Vinod Prasad, J.:- Challenge in this appeal by the two appellants Gorey Lal and Narain Joo are to their conviction u/S 394 and 304/34 I.P.C., and implanted sentence of ten years R.I. for each of the two offences recorded by Session's Judge, Lalitpur in S.T. No.63 of 1981, State Vs. Gorey & others vide impugned judgement and order dated 26.8.1981.Both the sentences were directed to run concurrently, by the trial Judge. Third accused Govind Singh, who was also tried along with the appellants, was acquitted by the impugned judgement. Hence, this appeal by two convicted accused. Stated briefly, prosecution allegations against the appellants, as was sketched in the written report, Exhibit Ka-8, dictated by informant Gore Lal P.W.4, and scribed by Deep Chandra, were that in mid night between 22nd/23rd January,1981, a robbery was committed in the house of informant by three or four robbers, where informant's wife Smt. Nanhi Bahu P.W.6 and his two daughters Smt. Parwati P.W.5 and Smt. Bhana ( deceased) were sleeping. Robbers belaboured these ladies and forcible took off their ornaments- silver anklets ( Pajeb), and silver bangles. While, her silver anklets ( Pajeb) of another leg was being taken off, Smt. Bhana raised hue and cry, and consequently one of the miscreants gave her a spade blow, causing an incised wound on her head. The incident was witnessed in the light of lantern burning at the place of the incident and house inmates could identify culprits. F.I.R., Ext. Ka 5, about the incident, was scribed by Deep Chandra at the dictation of the informant Gore Lal P.W.4, who then covered a distance of four kms to PS Mehroni, district Lalitpur, where following morning at 10.20 a.m. he lodged it against unnamed accused as crime no. 13/81, u/s 394 IPC. Constable Kailash Singh registered the F.I.R., prepared Chik F.I.R., Exhibit Ka-8 and G.D. entry, Exhibit Ka-9. Smt. Bhana was medically examined by Doctor S.K. Jain P.W.8 on 23.1.1981 at 11.30 a.m., who was brought to him by Constable Raza Mohammad, C.P. No.188 of police station Mehroni and doctor had prepared her medical examination report, Exhibit Ka-7, which is reproduced herein below:- Exhibit Ka-7 Examined Smt. Bhana D/o Shri Gore Lal aged 16 yrs. R/o village Agan P/S Maharoni Distt. Lalitpur. B/B Shri Raja Mohammad C.P.188 P/S Maharoni Distt. R/o village Agan P/S Maharoni Distt. Lalitpur. B/B Shri Raja Mohammad C.P.188 P/S Maharoni Distt. Lalitpur on 23.1.81 at 11.30 A.M. M.I. Black mole at the chin 2 cm below the lower lip. Injuries:- ( 1) Incised wound of the size of 3 cm x .5 cm x Bone deep at Lt. side of the forehead. 2-1/2 cm above the Lt. eyebrow. Margins are sharp cut injury is kept under observation. Adv. X-ray of Forehead. Opinion:- Injury is caused by some sharp object. Duration is within a day. Nature of the injury will be decided after getting the X-ray report. In the estimation of the doctor, her injury was caused by some sharp edged weapon and could have been sustained at or about the time of the incident. Doctor had advised her for X-ray of her injuries. Har Dayal Verma, S.I.,P.W.9, commenced investigation into the crime, recorded investigatory statements of the informant, his wife and daughters i.e. Gore Lal P.W.4, Smt. Nanhi Bhau P.W.6, Smt. Bhana, under Section 161 Cr.P.C. statement of Smt. Bhhana, as a result of her demise on 29.1.81, was admitted in evidence as Ext. ka 10, as her dying declaration. Conducting spot inspection, I.O. prepared site plant Ext. Ka-11. Inquest on the cadaver of the deceased was done, vide Exhibit Ka-12, by Har Dayal Verma I.O. P.W.9. Other relevant documents of challan lash, photo lash etc.,vide Exhibit Ka-13 to Ka-15, were also prepared simultaneously. Sealing the dead body, it was handed over to Constable Yogendra Singh and Constable Devi Dayal to be carried to mortuary for autopsy purposes, which was performed on 30.1.1981 by Dr. Janki Prasad, M.O. I/C District Hospital, Lalitpur. Deceased was detected to be 16 years of age and two days had lapsed since her death. Doctor had noted that she was having average built body and rigor mortis was present on her upper limbs. There was a depressed fracture of her left frontal bone 2cmx 1 ½ cm and death was due to traumatic brain haemorrhage caused by sustained physical injury. Following injury on the corpse was detected by the doctor vide post mortem examination report Ext. Ka 2:- "Septic wound 3 ½ cm x ½ cm x bone deep lt. forehead, 3 ½ cm above lt. eye brow placed obliquely." In doctor's opinion deceased could have sustained fatal injury at or about the time of the incident. Following injury on the corpse was detected by the doctor vide post mortem examination report Ext. Ka 2:- "Septic wound 3 ½ cm x ½ cm x bone deep lt. forehead, 3 ½ cm above lt. eye brow placed obliquely." In doctor's opinion deceased could have sustained fatal injury at or about the time of the incident. Accused were arrested by Ram Magan Singh, S.O. P.W.7 on 19/20.2.1981, while making preparation to commit dacoity and during their interrogation, their complicity in the present crime was surfaced and hence they were put under veil and were brought to the police station and were lodged in lock-up vide G.D. No.4 at 5.10 a.m. vide Exhibit Ka-3.Same day at 9.30 a.m., under veil, they were taken out from police lock-up and were dispatched to jail through Constable Bachan Singh, Constable Mohammad Salim and Constable Shiv Shanker Singh, vide Exhibit Ka-4. It had been evidenced by HC Guru Prasad,P.W.3, that so long as the culprits were at the police station, they were under veil and nobody was allowed to meet or spot them. Ram Magan Singh, P.W.7 during course of investigation had given a report for conducting test identification parade of the accused, which was held by Executive Magistrate Madhukar Dwivedi, P.W.1 in District Jail, Lalitpur on 28.2.81, who had proved his identification memo Exhibit Ka-1, the perusal of which indicates that Smt. Parwati P.W.5 had correctly identified all the three arrested accused Gorey Lal, Narain Joo and Govind Singh, whereas Smt. Nanhi Bahu P.W.6 could identify only two appellants and committed mistake in identifying Govind Singh. After concluding investigation Ram Magan Singh, I.O. had charge-sheeted the accused vide Exhibit Ka-6. Session's Judge, Lalitpur, charged all the accused for offences u/s 394 and 304 IPC on 26.5.1981, which charges were denied by them and hence to establish it prosecution commenced. To establish accused guilt and proved the charges prosecution examined in all ten witnesses, out of whom informant Gore Lal P.W.4, his daughter Smt. Parwati P.W.5, wife Smt. Nanhi Bahu P.W.6 were examined as fact witnesses about the incident. Other formal witnesses included Executive Magistrate Madhukar Dwivedi P.W.1, Dr. Janki Prasad P.W.2,HC Guru Prasad P.W.3, Ram Magan Singh P.W.7, Dr. S.K. Jain P.W.8, Har Dayal Verma, I.O. P.W.9 and Mohd. Salim P.W.10. Other formal witnesses included Executive Magistrate Madhukar Dwivedi P.W.1, Dr. Janki Prasad P.W.2,HC Guru Prasad P.W.3, Ram Magan Singh P.W.7, Dr. S.K. Jain P.W.8, Har Dayal Verma, I.O. P.W.9 and Mohd. Salim P.W.10. In their statements under Section 313 Cr.P.C. accused denied incriminating circumstances put to them and claimed their false implication and also pleaded defence that they were shown to the witnesses at the police station. For the purposes of establishing that the accused were very well known to the prosecution witnesses, they examined seven defence witnesses Smt. Badi Duliya D.W.1, Parwat Singh D.W.2, Devi Singh D.W.3, M. Izhzr Ansari D.W.4, Bhairo Prasad D.W.5, Nasir Ahmad D.W.6 and Khoob Singh D.W.7. Session's Judge Lalitpur, vide impugned judgement and order, held that as against accused Govind Singh there was no credible evidence about his participation in the crime and also because of single identification against him, his guilt was not established satisfactorily, and consequently, acquitted him of both the charges. For the two appellants, it however, arrived at the conclusion that their guilt was anointed beyond doubt and in their respect prosecution story was credible, confidence inspiring and witnesses had deposed assuring statements and hence it convicted both the appellants for both the offences u/s 394 and 304 IPC and sentenced them to ten years RI for each of those offences, which conviction and sentence is under challenge in the instant appeal. In the backdrop of aforesaid facts, when the appeal was called out for hearing none appeared for the appellants to argue their appeals and therefore, Sri Bhupendra Pandey was appointed as amicus curiae to assist the Court. Later on Sri A.N. Mishra, advocate also argued the appeal for the appellants. I have heard learned amicus curiae as well as Sri A.N. Mishra and Sri Sangam Lal Kasherwani, learned AGA in opposition for the State. Castigating and criticizing impugned judgement it is submitted on behalf of appellants that the incident occurred in January 1981 in a pitch dark night and hence identification of accused was not possible as there was no source of light available. Prosecution story of lantern burning is incredible as there was no surrounding circumstances to establish it. Castigating and criticizing impugned judgement it is submitted on behalf of appellants that the incident occurred in January 1981 in a pitch dark night and hence identification of accused was not possible as there was no source of light available. Prosecution story of lantern burning is incredible as there was no surrounding circumstances to establish it. During investigation also no lantern was seized by the I.O. and therefore, in absence of any source of light, claim by the witnesses that they had identified the robbers, was impossible and is not creditworthy and none of the house inmates were able to identify the robbers. It was because of aforesaid reason that no description of any of the robbers was disclosed during investigation and in absence of such previous description, identification by witnesses lies in a realm of uncertainty and cannot be attached with any worthiness. It was further contended that the appellants were shown to the witnesses at the police station and that is how, the identification of the appellants was facilitated by the police and it was because of that reason that the two fact witnesses, P.W. 5 and P.W.6, had identified the appellants during identification proceedings. Participation of the appellants in the crime is not supported by any recovery of looted articles. No role or weapon or attire etc. of the appellants was mentioned anywhere, not even during trial, and, cumulatively, all these circumstances negate prosecution charge of involvement of appellants in the robbery and in fact it belies it. It cannot be said with any amount of certainty that these appellants were amongst the robbers. Basically, on the aforesaid submissions, it was argued that appellant's appeal be allowed and they be acquitted of both the charges and be set at liberty. Learned AGA, arguing to the contrary, submitted that the prosecution witnesses are reliable and appellant's guilt was brought home successfully by confidence inspiring evidences. Defence had failed to point out any acceptable reason for their false implication and their test identification parade conclusively establishes, to the hilt, their involvement in the crime and, therefore, impugned conviction and sentence does not require any alteration or scoring out. Accused had failed to elicit any favourable evidences from prosecution witnesses, albeit, they cross examined them at length, and hence prosecution version cannot be discredited in the lack of such circumstances. Accused had failed to elicit any favourable evidences from prosecution witnesses, albeit, they cross examined them at length, and hence prosecution version cannot be discredited in the lack of such circumstances. Appeal be dismissed and conviction and sentence be confirmed, concludingly contended learned AGA. I have pondered over rival submissions and have scanned oral and documentary evidences available on the record of trial court as well as of the appeal. Incident in the present appeal occurred inside house of the informant in midnight where all the women folk were sleeping in a room. Therefore, burning of lantern inside the house would be natural. None of the fact witnesses Gore Lal P.W.4, Smt.Parwati, P.W.5 and Smt. Nanhi Bahu,P.W.6 had any axe to grind against the appellants. Dacoits got their worn ornaments took off and therefore they must have been in very close proximity with them. None of them had concealed their identities and therefore it can very well be presumed that witnesses had sufficient opportunity to identify them and remember their features. Flickering lights of lantern, because of cuddling proximity, therefore, would have been sufficient to facilitate their identification. Castigation of appellants identification for the reason that the I.O. had not seized the lantern, cannot be stretched to an absurd limit to disbelieve otherwise confidence inspiring testimonies of both the fact witnesses whose presence at the spot has not been challenged by the defence. It is not the defence allegation that no robbery was committed in the house of the informant and hence factum of incident occurring at the time, date and place alleged by the prosecution is a proven fact. It will be very weird to cogitate that a mother will spare the real assailants of her daughter and will falsely implicate unconcerned and unknown persons without any ostensible motive. Although in their statements under Section 313 Cr.P.C., these appellants had taken the defence that they have been falsely implicated because of enmity but it is interesting to note that when the fact witnesses were in the witness box to testify, specially the two ladies, who were present at the house and whose presence were very natural, no enmity was suggested to them at all. A bald suggestion without any prefix and suffix circumstances being suggested to them, is of no help to the appellants. A bald suggestion without any prefix and suffix circumstances being suggested to them, is of no help to the appellants. Such a suggestion was given to the witness only to be repelled and not to be given any thought and pondered over. Another important aspect of the incident is that the appellants have not challenged the robbery committed in the house of the informant. None of the two ladies were suggested that no robbery was committed in the house. The factum of robbery being established further lend credence to the prosecution version, as in that even only participation of the appellants has to be considered. Regarding involvement of the two appellants, categorical depositions by both the ladies, present at the scene of the incident were that they had seen the robbers, firstly, during the course of the incident and subsequently, when they had gone to identify them in the jail in identification parade, and during intervening period they had not seen them. Defence could not muster courage to challenge this version stated by P.W.5 and P.W.6. It never suggested to them that they had identified the appellants because they were shown to them or with the help of the police they had identified them. In this respect, paradoxical suggestion to the witnesses further weakens defence case and this is a circumstance against them. Taradiddle suggestions were asked to PW5 that she knew the accused prior to the incident or they were shown to the appellants by the police. This contradiction in the defence plea had occurred only for the reason that the accused was trying to fathom out some defence, howsoever absurd it may be, to discredit the prosecution version. Such feigned suggestions do not inspire any confidence. Another ancillary reason for not believing defence case is that neither HC Guru Prasad,PW3 nor Mohd. Salim P.W.10, who had taken accused appellants from police station to lodge them in jail, could be discredited by the defence on the aspects that appellants were shown to the witnesses. It was never suggested to PW10, that while he was transporting appellants, they had arranged for their identification, in the travelling way and witnesses were permitted to see the appellants. It was never suggested to PW10, that while he was transporting appellants, they had arranged for their identification, in the travelling way and witnesses were permitted to see the appellants. A bald defence plea, without augmenting it with possible acceptable circumstances, does not create any doubt in the mind regarding confidence inspiring unshakable, trustworthy testimonies of independent witnesses, who had no motive to falsely implicate the appellants. It seems that accused had attempted to create spurious defence which exposed their fib. It made a vain endeavour to fish out a plausible defence and hence trustworthy testimonies of independent relatives cannot be thrown overboard and discarded. It has also been vociferously argued that the appellants were resident of neighbouring village Khiria Latkanjoo and were known to the witnesses, who were resident of village Ajaan, since prior to the incident and such a case was asked from both the ladies that people of either of the villages used to visit each other and therefore, appellants were known to them but defence failed miserable in such an attempt as both PW5 & 6 thwarted their attempt by stating categorically and unambiguously that it was not so. They categorically denied such a suggestion and had testified that they did not know any person from village Khiria Latkanjoo and they were not known to the appellants, prior to the incident. Defence had not taken chance to further probe them on the said aspect of the matter, and since it found that depositions by witnesses were not toeing their line of defence theory, it resiled for making further elicitation from them on the said score. Hence claim by fact witnesses that they had not known appellants from before the incident remains an established fact and cannot be doubted. Judging from another angle, both the witnesses are ladies and normally they reside inside their houses and seldom visit neighbouring village. For them to have acquaintance of appellants therefore required to be proved by convincing evidences, which accused failed to establish. If the defence wanted to take advantage of acquaintances, it should have cross-examined both the witnesses on said aspect to elicit from them reasons of their knowing appellants. For them to have acquaintance of appellants therefore required to be proved by convincing evidences, which accused failed to establish. If the defence wanted to take advantage of acquaintances, it should have cross-examined both the witnesses on said aspect to elicit from them reasons of their knowing appellants. Without volumnizing this judgement, I am of the opinion that so far as participation of the two appellants in the crime is concerned, it is established beyond any shadow of doubt and to this extent opinion of the trial Judge is affirmed. However, there is a disquieting feature of the impugned judgment. From the prosecution allegations and evidences led in the trial, it is culled out that conviction of the appellants u/s 304 IPC is unsustainable. Trial Judge faltered on this score. It was categorical depositions of the fact witnesses that a single blow was given by one of the assailants to the deceased Smt. Bhana. Prosecution had not assigned this role to any of the robbers. Who was that accused, is not known. It has also not been brought on the record that rest of the robbers shared the same intention as that of accused who had assaulted Smt. Bhana. It was individual act of a robber and hence section 304 IPC does not apply on the facts and circumstances of the present case. Trial Judge committed an error in applying the said penal provision against all the robbers including the two appellants. It was specifically asked from P.W.5 as to who was the accused, who had assaulted Smt. Bhana, but she expressed her ignorance about it. Single blow was given to the deceased only when she had resisted taking off her anklet. In was intuitive act of single accused at the spur of the moment and there is no evidence on record that others shared the same intention nor act. There is no medical examination of any other lady. In such a view, conviction of the appellants under Section 304 IPC cannot be sustained, as it was an individual act of one of the unspecified accused. Assault had taken place at the spur of the moment without any premeditation or common intention. There is no medical examination of any other lady. In such a view, conviction of the appellants under Section 304 IPC cannot be sustained, as it was an individual act of one of the unspecified accused. Assault had taken place at the spur of the moment without any premeditation or common intention. In such fact scenario, what can be safely concluded is that the appellants knew that grievous hurt can be caused during commission of robbery and therefore, guilt against them can only be anointed under Section 326 IPC and not under 304 IPC. To this extent, impugned judgement suffers from an error of law and deserves rectification. Coming to the sentences to be awarded, incident occurred more than three decades ago. Appellants were granted bail while their appeal was admitted in this Court. No criminal history or any other criminal proclivity of the appellants has been brought on the record by the prosecution. Trial Court also has not indicated any criminal involvement of these appellants prior to the present incident. The crime in question seems to be their maiden crime. Three decades have gone by and appellants has now attained grown up ages. They must have settled in their lives and during period on bail from this court they had no indulged into any criminal activities and therefore, in matter of sentence, these mitigating circumstances, are favourable to the appellants for taking a lenient view. The residue of the above discussion is that while conviction of the appellants under Section 394 IPC is hereby sustained but their conviction under Section 304 IPC is scored out and instead they are convicted under Section 326/34 IPC. For both the offences, considering above circumstances and period of sentence already undergone by them, and decades passed by interregnum, in my opinion, 4 years R.I. with fine of Rs.25,000/- on each of the appellants, with compensation of Rs.40,000/- out of it to the informant, for the loss caused to him u/s 394 IPC and further sentence of 4 years R.I. u/s 326/34 IPC will meet the ends of justice. Appeal is finally allowed in part. Conviction of the appellants u/s 394 IPC is affirmed and for the said offence, each of them are sentenced to undergo 4 years RI with fine of Rs. 25000/= on each of them, out of which a compensation of Rs. Appeal is finally allowed in part. Conviction of the appellants u/s 394 IPC is affirmed and for the said offence, each of them are sentenced to undergo 4 years RI with fine of Rs. 25000/= on each of them, out of which a compensation of Rs. 40000/= is awarded to the informant for the loss caused to him. Convictions of the appellants u/s 304 IPC is scored out and instead they are sentenced u/s 326/34 IPC, for which offence they are sentenced to 4 years RI. Appellants are permitted to deposit entire amount of fine, awarded herein above, within a period of one month, failing which, they shall serve one year further rigorous imprisonment. Both the appellants are on bail, they are directed to surrender immediately to their personal and surety bail bonds, failing which trial court shall issue NBWs against them and get them arrested forthwith and lodge them in jail to serve out their sentences. If the fines are deposited, trial court shall notice the informant and pay him the compensation within a month. Appeal is finally disposed off as above. Let a copy of this judgement be certified to the trial court for it's intimation forthwith.