JUDGMENT Honble Mrs. Poonam Srivastav, J.—The accused appellant was not present despite issuance of non-bailable warrant and there was no compliance report from the Chief Judicial Magistrate concerned. The report dated 17.7.2009 shows that the accused was living in Chhajjupura, Hapur 20-25 years back and at the moment he is not traceable. 2. In the circumstances, Ms. Anita Srivastava Advocate was appointed Amicus Curiae vide Court’s order dated 24.10.2009. She prepared the case and is ready to argue the appeal on behalf of appellant. 3. Heard Ms. Anita Srivastava Amicus Curiae on behalf of the appellant Bharat and learned A.G.A. for the State. 4. The appellant was convicted under Sections 394/397, I.P.C. and sentenced to undergo 7 years R.I., and one year R.I. under Section 25 Arms Act. Both the sentences are directed to run concurrently. 5. The occurrence is alleged to have taken place in the intervening night of 11/12.9.1977. The first informant Pramod Kumar Agarwal, his father Shri Prahlad Rai Goyal, his mother Smt. Daya Gupta, wife Smt. Santosh Agarwal were sleeping in their house situated in Ashok Colony, Meerut Road, Hapur. The servant Bhajan Dutt was sleeping in verandah outside the house. His father had gone out to make water and when he returned the doors of the drawing room were left open by mistake. At about 12.30 in the night two miscreants came wake the servant and told him that they have loaded gun and revolver. They threatened him not to raise alarm. They asked him to open the door. Since the doors were already left open, the two miscreants entered the house and reached the room in which complainant’s father was sleeping. They demanded Rs. 10,000/- from the father and threatened him with dire consequences in case their demand is not fulfilled. His father expressed his inability as he did not have Rs. 10,000/-. Both the miscreants escorted the father of the complainant and his servant to the room of his mother. One of them who was armed with a revolver relieved the mother of the complainant of her 4 golden bangles and one ring and thereafter got the almirah opened and began to ransack in search of ornaments and cash. While the miscreants were searching the almirah, father of the complainant got an opportunity and caught hold of one of the miscreants by waist. While the miscreants were searching the almirah, father of the complainant got an opportunity and caught hold of one of the miscreants by waist. Both of them grappled, in the meantime the miscreant asked his companion to open fire whereupon the other miscreant fired a shot from his gun causing injuries to the father of the complainant. The complainant also came out of his room and caught hold of the other miscreant who was armed with gun and during the scuffle. The complainant could manage to bite the hand of the miscreant and snatched his gun. The father of the complainant was successful in snatching the revolver from the other miscreants. However, both the miscreants were successful in making good their escape. 6. The first information report was registered on the same day i.e. 12.9.1977 at 1.20 A.M. by PW-5 Pramod Kumar. Injuries of Prahlad Rai Goel was examined by Dr. V.B. Lal PW-2 which are quoted below : Examined Sri Prahlad Rai Goel S/o Shri Matroo Lal R/o Hapur, B/B C.P. 911 Kishan Lal, P.S. Hapur on 12.9.77 at 2.00 A.M. & found the following injuries on his person. (1) Abrasion 1 cm. X ¼ cm situated 4 cm above medial part left eye brow. (2) Abrasion irregular 2 cm x ½ cm. upper back left arm. (3) Contusion abraded 2 cm x 2 cm upper inner back of left hand. (4) Abrasion two each ½ cm x ½ cm on the doresom of upper & middle phalanx of left little finger. (5) Abrasion 1 cm x ½ cm doresom of upper phalanx of left middle finger. (6) Gun shot wound 1/3 cm x 1/3 cm x 3 cm on the occipital region in the middle 10 cm above base of neck. (7) Gun shot wound 1/3 cm x 1/3 x ½ cm situated 4 ½ cm down and to the right of injury No. 6 and 6 cm from the right ear A pellet was presenting in this wound which was pulled out & is being such along with this report in a sealed cover. (8) Gun shot wound ½ cm x 1/3 cm situated 3 cm down and to the right of injury No. 7 and 4 cm behind right ear. (9) Abrasion 1 cm x ¼ cm upper inner left scapular region. (8) Gun shot wound ½ cm x 1/3 cm situated 3 cm down and to the right of injury No. 7 and 4 cm behind right ear. (9) Abrasion 1 cm x ¼ cm upper inner left scapular region. (10) Abrasion 7 cm x ½ cm right outer lower dorsal and upper lumber regions. (11) Abrasion 3 cm x ¼ cm situated just lateral to injury No. 10. (12) Abrasion 2 cm linear 3 cm above injury No. 10. N.B.—There is no singing or blackening around injuries Nos. 6, 7 & 8. Advised X-ray of injuries No. 6 & 8. The injuries No. 6 & 8 kept under observation, rest are simple, No. 6, 7, 8 caused by some firearm, No. 3 by some blunt weapon & the rest by friction again some hard object. Duration of all is fresh. Imp. Brown mole 7 cm above left axilla. L.T.I. Prahlad Rai Sd/- Illegible. Sd/- Illegible (Seal) (V.B. Lal) 12/9/77 (Seal) X-ray report of Prahlad Rai Goel shows that injuries were simple in nature. Recovery memos of the seized fire arms are exhibited. Cartridges are Exb. Ka-5. Gun and cartridges Exb. Ka-6, revolver and cartridges Exb. Ka-7, and other articles recovered from the house. 7. The only evidence against present appellant Bharat is that of identification. Five persons are said to have identified the accused who was arrested on 4.10.1977 and put up for identification on 1.11.1977. The witnesses who have correctly identified the accused appellant are PW-3 Prahlad Rai Goel, PW-5 Pramod Kumar, PW-6 Jai Kishan Das and PW-7 Bhajan Dutt and one Jagdish Prasad. 8. Learned counsel for the appellant has tried to emphasize that the accused was shown to the witnesses and that is why all the witnesses have correctly identified the accused without any mistake. The argument is that the evidence of identification cannot be believed specially since the witnesses Jagdish Prasad and Jai Kishan Das PW-6 who are though alleged to be neighbour but first information report does not show that they had arrived at the scene of occurrence. Jagdish Prasad has not been produced by the prosecution. The argument is that the evidence of identification cannot be believed specially since the witnesses Jagdish Prasad and Jai Kishan Das PW-6 who are though alleged to be neighbour but first information report does not show that they had arrived at the scene of occurrence. Jagdish Prasad has not been produced by the prosecution. On perusal of the statement of witness Prahlad Rai Goel, it transpires that only bricks were kept in the neighbourhood for construction of the house therefore it is evident that house of Jagdish was not yet constructed and, therefore, he was only a future neighbour and thus his presence is clearly ruled out. Learned Session Judge did not take this into consideration. Learned counsel for the appellant emphatically disputed the presence of these two witnesses. 9. However, learned A.G.A. has submitted that accepting the argument of Ms. Anita Srivastava, still there is evidence of three good identifications are still available against the present appellant and whose presence in the house cannot be doubted. They are inmates of the house and also servant, who woke up when the two miscreants came to the house and had a good opportunity to see their faces. They were at close proximity, therefore, identification cannot be doubted. 10. I have perused the F.I.R., statement of witnesses, injury report and identification memo, also taken into consideration arguments of respective counsels. It is true that assuming that evidence of PW-6 Jai Kishan Das and Jagdish, whose names have not been shown in the F.I.R., is ignored, even then there remains three good identification against the appellant and I am of the view that it is safe to rely on the said evidence. This is sufficient to arrive at a conclusion that the appellant did commit the crime and his presence cannot be doubted. The submission of Ms. Anita Srivastava that solitary evidence of identification in absence of recovery is a very weak evidence and conviction cannot be maintained with sufficient corroboration. 11. In view of what has been stated above, it stands beyond doubt that appellant was one of the miscreants who had come to commit the crime. However, I agree with the submission of learned counsel for appellant that nothing has been recovered from possession of the appellant but for recovery of Tamancha. 12. 11. In view of what has been stated above, it stands beyond doubt that appellant was one of the miscreants who had come to commit the crime. However, I agree with the submission of learned counsel for appellant that nothing has been recovered from possession of the appellant but for recovery of Tamancha. 12. True, nothing has been recovered from possession of the appellant but evidence of identification against him cannot be discarded only because there was one tube light inside the house. Gold articles were removed from the person of mother of the complainant. She had given some jewellery after opening the safe, therefore there was good occasion to see the assailant. She must have a close look at the appellant. The suggestion of the learned counsel that wife of Prahlad has been withheld makes no difference. 13. In the end, Ms. Anita Sriavastava, submitted that conviction under Section 397 I.P.C. is uncalled for since injuries are simple in nature and they are not grievous nor there was any intention to cause grievous injuries or to kill any inmates of the house except the demand of Rs. 10000/-. According to narration of first information report itself, the prosecution case is not to cause grievous injury with an intention to commit dacoity. Fire was opened only when the father of the appellant caught hold of one of the assailants and scuffle started between Prahalad Rai Goel and miscreants, therefore, other co-accused was asked to open fire. This is only to scare Prahalad Rai Goel, to loosen his grip. 14. I have examined the injuries. I agree with submission of learned counsel for appellant. Injuries are simple in nature. Conviction under Section 397, I.P.C. is uncalled for. I have also taken into consideration that since there is no recovery, conviction under Section 397, I.P.C. cannot be upheld. I am of the view that conviction under Section 394, I.P.C. will suffice the ends of justice. After examining the record, it also transpires that appellant has been in jail for approximately one year. The sentence already undergone is sufficient specially after lapse of such a long period. The conviction under Section 397, I.P.C. is set aside. The appellant however cannot escape his liability of committing an offence under Section 394, I.P.C. 15. After examining the record, it also transpires that appellant has been in jail for approximately one year. The sentence already undergone is sufficient specially after lapse of such a long period. The conviction under Section 397, I.P.C. is set aside. The appellant however cannot escape his liability of committing an offence under Section 394, I.P.C. 15. So far as conviction under Section 25, Arms Act is concerned, I am of the view that recovery memo does not mention crime number. Therefore, there is no substantial evidence to substantiate that any recovery was made by the Investigating Officer. The conviction under Section 397, I.P.C. is set at naught. The conviction under Section 25, Arms Act is already undergone. The appeal stands partly allowed. ————