JUDGMENT Prafulla C. Pant, J. 1. This appeal, preferred under section 374 of Code of Criminal Procedure, 1973, (for short Cr. P.C), is directed against the judgment and order dated 21.06.2000, passed by Learned 1st Additional Sessions Judge, Nainital, in Sessions Trial No. 242 of 1997, whereby said court has convicted the accused/appellant no.1 Bhuwan Bairagi under section 394 of I.P.C. and sentenced him to rigorous imprisonment for a period of five years and directed to pay fine of Rs. 5,000/-. The trial court has convicted the accused/appellant no.2 Chitranjan Ghosh under section 411 of I.P.C. and sentenced him to rigorous imprisonment for a period of two years. 2. Heard learned counsel for the parties, and perused the lower court record. 3. Prosecution story, in brief, is that in the intervening night of 20th and 21st of November, 1992, at about 00.30 hours, PW5 Harihar Sharma, an employee of Mahendra Pal Singh (PW1) was sleeping in “Bajri Company Premises”. On said date and time accused Bhuwan Bairagi alongwith co-accused Vishnu Vishwas (since deceased during trial) and two others trespassed in the house of Mahendra Pal Singh by breaking open the door. The miscreants thereafter assaulted PW5 Harihar Sharma who was sleeping there with butt of a country made pistol. After injuring the aforesaid witness, the miscreants robbed belongings of Mahendra Pal Singh by opening the Almirah. On hearing the noise PW6 Shyam Lal, a watch man raised alarm where after the miscreants escaped with booty. The miscreants were identified by PW5 Harihar Sharma (injured witness) in the electric light. PW6 Shyam Lal, watch man, while accused were recuring identified with the light of the torch. The written report (Ex-A3) was lodged by PW5 Harihar Sharma at Police Station Lalkuan on 21.11.1992, which was registered as Crime No. 332 of 1992, at 1.30 a.m. (i.e. within one hour of the incident). PW1 Mahendra Pal Singh, on his return from Delhi gave details of the properties found missing from his house on 27.11.1992, to the police. The items included VCR (J1) made in Japan, detachable stereo speaker make Philips, four pairs of gold ear rings, three gold rings, one pair silver anklets, a pair of foot finger rings, one ladies HMT watch, one gents watch, one torch with three cells, one jacket and National Saving Certificates and ten clothes. Meanwhile, PW4 Dr. The items included VCR (J1) made in Japan, detachable stereo speaker make Philips, four pairs of gold ear rings, three gold rings, one pair silver anklets, a pair of foot finger rings, one ladies HMT watch, one gents watch, one torch with three cells, one jacket and National Saving Certificates and ten clothes. Meanwhile, PW4 Dr. K.K. Joshi, medically examined Harihar Sharma (PW5) on 21.11.1992, and recorded three injuries. The same were recorded in injury report (Ex-A2). During investigation, police arrested two accused Bhuwan Bairagi and Vishnu Vishwas. After making enquiry regarding property looted, during investigation police recovered some of the looted articles from accused/appellant no. 2 Chitranjan Ghosh. The property recovered was identified by PW1 Mahendra Pal Singh and his wife PW2 Kavita Panchrath. On completion of investigation, charge sheet was filed against accused Bhuwan Bairagi, Vishnu Vishwas, Tarun Sarkar and Chitranjan Ghosh for their trial in respect of offences punishable under section 395, 397 and 411 of I.P.C. showing three others as absconding accused. 4. The Magistrate, on receipt of charge sheet after giving necessary copies to the accused as required under section 207 of Cr. P.C. committed the case to the court of Sessions for trial. Learned Additional Sessions Judge, Nainital, on 03.10.1997, after hearing the parties framed charge of offences punishable under section 395 and 397 of I.P.C., against accused Bhuwan Bairagi and Vishnu Vishwas, who pleaded not guilty and claimed to be tried. On the same day, the trail court framed charge of offence punishable under section 412 of I.P.C. against accused Chitranjan Ghosh, who also pleaded not guilty and claimed to be tried. On this prosecution got examined PW1 Mahendra Pal Singh, PW2 Smt. Kavita Panchrath, PW3 Jaswant Singh (declared hostile), PW4 Dr. K.K. Joshi, PW5 Harihar Sharma (injured eyewitnesses), PW6 Shyam Lal (watch man), PW7 Sita Ram Bhardwaj (Investigating Officer) and PW8 S.S. Nainwal. The oral and documentary evidence was put to the accused under section 313 of Cr. P.C. in reply to which they pleaded that the evidence adduced against them was false, and they have been falsely implicated due to enmity. (During trial accused Vishnu Vishwas died and his case stood abated). The oral and documentary evidence was put to the accused under section 313 of Cr. P.C. in reply to which they pleaded that the evidence adduced against them was false, and they have been falsely implicated due to enmity. (During trial accused Vishnu Vishwas died and his case stood abated). After hearing the parties, the trial court found that accused Bhuwan Bairagi guilty of charge of offence punishable under section 394 of I.P.C. and accused Chitranjan Ghosh guilty of charge of offence punishable under section 411 of I.P.C. After hearing on sentence accused Bhuwan Bairagi was sentenced to rigorous imprisonment for a period of five years and directed to pay fine of Rs. 5,000/- under section 394 of I.P.C. and accused Chitranjan Ghosh was sentenced to rigorous imprisonment for a period of two years under section 411 of I.P.C. Aggrieved by said judgment and order dated 21.06.2000, passed by Learned 1st Additional Sessions Judge, Nainital, in Sessions Trial No. 242 of 1997, this appeal was preferred by convicts before Allahabad High Court from where its received by transfer under section 35 of U.P. Reorganization Act 2000 (central Act 29 of 2000), for its disposal. 5. Before further discussion, this Court thinks it just and proper to mention the three injuries recorded by PW4 Dr. K.K. Joshi on 21.11.1992, after he medically examined Harihar Sharma (PW5) on the next day of the incident. The injuries are being reproduced from injury report (Ex-A3) prepared by said Medical Officer. (1) Bruise over left side of cheek about 4 cm x 3 cm, red in colour ½ cm below left eye. (2) Bruise at the upper and outer border of left eyebrow about 1 cm x ½ cm, red in colour. (3) Abrasionover left side of neck about 1 cm in length blood oozing from abrasion, 3 cm above collar bone. In the opinion of Medical Officer Dr. K.K. Joshi, all the three injuries were simple in injury and caused by hurt blunt object. 6. PW5 Harihar Sharma, the star witness of the case has stated that in the intervening night of 20th and 21st of November, 1992, after mid night four miscreants by breaking the doors entered in the house of Kaka Babu (Mahendra Pal Singh). K.K. Joshi, all the three injuries were simple in injury and caused by hurt blunt object. 6. PW5 Harihar Sharma, the star witness of the case has stated that in the intervening night of 20th and 21st of November, 1992, after mid night four miscreants by breaking the doors entered in the house of Kaka Babu (Mahendra Pal Singh). The witness further narrated that he was sleeping in the house and one of the miscreants who was armed with country made pistol gave blows on his face with its butt the another miscreants caught hold of him (PW1), and rest of the two broke open the three Godrej Almirah and all of them robbed the items kept there. PW5 Harihar Sharma further stated that on hearing noise of breaking open the Almirah he raised alarm. PW5 Harihar Sharma further told that he could identify the miscreants in the electric light. He further told on the day of incident Kaka Babu (Mahendra Pal Singh) was not in the house. This witness is injured eye witness, who has fully narrated the prosecution case, and told that he could identify accused Bhuwan Bairagi and accused Vishnu Vishwas (since deceased during trial). He further proved First Information Report (Ex-A3) lodged by him at the police station. This witness was subjected to cross examination on 24.06.1999, but nothing came out in his evidence which creates doubt in his testimony. His said evidence gets corroborated from the injuries suffered by him as already discussed. 7. The statement of PW5 Harihar Sharma as recorded on 24.06.1999, not only gets corroborated from the medical evidence on record, but also from the statement of PW6 shyam Lal, who has also stated that after hearing some knocking sound he flashed torch and saw accused Bhuwan Bairagi and Vishnu Vishwas with others running away towards Bengali Colony. 8. Shri M.S. Pal, Learned senior counsel appearing on behalf of the appellants argued that the trial court has erred in law in relying of the testimony of PW5 Harihar Sharma as said witness was recalled on 31.05.2000, and further cross examined wherein he told that he could not identify the miscreants as they had covered their faces. He further told he did not know Bhuwan Bairagi from before the incident. He further told he did not know Bhuwan Bairagi from before the incident. Had this statement of the witness come on 24.06.1999, it could have been stated that the evidence given by the witness (PW5) in his examination in Chief is doubtful. But it appears that after the close of the cross examination of the witness later he appears to have been won over where after he was got recalled and then turned hostile. In the opinion of this Court it is not necessary for the court to acquit the accused merely on the basis of contradictory statements of the witness unless said contradiction creates reasonable doubt in his testimony. Where the court found that only one of such statements of the witness is correct statement of fact and another one has been given after the witness was won over, the Court is within its jurisdiction to rely on the testimony which appears to it as the true statement of fact and discard the statement given after winning over of the witness. That is what exactly the trial court has done in this case. 9. Having re-appreciated the evidence on record, this Court is in agreement with the trial court and finds that the prosecution has successfully proved charge of offence punishable under section 394 of I.P.C. against accused Bhuwan Bairagi 10. As to the accused Chitranjan Ghosh it is proved by PW7 Sub Inspector Sita Ram Bhardwaj that the recovery of the robbed articles was made from him which were identified in the identification proceeding by PW1 Mahendra Pal Singh and his wife PW1 Kavita Panchrath. Said witnesses had no enmity with accused Chitranjan Ghosh nor PW5 Harihar Sharma and PW6 Shyam Lal had any enmity with the accused Bhuwan Bairagi to implicate him falsely. 11. For the reasons as discussed above, in the opinion of this Court, the appeal of the present appellants so far as their conviction is recorded by the trial court is concerned, is liable to be dismissed. However, on the point of sentence considering the facts and circumstances of the case, this Court is of the view that sentence of rigorous imprisonment for a period of three years under section 394 of I.P.C. against accused Bhuwan Bairagi, and sentence of rigorous imprisonment for a period of one year under section 411 of I.P.C. against accused Chitranjan Ghosh would meet the ends of justice. 12. 12. Accordingly the appeal on the point of conviction is dismissed. The impugned judgment and order dated 21.06.2000, passed by 1st Additional Sessions Judge, Nainital, in Sessions Trial No. 242 of 1997, convicting the accused Bhuwan Bairagi under section 394 of I.P.C. and accused Chitranjan Ghosh under section 411 of I.P.C. is hereby affirmed. But the sentence awarded to accused Bhuwan Bairagi is reduced to the rigorous imprisonment for a period of three years and sentenced awarded to Chitranjan Ghosh is reduced to rigorous imprisonment for a period of one year. Both the appellants are on bail. Their bail is cancelled. They shall surrender before the court concerned to serve out the remaining part of the sentence. It is also observed that the period already spent by the two, during investigation, or trial shall be adjusted from the sentence passed by this Court. Lower court record be sent back.