1. The five appellants named above have been convicted under Section 395 of the Penal Code and have been sentenced to undergo rigorous imprisonment for seven years each. The prosecution case is that in the night of 12th and 13th Jan. 1977, informant Sukhdeo Singh (P.W 9) was sleeping in the Gohal of Bacha Singh, which was adjacent west to his house. Hisbrother Dhanpat Singh (P.W 4) was sleeping in the Dalan of his house and his father was sleeping in his own Gohal. At about 11 P.M the informant heard the cries of his brother and father, namely, Dhanpat Singh and Ram Prasad Singh, and then he noticed flash of torches at his house. Thereupon, he rushed to his own house and as soon as he reached there he saw 15 or 20 dacoits. On seeing him some of the dacoits pounced upon him, whereupon he wanted to flee away, but one of the dacoits, namely, Sheo Narain Barahi (since dead) inflicted a Farsa blow on his left shoulder. At about that time the persons of his own village as also of the neighbouring villages reached there bn hearing the alarm and eventually there was an encounter between the dacoits on the one side and the persons assembled on the other. In course of this encounter two dacoits sustained injuries out of whom one, namely, Jhojhan Yadav died at the spot as a result of the injuries sustained by him, but the other injured dacoit managed to flee away. Some of the villagers also sustained injuries including the brother of the informant, namely, P.W 4. Ultimately, the dacoits left the place after snatching two silver Hasuli and four Pahuchis. They also carried away one tin of Ghee. The total value of the articles carried away by them was Rs. 974/-.

2. On the following day the informant went to Marona Police camp where his fardbeyan was recorded by P.W 10 at 10 A.M Eventually, a case was registered on the basis of this fardbeyan. After investigation police submitted charge-sheet in the case against these appellants and some others, who were put on trial in due course. Two of the accused persons, however, died before the conclusion of the trial and two were acquitted by the trial court, but six-accused persons were convicted, out of whom, five have preferred this appeal.

3. The defence of the appellants was that they were falsely implicated on account of some land dispute.

4. So far as the factum of occurrence is concerned, there is sufficient material on the record to prove the same. The witnesses who have deposed on this point are P.W 1 Masharu Singh, P.W 2 Ram Bilash Rai, P.W 3 Laxmi Prasad Singh P.W 4 Dhanpat Singh and P.W 9 Sukhdeo S. ingh, who are all eye witnesses to the occurrence. Indeed, the factum of occurrence finds sufficient corroboration from the fact that the dead body of Jhojhan Yadav, who is of another village, was found at the door of the informant even by the investigating Officer on the following day of the occurrence. The accused persons have got no explanation as to how his dead body was found there that night. The evidence of Dr. Jageshwar Lal (P.W 6) who held the post-mortem on his dead body shows that he had found a number of injuries on his person which caused his death. The investigating officer, who visited the place of occurrence on the following day of the occurrence, had also found the door planks of the house of the informant broken and some of the articles lying scattered. The investigating officer (P.W 10) had also found sword and arrows etc. at the place of occurrence which are said to have been used in the encounter.

5. As said above, P.W 9 had sustained Farsa injury in course of the occurrence. Besides him, P.Ws 1 and 4 have also sustained injuries. It is unfortunate that the doctor who had examined their injuries has not been examined in the case and their injury reports have been simply taken in evidence under S. 294 of the Code of Criminal Procedure. Apparently, these injury reports cannot be used by the prosecution for proving the injuries on the injured when the doctor who had examined the injuries has not been examinee. A person, who claims to have seen anything must evidence in court as to what he had seen and found. This is manifest from a bare perusal of S. 60 of the Evidence Act, which lays down that oral evidence must in jail cases whatsoever be direct. It specifically provides that if the evidence refers to a fact which could be seen it must be the evidence of a witness who says he saw it Evidently, the doctor has seen the injuries and, so the evidence should have been given by the doctor himself as to what he had seen and found. S. 294 of the Code of Criminal Procedure has been provided in the Code for obviating the difficulty of formal proof of certain document and not for providing a substitute for direct evidence of witnesses like the doctor. This section simply says that where the genuineness of a document is not disputed it may be read in evidence in any inquiry or trial. It is significant that S. 294, Cr. P.C does not refer to a document, which even if exhibited cannot be read as a piece of evidence. The injury report by itself does not prove anything, as it is not a substantive piece of evidence. It is the evidence of the doctor taken on oath in regard to the injuries which alone is substantive evidence. The injury report can only be used to corroborate or contradict the doctor and it cannot be a substitute for the evidence of the doctor of course, S. 32 of the Evidence Act provides an exception to this general principle but evidently the present case does not come within any of the clauses of S. 32 of the Evidence Act. That being so, the injury reports of the witnesses as also of accused Dukhi Yadav referred to by the learned trial court in its judgment have to be excluded from consideration. But, even if these injury reports are excluded from the evidence, there remains sufficient material on the record to prove in a general way the fact that these witnesses had sustained injuries in course of the occurrence. Indeed, their own evidence is also there on this point. Then there is also the evidence of the investigating officer who had found injuries on their persons and had referred them to the doctor for medical examination. Of course, these materials cannot be enough to prove the specific injuries said to have been sustained by them but, they are sufficient to establish the broad fact that they had sustained some injuries in course of dacoity.

6. The evidence and circumstances, referred to above, are, in my opinion, sufficient to prove the factum of dacoity. Indeed, the factum of dacoity was not disputed before the trial court nor it has been disputed in this Court. I, therefore, feel no hesitation in holding that the factum of dacotiy has been fully established in the present case.

7. Now comes the question of identification. Appellant 1 Ramdeo Yadav has been identified by four witnesses, to wit, P.Ws, 1, 2, 4 and 9 and remaining four appellants have been identified by two witnesses each. Appellant 2 Jamadar Sutihar, appellant 3 Bihari Sutidhar and; appellant 5 Jitan Mukhia have been identified by P.Ws 1 and 9, whereas appellant 4 Kusum Lal Mukhiya has been identified by P.Ws 4 and 9. It has been contended by the learned counsel appearing for the appellants that all these witnesses are interested witnesses and as such their evidence of identification should not be relied upon. It was pointed out that P.W 4 is the full brother of the informant and P.W 3 is their distant relation. In my opinion, these witnesses cannot be termed as interested witnesses, inasmuch as the defence has miserably failed to prove the land dispute, as alleged by them and indeed there is no legal evidence on the record to prove the same. In any event, they being the inmates of the house are very competent witnesses to depose on the point. Regarding P.W 2 it has been stated that he was a chance witness, as he had accidentally stayed in the village in question in that fateful night, but this circumstance alone cannot be a good ground for rejecting his evidence altogether, when it has been corroborated by independent witness like P.W 1, who, being close neighbour of the informant, is very competent witness on the point. Indeed, he too had sustained injuries in course of the occurrence. Thus, I find that there is no reason not to act on the evidence of these witnesses. It is true that the other persons, who had participated in the encpunter, had not been examined, but it is not necessary for the prosecution to examine all the witnesses who had seen the occurrence, more so, when there is nothing to show that they had also identified the culprits.

8. It was contended that the evidence of identification given by P.W 9 cannot be acted upon, as he has himself admitted in para 15 of his deposition that he had identified the dacoits at the time of fleeing away. This statement in isolation might have created some confusion, but in the next breath he has stated that he had identified the dacoits when they were still at his Darwaja and some were two to four laggies away from there. Indeed, there was an encounter and he had sufficient opportunity to see the dacoits. The loose expression that he had identified the dacoits at the time of fleeing away cannot be enough for excluding his evidence of identification altogether.

9. Since these appellants belong to the neighbouring villages and were known to the witnesses from before, there cannot be any reason to doubt their evidence of identification, more so, when there was sufficient source of light in the shape of flash of tourch as stated by the witnesses and there was encounter between the dacoits and the villagers. On the whole P.Ws 1, 2, 3, 4 and 9 have given good account of themselves, and there appears no reason not to act on their evidence of identification. Thus, I find that there was sufficient and reliable evidence of identification against each of the appellants and as such there appears no reason to interfere with the order of conviction of the appellants recorded by the learned trial court. However, considering the fact that the occurrence took place more than ten years ago and articles worth less than Rs. 1000/- were taken away by the dacoits, I feel inclined to reduce the sentence. I accordingly reduce the sentence of all the five appellants from seven years to five years each. In the result, the appeal fails and is, accordingly, dismissed with the modification in the sentence, as stated above.

10. Order accordingly.