Judgment Dev Darshan Sud, J. All these appeals are being disposed of by this common judgment as they arise out of the same judgment of the learned Sessions Judge in Sessions Trial No. 10-ST/7 of 2009. The appellants were charged for offences under Sections 341, 342, 394, 395, 397, 353, 332, 307, 458, 380 of the Indian Penal Code (hereinafter ‘I.P.C.’) and Section 25,54 and 59 of the Arms Act. 2. The prosecution case in brief is that in the early hours of 18.12.2008 at around 2.25 a.m., PW32 Kedar Singh Jindan, who was a resident of village Shillai informed PW35 S.I. /S.H.O. Sh. Jeet Singh that a theft had taken place in H. P. State Cooperative Bank, Shillai. The Station House Officer along with ASI Raj Mohamad and H.C. PW17 H.C. Mam Raj rushed to the spot. When they reached the bank building at Shillai, they found the shutter partly lifted and the cash chest of the bank missing. The room of the Bank Manager PW1 Sh. Sunder Singh Chauhan was bolted from the outside. PW35 S.I.Jeet Singh transmitted this information to all police post/Police Stations. On opening the room, PW1 Sunder Singh Chauhan, Branch Manager was found lying in the room in a badly injured condition. His statement under Section 154 Cr.P.C. Ext.PW1/F was recorded. 3. He stated that he was posted as Branch Manager in the bank since 2004. Two rooms were occupied by him as his residence and on the top floor, the bank was situated at the road level. On the evening of 17.12.2008, he closed the bank after business hours. One key of the lock remains with Deep Ram, Peon and the other with Branch Manager. At around 10.00 P.M. when he had gone to sleep after taking his meals, he heard some noise of the shutter being tampered with. He came out of the room when 4/5 unknown persons over-powered him. When he tried to raise a hue and cry he was hit with bricks on his head and he was tied up and dumped in the room and threatened that he would be killed in case he raises any hue and cry. The key of the bank locker was taken by them along with his mobile phone, one ring and some cash. The key of the bank locker was taken by them along with his mobile phone, one ring and some cash. During this time, one of the assailants, who was standing outside the room and the others entered the bank and removed the cash chest which was fixed in the wall. There were in all Rs.13,83,245/- in the chest constituting currency notes of Rs.5.5 lacs and Rs.8,09,661/- which amount was withdrawn by B.P.E.O. Office. This amount was stolen by them. Case under Sections 382, 341, 457, 380/34 I.P.C. was registered. 4. PW35 S.I.Jeet Singh telephonically informed HC Vijay Pal Singh, who was in Police Station, Paonta Sahib in connection with some official work. He was informed that a dacoity had taken place in the said bank whereupon he also joined in investigation at Police Post, Singhpura to participate in a ‘Nakka’ which had been set up there to apprehend the accused. ASI Raj Mohd along with Constable Chattar Singh was directed to proceed towards Minus situated at the boundary of Police Station, Shillai. The injured PW1 Sunder Singh was taken to the hospital for medical examination. The spot was inspected, photographs were taken, the bricks and one ‘Chappal’ lying on the spot were taken into possession. 5. PW35 SHO Jeet Singh was searching for the accused persons at villages Jamli, Nainidhar and Kafota etc, he received a telephonic information from PW3 ASI Kamal Nain that he had intercepted one vehicle in village Killaur with the accused persons in it. ASI Kamal Nain had received information about this decoity at 3 a.m. through wireless. When he reached the spot, he found PW3 Sh. ASI Kamal Nain, Constable Bahadur Singh, PW5 Constable Narain Singh, HHG Sarwan Kumar and other officials including HC Vijay Pal Singh and some local people were present on the spot. ASI Kamal Nain disclosed to him that when he was present at the Nakka at village Killaur, a Balero Camper bearing No. HP-17B-0449 which was being driven from Koti Ichhari was stopped by him. He asked the occupants to accompany him to the Police Post. In this process, these persons tried to run away from the spot and one of them fired at him with a country made pistol (Desi Katta). This prompted the police party to return the fire. He asked the occupants to accompany him to the Police Post. In this process, these persons tried to run away from the spot and one of them fired at him with a country made pistol (Desi Katta). This prompted the police party to return the fire. Out of the nine persons present in the Balero Camper, eight were nabbed and one of them had managed to escape. The ‘Desi Katta’ was also taken into possession by the police from accused Jiwan Kumar. One dagger was recovered from the Balero Jeep. During the investigation of the case, the following recoveries were effected: Sr.No. Name of the Accused Amount recovered Exhibit/Mark Number. 1. Bhagat Singh Rs.1,20,000/- PW2/E 2. Balbir Singh Rs.1,00,000/- PW1/K 3. Bunty @ Rahul Rs.1,20,000/- PW2/C 4. Ramesh Kumar Rs.2,26,000/- PW1/M Rs.1,20,000/- PW3/C 5. Mangal Singh Rs.1,20,000/- PW2/D 6. Vikas Kumar Rs.9,335/- PW2/F 7. Ranjeet Singh Rs.1,20,000/- PW3/D 8. Jiwan Kumar Rs.59,400/- PW1/L All these currency notes and mobile phones etc. were sealed in a separate packets. 6. On 18.12.2008, HC Vijay Pal Singh went to the bank and inspected the spot and found a purse which contained a PAN card, one letter of accused Mangal Singh which was taken into possession on the spot. The remaining investigation of the case was conducted by PW28 Inspector B.D.Bhatia. When the accused were in police custody, accused Bunty (proclaimed offender) made a disclosure statement Ext.PW6/A vide which the chest was taken into possession. 7. Accused Parmod Kumar was arrested on 19.12.2008 by the Police of Vikas Nagar Police Station, Uttrakhand in case FIR No.203 of 2008 under Sections 307 and 412 I.P.C. and in case F.I.R. No. 204 of 2008 under Section 25-54-59 of the Arms Act. From his possession currency notes worth Rs.1,19,000/- and one ‘Desi Katta’ (country made pistol) were recovered by the police. His custody was transferred to Police Station, Shillai. He had sustained injuries on his hand during a scuffle with the police at the Nakka at Killaur. 8. To prove its case, the prosecution produced 36 witnesses in all. Two defence witnesses were produced by accused Balbir Singh and Bhagat Singh. His custody was transferred to Police Station, Shillai. He had sustained injuries on his hand during a scuffle with the police at the Nakka at Killaur. 8. To prove its case, the prosecution produced 36 witnesses in all. Two defence witnesses were produced by accused Balbir Singh and Bhagat Singh. The learned trial Court on the evidence on record convicted all the accused for offences under Sections 341, 342, 458, 380, 394, 395, 397, 353, 332 and 307 read with Section 120-B I.P.C. In addition, accused Jiwan Kumar was convicted under Section 25 of the Indian Arms Act and accused Bunty was declared proclaimed offender after his statement under Section 313 Cr.P.C. was recorded. The accused were heard on the question of sentence. The learned court sentenced each of the accused in the following terms: Sr.No. Sections 1. 341 IPC Simple imprisonment for a period of one month 2. 342 IPC Simple imprisonment for a period of six months 3. 458 IPC Rigorous imprisonment for a period of five years and fine of Rs.5000/-, in default of payment simple imprisonment for six months. 4. 380 IPC. Rigorous imprisonment for five years and fine of Rs.5000/- in default of payment simple imprisonment for a further period of six months. 5. 394 IPC. Rigorous imprisonment for seven years and fine of Rs.10,000/-in default simple imprisonment for one year. 6. 395 IPC. Rigorous imprisonment for a period of seven years and fine of Rs.10,000/- in default simple imprisonment for period of one year. 7. 397 IPC. Rigorous imprisonment for seven years. 8. 353 IPC. Simple imprisonment for six months. 9. 332 IPC Simple imprisonment for one year. 10. 307 IPC. Rigorous imprisonment for seven years and fine of Rs.10,000/- in default of payment to undergo simple imprisonment for a further period of one year. 10. 120-B IPC Rigorous imprisonment for two years and fine of Rs.5,000/- in default of payment to undergo simple imprisonment for of six months. 11. 25 Indian Accused Jiwan Kumar to undergo rigorous Arms imprisonment for one year and to pay a fine in the sum of Rs.2000/- in default of payment to undergo simple imprisonment for a further period of three months. 9. It was ordered that the substantive sentences were to run concurrently and that the accused would be entitled to set off under Section 428 Cr.P.C. for the period of detention already undergone during investigation. 9. It was ordered that the substantive sentences were to run concurrently and that the accused would be entitled to set off under Section 428 Cr.P.C. for the period of detention already undergone during investigation. A sum of Rs.25,000/-was directed to be paid to Sh.Sunder Singh Chauhan, Branch Manager of the H.P. State Co-operative Bank, Shillai and another sum of Rs.10,000/- each to Constable Narain Singh and HHG Sarwan Kumar as compensation. 10. The appellants challenge the conviction on a number of grounds. Primarily what has been urged before me is that the accused has not been named in the complaint. It is submitted that the evidence of PW1 Sh.Sunder Singh cannot be relied upon for sustaining conviction of the appellants more especially when he did not name accused Bhagat Singh and Balbir Singh in his statement under Section 154 Cr.P.C. whereas in Court he had stated that even prior to the occurrence he knew them because they were residing in the vicinity of the bank. This ground would not be available to the appellants. An F.I.R. is not an encyclopedia of facts. What I find from the reading of the First Information Report (Ext.PW1/A) is that it is not cryptic but sufficient details have been given with respect to the manner in which the offence has been committed. In State of U.P. Vs. Munesh Kumar, (2012) 9 SCC 742 , the Supreme Court holds: “18. Though it is stated that all the details as spoken to by PWs 1,2 and 3 were not mentioned in the FIR, as rightly observed by the trial court, FIR is not an encyclopedia. It is just an intimation of the occurrence of an incident and it need not contain all the facts related to the said incident.” (P.748). 11. In Pandurang Chandrakant Mhatre and others Vs. State of Maharashtra, (2009) 10 SCC 773 , the Supreme Court holds: “36. In Dharma Rama Bhagare Vs. State of Maharashtra, (1973) 1 SCC 537 , this Court held that FIR is never treated as a substantive piece of evidence; it can only be used for corroborating or contradicting its maker when he appears in court as a witness. 38. State of Maharashtra, (2009) 10 SCC 773 , the Supreme Court holds: “36. In Dharma Rama Bhagare Vs. State of Maharashtra, (1973) 1 SCC 537 , this Court held that FIR is never treated as a substantive piece of evidence; it can only be used for corroborating or contradicting its maker when he appears in court as a witness. 38. It is fairly well settled that First Information Report is not a substantive piece of evidence and it can be used only to discredit the testimony of the maker thereof and it cannot be utilized for contradicting or discrediting the testimony of other witnesses. In other words, the First Information Report cannot be used with regard to the testimony of other witnesses who depose in respect of incident. It is equally well settled that the, earliest information in regard to commission of a cognizable offence is to be treated as First Information Report. It sets the criminal law in motion and the investigation commences on that basis. Although First Information Report is not expected to be encyclopedia of events but information to the police to be `first information report' under Section 154(1), must contain some essential and relevant details of the incident. Cryptic information about commission of a cognizable offence irrespective of the nature and details of such information may not be treated as First Information Report.” (Pp. 788 & 789) 12. Secondly, learned counsel submit that the incident took place in the middle of the night at around 2.25 a.m. when the complainant was beaten up, tied and confined in a room in which eventuality it would not be possible for the complainant to recognize them. This submission looses all significance in the sequence of established events as narrated by the prosecution witnesses and proved on record. The accused persons were strangers in the area and not known to the complainant. It is nobody’s case that there was any previous acquaintance between the parties. Even assuming for a moment that there was some acquaintance, it is not possible to recognize the accused in the middle of the night. It is also now well settled that the narration of the crime by the accused should and ought to be in a natural sequence. In State of Uttar Pradesh Vs. Krishna Master and others, (2010) 12 SCC 324 , the Supreme Court holds: 66. It is also now well settled that the narration of the crime by the accused should and ought to be in a natural sequence. In State of Uttar Pradesh Vs. Krishna Master and others, (2010) 12 SCC 324 , the Supreme Court holds: 66. As far as this aspect is concerned, this Court notices that the FIR need not be an encyclopedia of all the facts and circumstances on which the prosecution relies. The main purpose of the FIR is to enable a police officer to satisfy himself as to whether commission of cognizable offences is indicated so that further investigation can be undertaken by him. The purpose of the FIR is to set the criminal law in motion and it is not customary to mention every minute detail of the prosecution case in the FIR. FIR is never treated as a substantive piece of evidence and has a limited use, i.e., it can be used for the corroborating or contradicting the maker of it. 67. Law requires FIR to contain basic prosecution case and not minute details. The law developed on the subject is that even if an accused is not named in the FIR he can be held guilty if prosecution leads reliable and satisfactory evidence which proves his participation in crime. Similarly, the witnesses whose names are not mentioned in the FIR but examined during the course of trial can be relied upon for the purpose of basing conviction against the accused. Non-mentioning of motive in the FIR cannot be regarded as omission to state important and material fact. As a principle, it has been ruled by this Court that omission to give details in the FIR as to manner in which weapon was used by accused is not material omission amounting to contradiction. Further, this is a case wherein FIR was filed by a rustic man and, therefore, non-mentioning of motive in the FIR cannot be attached much importance. 68. In Superintendent of Police, CBI & Ors. vs. Tapan Kumar Singh, AIR 2003 SC 4140 , it has been held by this Court that mere absence of indication about source of light in the FIR for identifying assailants does not, in any way, affect prosecution version. The FIR is not the last words in the prosecution case and in some cases detailed FIR could be a ground for suspicion. The FIR is not the last words in the prosecution case and in some cases detailed FIR could be a ground for suspicion. What is relevant to find out is whether the FIR was lodged promptly and whether it is actuated by mala fides. (Pp.343&344) 13. Having gone through Ext.PW1/F and the evidence of PW1 Sunder Singh, I find no contradictions which would lend credence to the defence of the appellants. The important point urged is that the evidence of PW5 Nain Singh is not corroborated by PW33 Sarwan Kumar. This witness states that gun shot was fired at him but this part of the testimony is not corroborated by PW33 Sarwan Kumar. I need not reiterate that the incident occurred in the middle of the night and in the melee which followed, it is not possible for a witness to sit down and take minute details. Both theses witnesses state that a gun shot was actually fired at the police party. It is by quirk of Providence that this witness (PW5) was not struck. What must not be lost sight of is the fact that the other people had actually heard gun shots as also the sound of retaliatory fire by the police. In these circumstances, it cannot be said that there are fundamental contradictions between the evidence of these two witnesses so as to take the offence outside the purview of the Arms Act as also under Section 307 I.P.C. More often then not it has been held that the use of dangerous weapons including fire arms though per se would not constitute an offence under Section 307 I.P.C. but at the same time it is the intention with which the weapon is used that would matter. In these circumstances, the submission deserves to be rejected. 14. The last submission made on behalf of the appellants is that there are material contradictions in the evidence of the witnesses and one does not corroborate the other. What the prosecution establishes is that the accused entered the bank premises in the middle of the night and thereafter PW1 Sunder Singh was beaten up, tied and bolted in a room. The accused took away the key and cash chest and then fled from the spot. These facts have been corroborated by PW1 Sunder Singh. Of course, the identity of the accused was not established by him. The accused took away the key and cash chest and then fled from the spot. These facts have been corroborated by PW1 Sunder Singh. Of course, the identity of the accused was not established by him. But as held by me, that would loose relevance in the circumstances for the reason that subsequently when all the accused were intercepted, currency notes with the stamps of the H.P. State Cooperative Bank, Shillai were recovered from them which they have been unable to explain. The recovery of a ‘Dessi Katta’ (country made pistol) Ext.P25 has also not been explained by the accused. I also find that the finger prints of the accused Ext.PW1/B on the chest which was broken have been proved by the prosecution. There is no explanation on the part of the accused as to how these finger prints were impressed on the chest. The recovery of a dagger Ext.P26 from accused Balbir Singh stands proved. This evidence itself corroborates the facts of their involvement in the crime. They have been unable to explain their presence in the odd hours of the night as also their conduct when they were asked to furnish an explanation about their presence at Killaur, on which query they resorted to firing. 15. I do not find anything on the record that the disclosure statements under Section 27 of the Indian Evidence Act, 1872 have been obtained forcibly or have been foisted on the accused. I am unable to ascertain from the evidence any contradiction of a major nature which would destroy the veracity/foundation of the case of the prosecution. In these circumstances, I do not find that the submissions made on behalf of the accused are well founded. 16. The rules for appreciation of evidence are by now well settled. The trial Courts need not be reminded of the manner in which evidence of the witnesses is to be appreciated. In C.Magesh and others Vs. State of Karnataka (2010) 5 SCC 645 , the Supreme Court had an opportunity to deal with this aspect as to how the evidence is to be appreciated/relied upon. The Court held: “45 It may be mentioned herein that in criminal jurisprudence, evidence has to be evaluated on the touchstone of consistency. Needless to emphasize, consistency is the keyword for upholding the conviction of an accused. The Court held: “45 It may be mentioned herein that in criminal jurisprudence, evidence has to be evaluated on the touchstone of consistency. Needless to emphasize, consistency is the keyword for upholding the conviction of an accused. In this regard it is to be noted that this Court in the case titled Suraj Singh V. State of U.P. (2008) 16 SCC 686 has held: (SCC p. 704, para 14) “14.’21…The evidence must be tested for its inherent consistency and the inherent probability of the story; consistency with the account of other witnesses held to be creditworthy; the probative value of such evidence becomes eligible to be put into the scales for a cumulative evaluation..” 46. In a criminal trial, evidence of the eyewitness requires a careful assessment and must be evaluated for its creditability. Since the fundamental aspect of criminal jurisprudence rests upon the stated principle that “ no man is guilty until proven so”, hence utmost caution is required to be exercised in dealing with situations where there are multiple testimonies and equally large number of witnesses testifying before the court. There must be a string that should join the evidence of all the witnesses and thereby satisfying the test of consistency in evidence amongst all the witnesses”. (P. 655) 17. In Paramjit Singh alias Pamma Vs. State of Uttarkhand, (2010) 10 SCC 439 , the court holds: “10. Standard of Proof: A criminal trial is not a fairy tale wherein one is free to give flight to one's imagination and fantasy. Crime is an event in real life and is the product of interplay between different human emotions. In arriving at a conclusion about the guilt of the accused charged with the commission of a crime, the court has to judge the evidence by the yardstick of probabilities, its intrinsic worth and the animus of witnesses. Every case, in the final analysis, would have to depend upon its own facts. The court must bear in mind that "human nature is too willing, when faced with brutal crimes, to spin stories out of strong suspicions." Though an offence may be gruesome and revolt the human conscience, an accused can be convicted only on legal evidence and not on surmises and conjecture. The law does not permit the court to punish the accused on the basis of a moral conviction or suspicion alone. The law does not permit the court to punish the accused on the basis of a moral conviction or suspicion alone. "The burden of proof in a criminal trial never shifts and it is always the burden of the prosecution to prove its case beyond reasonable doubt on the basis of acceptable evidence." In fact, it is a settled principle of criminal jurisprudence that the more serious the offence, the stricter the degree of proof required, since a higher degree of assurance is required to convict the accused. The fact that the offence was committed in a very cruel and revolting manner may in itself be a reason for scrutinizing the evidence more closely, lest the shocking nature of the crime induce an instinctive reaction against dispassionate judicial scrutiny of the facts and law. (Vide : Kashmira Singh v. State of Madhya Pradesh, AIR 1952 SC 159 ; State of Punjab v. Jagir Singh Baljit Singh & Anr., AIR 1973 SC 2407 ; Shankarlal Gyarasilal Dixit v. State of Maharashtra, AIR 1981 SC 765 ; Mousam Singha Roy & Ors. v. State of West Bengal, (2003) 12 SCC 377 ; and Aloke Nath Dutta & Ors. v. State of West Bengal, (2007) 12 SCC 230 ). (Pp.445&446) 18. In R.V.E. Venkatachala Gounder Vs. Arulmigu Viswesaraswami & V.P. Temple and another, (2003) 8 SCC 752 , the principles of appreciation of evidence have been set out: “28. Whether a civil or a criminal case, the anvil for testing of 'proved', 'disproved' and 'not proved', as defined in Section 3 of the Indian Evidence Act, 1872 is one and the same. A fact is said to be 'proved' when, if considering the matters before it, the Court either believes it to exist, or considers its existence so probable that a prudent man ought, under the circumstances of a particular case, to act upon the supposition that it exists. It is the evaluation of the result drawn by applicability of the rule, which makes the difference. "The probative effects of evidence in civil and criminal cases are not however always the same and it has been laid down that a fact may be regarded as proved for purposes of a civil suit, though the evidence may not be considered sufficient for a conviction in a criminal case. "The probative effects of evidence in civil and criminal cases are not however always the same and it has been laid down that a fact may be regarded as proved for purposes of a civil suit, though the evidence may not be considered sufficient for a conviction in a criminal case. BEST says : There is a strong and marked difference as to the effect of evidence in civil and criminal proceedings. In the former a mere preponderance of probability, due regard being had to the burden of proof, is a sufficient basis of decision: but in the latter, especially when the offence charged amounts to treason or felony, a much higher degree of assurance is required. (BEST, S. 95). While civil cases may be proved by a mere preponderance of evidence, in criminal cases the prosecution must prove the charge beyond reasonable doubt." (See Sarkar on Evidence, 15th Edition, pp.58-59) In the words of Denning LJ (Bater Vs. B, 1950, 2 All ER 458,459): "It is true that by our law there is a higher standard of proof in criminal cases then in civil cases, but this is subject to the qualification that there is no absolute standard in either case. In criminal cases the charge must be proved beyond reasonable doubt, but there may be degrees of proof within that standard. So also in civil cases there may be degrees of probability." Agreeing with this statement of law, Hodson, LJ said: "Just as in civil cases the balance of probability may be more readily fitted in one case than in another, so in criminal cases proof beyond reasonable doubt may more readily be attained in some cases than in others." (Hornal V. Neuberger P. Ltd., 1956 3 All ER 970, 977). (P.767) 19. It was this principle which has to be applied and not minor contradictions which do not go to the root of the case which has to be considered. I am unable to discern any contradiction of the nature which would strike at the very root of the case. In Appabhai and another Vs. State of Gujarat, AIR 1988 S.C. 696 , the Court holds : 13. ………………………….It is true that there are many contradictions in the evidence of Devji. I am unable to discern any contradiction of the nature which would strike at the very root of the case. In Appabhai and another Vs. State of Gujarat, AIR 1988 S.C. 696 , the Court holds : 13. ………………………….It is true that there are many contradictions in the evidence of Devji. He has not attributed overt acts to individual accused in his statement before the police whereas he has attributed such overt acts in his evidence before the court. But that is no ground to reject his entire testimony. It must not be forgotten that he was a victim of the assault. Fortunately he has survived. He must, therefore, be considered as the best eye-witness. The court while appreciating the evidence must not attach undue importance to minor discrepancies. The discrepancies which do not shake the basic version of the prosecution case may be discarded. The discrepancies which are due to normal errors of perception or observation should not be given importance. The errors due to lapse of memory may be given due allowance. The court by calling into aid its vast experience of men and matters in different cases must evaluate the entire material on record by excluding the exaggerated version given by any witness. When a doubt arises in respect of certain facts alleged by such witness, the proper course is to ignore that fact only unless it goes into the root of the matter so as to demolish the entire prosecution story. The witnesses nowadays go on adding embellishments to their version perhaps for the fear of their testimony being rejected by the court. The courts, however, should not disbelieve the evidence of such witnesses altogether if they are otherwise trustworthy. Jaganmohan Reddy, J. speaking for this Court in Sohrab v. State of Madhya Pradesh (1972 Cri LJ 1302, 1396 : (1972) 3 SCC 751 : 1972 SCC (Cri) 819 : AIR 1972 SC 2020 ) observed : [SCC p. 756, SCC (Cri) p. 824, para 8]: “This Court has held that falsus in uno falsus in omnibus is not a sound rule for the reason that hardly one comes across a witness whose evidence does not contain a grain of untruth or at any rate exaggeration, embroideries or embellishments. In most cases, the witnesses when asked about details venture to give some answer, not necessarily true or relevant for fear that their evidence may not be accepted in respect of the main incident which they have witnessed but that is not to say that their evidence as to the salient features of the case after cautious scrutiny cannot be considered”. (P.700) 20. I need not burden the judgment with more precedent as the principles of law are well settled. All that I need say is that the narration of the prosecution case is but natural and each incriminating circumstances/fact has been established by (a) recovery of bundle of currency of various denomination bearing the seal of the H.P. State Cooperative Bank, Shillai (b) recovery of ‘Desi Kata’ (country made gun) Ext.P25, dagger (Ext.P26) and (c) The accused fleeing from the spot and opening fire on the police inviting retaliatory fire. Each one of the circumstances when read with the other evidence of the prosecution points un-mistakably and with certainty to the involvement of the accused. It has been urged before me that no offence under Section 307 I.P.C. has been made out as the mere used of ‘Desi Kata’ (country made pistol) is insufficient to bring the offence within the ambit of under Section 307 I.PC. 21. Learned counsel appearing for the appellants has placed reliance on the judgment of this Court in State of H.P. Vs. Ashwani Kumar and others, 2010 (3) Shim.L.C. 216, wherein, dealing with the facts of the case, a Division bench of this Court holds: 13. Brief facts of the case are that on 31.5.1991 PW-1 Rakesh Kumar and PW-2 Arun Sharma alias Gola, who were the two injured persons, took meals in “Pehalwan Dhaba” at Bara Chowk, Nahan. After they took their meals they came out from the dhaba. According to the prosecution, all the five accused had formed an unlawful assembly with the intention of committing murder of PW-1 Rakesh Kumar and as soon as Rakesh Kumar and Arun Sharma alias Gola came out of the dhaba, the accused who were armed with deadly weapons attacked them and caused serious injuries to them. Accused Ashwani Kumar was armed with a chopper, accused Abhinash alias Banti was armed with a dagger and the other three accused were armed with iron rods and dandas. 14. Accused Ashwani Kumar was armed with a chopper, accused Abhinash alias Banti was armed with a dagger and the other three accused were armed with iron rods and dandas. 14. On perusal of the evidence, we find that in fact a number of injuries had been caused by a “Palta”, an instrument used for cooking in a restaurant/dhaba. Even a chopper is an instrument used mainly in dhaba. It appears from the evidence that in fact the accused were not armed with these weapons before the act but at the dhaba itself some altercation took place between the two sides, and the accused used the instruments available to attack the injured persons. 15. … … … … … … … … … … 16. After going through the statement of Dr. Deepak Sharma, we find that the injuries caused to PW-2 Arun Sharma and PW-3 Abhinubh Dutta were all simple injuries. However, the injuries were caused with sharp edged weapons. There was one scalp injury on PW-2 which was only a superficial tissue cut. The other injuries were on the legs. As far as PW-3 is concerned, there was one injury on his hand and one injury was on the occipital region but all these injuries are simple. However, two injuries on the person of PW-1 Rakesh Kumar were grievous injuries. These were the fracture of leg and fracture of fore-arm bones. The other injuries were also mainly on the hands and the legs. There were two cut lacerated wounds on the scalp but there was no fracture of the skull. 17. From the medical evidence, it is apparent that the injuries were mainly caused on the lower parts of the body. In a free fight some injuries may have been caused on the head also but it is apparent that the injuries were not caused with so much force so as to cause the death of the injured persons. No doubt the vital parts are involved in some of the injuries but the injuries on the vital parts are simple in nature and the grievous injuries are on the non-vital parts of the body. This shows that the intention of the accused was to thrash the injured persons and give them beatings but not to kill them. Even the opinion of the doctor is not absolutely clear. This shows that the intention of the accused was to thrash the injured persons and give them beatings but not to kill them. Even the opinion of the doctor is not absolutely clear. He has stated that if the injured persons were left unattended the injuries could have caused her death. This may happen in every case of injury. This is different from saying that the injuries in normal course could have caused death. 18. From the reading of the entire evidence and especially the medical evidence, we are convinced that the accused had no intention of killing any of the injured persons including Rakesh Kumar. Their intention was to beat him up, which they in fact did with dangerous weapons. Since they had also caused grievous injuries and they had caused them with dangerous weapons, they are guilty of having committed an offence punishable under Section 324 IPC. 19. In view of the above discussion, the conviction of the accused under Section 307 IPC is set-aside and the accused are convicted of having committed an offence punishable under Section 324 read with Section 149 IPC.” (Emphasis supplied) (pp.220-222) 22. He then submits that in Cr. Appeal No.439 of 2001, titled: Desh Raj vs. State of H.P., decided on 25.11.2008, this Court while dealing with a case of assault by a Police Officer,on facts, this Court held:- “The next question which arises for determination in the circumstances is that as to what offence was committed by the appellant. PW1 Dr. Arvind Sood had noticed injury on the skull which was in the nature of cut 1 inch x 3 mm on the right side of the occipital region, which was bleeding profusely, but on X-ray it did not reveal any fracture. After perusing the medico legal summary of the PGI, the Doctor opined that the said injury upon the appellant was grievous in nature and dangerous to life. In the instant case, there was no previous enmity nor there was intention preceding the assault attributed to the appellant. He is alleged to have caused injury by the fist blows on the face of PW4 Manohar Lal. The intention to kill PW4 Manohar Lal is missing. It was a sudden fight and further the injury in question was not iminently danger to life. The offence under Section 307 I.P.C. fall sort of murder. He is alleged to have caused injury by the fist blows on the face of PW4 Manohar Lal. The intention to kill PW4 Manohar Lal is missing. It was a sudden fight and further the injury in question was not iminently danger to life. The offence under Section 307 I.P.C. fall sort of murder. The ingredients of the offence are not fully satisfied.” The appellant was sentenced under Section 325 and not under Section 307 IPC. 23. Learned counsel also places reliance on the decision of this Court in Raj Kumar vs. State of H.P., 2009 (1) Shim.L.C.435 holding:- “7. However, from the perusal of the evidence, I do feel that the conviction of the appellant for offence, punishable under Section 307 of the Indian Penal Code is not sustainable. The injury, for which the appellant has been held guilty of attempted murder, is a simple injury, as per opinion of the doctor, namely PW-1 Dr. B.K. Raizada, as also the medico legal certificate Ex.PW-1/A issued by him. No doubt, initially, the doctor reported that the injury was dangerous to life but after X-ray examination he gave the final opinion that the injury was simple in nature. If the injury were dangerous to life, it could not have been opined to be a simple injury, because as per clause eighthly of Section 320 of the Indian Penal Code, an injury dangerous to life is grievous in nature. Otherwise also, the site and the size of the injury sustained by PW-2 Pramod Singh rule out the requisite mens rea for the offence, under Section 307 of the Indian Penal Code. The size of the injury was 3 cm x 1 cm x 3 cm only and it was caused on the back side of the chest. Had the appellant intended to cause the death of PW-2 Pramod Singh, he would have used a great deal of force, while giving the knife blow to Pramod Singh, but, as already noticed, he caused only a simple injury, measuring 3cm x 1 cm x 3 cm. This fact itself indicates that there was no intention to kill PW-2 Pramod Singh or even to cause a serious injury.” (p.437) 24. This fact itself indicates that there was no intention to kill PW-2 Pramod Singh or even to cause a serious injury.” (p.437) 24. Learned Additional Advocate General submits that the factors required for proof of offence under Section 307 IPC have been clearly laid down by Supreme Court in Sachin Jana and Another vs. State of West Bengal, (2008)3 SCC 390 holding:- “10. … … … … The above position was highlighted in Girija Shankar vs. State of U.P. (2004)3 SCC 793 , SCC pp.797-98, paras 9-10. 11. “.9 …. Section 307 IPC reads: '307. Attempt to murder Whoever does any act with such intention or knowledge, and under such circumstances that, if he by that act caused death, he would be guilty of murder, shall be punished with imprisonment of either description for a term whichmay extend to ten years, and shall also be liable to fine; and if hurt is caused to any person by such act, the offender shall be liable either to imprisonment for life, or to such punishment asis hereinbefore mentioned.' To justify a conviction under this section, it is not essential that bodily injury capable of causing death should have been inflicted. Although the nature of injury actually caused may often give considerable assistance in coming to a finding as to the intention of the accused, such intention may also be deduced from other circumstances, and may even, in some cases, be ascertained without any reference at all to actual wounds. The section makes a distinction between an act of the accused and its result, if any. Such an act may not be attended by any result so far as the person assaulted is concerned, but still there may be cases in which the culprit would be liable under this section. It is not necessary that the injury actually caused to the victim of the assault should be sufficient under ordinary circumstances to cause the death of the person assaulted. What the court has to see is whether the act, irrespective of its result, was done with the intention or knowledge and under circumstances mentioned in the section. An attempt in order to be criminal need not be the penultimate act. What the court has to see is whether the act, irrespective of its result, was done with the intention or knowledge and under circumstances mentioned in the section. An attempt in order to be criminal need not be the penultimate act. It is sufficient in law, if there is present an intent coupled with some overt act in execution thereof.” This position was highlighted in State of Maharashtra v. Balram Bama Patil (1983)2 SCC 28 , SCC p.32, para 9.” (p.393) 25. In Sagayam vs. State of Karnataka, (2000)4 SCC 454 , the Supreme Court holds:- “6. To justify conviction under Section 307 IPC, it is not essential that bodily injury capable of causing death should have been inflicted. An attempt in order to be criminal need not be the penultimate act foreboding death. It is sufficient in law if there is present an intent coupled with some overt act in execution thereof, such act being proximate to the crime intended and if the attempt has gone so far that it would have been complete but for the extraneous intervention which frustrated its consummation. There are different stages in a crime. First, the intention to commit it; second the preparation to commit it; third, an attempt to commit it. If at the third stage, the attempt falls, the crime is not complete but the law punishes for attempting the same. An attempt to commit crime must be distinguished from an intent to commit it or preparation of its commission.” (p.458) 26. In Bir Singh vs. State of H.P., (2006)9 SCC 579 , the Supreme Court holds:- “3. The injuries sustained by PW1 are as under: 1. An incised wound oblique in direction from inner corner of right eye extending to below right ear. Size 15 cm long 1 cm deep ½ cm wide. 2. An incised wound over right side of head from the side of forehead to upward and backward, 10 cm. long ½ cm wide and ½ cm deep. 3. An incised wound behind right ear obliquely placed 4½ cm long, ½ cm deep and ½ cm wide. 4. An incised wound over right ear, 1 cm long and ½ cm deep. 5. Incised wound between first and second finger, 7 cm long ½ cm long 1 cm deep 1½ inch long. 6. 3. An incised wound behind right ear obliquely placed 4½ cm long, ½ cm deep and ½ cm wide. 4. An incised wound over right ear, 1 cm long and ½ cm deep. 5. Incised wound between first and second finger, 7 cm long ½ cm long 1 cm deep 1½ inch long. 6. 1 cm long incised wound, ½ cm deep at the base of left thumb,1½ cm long, ½ cm deep incised wound. 7. On the back of right shoulder there was incised wound of 2 cm long, ½ cm deep verticallyplaced. 9. PW1 stated in great details as to how he had suffered injuries. The injuries suffered by him stand corroborated by medical evidence. He categorically stated that he could not even recognize the accused at the time of incident, but, according to him, he came to know later on that two groups which were reported by the accused to have been fighting, had approached him earlier in his capacity as in-charge of police force with a complaint of apprehension of breach of peace and on that basis, a proceeding under Sections 107/151 of the Criminal Procedure Code was initiated by him. (pp.581-582) Conviction of the accused was sustained under Section 307 IPC. 27. Lastly, in State of M.P. vs. Saleem Alias Chamaru and Another, (2005)5 SCC 554 , the Supreme Court holds:- “11. It is to be noted that the alleged offences are of very serious nature. Section 307 relates to attempt to murder. It reads as follows: "307. Whoever does any act with such intention or knowledge, and under such circumstances that, if he bythat act caused death, he would be guilty of murder, shall be punished with imprisonment of either description for a term which may extend to ten years, andshall also be liable to fine; and if hurt is caused to any person by such act, the offender shall be liable either to imprisonment for life, or to such punishment asis hereinbefore mentioned." 12. To justify a conviction under this section, it is not essential that bodily injury capable of causing death should have been inflicted. To justify a conviction under this section, it is not essential that bodily injury capable of causing death should have been inflicted. Although the nature of injury actually caused may often give considerable assistance in coming to a finding as to the intention of the accused, such intention may also be deduced from other circumstances, and may even, in some cases, be ascertained without any reference at all to actual wounds. The section makes a distinction between an act of the accused and its result, if any. Such an act may not be attended by any result so far as the person assaulted is concerned, but still there may be cases in which the culprit would be liable under this section. It is not necessary that the injury actually caused to the victim of the assault should be sufficient under ordinary circumstances to cause the death of the person assaulted. What the court has to see is whether the act, irrespective of its result, was done with the intention or knowledge and under circumstances mentioned in the section. An attempt in order to be criminal need not be the penultimate act. It is sufficient in law, if there is present an intent coupled with some overt act in execution thereof. 13. It is sufficient to justify a conviction under Section 307 if there is present an intent coupled with some overt act in execution thereof. It is not essential that bodily injury capable of causing death should have been inflicted. The section makes a distinction between the act of the accused and its result, if any. The court has to see whether the act, irrespective of its result, was done with the intention or knowledge and under circumstances mentioned in the section. Therefore, an accused charged under Section 307 IPC cannot be acquitted merely because the injuries inflicted on the victim were in the nature of a simple hurt. 14. This position was highlighted in State of Maharashtra v. Balram Bama Patil, (1983)2 SCC 28 , Girija Shankar v. State of U.P. (2004)3 SCC 793 and R. Prakash v. State of Karnataka (2004)9 SCC 27 . 15. 14. This position was highlighted in State of Maharashtra v. Balram Bama Patil, (1983)2 SCC 28 , Girija Shankar v. State of U.P. (2004)3 SCC 793 and R. Prakash v. State of Karnataka (2004)9 SCC 27 . 15. In Sarju Prasad v. State of Bihar, AIR 1965 SC 843 it was observed in para 6 that mere fact that the injury actually inflicted by the accused did not cut any vital organ of the victim, is not by itself sufficient to take the act out of the purview of Section 307. 16. Whether there was intention to kill or knowledge that death will be caused is a question of fact and would depend on the facts of a given case. The circumstances that the injury inflicted by the accused was simple or minor will not by itself rule out application of Section 307 IPC. The determinative question is the intention or knowledge, as the case may be, and not the nature of the injury. The basic difference between Sections 333 and 325 IPC is that Section 325 gets attracted where grievous hurt is caused whereas Section 333 gets attracted if such hurt is caused to a public servant. 17. Section 307 deals with two situations so far as the sentence is concerned. Firstly, whoever does any act with such intention or knowledge, and under such circumstances that, if he by that act caused death, he would be guilty of murder, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine; and secondly if hurt is caused to any person by such act the offender shall be liable either to imprisonment for life or to such punishment as indicated in the first part i.e. 10 years. The maximum punishment provided for Section 333 is imprisonment of either description for a term which may extend to 10 years with a liability to pay fine. The maximum sentence in each case goes to show the gravity which is attached to respective offences. Unfortunately, the High Court has not kept these features in view. (pp.559-560) 28. On these settled principles, I cannot persuade myself to hold that no offence under Section 307 I.P.C. has been made out. The maximum sentence in each case goes to show the gravity which is attached to respective offences. Unfortunately, the High Court has not kept these features in view. (pp.559-560) 28. On these settled principles, I cannot persuade myself to hold that no offence under Section 307 I.P.C. has been made out. The intention of exchanging fire with the police after being the first to open fire points to the fact that they desperate and would have gone to any extent to escape from law. In these circumstances, I do not find any merit in these appeals which are accordingly rejected. 29. Learned counsel appearing for the appellants submits that the sentence imposed upon them is excessively harsh. It is submitted that they were aged about 23 to 29 years at the time when they committed the offence and having no past criminal record. The motive seems to have been only to make a quick buck. Learned counsel submits that M.L.C. Ext.PW1/N establishes simple injuries on the bank Manager which supported the submission made on behalf of the appellants that the only motive was to loot money and nothing else. It is also submitted that they are in police custody since 17th December, 2008. In that eventuality, the punishment may be converted into one already undergone. 30. The nature of the manner in which the offence has been committed, points out to the desperation of the accused. True, the sentence imposed should not be an act of vengeance or attribution but at the same time, it would not be appropriate to deal with the accused in the manner which sent the signal to the society that crime pays. 31. Looking to the totality of the facts and circumstances of the case, it would be appropriate if the sentence served by the accused is reduced to four years rigorous imprisonment for all the accused. They are directed to pay fine of Rs.40,000/- each in addition to the one already imposed by the learned trial Court within a period of six months from today failing which the sentence as imposed by the learned trial Court will be dutifully carried out and executed. Appeals are disposed of. 32. It is directed that their warrants of release be prepared and they be released from jail on 17th December, 2012 on which date all of them complete four years imprisonment. Appeals are disposed of. 32. It is directed that their warrants of release be prepared and they be released from jail on 17th December, 2012 on which date all of them complete four years imprisonment. The accused shall be released from the custody forthwith in case they are not wanted in any other case. The fine imposed by this Court shall be deposited, as directed failing which the sentence as imposed by the learned trial Court shall revive and the accused shall be liable to serve the entire sentence as imposed by him.