Ranjan Kumar Show vs State of West Bengal

Indrajit Chatterjee, J.—This Court is hearing this appeal as against the judgement and order of conviction passed by the learned Additional Sessions Judge, 2nd Court at Howrah in Sessions Trial No. 155 of 2011 arising out of Howrah P.S. Case No. 372 of 2010 dated 22-11-2010. As per the judgement dated 24-06-2013, the learned Court was pleased to held the accused appellant guilty in respect of the offence punishable under Sections 395 /397 of the Indian Penal Code and he was convicted under Section 235(1) of Cr.P.C. The co-accused person, namely, Ranjit Kumar Swaraj, was however found not guilty. Other two co-accused persons, namely, Rajesh Thakur and Bachhan Majhi, were also so convicted. On enquiry this court has come to know that the other two convicts preferred not to file any appeal. The present appellant and the co-accused Rajesh Thakur were however acquitted in respect of the charge punishable under Section 412 of the Indian Penal Code.

The sentence was passed on 25-06-2013 wherein the present appellant along with two other convicts were sentenced to suffer rigorous imprisonment for seven years each and they were also directed to pay fine of Rs. 5000/-each, in default, to suffer Simple Imprisonment for one year. They were ordered to get set off. The appellant was however acquitted in respect of the charge punishable under Section 412 of the Indian Penal Code.

The fact before the trial court, which is relevant for the purpose of adjudication of the appeal, may be summarized thus:

"That the incident took place at Kanak Service Station (one Petrol Pump) at about 1.15 hours located at Howrah Maidan near Howrah District Library and Church Road (as per the sketch map). The F.I.R. was lodged by one Kamal Deo Roy (P.W.1), who lodged the F.I.R. with the Inspector-in-Charge, Howrah Police Station on 22-11-2010 and that was received by the said Police Station at about 3.05 hours and Howrah P.S. Case No. 372 dated 22-11-2010 was registered under Sections 395 /397 of the I.P.C. and subsequently, Section 412 of the I.P.C. was added. In the F.I.R. it was disclosed that at the time of the incident, i.e. at a dead hours of night, one lorry came to the petrol pump to fill fuel. One employee (Nandu Roy) of the Petrol Pump was on duty and when that Nandu Roy was about to enter into the office of the petrol pump, suddenly 5 or 6 miscreants entered into the office with Bhojali and fire arms and they battered both P.W.1 and Nandu Roy by such weapons. They also broke open the locker and took away money, cash memo, two mobile phones having mobile connection No. 9062315714 and 9771164991 with a black bag and took away cash worth Rs. 3,10,000/-. It was disclosed in the F.I.R. that the age group of these 5 or 6 miscreants was in between 25 to 35 years."

After registration of this case, the case was at first investigated by S.I.S. Pakhira and thereafter on his transfer investigation was taken up by S.I., Uttam Kumar Chatterjee, respectively examined as P.Ws.14 and 16.

Test Identification Parade was held at Howrah Correctional Home in presence of P.W.15, Subhadip Roy, the learned Judicial Magistrate, Howrah and before him P.W.2, Nandu Lal Singh Chowdhury, identified all the three convicts, namely, the present appellant, Rajesh Thakur and Bachhan Majhi.

During the course of investigation, Rs. 10,000/- was seized from the possession of this accused from his house located at 57/2, Guru Garden Road, Pravas Nagar, P.S: Serampore, District: Hooghly leading to the confessional statement made by the accused persons (but the said statement was not proved). As per seizure list dated 22-12-2010 one Nokia mobile set was recovered along with some money from the residence of the co-convict, Rajesh Thakur. As per another seizure list dated 21-12-2010, seizure was made from the house of Krishna Show (P.W.4) father of Hemant Kumar Show (P.W.5). This P.W.5 claimed in his statement reco5ded under Section 164 Cr.P.C. that he purchased it from the present appellant Ranjan. The mobile and cash were both seized as S.R. property.

The second Investigating Officer after completion of investigation submitted charge sheet against six accused persons of whom two are absconding namely, Chandan Kumar Show and Binoy Kumar Singh and case was split up against them.

The case was committed to the Court of Sessions and it was transferred to the trial court. I have already said as to the result of the trial. Charge was framed against the appellant for the offence punishable under Section 395 /397 and 412 of the Indian Penal Code to which the appellant pleaded not guilty. The defence before the trial court was that accused did not commit any such crime and as regards the identification in T.I. Parade the accused pleaded that he was shown to the identifying witnesses.

Before the trial court as many as 16 witnesses were examined and several documents were marked as Exts. The defence preferred not to adduce any evidence either oral or documentary. It was submitted by the counsels of the parties that the trial court relied upon the Test Identification Parade as the main evidence against the present appellant and convicted him in respect of the charge on both counts, i.e. Section 395 and 397 of the I.P.C., however acquitted him in respect of the charge under Section 412 of the Indian Penal Code.

On behalf of the defence, it was argued by Mrs. Sinha, learned Advocate, that except the evidence that P.W.2 identified this appellant before P.W.15 there is nothing on record as against the present appellant. She further submitted that the learned trial court did not believe the seizure and further submitted that the main witnesses of this case are P.W.1, P.W.2, P.W.13, P.W.14 and P.W.15. It was submitted by the learned counsel that there are other witnesses like P.W.9, P.W.10 and P.W.11 who are related to that Petrol Pump and from their evidence, it cannot be said with certainty that there was dacoity in that Petrol Pump on that night.

She took me to the evidence of P.W. 1 who failed to identify any of the accused before the court and this witness also failed to identify any of the suspects in T.I. Parade. Regarding the evidence of P.W.2, who is the star witness of this case, it was argued by Mrs. Sinha that the evidence of this witness cannot be accepted in toto as from the evidence of the Investigating Officer, it will appear that the face of the accused was not covered when he was produced before the court. She submitted to consider the consistent defence case that actually there was no dacoity on that night and this accused was illegally framed in this case. She faintly argued regarding the defect in the charge when the learned trial court fixed the date of the offence as 22-12-2010 instead of fixing it in the night of 22-11-2010. On my asking, she had to admit that no prejudice was, however, caused to this accused for such defect in the charge. She further submitted that the weapon of offence as depicted by P.W.1 in his evidence varied when P.W.2 came to depose and this court may consider these circumstances also.

She also argued by taking me to the FIR and the formal FIR that even though the alleged incident took place in the night of 22-11-2010 but the FIR was forwarded to the Chief Judicial Magistrate, Howrah as per his endorsement who signed on 22-12-2010. She submitted that this point was not taken up before the trial court but she can ventilate this grievance before this court. She submitted that this is enough instance to say that the FIR is fabricated one and that no such incident took place in the manner as claimed by the prosecution. She further submitted that even though P.W.2 specifically claimed that he was taken to a doctor for his treatment but unfortunately for the prosecution no medical report was produced. She also challenged the conviction under Section 397 of the Indian Penal Code on the ground that this section is an aggravated form of Section 395 of the Code and to prove this, the prosecution must prove that there was an attempt on the part of the miscreants either to cause death of the person or to cause grievous hurt and in the instant case, the prosecution has miserably failed to bring home that charge.

Regarding the non-sending of the FIR forthwith before the Chief Judicial Magistrate, Howrah as contemplated under Section 157 of the Code of Criminal Procedure, it was submitted by the learned defence counsel that the delay in sending the FIR will mar the prosecution case. She tried to support her view by taking me to the decision of the Apex Court as reported in Arjun Marik and Others Vs. State of Bihar, wherein the Apex Court explained the word ''forthwith'' appearing in Section 157 of the Code of Criminal Procedure and the Apex Court deprecated the practice in Bihar in non-sending the FIR to the residence of Magistrate on Sundays and holidays. In that case before the Apex Court, the Apex Court further observed in paragraph 26 "Even if we ignore the question of delay there is no material on record to show that it was actually despatched and received by the Magistrate concerned and if so on what date and time. A mere note on the FIR itself that report was despatched by special messenger is not enough........."

It was further submitted by Mrs. Sinha, learned Advocate appearing on behalf of the defence challenging the T.I. Parade conducted by P.W.15 to convince this Court that the learned Trial Court ought not to have relied upon the T.I. Parade only. To discredit the T.I. Parade so conducted Mrs. Sinha cited the Division Bench decision of this Court as reported in (2014)3 C Cr LR (Cal) 90 [Monoj Kumar Srivastava v. State of West Bengal with Dipak Prosad Chowdhury and Noor Islam Chowdhury v. State of West Bengal] wherein the Division Bench did not believe the identification by the witnesses of the miscreants in T.I. Parade in a case where there was delay of one month five days and that when the accused/suspects were taken to Court their faces might not have been covered and as such the Division Bench suspected that there was a possibility of their being seen by the witnesses. Thus in this case the Division Bench of this Court mainly considered the delay in conducting the T.I. Parade as well as the fact that the faces of the suspects might not have been covered when they were carried to Court from jail and vice-versa but there was no evidence to that effect.

On this point, she also relied upon the decision of the Apex Court in Wakil Singh and Others Vs. State of Bihar, wherein the Apex Court did not believe the T.I. Parade which was conducted after three and half months and the cyclostyle or printed certificate was only singed by the Magistrate who conducted the T.I. Parade. The Apex Court in that case upheld the order of acquittal passed by the learned Trial Court. In that case the Apex Court also considered the fact that the witnesses who identified the accused persons in T.I. Parade did not give any description of the accused. This Court cannot be unmindful of the fact that in that the case before the floor of the Apex Court the accused could be identified because of the pox/cut marks and as such the identification was made unreliable. She reiterated her submission regarding the application of Section 397 of the I.P.C. in the instant case to say that the prosecution could not recover any weapon of offence that nothing was proved to convince this Court that the victims sustained any injury and as such this case can safely be covered under Section 395 of the Indian Penal code.

It was further argued by the learned defence Counsel that at the time of argument before the learned Trial Court the learned defence Counsel argued before that Court as regards the identity of both P.Ws.1 and 2. She further argued that actually the FIR was not proved by P.W.1 who deposed "I cannot read or write Bengali. I do not know the contents of the FIR". She submitted that the FIR was written by P.W.13, but, if this is the evidence of P.W.1, the evidence of P.W.13 cannot cure the defect to convince this Court that the FIR was written in clear terms. She further claimed that the Investigating Officer did not seize any document from the Petrol Pump to ascertain what amount was kept in that petrol pump at the time of the incident. She also attacked the Test Identification Parade of the present appellant as conducted by P.W.15 by taking me to the evidence of P.W.14, that when the accused was produced before the learned Chief Judicial Magistrate in open Court that visible to all. She submitted that at the time of production of the accused the face of the accused was not covered.

As regards the alternative argument, it was the argument of Mrs. Sinha that no deadly weapon was used and even P.W.2 told before the learned Magistrate at the time of Test Identification Parade that only the accused showed one gun and that there is no evidence that any deadly weapon was used. She further supplemented her argument by saying that there is no evidence to show that any of the victims received any injury, far less grievous in nature. Thus, it was her submission that conviction under Section 397 of the I.P.C. cannot sustain in the eye of law and the conviction may be recorded only under Section 395 of the I.P.C., which has not prescribed any limited period of punishment. She further submitted that the accused is in custody since 22.12.2010 and as such, roughly five years without any remission. Thus, she ended her argument by saying that even if this Court is convinced regarding the guilt of the accused under Section 395 of the I.P.C., then the accused may be released on the sentence already undergone.

It was argued by Mr. Ghosh, learned Advocate, appearing for the State by taking me to the decision of the Apex Court as reported in Shri Phool Kumar Vs. Delhi Administration, discussed in Paragraph Nos. 5, 6 and 7 to enrich this court regarding the two Sections of Indian Penal Code, i.e., 397 and 398 of the Indian Penal Code. He submitted that in that case, the Apex Court clearly indicated that there was no dispute in between these two sections.

On my asking, he submitted that there can be conviction both under Sections 395 as well as 397 of the Indian Penal Code. But, he had to admit that the learned trial court did not pass any separate sentence for the offences punishable under Sections 395 and 397 of the Indian Penal Code and convicted the accused in the following manner :-

"That the accused persons were found guilty in respect of the charge punishable under Sections 395 ad 397 of the Indian Penal Code."

Regarding the delay in sending the FIR, he cited the decision of the Apex Court as reported in Sheo Shankar Singh Vs. State of U.P., wherein the Apex Court held that unless any prejudice was caused to the accused or that the investigation was made in perfunctory manner, the sending of the FIR instantly to the Magistrate having jurisdiction is one administrative function. Learned counsel submitted by saying that in this case this point was not clarified through the evidence of both the I.Os. i.e., P.W.13 and P.W.14 and that even in the argument before the trial court this point was also not harped. Mr. Ghosh also took me to the decision of the Apex Court as reported in Sandeep Vs. State of U.P., wherein the Apex Court held categorically that when the FIR was actually recorded without delay and the investigation started on the basis of that FIR and there is no other infirmity brought to the notice of the Court then, however improper or objectionable the delay in receipt of the report by the Magistrate concerned be, in absence of any prejudice to the accused it cannot by itself justify the conclusion that the investigation was tainted and the prosecution insupportable.

Mr. Ghosh also submitted that if the T.I. Parade sheet as recorded by P.W.15 is scrutinized then this court can come to the conclusion that there was no deformity in holding the T.I. Parade and that the accused persons who attended the T.I. Parade on that date did not clamour anything before the said Magistrate that they were shown to the witnesses by the police at any point of time whatsoever. Mr. Ghosh submitted that the plea that the accused was not shown to the witnesses was taken at the fag end of the trial when he was being examined under Section 313 of the Code of Criminal Procedure except feigned cross-examination by defence to P.W.13 and that when the accused was produced before the Chief Judicial Magistrate at Howrah, there faces were not covered. Thus, he submitted that the evidence of P.W.2 vis-�-vis the evidence of P.W.15 and the documentary evidence like the T.I. Parade sheets are enough to prove that the T.I. Parade was conducted in such manner precluding any chance of collusion between the investigating agency and the jail authority.

On behalf of the prosecution it was further submitted by the learned prosecutor Mr. Sudip Ghosh, learned Advocate that even if the deadly weapon is not shown for the purpose of committing dacoity, a case under Section 397 of the I.P.C. is made out even though it was not used for causing grievous hurt or there was an attempt to cause death. On this point, he relied upon the decision of the Hon''ble Division Bench of the Bombay High Court as reported in 1996 Criminal Law Journal 2172 (Sanjay alias Ravindra N. Gaikwad & Anr. -Vs- The State of Maharashtra) wherein in paragraph 9, the Hon''ble Division Bench categorically held that it was the accused who brandished a knife and demanded the complainant to pay money and the Hon''ble Division Bench aggrieved that offence under Section 397 was committed.

Learned Counsel also took me to Section 397 of the I.P.C. to say that the legislature in its wisdom while drafting the said Section used the word ".............the offender uses any deadly weapon, or caused grievous hurt to any person ..............." and thus he submitted that here the deadly weapon might not have been used but it is sufficient that a deadly weapon was shown to the victim while committing such robbery or dacoity. He supplemented this point by taking me to Section 398 of the I.P.C. to show that if at the time of attempting to commit robbery or dacoity the offender is armed with any deadly weapon, the imprisonment which such offender shall be punished shall not be less than seven years. Thus, it was submitted by the learned Counsel that if the weapon is shown then the accused will be covered under Section 397 of the I.P.C. and if such an accused is in possession of weapon, then Section 398 of the I.P.C. would be attracted.

Thus, he submitted that the learned trial court duly convicted this accused in respect of the charge punishable under Sections 395 and 397 of the Indian Penal Code and the conviction and sentence are both to be maintained.

Thus considering the hearing of argument of the parties this Court feels that the court must answer the following points:-

"1. How much delay in sending the F.I.R. to the concerned Magistrate under Section 157 will affect the prosecution case and in the instant case whether any prejudice was caused to the accused on that score?

Whether the identification made by P.W.2 can be doubted simply because the first I.O. deposed that when he was produced before the Court of the learned Chief Judicial Magistrate his face was not covered. Whether the T.I. Parade held in presence of P.W.15 can be believed by this Court or not?

Whether the identity of P.Ws 1 and 2 were doubtful as claimed before this Court?

Were the cash left to be looted by the dacoits on that fateful night, whether it was Rs. 1 lakh plus or Rs. 3 lakhs plus?

Whether for the same incident there can be conviction in a case both under Sections 395 and 397 of the I.P.C.?"

As regards the delay in sending the F.I.R. to the learned Chief Judicial Magistrate, Howrah admittedly there was delay of more than 30 days. It is also true that this Court can take judicial notice of the fact that Howrah P.S. is very close to the Court of the learned C.J.M. of the said district. It is also true that the case record of the learned C.J.M., Howrah started w.e.f. 23.12.2010 with the production of three accused including the present appellant. The initial of the learned C.J.M. on the F.I.R. marked as Exbt.1 shows that it was placed before the learned C.J.M. only on 22.12.2010. It may be noted that the alleged incident took place in the night of 22.11.2010.

At the time of hearing of the argument two contrary decisions of the Apex Court have been cited, one from the side of the prosecution i.e., Sheo Shankar Singh (supra) and Arjun Marik & Ors (Supra). The decision of Sheo Shankar singh (Supra) was delivered by the Apex Court on 2.7.2013 and the decision cited by the defence i.e. Arjun Marik (supra) was decided on 2nd of March 1994. What has come out from the decision of Arjun Marik''s case is that there was nothing in that record to show that actually the F.I.R. was despatched or received by the Magistrate at all and if so on which date and time. I am not encouraging the investigating agency to send the F.I.R. at a belated stage in spite of the legislative intent under Section 157 of the Cr.P.C. as it must be forwarded to the Court having jurisdiction "forthwith".

The question was rightly decided by the Apex Court in Sheo Shankar Singh''s case that in such a case the court will consider whether the accused was prejudiced due to non-sending of the F.I.R. forthwith before the Magistrate concerned. In the present case before this Court if the evidence of the two I.Os'' are scrutinised the learned defence counsel who conducted the trial did not put a single question to such I.O. that why there was delay in sending of the F.I.R. to the learned C.J.M., Howrah. As regards the question of prejudice this Court considering the fact of this case can say that the accused in this case was not prejudiced due to sending of the F.I.R. at a belated stage taking dilatory tactics by the investigating agency to develop this particular case. It may be noted that the F.I.R. was registered with the Police Station instantly and the F.I.R. maker deposed in a hazy tone as to what he asked the scribe (P.W.13) what was to be written in the F.I.R. Had there been any concoction on the part of the investigating agency to involve the present appellant than the I.O? He got enough time to concoct the F.I.R.

On reading and rereading of the F.I.R. and considering the evidence of P.W.1 and 13 this Court is of the opinion that sending the F.I.R. to the concerned Court after a gap of one month did not cause any prejudice to the accused. The decision of the Apex Court on this point as decided in Sandeep (supra) about which I have already noted while noting the argument of the prosecution is there to be a guiding principle to assess a case where the F.I.R. was forwarded after unreasonable delay. I can reiterate the observation of the Apex Court on this point that in the absence of any prejudice to the accused it cannot by itself justify the conclusion that investigation so tainted and the prosecution inseparable. The decision of the Apex Court in Arjun Marik (supra) can be distinguished on facts.

Now as regards the value of the T.I. Parade, a vital evidence on which the prosecution banked upon before the Trial Court and is also banking before this Court. Let me now say what P.W. 2 told the Magistrate at the time of T.I. Parade. "Witness Nandalal Sing Chowdhury, S/o. Maharaja Singh Chowdhury of Dhanbad, Jharkhand identifies suspect Ranjan Shaw and says "Yei Mujhe Gun Dikhata Hai" (translated into English by me). It was submitted by learned defence counsel by taking me to the evidence of PW 15 that the Superintendent of the Correctional Home did not put his signature on the second page of the T.I. Parade sheet. I do not find anything wrong with the Judicial Magistrate who has no interest in a particular case cannot be doubted simply because the T.I. Parade second sheet was not signed by the controller, I do not like to give precedent to the controller than that of the judicial magistrate. I have taken into consideration the Division Bench decision of this Court as reported in (2014) 3 C.Cr.Lr.(Cal) 90 in which case there was delay in conducting the T.I. parade for one month and five days and this Court further observed that there was chances of the identified witnesses to see the face of the accused when they were produced before the Court. The decision of the Apex Court in Wakil Singh(supra) has also been considered by this Court. In the Division Bench decision would weight more was the fact that the T.I. Parade was held after one month five days and the second observation regarding the seeing of the accused persons by the witnesses when they were being produced was made a secondary observation even though there was no evidence as to whether faces were covered or not. This Court is not unmindful of the fact that in this case there is positive assertion by PW 14 that face of the accused was not covered when he was produced before the learned Chief Judicial Magistrate. In Wakil Singh''s (supra) case the accused was identified because of the POX/cut marks and in that case before the floor of the Apex Court T.I. Parade was held after a gap of three and half months. Considering the gap in holding the T.I. Parade in two cases referred to above and the fact that in the instant case the T.I. Parade was held within a gap of seven days this Court can say that the chances that the witnesses could see the face of the suspect is remote. When the T.I. Parade was done the accused-suspect was free to make any complaint to the Magistrate but the accused did not do so. In the cross-examination of PW 15 the learned defence counsel did not ask any question as to what steps the Magistrate took to ascertain as to whether the accused was shown to the witnesses. This claim that the accused/suspect was shown to the witness was taken at the fag end of the trial that is at the stage of examination of the accused under Section 313 of the Cr. P.C. Thus considering the facts and circumstances of this case this Court is satisfied that the Division Bench decision of this Court and Wakil Singh''s Case (Supra) cannot have any application.

It was faintly submitted by the learned defence counsel before this Court that identity of PWs 1 & 2 were doubtful as their names which appeared in the FIR was at variance with the recording of their names in the heading of the witness sheet. Nothing was asked to these witnesses when they were examined as to their false identity. This Court is not unmindful of the fact that at the time of argument before the learned Trial Court this point was raised, but the learned Trial Court did not conceded to that argument. On this point this Court likes to say that when the identities of PWs 1 & 2 were not disputed when they were examined on oath such plea cannot be taken at a later stage. Apart from this aspect the factual aspect is also in favour of the correct identity of PWs 1 & 2 as I get from the evidence of PWs 9,10,11 & 13. These witnesses are either the Manager, Owner or other employees of that petrol pump. Not a single suggestion was given to these witnesses before the Trial Court that actually PWs 1 & 2 were not at all employed in that petrol pump or their identity was in doubt. Thus this Court is not at one with the argument of the defence as made out before this Court regarding the identity of PWs 1 & 2.

The question as to whether there was dacoity on that night in the said petrol pump has been well-proved through the evidence of PWs 1 & 2 and the evidence of PWs 9,10,11 & 13 who came to the spot or heard as to the incident just after the dacoity was committed. On reading and re-reading their evidence this Court is satisfied that there was dacoity on that night in that Petrol Pump. The question how much money was exactly looted by the miscreants from that petrol pump cannot be said with certainty by this Court as the first I.O. did not seize any scrap of paper to convince this Court, how much amount was kept in that petrol pump at that dead night. I am told that the insurance company has already settled the claim. It would have been a matter of interest before such authority. Before this Court it is immaterial how much amount was actually looted here Rs. 100/- or Rs. 1 crore makes no difference.

It is true that PW 1 vacillated before this Court as to what he dictated to the scribe. But the scribe rightly proved the FIR and he claimed that what PW 1 delivered he scribed it. Even if there is any doubt regarding what PW 1 delivered to the scribe and what was scribed that cannot take away the era of the sole of the prosecution bar because even in a case the FIR is not proved even within the prosecution case may succeed if there are other convincing and corroborative evidence. The FIR is used only for the purpose of contradictions and corroborations. Thus the evidence of PW1 as regards what he dictated to the scribe on that night is of no consequence before this Court.

Now the question is whether for the same incident there can be conviction both under Sections 395 and 397 of the I.P.C. Learned Public Prosecutor candidly submitted that there may be convictions on both counts. Unfortunately the learned Trial Court did not impose any separate sentence for the offence punishable under Sections 395 and 397 of the I.P.C. Keeping my searching eyes on the ingredients of Sections 395 and 397 of the I.P.C. I am satisfied that Section 397 of the Code is an aggravated form of Section 395 . There cannot be conviction of person on both counts. Section 395 punishes the offenders who had only committed dacoity whereas section 397 punishes such an offender who committed dacoity and at the time of such commission of dacoity the offender had used any deadly weapon. Section 397 runs thus;-

"397. Robbery or dacoity, with attempt to cause death or grievous hurt.-

If at the time of committing robbery or dacoity, the offender uses any deadly weapon, or causes grievous hurt to any person, or attempts to cause death or grievous hurt to any person, the imprisonment with which such offender shall be punished shall not be less than seven years."

Here in the instant case before this Court no injury report was produced and as such this Court cannot believe the version of PW 2 that he received any injury in that incident. Thus, while judging this the Court must say as to whether Section 397 of I.P.C. can be the relevant section on the given fact. This Court will have to consider this clause "the offender uses any deadly weapon". The dictionary meaning of the word ''Use'' as I get from concise Oxford English Dictionary, 11th Edition is that take, hold or deploy as a means achieving something. I reiterate that on this point the learned prosecutor relied upon the decision of the Apex Court in Sri Phool Kumar (supra) and also the Division Bench decision of Bombay High Court in Sanjay alias Ravindra N. Gaikward and Anr. (supra).

In this case before this court as per the TI Parade sheet at the time of commission of dacoity one gun was shown by the miscreants.

In the decision of Bombay High Court, the Division Bench in paragraph No. 5 depicted the fact of this case before that court wherein the accused No. 1 was found to be pointing out a knife towards the victim and demanded him to pay the money and accused No. 2 was caching his collar. The said Division Bench opined that when the accused brandished knife and demanded money from the complainant, then the case can be covered under section 397 of the IPC and the accused No. 2 was convicted under section 393 of the IPC, i.e., for an attempt to commit robbery.

In the case before the Apex Court in Phool Kumar (supra), the fact before the Apex Court was that the appellant Phool Kumar was armed with a knife and in that case the Apex Court affirmed the conviction under section 397 of the IPC and also distinguished that section with that of section 398 of the IPC.

In the instant case before this Court if the evidence of PW-2 is scrutinized vis a vis, the TI pared sheet, this court must say that actually this accused showed one gun to the victim party at the time of dacoity. It is immaterial in view of these two decisions that such gun was used or not. Thus relying on these two decisions this Court is satisfied that the offence committed by the accused appellant was covered under section 397 of the IPC. This being so, no separate conviction is to be noted in respect of the charge under section 395 of the IPC. I reiterate that no separate sentence was passed by the learned trial court in respect of the said charge under section 395 of the IPC.

Thus in view of the decision so long made this court is satisfied that the accused appellant was rightly convicted in respect of the charge under section 397 of the IPC.

No claim was made by the accused in respect of the cash money recovered from him and as such, such money be confiscated to the State after the period of appeal is over and that the trial of the other two accused persons who are absconding is concluded. No order is passed regarding other seized articles as two accused persons are absconding.

Thus I find no merit in this appeal and it is answered in the negative but there will be no order as to costs.

The lower court records be transmitted to the learned trial court by special messenger.

Urgent photostat certified copy of this judgment and order be given to the parties, if applied for.