1. The appellants have been convicted by a jury of offences under Sections 392 and 397, Indian Penal Code, and sentenced each to 5 years' rigorous imprisonment. This sentence, as the learned Sessions Judge himself subsequently discovered and has pointed out in a letter of reference, is less than the minimum prescribed by Section 397, Indian Penal Code.
2. I do not find any misdirection in the charge to the jury except as regards the liability of the appellants to conviction under Section 397, Indian Penal Code. The Judge, while pointing out to the jury that there i8 no evidence that these appellants caused the grievous hurt or (apparently) used deadly weapons has directed the jury that they may convict the appellants of an offence under Section 397, Indian Penal Code, merely because grievous hurt was caused by some of the robbers and (apparently) that some of the robbers used knives. This view finds no support in the wording of the section, especially as compared with Section 394, Indian Penal Code, and is opposed to the ruling of this Court in Criminal Appeal No. 315 of 1886 reported on page 450 of Vol. I of Weir's Law of Offences and Criminal Procedure and of the Allahabad High Court in Emperor v. Nageshwar 28 A.P 404 : 3 CrI. L.J. 322 : (1906) A.W.N. 61. It is now supported by the Public Prosecutor. I hold it to be erroneous. It follows that the conviction under Section 397, Indian Penal Code, was wrong and was induced by a misdirection of the Judge. It must, therefore, be set aside.
3. But I see no reason to interfere with the conviction under Section 392, Indian Penal Code. This is fully supported by the evidence and it is impossible to see how the verdict of the jury as regards this offence could have been influenced by the misdirection above referred to. I quash the conviction under Section 397, Indian Penal Code, and uphold the conviction under Section 392, Indian Penal Code. The sentence is reduced to 3 years' rigorous imprisonment in the case of each appellant.