) prepared by Dr. Manoranjan Kumar Srivastava, who had conducted the autopsy. 9. The learned Magistrate relying on the evidence of the prosecution witnesses held the appellants guilty of offence under Sections 395 and 396 of the Indian Penal Code and sentenced them as above. 10. P.W.1 Sukan Bhagat, who is the neighbour of the informant, had deposed that he woke up on the alarm and reached the informant's house and found the criminals committing dacoity and informant Amol Devi raising alarm. According to this witness seeing him the dacoits stated that people have collected and they be shot dead. This witness identified two' of the dacoits, but not the appellants. According to this witness he found Amola and her daughter Manju injured and Amola's hand fractured. 11. P.W.2 Shanti Devi is the sister-in-law of the informant Amola and is the resident of the adjoinig house having the same courtyard and according to her on alarm, when she came out she identified the appellants and other accused persons in her courtyard, who had committed dacoity. In paragraph 4 of the cross examination, she had stated that she identified the dacoits in the light of the lantern. 12. P.W.3 Gumani Prasad is the brother-in-law of the informant and according to his evidence his house is situated adjoining the house of Amola Devi, where the dacoity had taken place. He had stated in his evidence that on hullah when he reached the place of occurrence, he had identified the two appellants assaulting Amola Devi besides he had identified other dacoits. He had stated in his evidence that on hullah when he reached the place of occurrence, he had identified the two appellants assaulting Amola Devi besides he had identified other dacoits. He had further stated that Amola Devi was taken to the hospital, where she later on died. 13. P.W.4 Naresh Kumar is the son of the informant and according to his evidence on the day when the dacoity was committed, he was sleeping in the house and her mother Amola Devi was sleeping in the varandah and sister Manju Devi in another room of the house, one accus8d entered in her room and demanded cash, Thereafter said accused broke open the box. According to this witness when he came out from the room he saw other accused persons assaulting her mother and looting the property. According to him, his mother was taken to police station, where her statement was recorded and then she was sent to Minapur Hospital, where the Doctor referred him to S.K.S. Medical College he had further stated that her mother died in the hospital 14-15 days after the incident. In paragraph 11 of the cross examination, he had stated that faces of the dacoits were not covered. 14. P.W.5 Lakshman Bhagat is the brother-in-law of the informant and 'according to his evidence, on alarm when he went to the house of Amola Devi he found the criminals committing dacoity there and he identified the two appellants besides other accused persons committing the dacoity. He had further stated that during the course of dacoity, the two appellants assaulted Amola Devi which caused fracture of her hand and the waist. According to this witness Amola Devi was thereafter taken to the police station from where she was brought to the Medical College hospital where she died. In the cross examination he has stated that the dacoits did not fire or used bomb. In paragraph 8 of the cross examination he has further stated that none of the dacoits had concealed their faces and they were known from before. 15. In the cross examination he has stated that the dacoits did not fire or used bomb. In paragraph 8 of the cross examination he has further stated that none of the dacoits had concealed their faces and they were known from before. 15. P.W.6 Ganesh Kumar is another son of the informant, who in his deposition had stated that he was sleeping along with his mother in the varandah of the house when 8-9 dacoits came there out of whom he identified the two appellants, who had looted the silver necklace and gold nose pin of his mother and the two appellants have also assaulted his mother and fractured her hand. He had further stated that the two appellants besides other accused persons also entered into the room where his sister was sleeping and also looted her ornaments by breaking open the box. According to this witness his mother died in the hospital on account of the injury sustained by her. 16. P.W.7 Bijali Prasad is another son of the informant who does not claim to be an eye witness of the occurrence, but has stated that on hearing the news of dacoity, he came and found his mother severely injured and she narrated the incident to him. According to this witness her mother disclosed the names of the appellants, besides other persons, who had committed the dacoity. He had further stated that his mother died after 13 days of the occurrence in the hospital. He has deposed that his mother was operated in the abdominal region in the hospital. 17. P.W.8 Md. Shabbir Alam had proved the injury report of Amola Devi given by Dr. Vinod Kumar of Primary Health Centre, Minapur. P.W.9 Mumtaz Ahamad had proved the post mortem report of the deceased Amola 'Devi conducted by Dr. Manoranjan Kumar Srivastava. The Investigating Officer of the case and the Doctor who had conducted the post mortem examination have not been examined. 18. Mr. Ajay Kumar Ambastha, appearing on behalf of the appellants submits that conviction of the appellants under Section 396 of the Indian Penal Code is illegal as the prosecution has not been able to prove that Amola Devi was murdered while committing dacoity. 18. Mr. Ajay Kumar Ambastha, appearing on behalf of the appellants submits that conviction of the appellants under Section 396 of the Indian Penal Code is illegal as the prosecution has not been able to prove that Amola Devi was murdered while committing dacoity. He points out that the Doctor, who had conducted the post mortem examination, had found fracture on left ankle joint as also stitch wound 12" long on the mid abdomen as also stiched wounds at many places in the intestinal lobe of Amola Devi. He also points out that the Doctor conducting the post mortem examination had also observed that when the bandage of the stitch wound of the mid abdomen was removed, he found pint of blood present in the abdomen. According to the Doctor, the cause of death is shock and haemorrhage on account of the aforesaid injuries. 19. Mr. Ambastha points out tha according to the prosecution witnesses, in the dacoity Amola Devi was assaulted causing fracture of her hand, but fracutre of the left ankle joint and injuries on the abdominal region are not attributed to the dacoits and as such it cannot be said that Amola Devi died on account of the injuries sustained by her during the course of dacoity. 20. Mr. Lala Kailash Bihari Prasad, Additional Public Prosecutor, however, appearing on behalf of the State submits that from the evidence of P.W.5 Lakshman Bhagat it is evident that the deceased sustained injuries in her waist during the course of dacoity and it cannot be said that she did not die of the injuries sustained during the course of dacoity. He further points out that merely the fact that the deceased died on 14.9.1997 i.e. about two weeks after the occurrence it cannot be said that she did not die of the injuries sustained during the course of dacoity. 21. Having appreciated the rival submission, I find substance in the submission of Mr. Ambashta and I am of the opinion that the proseuction has not been able to prove beyond all reasonable doubt that injuries which caused the death of the deceased were caused during the commission of the dacoity. Amola Devi in her fardbeyan (Exhibit-1) had only stated that lathi blow given by appellant Harendra Manjhi caused fracture of her left hand. Ambashta and I am of the opinion that the proseuction has not been able to prove beyond all reasonable doubt that injuries which caused the death of the deceased were caused during the commission of the dacoity. Amola Devi in her fardbeyan (Exhibit-1) had only stated that lathi blow given by appellant Harendra Manjhi caused fracture of her left hand. She had not stated about any injuries sustained by her either in the abdominal region or left ankle during dacoity. All the witnesses who have been examined to support the prosecution case, excepting P.W.5 had stated about fracture of her hand only. According to the prosecution itself, the deceased at the first instance was taken to the Minapur Primary Health Centre where she was examined on 30th of August 1997 at 1.15 p.m. and according to the injury report (Exhibit 2) the only injury found was on her hand which is as follows:- ''Tender swelling in left arm in middle & crepitant feeling (4"x2")". It is difficult to belie, that had the deceased sustained injuries on the abdominal region, which led to surgical interference, she would not have complained to the doctor at the Primary Health Centre about that injury and the doctor would have failed to notice that. It is relevant here to state that the post mortem examination shows stich wound of 12" long at the middle abdomen as also several stich wounds in the intestinal lobe. Neither the deceased complained nor the doctor, who examined her for the first time had found any injuries which could lead to surgical interference. Not only this, fracture of left ankle joint was found during the post mortem examination. It is inconceivable that had the deceased sustained this injury during the course of dacoity, she would not have complained about the same to the doctor at the Primary Health Centre and the doctor failed to notice that. It is relevant here to state that the dacoity had taken place in the night between 29th and 30th of August, 1997 and according to the report (Exhibit 1/A) given by P.W.7 Bijali Prasad the deceased was taken to the S.K. Medical College for treatment on 1.9.1997, whereas the doctor of Primary Health Centre had examined her on 30th of August, 1997. Thus, in my opinion, the deceased sustaining injuries after the dacoity in between her examination by the doctor of the Primary Health Centre and admission in the Medical College Hospital cannot be ruled out. It is not in dispute that the deceased did not die of the fracture. The aforesaid analysis leads me to conclude that the prosecution has not been able to prove beyond all reasonable doubt that the deceased died of the injuries sustained by her during the course of dacoity. Once it is held so the conviction of the appellants under section 396 of the Indian Penal Code cannot be allowed to stand. Same is accordingly set aside. 22. Mr. Ambastha draws my attention to the charge framed against the appellants and points out that only two appellants having charged for offence of dacoity and the charge framed even if accepted in its entirety, no offence under section 395 of the Indian Penal Code is made out. Mr. Lala Kailash Bihari Prasad, however, submits that according to the First Information Report five known persons besides four unknown persons had participated in the crime and, as such, omission on the part of the trial Court to mention that it shall not lead to the conclusion that offence under section 395 of the Indian Penal Code is not made out. Alternatively he submits that defect in framing of the charge had not caused any prejudice to the appellants and the appellants having been charged for offence of committing dacoity, it shall obviously mean that five or more persons have committed the offence. In support of his submission he has placed reliance on a judgment of the Supreme Court in the case of K.Prema S. Rao and another Vs. Yadla Srinivasa Rao and others (2003) Supreme Court Cases (Criminal) 271) in which it has been held as follows: "Mere omission or defect in framing charge does not disable the criminal court from convicting the accused for the offence which is found to have been proved on the evidence on record. The Code of Criminal Procedure has ample provisions to meet a situation like the one before us. From the statement of charge framed under Section 304B and in the alternative Section 498A IPC (as quoted above) it is clear that all facts and ingredients for framing charge for offence under section 306 IPC existed in the case. The Code of Criminal Procedure has ample provisions to meet a situation like the one before us. From the statement of charge framed under Section 304B and in the alternative Section 498A IPC (as quoted above) it is clear that all facts and ingredients for framing charge for offence under section 306 IPC existed in the case. The mere omission on the part of the trial Judge to mention Section 306 IPC with Section 498A IPC, does not preclude the Court from convicting the accused for the said offence when found proved. In the alternate charge framed under section 498A IPC, it has been clearly mentioned that the accused subjected the deceased to such cruelty and harassment as to drive her to commit suicide. The provisions of Section 221 Cr.P.C. take care of such a situation and safeguard the powers of the criminal court to convict an' accused for an offence with which he is not charged although on facts found in evidence, he could have been charged for such offence". 23. Having considered the rival contention, I do not find any substance in the submission of Mr. Prasad. When an accused is put on trial, he is to answer the charge levelled against him and he is not to answer what has been alleged in the First Information Report. Undisputedly here the two appellants have been charged for committing the offence under section 395 of the Indian Penal Code and in that view of the matter what has been alleged in the First Information Report is of no consequence. It is relevant here to state that the police after investigation had submitted charge-sheet against the two appellants and investigation in respect of the three named accused and unknown accused persons has been kept pending. In such a situation the contention of Mr. Prasad that the allegation made in the First Information Report be taken into account to consider the defect in framing of the charge is fit to be rejected. 24. The alternative submission advanced by Mr. Prasad necessiates examination .of Chapter XVII of the Code of Criminal Procedure. Section 211 of the Code of Criminal Procedure, hereinafter referred to as the Code provides for the contents of the charge; whereas Section 212 of the Code contemplates giving its particulars. Section 213 provides for giving the manner of committing offence in the charge. Prasad necessiates examination .of Chapter XVII of the Code of Criminal Procedure. Section 211 of the Code of Criminal Procedure, hereinafter referred to as the Code provides for the contents of the charge; whereas Section 212 of the Code contemplates giving its particulars. Section 213 provides for giving the manner of committing offence in the charge. Section 215 of the Code provides for the effect of errors in framing charge, same reads as follows:- "215. Effect of errors.-No error in stating either the offence or the particulars required to be stated in the charge, and no omission to state the offence or those particulars, shall be regarded at any stage' of the case as material unless the accused was in fact misled by such error or omission, and it occasioned a failure of Justice". 25. From a plain reading of Section-215 of the Code it is evident that error in stating the offence or the particulars required to be stated in the charge is not material, unless the accused is misled by any such error or omission. According to section 212 of the Code, the charge is to contain the time, the place and the person, if any, against whom or the thing, if any, in respect of which the offence was committed. Thus, in my opinion, error in stating the offence or the particulars shall not be material unless the accused is misled by such error but here in the present case in the charge the ingredients, which constitute the offence, have not been stated. For commission of offence under section 395 of the Indian Penal Code, participation of five or more persons is sine qua non. I have quoted the charge framed against the appellants in the preceding paragraph of this judgment and from its perusal it is evident that two appellants have only been charged for offence under section 395 of the Indian Penal Code. In my opinion, when the charge does not contain basic ingredients of the offence, the said error is material. In my opinion, had the appellants pleaded guilty of the charge, same having not containing the ingredients constituting the offence could not have been convicted for offence under section 395 of the Indian Penal Code. 26. Now referring to the authority of the Supreme Court in the case of K. Prema S. Rao (supra) relied on by Mr. Prasad, same is clearly distinguishable. 26. Now referring to the authority of the Supreme Court in the case of K. Prema S. Rao (supra) relied on by Mr. Prasad, same is clearly distinguishable. In the present case I have found defect in regard to the ingredients of the offence and not omission or defect in framing of the charge when such an omission is made same goes to the root of the matter. 27. Mr. Prasad in order to defend the conviction and sentence on account of error in charge has also pressed into service Section 464 of the Code of Criminal Procedure and submits that the sentence awarded shall not be invalid only on the ground of any error in the charge as the same had occasioned failure of justice. Section 464 of the Code of Criminal Procedure reads as follows: "Effect of omission to frame, or absence of, or error in, charge.-(1) No finding sentence or order by a court of competent Jurisdiction shall be deemed invalid merely on the ground that no charge was framed or on the ground of any error, omission or irregularity in the charge including any misjoinder of charge, unless, in the opinion of the Court of appeal, confirmation or revision, a failure of justice has in fact been occasioned thereby. (2) If the Court of appeal, confirmation or revision is of opinion that a failure of justice has in fact been occasioned, it may- (a) in the case of an omission to frame a charge, order that a charge be framed and that the trial be recommenced from the point immediately after the framing of the charge. (b) in the case of an error, omission or irregularity in the charge, direct a new trial to be had upon a charge framed in whatever manner it thinks fit: Provided that if the Court is of opinion that the facts of the case are such that no valid charge could be preferred against the accused in respect of the facts proved, it shall quash the conviction:' 28. From a plain reading of aforesaid provision, it is evident the sentence passed by the Court of competent jurisdiction shall not be invalid only on the ground of any error, omission or irregularity in the charge unless a failure of justice has occasioned on that account. From a plain reading of aforesaid provision, it is evident the sentence passed by the Court of competent jurisdiction shall not be invalid only on the ground of any error, omission or irregularity in the charge unless a failure of justice has occasioned on that account. Here in the present case, I have found that basic ingredients constituting the offence has not been stated a 1d, accordingly, I am of the opinion that Section 464 of the Code of Criminal Procedure shall not be applicable and the judgment of conviction and sentence impugned cannot be defended on that ground. 29. The view which I have taken is not res integra and in fact came for consideration before the Supreme Court in the case d Ram Shankar Singh and others Vs. State of Uttar Pradesl) ( AIR 1956 S.C. 441 ) in which it has been held as follows:- "The High Court having come to the conclusion that three out of the six convicted persons were not guilty, should have gone into the question whether there was satisfactory evidence to show that the three remaining appellants before it could be convicted under S. 395, IPC, on the charge as framed. In any event, the three remaining accused persons could be convicted of the lessor offence of robbery under S. 392, IPC, if there was evidence to show that they had committed acts of thefts and used violence while committing the theft. In such a situation their individual acts in connection with the alleged occurrence had to be considered. That also has not been done. The evidence led on behalf of the prosecution has not sought to bring home to each individual accused the part played by him. This would also necessitate a retrial. In this connection the counsel for the appellant urged, and this position was not controverted by the counsel for the prosecution, that the appellants have been in jail for a little less than three years, which period of imprisonment may have been enough as a sentence under S. 392. IPC". Reference can also be made to a decision of Superme Court in the case of Ram lakhan Vs. IPC". Reference can also be made to a decision of Superme Court in the case of Ram lakhan Vs. State of U.P. ( AIR 1983 S.C. 352 ) in which it has been held as follows:- "Before an offence under section 395 can be made out there must be an assembly of five or more persons on the findings of the court below it is mainfest that only one person is now left. In this circumstance therefore the appellant cannot be convicted for an offence under Section 395. The High Court has not found that Ram Lakhan was guilty of any overt act so as to bring his case within any other minor offence. For these reasons therefore the conviction and sentence imposed on the appellants are set aside and he is acquittep of offence charged under section 395". 30. Thus, in a case in which although five or more person are put on trial and such number of the accused person acquitted results into the number of left out accused persons less than five, when they cannot be convicted for offence under section 395 of the Indian Penal Code, by no reasonable logic it cannot be said that in a case in which only two persons are charged for the offence under section 395 of the Indian Penal Code, they can be convicted for the said offence. To put the record straight Mr. Prasad in order to sustain conviction of the appellants under section 395 of the Indian Penal Code had placed reliance on a judgment of the Supreme Court in the case of Saktu and another Vs. State of U.P. ( AIR 1973 S.C. 760 ) and my attention has been drawn to the following passage from paragraph 6 of the judgment:- The charge in the instance case is that apart from the named 7 or 8 persons, there were 5 or 6 others who had taken part in the commission of the dacoty. The circumstance therefore that all except the three accused, have been acquitted by the High Court will not militate against the conviction of those three for dacoity. It is important that it was at no time disputed that more than 13 or 14 persons had taken part in the robbery. The High Court acquitted a large number of the accused because their identity could not be established. It is important that it was at no time disputed that more than 13 or 14 persons had taken part in the robbery. The High Court acquitted a large number of the accused because their identity could not be established. The High Court, however, did not find that the group which committed robbery in the house of Jwala Prasad consisted of less than 5 persons". The aforesaid decision is clearly distinguishable. In the said case besides the accused persons put on trail, the charge was that besides the named 7 or 8 persons 5 or 6 other persons had taken part in the commission of the dacoity. Thus mere non identification of such persons will not itself mean that offence under section 395 of the Indian Penal Code is not made out. 31. Having said so; the next question which falls for determination is as to whether the appellants can be convicted for a lessor offence of robbery in view of the fact that in the charge ingredients constituting the offence of robbery is mentioned. I am of the opinion that the ingredients in the charge constitute an offence under section 394 of the Indian Penal Code and in that view of the matter there is no legal impediment for the appellant's conviction under section 394 of the Indian Penal Code but for that purpose the prosecution has to prove from the evidence that the appellants had committed acts of theft and voluntarily caused hurt while committing the robbery. 32. Mr. Ambastha points out that the materials on record do not show the appellants' participation in that also, whereas Mr. Prasad points out that there is ample evidence on record to show appellants' participation in committing theft and using violence and causing hurt while doing so. 33. P.W.2 Shanti Devi, P.W.3 Gumani Prasad and P.W.5 Lakshman Bhagat are the sister-in-law and brother-in-law of the informant, whereas P.W.6 Ganesh Kumar is her son and they being the close relatives and resident of the adjoining house and the house where offence had taken place, their presence at the place of occurrence is but natural. In their evidence they have stated to have identified the appellants while committing the offence. P.W.3 Gumani Prasad in his evidence had further stated that the appellants assaulted Amola Devi. In their evidence they have stated to have identified the appellants while committing the offence. P.W.3 Gumani Prasad in his evidence had further stated that the appellants assaulted Amola Devi. They have also stated that the two appellants had committed theft of silver necklace and gold nose pin of the informant and had assaulted her which caused fracture on her hand. The informant was taken to the Primary Health Centre, Minapur and according to the injury report she has sustained fracture. Thus from the evidence on record, it is evident that the appellants while committing robbery caused hurt to Amola Devi and, as such, prosecution has been able to bring home the charge against the appellants beyond all reasonable doubt under section 394 of the Indian Penal Code. Accordingly, I hold the appellants guilty under section 394 of the Indian Penal Code and sentence them to undergo rigorous imprisonment for eight years. 34. It is stated that appellants are in jail since 2.9.1997 and thus had undergone the sentence of eight years awarded by this Court, after remission and hence deserves to be released forthwith. 35. In the result, the appeal is partly allowed, conviction and sentence of the appellants under sections 395 and 396 of the Indian Penal Code is set aside, instead their conviction is altered to section 394 of the Indian Penal Code and they are sentenced to undergo rigorous imprisonment for eight years. In case they have undergone the aforesaid period of sentence, in. eluding remission, they be set at liberty forthwith unless required in any other case.