JUDGMENT : Dinesh Kumar Singh-I, J. 1. Heard Sri Rajesh Kumar Dubey, learned counsel for the appellant and Sri S.S. Sachan, learned A.G.A. for the State. 2. This appeal has been preferred by appellant Bhupendra alias Kundha S/o. Jagdish Pandit against the judgment and order dated 25.02.1983 passed by Vth Additional District Judge in S.T. No. 48 of 1981 convicting and sentencing the applicant under Section 398 of I.P.C. with seven years rigorous imprisonment. 3. The facts in brief of the case as disclosed in the F.I.R. are that informant Chhitu (PW1) was hearing recitation of Ramayana in the house of Vasudev S/o. Ramji Gadaria of his village on 14.10.1980 along with many other villagers. His neighbour Raghunandan was lying in front of the door of his house, in the night, right then about 7 to 8 miscreants armed with country made pistol & lathi ascended the dilapidated house of his neighbour Bikhari S/o. Raghunath and thereafter through the roof of the house of the informant entered into his house and opened the door. Two miscreants attempted to catch hold of Raghunandan but he fled from there. Raghunandan shouted loudly, hearing his shout Kripal S/o. Kamta, Ram Kishan S/o. Lalta, Ram Avtar S/o. Gokul Lohar, Deshraj S/o. Chadra Bhushan, Kallu S/o. Man Bodhan, Baijnath S/o. Pyare, Shiv Balak S/o. Kallu, Vasudev S/o. Ram Jiyawan, the informant himself and Raghunandan armed with lathi, stones and torches and Jagannath armed with single barrel gun, Ram Narayan with double barrel gun, Ram Sajiwan with single barrel gun came there raising alarm and making fire surrounded the miscreants/dacoits. Then dacoits also made fire towards the villagers by which Deshraj received minor injuries and the miscreants fled from there. Then Ram Kishan, Kripal, Ram Avtar, Kamta and Raghvmandan and many others caught one dacoit Bhupendra alias Kundha S/o. Jagdish Pandit R/o. Besadi, towards the eastern side of the village in the field of Vasudev with one country made pistol and two cartridges after beating him with lathi. One miscreant who had come out of the house of the informant and who was fleeing towards northern side, was caught at the bridge of canal by Deshraj, Kallu, Baijnath, Shiv Balak and the informant after surrounding him, the miscreant was beaten with lathies. One miscreant who had come out of the house of the informant and who was fleeing towards northern side, was caught at the bridge of canal by Deshraj, Kallu, Baijnath, Shiv Balak and the informant after surrounding him, the miscreant was beaten with lathies. This miscreant was beaten by Narayan by lathi while he was fleeing and disclosed his name as Suber S/o. Dulare R/o. Besadi, from him one lathi and one country made bomb in a bag were recovered. The miscreants were not revealing anything initially but subsequently disclosed their names. These miscreants had attempted to commit dacoity in the informant's house but could not succeed because of the villagers being awake therefore, the miscreants could not take away any articles. Due to fear in the night, the informant could not come to lodge the report. He had caught both the miscreants along with country made pistol, lathi, bomb and cartridges and brought them to the police station. Rest of the miscreants were seen by the villagers and they could identify them if the miscreants were brought before them. 4. On the above mentioned written report (Ex. K1) Case Crime No. 304/1980 was registered at P.S. Asother, District Fatehpur, under Sections 398 and 307, I.P.C. on 14.10.1980 at 11:30 a.m. by the PW1 against accused appellant Bhupendra alias Kundha and Suber S/o. Dulare and others. Chik report was prepared which is Ex. K10 and entry of this case was made in G.D. on 14.10.1980 at 11:30 a.m. at report No. 13 which is Ex. K11. 5. After investigation, the charge sheet was submitted (Ex. K13) against the accused applicant and co-accused Suber under Sections 398 & 307 I.P.C. During investigation I.O. prepared site plan (Ex. K12). On the evidence available, charge was framed against the accused applicant and co-accused Suber under Sections 398 & 307, I.P.C. on 29.07.1981 and against co-accused Gangadeen and Dashrath under the same sections on 02.09.1981 to which they pleaded not guilty and claimed trial. 6. In order to prove its case, the prosecution has examined the informant Chhitu as PW1, Dr. V.K. Srivastava as PW2, Deshraj as PW3, Ram Kripal as PW4, Shiv Balak as PW5, Ram Kishun as PW6, Vasudev as PW7, Narayan as PW8, Sri K.P. Singh as PW9, Amitabh SDM as PW10, HC Ramdeen as PW11, Umakant Sachan as PW12, Ct. 6. In order to prove its case, the prosecution has examined the informant Chhitu as PW1, Dr. V.K. Srivastava as PW2, Deshraj as PW3, Ram Kripal as PW4, Shiv Balak as PW5, Ram Kishun as PW6, Vasudev as PW7, Narayan as PW8, Sri K.P. Singh as PW9, Amitabh SDM as PW10, HC Ramdeen as PW11, Umakant Sachan as PW12, Ct. Shobha Nath as PW13 and Ran Vijay Bahadur Singh as PW14. 7. Thereafter, prosecution evidence was closed and the statement of accused was recorded under Section 313, Cr.P.C. Since, the appeal of only one applicant Bhupendra alias Kundha is before this Court, the statement given by him under Section 313, Cr.P.C. is being mentioned. This accused has stated that the evidence which had been collected by the I.O. during investigation is false. No recovery of country made pistol or live cartridges was made from him nor was he arrested from the spot. He has been falsely implicated due to enmity. Prior to this occurrence, in his village, co-accused Suber and his companions had beaten Gajodhar regarding which Gajodhar had lodged a report and had made his father Jagdish a witness in that case. Suber used to tell him to ask his father not to give evidence regarding which he had refused and since then Suber was harbouring enmity towards him. In Devlan son of his bua Raj Kumar lives, who every year after second or third day of Navratra organizes recitation of Ramayana in which he calls all his relatives. The other charge sheet has been submitted against the accused Dashrath and Gangadeen which is Ex. K7 and one charge sheet under section 5 of Explosive Act has been submitted against co-accused Suber which is Ex. K8. On the day of occurrence, he had gone to the house of his bua's son Raj Kumar and after having taken food. By bus he and Raghuveer Mishra of Bambara had gone from Devlan to their village and he alighted from bus on the bridge of Indro to go to his village because that was the only passage to go to his village. He was going on the patri (path) of the canal and when he reached Kaithanpur some persons were coming from the front, who caught hold of him and had made him sit there at Kaithanpur. Two police personnel reached at the night themselves, where they had brought Suber (co-accused). He was going on the patri (path) of the canal and when he reached Kaithanpur some persons were coming from the front, who caught hold of him and had made him sit there at Kaithanpur. Two police personnel reached at the night themselves, where they had brought Suber (co-accused). Thereafter, villagers and the police had consulted each other and he was taken to P.S. Asothar and was put in the lockup there. He had not committed any dacoity nor any pistol or cartridges were recovered from him. In a case of murder of the nephew of the informant Chhitu, which was contested by him, in which his father had given evidence from the side of prosecution, since then Chhitu/informant and his relatives were having enmity towards him and because of this enmity they have shown him to have been caught by him. From the side of defence Ram Kumar has been examined DW1. 8. On the basis of above witnesses, and having heard both the sides the trial court has convicted the accused applicant under above mentioned section and has convicted and sentenced the accused applicant as above. 9. Learned counsel for the appellant has argued that offence under Section 398, I.P.C. is not made out because no evidence has come on record to the effect that the appellant was found to possess any deadly weapon while attempting to commit dacoity. Therefore, offence under Section 398, I.P.C. is not made out. Therefore, the accused appellant deserves to be acquitted of the said charge. 10. Learned A.G.A. on the other hand, vehemently argued that the appellant has been rightly convicted as there was sufficient evidence on record and that the appellant was one of the accused amongst several miscreants who had entered the house of the informant in order to commit dacoity and was arrested on the spot by the villagers. Hence, the appeal deserves to be rejected and the trial court's judgment deserves to be upheld. 11. In order to appreciate the rival contention, I have to go through the evidence come on record and to see as to whether the conclusion drawn by the trial court is in accordance with law or does it require any interference. Hence, the appeal deserves to be rejected and the trial court's judgment deserves to be upheld. 11. In order to appreciate the rival contention, I have to go through the evidence come on record and to see as to whether the conclusion drawn by the trial court is in accordance with law or does it require any interference. The informant (Chhitu) (PW1) stated in his examination-in-chief that about 11 and a half months ago, in the night at about 12:00 o'clock Ramayan was being recited at the house of Vasudev and he was there only. Apart from him there were many other villagers present there. The house of Raghunandan was adjacent to the house of informant (PW1). Raghunandan was lying in front of his house, who came running to the place where Ramayan was being recited and told that the miscreants had entered his house. On this information, he, Baijnath, Kallu, Ramnath, Vasudev, Chandrapal and Kripal and many others also came and reached the house of the informant armed with lathi danda while Ram Sajiwan, Ram Narayan and Jagannath also came there armed with gun and started making fire upon the miscreants and as a result of which 7 to 8 miscreants fled from there, but they were able to catch hold of the two miscreants, one on the bridge of canal and the other in the field of Vasudev. While running, the miscreants had tried to make fire on the back side with intention to kill persons who were chasing them because of which Deshraj got injured. One of the miscreants was caught on the bridge of canal and one bag was recovered from him containing bomb and the said accused disclosed his name to be Suber and was identified as accused in court. He has further stated that all the villagers had caught him which included Kallu, Baijnath, Lotan, Ram Nath, Ram Kishan, Raghunandan and PW1 etc. Further he has stated that Bhupendra (appellant) was caught in the field of Vasudev by Ram Kishan, Kripal, Ram Avtar etc. and from him one country made pistol was recovered. This accused was identified by the witness in court by placing his hand upon him and had stated that country made pistol was recovered from him. He has further stated that many people had assembled there. The miscreants could not take away any articles. and from him one country made pistol was recovered. This accused was identified by the witness in court by placing his hand upon him and had stated that country made pistol was recovered from him. He has further stated that many people had assembled there. The miscreants could not take away any articles. The next day in the morning after getting the report scribed by Raj Narayan, who has written the same which was dictated to him by PW1, which is proved as Ex. K1, which was given at the police station by him and at that time he was accompanied by Rampal, Baijnath, Ram Narayan, Kallu, Ram Nath, Shiv Balak. The accused appellant and co-accused Suber had been taken to Police Station after being tied. The recovered arms i.e. country made pistol, cartridges, bomb were also given at the police station and the memo of recovery was prepared in which recovery of country made pistol and bomb were written in front of him which also bears his thumb impression which was prepared by the inspector which is Ex. Ka2. The bomb and the country made pistol which were recovered were not recovered in front of him. It being night time he could not go to the police station to lodge report in the night. The other co-accused could not be arrested and had fled from there, but they were seen in the light of torches and were recognized and for their identification he had gone to jail. They were seen at the time of occurrence and thereafter in jail and not in between. Out of the accused present in jail, this witness identified Gangadeen after placing his hand upon him to be involved in the said occurrence and also stated that he was identified by him in jail and further stated that he had never seen him prior to the said occurrence. In cross-examination, this witness has stated that petromax was burning while the Ramayan was being recited, it was dark night. From the bridge of the canal, the place where Ramayan was being recited was visible. The place where Ramayan was being recited, his house was only after leaving three house at a distance of about 1050 yards. In the said Ramayan, there would have been about 20 to 25 persons and not 100 to 150. No one had taken gun while the Ramayan was being recited. The place where Ramayan was being recited, his house was only after leaving three house at a distance of about 1050 yards. In the said Ramayan, there would have been about 20 to 25 persons and not 100 to 150. No one had taken gun while the Ramayan was being recited. Although some persons had taken with them lathies. He has further stated that it is right to say that the canal where the accused appellant was arrested, he was not present there. The appellant was caught by Kripal and Ram Kishan and had brought him at the door of his house. He had seen the appellant for the first time then only when he was caught and brought before him. None of the articles of his house was looted nor any of the miscreants had assaulted anyone in his house. The miscreants had made fire only when the villagers (PW1 and others) tried to catch hold of them. When Raghunandan came with the information about miscreants, to the place where the Ramayan was being recited, he had stated that "run miscreants have come to loot" and when he said so, PW1 and other villagers had cried loudly saying that don't get panicked as they were coming. As commotion was made by PW1 and others, the miscreants fled towards north although they were chased by the PW1 and companions. It is further stated by him that there is a village Chowkidar in his village but he was not called in the night nor any information was given to the Gram Pradhan of the village about this occurrence. It is denied by him that appellant has been falsely implicated because his father had done pairvi in case of murder which was lodged against nephew of PW1. The Investigating Officer had visited his village and at that time he was present there. He had shown the place of occurrence to him. He had also shown him the place where the said co-accused Suber was arrested. When all of them had proceeded towards his house, the miscreants had run in different directions. It was dark night, he could not tell as to how many miscreants were there when Suber had run. He had shown the place of occurrence to him. He had also shown him the place where the said co-accused Suber was arrested. When all of them had proceeded towards his house, the miscreants had run in different directions. It was dark night, he could not tell as to how many miscreants were there when Suber had run. First of all when he ascended towards the Atari of the house he was accompanied by Shiv Balak and Narayan and they had stayed there for about one hour and when the miscreants fled from there by that time it had become dark and he was not in a position to see as to who was going in which direction and these miscreants while running, had made fire towards them, because of the fear of getting hit by fire, the applicant and his companion made commotion from a distance. Who had chased whom he could not see because of the darkness. Further, this witness has stated that in the light of torch he had seen Gangadeen, at that time PW1 was at his Atari and Gangadeen was standing near the door of his house. Raghunandan was having a torch, he had flashed his torch and in light of the same Gangadeen was identified. PW1 had no torch nor anyone else had other than Raghunandan. At the time when the torch was being flashed, the miscreants were about 50 to 100 paces away. The statement of this witness is not confidence inspiring as regards this witness having seen and recognized all the accused because it was a dark night and it is stated that in the light of torch being carried by Raghunandan, the accused was seen fleeing from the place of occurrence to the house of PW1. The statement of this witness is not confidence inspiring as regards this witness having seen and recognized all the accused because it was a dark night and it is stated that in the light of torch being carried by Raghunandan, the accused was seen fleeing from the place of occurrence to the house of PW1. This witness has admitted that not a single item had been taken away from his house because the crowd had come which led the accused flee from the place of occurrence, although he has stated that while fleeing, initially when the villagers had surrounded the house of PW1, wherein it was believed that the miscreants were there, all of them started making fire upon the miscreants which led the miscreants to flee from there in the darkness and in the process, from the side of miscreants fire was also made upon the villagers and the persons who were chasing them who have been named above, out of them one Deshraj had received injury. Though, it is stated by this witness that country made pistol and two cartridges were recovered from the appellant but the prosecution has not filed any charge sheet relating to the same nor has he been prosecuted for the same and the accused has specifically denied that any country made pistol or cartridge were recovered from him. This court is not inclined to make in depth assessment of the statement of this witness pertaining to the other accused whose case is not before this court, further detailed analysis in this case is not required to be made. 12. PW2 Dr. V.K. Srivastava had conducted medical examination of the injured Deshraj on 14.10.1980 at 06:45 p.m. and has found following injuries on his person: 1. fire arm wound 0.5 c.m. x 0.5 c.m. x depth under observation on front surface of right side of chest 10 c.m. below and invert to the right nipple. There were no blackening or tattooing under the wound. One wound was covered with clotted dry blood. Margins were red and swollen, x-ray was advised; 2. fire arm wound 0.5 c.m. x 0.5 c.m. x depth under observation on the middle and inner surface of right thigh 15 c.m. above knee. There was no blackening and tattooing, wound was covered with dry clotted blood, margins were red and swollen, x-ray was advised. There was no other wound of exit. fire arm wound 0.5 c.m. x 0.5 c.m. x depth under observation on the middle and inner surface of right thigh 15 c.m. above knee. There was no blackening and tattooing, wound was covered with dry clotted blood, margins were red and swollen, x-ray was advised. There was no other wound of exit. All injuries were caused by fire arm, 3/4 days old and was kept under observation and proved the injury memo which is Ex. K-3. On the same day he had also examined Narayan at 06:15 p.m., and following injuries had been found on his person: 1. Patient had complaint of pain on back of right hand but there was no evident injury; 2. Contusion 3 c.m. x 1.5 c.m. on outer side of right hip 3 c.m. below of tip of hip bone. The injuries were caused by blunt object and two days old and has proved the injury memo as Ex. K-4. On the same day at 06:05 p.m. he examined Ram Krishna and found following injuries on his person: 1. Contusion 3 c.m. x 2 c.m. on front surface of left knee, red in colour, the injury was simple caused by blunt object and was two days old and has proved his injury memo Ex. 5. In his cross-examination this witness has stated that he does not know whether the x-ray examination was conducted of the injuries of Deshraj or not Injury No. 2 suffered by Narayan could be caused by falling on hard object. The injury of Ram Krishna was due to being hit by stone. This witness is a formal witness who has simply proved the injury memos who are said to have been received injuries and are said to have caused by miscreants. He is not an eye-witness hence the testimony of his only corroborating piece of evidence. 13. PW3 Deshraj, in his examination-in-chief has stated that the occurrence had taken place about 11 months ago in the night at about 12'O clock. At the door of Vasudev, Ramayan was being recited in which he was also present. Raghunandan reached there and shouted that in the house of Chhitu (PW1), the miscreants had come and hearing this all of them went towards the house of informant and after chasing the miscreants, one of them namely, Suber was caught on the canal by the villagers. Raghunandan reached there and shouted that in the house of Chhitu (PW1), the miscreants had come and hearing this all of them went towards the house of informant and after chasing the miscreants, one of them namely, Suber was caught on the canal by the villagers. At that time Suber was armed with a lathi and had not seen any other weapon. On the canal accused appellant Bhupendra was also caught by villagers but what weapon was recovered from him he could not see. He had seen one dacoit namely Dashrath in the light of torch which was being carried by Raghunandan. He had also gone to jail to identify the miscreants and had identified one miscreant there and after placing his hand on Dashrath had stated that he had identified him in jail. He had not seen the said accused since the date when the occurrence took place till the identification made by him in jail. When he had come to the door of Chhitu (Informant) he had received simple injuries in his hand but by which the same was caused, he does not know and had expressed that the same was caused by some stone. He did not have any injury of pellet. He was examined by doctor in the hospital. Bhupendra and Suber were not arrested in front of him. On the basis of the said statement, he was got declared hostile and was permitted to be cross-examined by the prosecution and he stated thereafter that Investigating Officer had taken his statement but he had not given any statement that in his chest and thigh pallet injury were caused but he could not tell as to how the I.O. had written the said statement that he had received the said injury as he had not given any statement to him. He also denied that the miscreant who was caught by him, one bomb and one lathi were recovered, he had not given any such statement and also denied that he was giving false statement because he had colluded with the accused. It is further stated by him that the I.O. had disclosed the name of the accused after their arrest. Two constables had come on the next date in the morning at the door of informant Chhitu and at their dictation Ram Narayan had written report. It is further stated by him that the I.O. had disclosed the name of the accused after their arrest. Two constables had come on the next date in the morning at the door of informant Chhitu and at their dictation Ram Narayan had written report. At that time he came to know the names of the miscreants who were caught i.e. Suber and Bhupendra (applicant). The name of Dashrath could be known only after his identification. He has also stated that appellant, after being arrested had told that he was coming from Devlan towards his village and on the way he was arrested because of some misconception. Rest of the cross-examination pertains to the other co-accused. It is apparent from the statement of this witness that he has not supported the prosecution version as he has stated that the appellant was not arrested before him nor any weapon was recovered. Therefore, this witness's statement is going in favour of the accused. 14. PW4 Ram Kripal has repeated the same version which has been stated by the PW1 in support of the prosecution case in his examination-in-chief. In his cross-examination, this witness has stated that Raghunandan had come about half an hour after the recitation of Ramayan had been over and then he has heard the news about attack by miscreants. He has not seen with his own eyes Raghunandan coming there and had heard as to what he has stated. He had stated to the I.O. that when at the house of Chhitu 7-8 miscreants had come, the same was not written by the I.O., he could not tell its reasons. He had also stated to I.O. that they had chased the miscreants and fire was made by the miscreants in which Deshraj received the injury but he had not written the same, he could not tell its reasons. The torches were with Chhitu, Raghunandan and also with the miscreants but the same was not written, he could not tell its reason. He had also disclosed to I.O. that appellant and Suber were caught by them and that he had caught Bhupendra but the same was not recorded by I.O., he could not tell its reason. The torches were with Chhitu, Raghunandan and also with the miscreants but the same was not written, he could not tell its reason. He had also disclosed to I.O. that appellant and Suber were caught by them and that he had caught Bhupendra but the same was not recorded by I.O., he could not tell its reason. He had also told I.O. that from Suber, one bomb from bag and from Bhupendra two cartridges and one country made pistol were recovered, the same was not written, he could not tell its reasons. He had denied the suggestion that he along with others was at their houses and was raising alarm from there only. He has denied that he had given any statement to the effect that at the time of occurrence, he and others were raising alarm from their respective houses but the same was not written by I.O., and he could not tell its reason. He had further stated that Bhupendra had not made any fire upon him. He had stated to I.O. that two miscreants were arrested but the same was not written by him, he could not tell its reason. It is apparent from the above statement of this witness made in his cross-examination that regarding important aspect this witness had given contradictory statement to I.O. than the statement which he made before the court. Therefore, the truthfulness of this witness cannot be believed in respect of the accused applicant. Moreover, this witness has nowhere stated that the accused appellant had taken away any article from the house of informant or that he had made use of fire arm while committing dacoity. 15. PW5 Shiv Balakhas also repeated the same version and has clearly stated that the dacoits could not loot any article from house of informant. In cross-examination this witness he has stated that when for the first time he saw the accused they were at the door of house of the informant. There he stopped for 2 to 4 minutes and thereafter he chased the miscreants from the door of Chhitu. All the miscreants ran in two directions, some towards north and some towards north east. He was among those who chased the miscreants towards north where three miscreants had run and in that direction there was dark. No fire was made upon them by the miscreants while they were running. All the miscreants ran in two directions, some towards north and some towards north east. He was among those who chased the miscreants towards north where three miscreants had run and in that direction there was dark. No fire was made upon them by the miscreants while they were running. With him there were Kallu, Chotu and many other co-villagers. Raghunandan was not with him nor did he have any torch. Who were having bag among the accused he does not recollect. He had never seen earlier to the occurrence any bomb. The bomb was wrapped in a paper. He did not know Suber prior to the occurrence, though he is resident of Besadi. He has denied that being relative of the informant he gave false evidence. Out of the assailants who had fled, two were recognized by him. At the time of identification, the names of the miscreants were told by the constable. He had never gone to the police station. When Suber was caught he was there only. In his testimony, this witness has nowhere stated that he had recognized the accused applicant in the present case though he has stated about the other accused, hence his testimony is not very useful for the purpose of determination of the guilt of the accused appellant because he has not stated anywhere he had seen the appellant indulge in act of committing dacoity and has stated that no article was attempted by him to be looted away from the house of the informant nor has he stated that any deadly weapon was used by accused appellant against any of the witness while giving effect to the occurrence. 16. PW7 Vasudev has also repeated the version as that of PW1 and has supported the prosecution version but in cross-examination, he has stated that he had not given any statement to I.O., how the same was written he could not tell its reason. The statement regarding the catching hold of Suber by him, how the same is written he could not tell its reason. However, he has stated that when the miscreants attempted to loot the house of the informant he was in recitation of Ramayana and when recitation was over he went to the house of Chhitu and saw from the Atari of Chhitu that there was Suber inside the house and he stayed about five to six minutes at Atari. However, he has stated that when the miscreants attempted to loot the house of the informant he was in recitation of Ramayana and when recitation was over he went to the house of Chhitu and saw from the Atari of Chhitu that there was Suber inside the house and he stayed about five to six minutes at Atari. Suber fled towards north after whom 25 persons chased him which included Chandrapal, Shiv Balak, Kamta, Ramnath, Kallu, Baijnath, Ramgopal and others. Suber was hit by him with lathi and was caught by him, the said lathi blow hit the skull of Suber and blood started oozing out, which had spread on the clothes of co-accused Suber. Suber was brought after being caught before the door of the house of Chhitu. From the bag which he was carrying there was a bomb therein which was of Khakhi colour wrapped with red thread. He had never seen a bomb earlier. When people told him then he came to know that the said thing was a bomb. On the next date of occurrence at about 08:00 a.m., the I.O. had come along with two constables on the door of Chhitu. This witness has mainly stated against the co-accused Suber and nothing has been stated by him against the accused appellant, hence his testimony does not contain any such evidence on record which could be used against the accused appellant particularly he has nowhere stated that the applicant was seen by him committing the commission of dacoity by using any deadly weapon nor has he stated that any article was looted by the appellant at the point of deadly weapon. 17. PW8 Narayana has stated in his examination-in-chief that about one miscreant namely Suber had been seen by him from the Atari of the informant and has denied to have seen anything else and when the said accused was sought to be identified by him in court he could not identify him. He has stated that his injuries were examined in hospital. Nothing has been stated by him against the accused appellant in his testimony. 18. He has stated that his injuries were examined in hospital. Nothing has been stated by him against the accused appellant in his testimony. 18. PW9 Sri K.P. Singh, has stated in his examination-in-chief that he was posted at P.S. Asothar in 1981 as S.O. and this case was investigated by the earlier S.O. Sri Umakant Sachan whereafter he was assigned investigation and he had submitted charge sheet against co-accused Dashrath and Gangadeen under Sections 398 & 307, I.P.C. Against Suber a supplementary charge sheet under Section 5 of Explosive Act was submitted by him on 30.03.1981. Both these documents have been proved by him as Ex. Ka7 & Ka8. The statement of the witness is not useful for the purpose of the present case as he has not investigated the case of the appellant. 19. PW10 Amitabh is S.D.M. who had conducted the identification parade, his testimony is also not relevant for the present accused. 20. PW11 H.C. Ramdeen has proved the chik F.I.R. and G.D. which are Exs. 10 and 11 respectively in his hand writing. He is a formal witness, hence his statement is not required to be probed in depth. 21. PW12 Umakant Sachan is the Investigating Officer of this case, and has stated that this case was registered in his presence at the police station and had conducted the investigation in this case and had submitted the charge sheet against the accused appellant and co-accused. He had prepared site plan in his hand writing (Ex. K12) and had also submitted the charge sheet against the accused Bhupendra and Suber which is Ex. K13 and after that the investigation was handed over to K.P. Singh. In his cross examination, he has stated that he had recorded the statements of 10 witnesses at the police station. He had prepared site plan in his hand writing (Ex. K12) and had also submitted the charge sheet against the accused Bhupendra and Suber which is Ex. K13 and after that the investigation was handed over to K.P. Singh. In his cross examination, he has stated that he had recorded the statements of 10 witnesses at the police station. At the place of occurrence he had reached at 02:30 p.m. He has not recorded the time in the case diary when he reached at the spot but he would have reached between 2:30 to 3:00 p.m. PW4 Ram Kripal had not stated to him that he had gone to hear Ramayan and had merely stated that whatever was written in the report was correct, hence he did not write his statement, because of that reason he had not written in his statement that he had also chased the miscreants and about fire being made by the miscreants and injury caused to Deshraj. In his statement catching hold of appellant and Suber on the spot has also not been written nor is it recorded in his statement that from appellant, country made pistol and from co-accused Suber, bomb was recovered. He had not recorded the statement of Shiv Balak (PW3) but had written only that he had supported the statements of other witnesses. Nothing much could be elicited from the statement of this witness in cross-examination. He is only a formal witness, who has proved the charge sheet against the accused as well as site plan. 22. PW13 Ct. Sobharam, he is a witness of arrest of co-accused Gangadeen and for the purpose of present appeal, his testimony is not found to be useful. 23. PW14 Ran Vijay Bahadur Singh is a witness who had made arrest of co-accused Dashrath and therefore his testimony is also not of any use in this case. 24. It is apparent from the judgment which has been impugned before this court that all accused had been acquitted except the appellant as well as co-accused Suber. 23. PW14 Ran Vijay Bahadur Singh is a witness who had made arrest of co-accused Dashrath and therefore his testimony is also not of any use in this case. 24. It is apparent from the judgment which has been impugned before this court that all accused had been acquitted except the appellant as well as co-accused Suber. What is the status of co-accused has not been disclosed by the prosecution side, hence this court has proceeded to hear the appeal of the present appellant Bhupendra who is held guilty under Section 398, I.P.C. while he has been acquitted of charge under Section 307, I.P.C. It would be essential for this Court to see as to whether the ingredients which are necessary to be satisfied for proving the offence to have been committed under Section 398, I.P.C. are found to have been satisfied or not on the basis of the evidence on record. 25. To constitute an offence under Section 398 I.P.C. following ingredients are required:- "At the time of attempting to commit robbery or dacoity, the offender is armed with a deadly weapon". 26. When no robbery or dacoity has been committed, in the sense that no property was removed from the house of the complainant and nothing said to be belonging to the complainant was recovered, it would be difficult to hold that there was any attempt in regard to commission of robbery or dacoity. 27. In this regard, I would like to rely upon the interpretation of Section 398, I.P.C. made by Hon'ble Apex Court in Chinnadurai v. State of Tamil Nadu 1995 Supp (3) SCC 686 : ( AIR 1996 SC 546 ), in this case PW3 was a money lender, whose activities became a source of revulsion to the appellant. The prosecution led evidence to show that under unfair deals of PW3, the villagers were reeling in helplessness and agony. The appellant and his companions decided to give PW3 a rough jolt. On the day of occurrence, at about 06:30 p.m. the appellant and his companions trespassed into the house of the PW3. In the presence of PW1, the son of PW3, and PW4, wife of PW3, he ransacked the house as if committing a robbery and in the process caused extensive injuries to PW1 and PW3. Some of those injuries were serious and were on vital parts. In the presence of PW1, the son of PW3, and PW4, wife of PW3, he ransacked the house as if committing a robbery and in the process caused extensive injuries to PW1 and PW3. Some of those injuries were serious and were on vital parts. The weapon employed for the purpose was a big knife. Promptly the matter was reported by PW1 to the police and F.I.R. was recorded in which not only the name of the appellant but that of his companions too figured. The occasion later arose to record the dying declaration of PW3 since his condition was deteriorating. A Magistrate employed for the purpose recorded the statement of PW3 in which specifically the appellant alone was mentioned by name and the names of others were missing, though their participation in the occurrence was fixed in that statement. All the same, during the occurrence no article was removed and, thus in a sense, no robbery was committed. Nothing was recovered from the appellant or his companion which could be said to be robbed property. 28. In the above set of facts the Hon'ble Apex Court held in para 4 of the judgment as follows: "4. It seems to us that the conviction of the appellant under Section 398, I.P.C. whereunder he has been sentenced to seven years' rigorous imprisonment cannot be sustained. Section 398, I.P.C. gets attracted if at the time of attempting to commit robbery or dacoity, the offender is armed with a deadly weapon which will attract an imprisonment not less than seven years. When no robbery or dacoity has been committed as such, in the sense that no property was removed from the house of the complainants and nothing said to be belonging to the complainants was recovered, it would be difficult to hold that there was any attempt in regard to the commission of robbery or dacoity. Scattering of articles in the house may cause a scene as if ran sacked, but that does not prove the charge. We thus feel that on the evidence, the conviction of the appellant under Section 398, I.P.C. is not sustainable. Accordingly, the same is set aside." 29. Accordingly, the conviction of the appellant was set aside under Section 398, I.P.C. although the rest of the convictions and sentences were sustained. 30. We thus feel that on the evidence, the conviction of the appellant under Section 398, I.P.C. is not sustainable. Accordingly, the same is set aside." 29. Accordingly, the conviction of the appellant was set aside under Section 398, I.P.C. although the rest of the convictions and sentences were sustained. 30. In view of above position of law, I am of the opinion that the facts of the present case are that the appellant along with other 6 to 7 miscreants are said to have come to the house of the informant and are stated to have entered the house regarding which a neighbour Raghunandan broke the news to the informant (PW1) who was hearing Ramayana which was going on in the vicinity and thereafter number of persons who were there hearing the recitation of Ramayan who are co-villagers along with informant (PW1) arrived at the house of the informant and started making fires upon the miscreants and it was then that miscreants fled from there in defence making fires upon the informant and his companions and in this process, the appellant is one of the co-accused who was arrested on the spot armed with country made pistol and two live cartridges. In that process it is also said that one Deshraj received injury from the weapon which is said to have been used by some of the miscreants. 31. The trial court after having analysed the entire evidence which too includes the identification parade had acquitted the other co accused except the appellant and one co-accused Suber but before this Court only matter of Bhupender is being considered. It has come on record that country made pistol was recovered from him when he was arrested on the spot and was brought to the police station on the next day by the informant and his companions to lodge F.I.R. There are several discrepancies in this regard also, in the statement of the witnesses who have been cited above but assuming that the appellant was caught by the PW1 and his companions on the spot, it has come on record conclusively that this appellant had not used any deadly weapon in order to commit the robbery or dacoity in the house of the informant at the time of occurrence nor any other house hold goods are found to behave been touched or looted away by the appellant. All that came on record is that while he was fleeing from the occurrence having seen PW1 and his companions, he was arrested in the field of Vasudev which is shown by letter 'XB' in the site plan. Therefore, the offence under Section 398, I.P.C. would not be found to be constituted because the appellant is not found to have robbed any of the goods from the house of the informant, nor has it come on record that he made use of any deadly weapon. The country made pistol in respect of which, the recovery is shown to have been made from him, with respect to that no prosecution is shown to have been started from the side of prosecution as no,-charge sheet appears to have been filed in that regard and therefore in this backdrop of the matter I find that the trial court has erroneously held the accused guilty under Section 398, I.P.C. and the appellant deserves to be acquitted of charge under Section 398, I.P.C. The accused is said to be on bail, therefore, his bail bonds stand discharged. Office is directed to send copy of this judgment with the original record to the court below forthwith for necessary compliance. 32. This Criminal Appeal deserves to be allowed and is accordingly, allowed.