JUDGMENT : The appeal has been preferred against the judgment dated 16th September, 2003 in Special Case No. 121/01 passed by Shri J.M. Chaturvedi, Special Judge (Dacoit), Bhind convicting the appellant under Sections 394, 398 and 307/34 of IPC and Section 11/13 of the Madhya Pradesh Dakaiti Vyapharan Avam Prabhavit Kshctra Adhiniyam, 1981 (in short "the Adhiniyam of 1981") for theft of tractor No. M.P. 30-M/2072 of complainant Gajendra Singh (P.W.1) for having armed with gun and injured him on his life by gun shot, sentencing him to imprisonment for seven years' R.I. and fine of Rs. 5,000/-, in default six months' R.I. respectively. However, no separate conviction and sentence is imposed under the MPDVPK Adhiniyam. 2. Facts in short, are that in the intervening night of 24-7-2001 at about 2.00 hrs. in Village Kishore Singh Ka Pura, Gajendra Singh (P.W.1) awaken on hearing sound of tractor started by somebody. Me came out of his room and saw one person driving the tractor and another was sitting over it for taking it away. While objecting, a gun shot was fired which hit on the left leg of Gajendra Singh (P.W.1). He was sent for medical examination. Dr. A.K. Choudhary (P.W.13) vide M.L.C. report (Exh. P-13) examined him. 3. On hearing the shriek of Gajendra Singh (P.W. 1), his father Narayan Singh (P.W.6), his brother Rajesh Singh alias Brahma Prakash (P.W.5), neighbours Shyamlal Singh (P.W.2) and Tularam Singh (P.W.7) also reached there. Tractor has been taken by miscreants towards Umri. Gajendra Singh (P.W.1) was taken to Police Station, Umri (District Bhind) At about 3.00 hrs. in the midnight he lodged the FIR against two unknown persons. Police registered case at Crime No. 107/01 only under Sections 394 and 307/34 of IPC against the unknown persons. At the same time Prahlad Singh (P.W.4), Rajesh Singh alias Brahma Prakash (P.W.5) and Tularam (P.W.7) went on a scooter to search the miscreants. They saw them but being afraid of gun they came back. 4. During investigation on 16-8-2001 vide Exh. P-8 Police Umri prepared a formal seizure memo of tractor, which was seized by Police Station, Sahso (Uttar Pradesh), in connection with Crime No. 25/01 under Sections 302, 307 of IPC and 30, 27 of the Arms Act. They saw them but being afraid of gun they came back. 4. During investigation on 16-8-2001 vide Exh. P-8 Police Umri prepared a formal seizure memo of tractor, which was seized by Police Station, Sahso (Uttar Pradesh), in connection with Crime No. 25/01 under Sections 302, 307 of IPC and 30, 27 of the Arms Act. After completion of investigation, Police U.mri, citing 17 witnesses, submitted charge-sheet under Sections 394, 307 and 398 of IPC and Section 11/13 of the MPDVPK Adhiniyam against appellant and another. 5. Trial Court framed charges under Section 394, IPC read with Section 11/13, MPDVPK, 1981, and under Section 307/34, IPC. Accused person abjured guilt. 6. Defence of the appellants in the Trial Court was that of false implication on account of enmity. 7. To substantiate the case of prosecution, statements of Gajendra Singh (P.W.1), Shyamlal Singh (P.W.2), Udai Narayan (P.W.3), Prahlad Singh (P.W.4), Rajesh S(P.W.5), Narayan Singh (P.W.6), Tularam Singh (P.W.7), Dharmendra Singh (P.W.8), Guddu Singh (Puthu Singh) (P.W. 9), Rituraj Singh (P.W.10), Dinesh Narain Dixit (P.W.11), Umesh Babu (P.W.12), Dr. A.K. Choudhary (P.W.13), Sanjeevan Nayan Sharma (P.W.14), Bhanu Pratap Singh (P.W.15) and Rakesh Sahu (P.W.16) were recorded. To substantiate the defence, statements of Satyendra Singh (D.W.1) and Omkar Singh (D.W.2) were also recorded. 8. Appreciating the aforesaid evidence, the learned Trial Court, giving him benefit of doubt, acquitted the accused Omkar Singh, however, convicted and sentenced the appellant as above. 9. This appeal has been preferred on the ground that appreciation of evidence is not proper prosecution witnesses are contradictory. On the basis of same set of evidence, Trial Court has acquitted co-accused Omkar Singh, so on the basis of that evidence conviction and sentence of appellant is not sustainable. 10. On the other hand, learned Panel Lawyer supported the finding of conviction and sentence both. 11. Dr. A.K. Choudhary (P.W.13) stated that on 24-7-2001 at District Hospital, Bhind he examined Gajendra Singh s/o Narayan Singh Kushwaha (P.W.1) and found the following injuries on him :- (i) Lacerated wound 7 cm. x 4 cm. x 1 cm., tunnel shaped on left thigh with blackening margin on the wound. (ii) Lacerated wound 1 cm. x l½ cm., having blackening margin on the wound on the left thigh. 12. Dr. A.K. Choudhary (P.W.13) stated that he had advised for X-ray for ascertaining the nature of injury. The injury was caused during 24 hours of examination. x 1 cm., tunnel shaped on left thigh with blackening margin on the wound. (ii) Lacerated wound 1 cm. x l½ cm., having blackening margin on the wound on the left thigh. 12. Dr. A.K. Choudhary (P.W.13) stated that he had advised for X-ray for ascertaining the nature of injury. The injury was caused during 24 hours of examination. The MLC Report is Exh. P-13. lie further stated that thigh is not a vital part. The prosecution did not prove the X-ray plate in this case. 13. In view of the aforesaid evidence, nature of injury is neither proved to be grievous nor dangerous to life. The injury proved by the prosecution in this case caused to Gujendra Singh (P.W.1) is simple in nature. 14. Gajendra Singh (P.W.1) lodged one FIR against unknown persons he could not identify the miscreants because of dark night and he had been injured by gun shot. The tractor was kept outside the house in the open place. lie was sleeping alone inside the room. According to the prosecution, Prahlad Singh (P.W.4) Rajesh Singh alias Brahma Prakash (P.W.5) and Tularam (P.W.7) went on a scooter to search the miscreants. Shyamlal Singh (P.W.2) did not support the prosecution case, who was declared hostile. He stated that he did not went on the scooter anywhere. Prahlad Singh (P.W.4) stated that he saw the tractor, Omkar Singh was driving the tractor and appellant was sitting on the mudguard. The appellant showed gun to him hence he came back feeling scared. Rajesh Singh alias Brahma Prakash (P.W.5) stated that he saw the co-accused driving the tractor and appellant was sitting on the mudguard. He tried to spot the tractor but appellant aimed gun at him and asked him to go back, feeling scared he returned back. Rituraj Singh (P.W.10) stated that while he was searching his lost buffaloes on Tekanpur Road, near a turn he saw the tractor going with high speed. Omkar was driving the tractor and appellant was sitting on it with gun. Satyendra Singh (D.W.1) stated that Rituraj Singh (P.W.10) never came to his house for searching his buffaloes and Omkar Singh (D.W.2) also stated that Rituraj Singh never came to his village searching his buffaloes. 15. The learned Counsel for the appellant submitted that the appellant did not furnish any information in this case to police regarding recovery of tractor and fire arm both. 15. The learned Counsel for the appellant submitted that the appellant did not furnish any information in this case to police regarding recovery of tractor and fire arm both. The tractor in this case was recovered from police station of Uttar Pradesh on 16-8-2001, i.e., after three weeks of the incident. No fire arm was been recovered and submitted with the charge-sheet in this case. He placed reliance on Varghese Vs. State of Kerala, 1998 (1) Crimes 285 (SC), holding that in absence of any statement indicating concealment by appellant of any weapon or other incriminating articles, recovery not sufficient to connect appellant with commission of crime of robber. Further he placed reliance on Prein Singh Vs. State of Punjab, AIR 1977 SC 673 , holding that evidence of such witnesses in regard to the participation of four accused persons were rejected because falsified by the medical evidence, hence it is not safe to place the reliance of such witnesses for convicting the appellant. 16. On careful consideration of the evidence of Prahlad Singh (P.W.4), Rajesh Singh alias Brahma Prakash (P.W.5) and Rituraj Singh (P.W.10) and defence witnesses Satyendra Singh (D.W.1) and Omkar Singh (D.W.2), it is revealed that possibility of appellant tor false implication is not possible. However, to bring home the charge of robbery, it is apparent that the tractor was taken away by the appellant from outside the house kept in open place. Where a person caused hurt to avoid capture, while stealing is theft not a robbery. If recovery would have been properly proved, then it would have a case under Section 379, IPC. In my opinion Tor want of sufficient proof and legal evidence of recovery of tractor in this case, appellant is entitled for benefit of doubt under Sections 394. 398, IPC. As discussed above, in view of the nature of injury, offence under Section 307. IPC is also doubtful, instead, appellant is liable to be convicted under Section 324 of IPC. 17. As discussed above, the appeal deserves to be allowed in part. The conviction under Sections 394, 398 and 307/34 of IPC deserves to be set aside and is hereby set aside. Instead the appellant is convicted under Section 324 of IPC and sentenced to three years R.I. 18. 17. As discussed above, the appeal deserves to be allowed in part. The conviction under Sections 394, 398 and 307/34 of IPC deserves to be set aside and is hereby set aside. Instead the appellant is convicted under Section 324 of IPC and sentenced to three years R.I. 18. Needless to say that the appellant would be entitled for benefit of the set off the custodial period spent by him in jail, pending trial. 19. The appeal is partly allowed in the aforesaid terms.