1. This is an appeal by Nanhe and Abdual Hasan from an order convicting them under Section 395 read with Section 397, I. P. C, and sentencing them each to seven years' rigorous imprisonment. There can be no doubt as to the facts of the dacoity. On 15th January 1925, at about 7 p. m., seven or eight dacoits surrounded the house of Shyam Lal Padhan. They were armed with guns, sword, spear, knives and lathis. Shyam Lal was outside in the verandah and his wife Mt. Phul Kali was inside, and her statement is that three dacoits entered the house, one of whom was armed with a sword and the other two had knives with them. They caught hold of her and stripped her of her silver and gold ornaments which she was wearing. They also beat her and asked her to point out where the other valuables were. She was dragged outside the house, was slapped and dragged up to a pipal tree which is about 30 or 40 paces from the house. On an alarm being raised the villagers arrived and then the dacoits fled away. In order to scare away the villagers gunshots were also fired at them. One of the villagers was seriously injured and fell down senseless on the ground. Mt. Phul Kali got scratches on her neck and wrists.
2. There can be no doubt that Mt. Phul Kali was in a good position to see the faces of these dacoits who took away the ornaments from her body and dragged her outside the house.
3. The two appellants were mixed up with 16 other undertrial prisoners at the jail identification parade and Mt. Phul Kali was able to pick them out without committing any mistake. She again identified them before the Magistrate and also before the Sessions Judge without making any mistake, There is other evidence to corroborate her identification. The accused were also seen by other witnesses in the company of other strangers coming in a cart. The learned Judge was fully satisfied that the evidence of Mt. Phul Kali supported by all the circumstances proved the guilt of these accused. I agree with this conclusion. There is absolutely no reason to doubt that Mt. Phul Kali identified these appellants.
4. The only other point urged in appeal is that there being no direct evidence that these appellants actually ' used ' the weapons which they had carried, their conviction under Section 397 is not justified. The contention is that mere carrying of a deadly weapon would not make Section 397 applicable, but it must further be shown that the deadly weapon was actually used by the offender. It seems to me that if a robber or dacoit carries with him a gun or sword and by that means overawes his victim he is using that gun or sword although he may not actually fire the gun or wound or stab the person attacked with the sword. It is noteworthy that in the case of an attempt to commit robbery and dacoity under Section 398 the mere fact of the offender being armed with any deadly weapon makes him liable to punishment for not less than seven years. It would therefore be extraordinary if in order to fix the minimum sentence the mere carrying of a deadly weapon would not suffice when the offence went beyond the mere attempt and amounted to actual robbery or dacoity. In my opinion Section 397 is applicable. In any case the dacoity was a brutal one and a sentence of seven years by no means errs on the side of severity. The appeal is dismissed.