C. P. SEN,J. ( 1 ) BY this judgment Criminal Appeal No. 1018 of 1978 (Vivek and another v. State of M P.) is also disposed of, as both these appeals arise out of Sessions Trial. No. 15 of 1978. Each of these three appellants-Ramjan, Vivek and Vinod Kumar-has been convicted under section 394/397 Indian Penal Code and sentenced to R. I. for seven years. ( 2 ) ALL these three appellants are residents of Sector No. 1, Bhilai Steel Plant. The complainant Mohanlal (P. W. 1) is an employee in the Bhilai Steel Plant and on 15. 8. 1977 after finishing his duty at 10. 30 p. m. he went to see a drama. At about 11. 30 p. m. he was returning to his house on his cycle. When he reached the square of Sector No. 1 and Sector No. 2, he found 4 persons standing there. One of them asked for a match-box and when he got down he was surrounded by them. One person caught hold of his shirt, another gagged his mouth, one person placed a knife on his neck and then his watch and cash of Rs. 125/-were removed. The complainant went to the Chawani police station and lodged a report at about 12 in the night giving description of the miscreants and also the description of HMT Sona wrist watch and the denominations of the currency notes removed from him. The complainant also received injury which has been proved by Dr. B. K. Banerji (P. W. 10 ). These three appellants and the acquitted accused Yunus Masih were arrested. The police had also arrested one Nanhe Khan but he was discharged by the committing Magistrate. In the identification parade held by a Magistrate, these three appellants were duly identified by the complainant Mohanlal. The stolen watch was recovered from Nanhe Chisthi on the memorandum given by appellants Vinod Kumar and the acquitted accused Yunus Masih. The stolen watch has been identified by the complainant in the identification held by Druv Kumar (P. W. 6 ). After completing the investigation, the appellants and the co-accused were charge-sheeted. Their defence was of denial and false implication due to suspicion. The stolen watch has been identified by the complainant in the identification held by Druv Kumar (P. W. 6 ). After completing the investigation, the appellants and the co-accused were charge-sheeted. Their defence was of denial and false implication due to suspicion. The learned Additional Sessions Judge by relying on the evidence of the complainant Mohanlal (P. W. 1), corroborated by the F. I. R. , Medical evidence, the identification of the appellants and the recovery of the stolen watch, convicted the three appellants while acquitting Yunus Masih, as he has not been identified by the co m p Ia in ant. ( 3 ) THE main contention is that the learned trial Judge committed an error in convicting these appellants on the solitary testimony of the complainant Mohanlal (P. W. 1) without there being any corroboration or recovery from these appellants; the only evidence is the identification by a single witness and the complainant Mohanlal could not identify co-accused Yunus Masih; the Magistrate who conducted the identification parade has not been examined; the complainant had no sufficient opportunity to see these appellant; the offence is only under section 392 at the most and as such the appellants deserve to be acquitted. On behalf of the State it is urged that there is no law that conviction could not be based on the sole identification by a solitary witness; as the complainant was found truthful and reliable there is nothing wrong in accepting his testimony; the complainant had enough opportunity to see the miscreants in the tube lights and mercury light of the square and he was for some time with the appellants as they took him to some distance before he was allowed to go. ( 4 ) IT is true that the conviction is based on the identification of the appellants by the complainant Mohanlal (P. W. 1) who is the solitary witness for proving the case against the appellants. The incident is of 15. 8. 1977 and immediately after the incident the appellants were apprehended. They were identified by the complainant between 1. 10. 1977 and 3. 10. 1977. Out of the four accused he could correctly identified three of them. Sufficient number of persons were mixed and no police man was present during the identification. The incident is of 15. 8. 1977 and immediately after the incident the appellants were apprehended. They were identified by the complainant between 1. 10. 1977 and 3. 10. 1977. Out of the four accused he could correctly identified three of them. Sufficient number of persons were mixed and no police man was present during the identification. Though the Magistrate who conducted the identification has not been examined, the identification memo has been proved by the complainant who had also appended his signatures. The identification was by a Magistrate and it is not shown that necessary precautions were taken and it was properly held. The incident took place at 11. 30 p. m. in the square where there was tube lights and in the center there, as a mercury light. The complainant was stopped at a place 2-3 yards from the lamp post. After the complainant got down, as he was asked to give a matchbox, he was surrounded by four persons, including these appellants. All of them carried knives. One person placed the knife on his neck, another on his back one on the abdomen and fourth on the shoulder and then he was robbed of his watch and cash of Rs. 125/ -. They took the complainant to some distance with them and then he was allowed to go. So there was sufficient opportunity for the complainant to observe the miscreants. He has given sufficient description of the miscreants in the F. I. R. lodged within half an hour. It is true that the complainant has admitted that he was called to the police station several times and shown various persons and also shown some photographs but he could not recognise any of them. But these appellants were not shown to him earlier. For the first time after the incident he had seen them in the identification parade. The record shows that they were kept in parade. Though Vinod Kumar and Yunus Masih were on bail before the parade, the complainant could not identify Yunus Masih. He could only identify Vinod Kumar, showing thereby that he had not seen the accused persons earlier. Otherwise he would have identified both of them. In spite of searching cross-examination, the complainant could not be shaken. Though Vinod Kumar and Yunus Masih were on bail before the parade, the complainant could not identify Yunus Masih. He could only identify Vinod Kumar, showing thereby that he had not seen the accused persons earlier. Otherwise he would have identified both of them. In spite of searching cross-examination, the complainant could not be shaken. In fact, there is a note appended to his deposition that the complainant was giving answers after due deliberation which shows that he was ensuring that he was not committing any error. Under the circumstances, the appellants have been rightly convicted and sentenced under section 392/394 Indian Penal Code. But their conviction with the aid of section 397 (sic.) (379) Indian Penal Code cannot be supported. The complainant has made improvements in his story by saying that these three appellants and the acquitted accused Yunus Masih were all carrying knives but in the F. I. R. he had given that only one person had pointed a knife on his neck. He did not mention in the F. I. R. that others had also placed knives on the back, abdomen and shoulder. The complainant had not clarified that who had placed knife on his neck. So the benefit must go to the appellants. ( 5 ) ACCORDINGLY the appeals are partly allowed. The conviction and sentence with the aid of section 397 Indian Penal Code. However, their conviction under section 392/394 is maintained and they are sentenced to R. I. for three years. They should surrender their bail for undergoing the remaining term of their imprisonment. Appeals partly allowed. .