JUDGMENT 1. - Criminal Appeal No. 345/86 has been filed by the appellants against the judgment and order dated 22-7-1986 passed by the learned Additional Sessions Judge, Dausa, Camp Jaipur, whereby, he convicted and sentenced the accused appellants, namely Omveer, Chandra Pal Singh, Sonveer Singh and Balveer Singh, as under:- For offence u/s 395 IPC. Sentenced to 7 years R.I. to each of the accused appellants and a fine of Rs. 2000/- on each one of them, and in default of payment of fine, they shall have to further undergo 6 months R.I. For offence u/s 397 IPC. Sentenced to 7 years R.I. to each of the accused appellants with fine of Rs. 2000/- to each of them; and in default of payment of fine, they were ordered to further undergo 6 months R.I. The sentences were to run concurrently. 2. The Appeal No. 427/86 arising out of the same judgment and order has also been filed by appellants Gangasaran and Satish Kumar, who were convicted under Sections 395 and 397 IPC and sentenced to 7 years rigorous imprisonment on each count/and a fine of Rs. 2000/- each was also imposed on each of them, in default of payment of fine, each of them have to undergo 6 months further rigorous imprisonment. Apart from this these 2 accused appellants were also convicted for offence under Section 3/25 of the Arms Act and were sentenced to 2 months simple imprisonment and a fine of Rs. 100/- each, and in default of payment of fine, they were ordered to undergo further simple imprisonment for 15 days. 3. Since both these appeals arise out of the same judgment and order, they are disposed of by this common judgment. 4. I have heard Mr. Biri Singh learned counsel for the appellants in appeal No. 345/86 and Mr. S.C. Jindal as amicus curiae in appeal No. 427/86 and Mr. Kamal Shrimal, learned Public Prosecutor for the State. 5. 3. Since both these appeals arise out of the same judgment and order, they are disposed of by this common judgment. 4. I have heard Mr. Biri Singh learned counsel for the appellants in appeal No. 345/86 and Mr. S.C. Jindal as amicus curiae in appeal No. 427/86 and Mr. Kamal Shrimal, learned Public Prosecutor for the State. 5. Learned counsel for the appellants gives out that they do not want to argue the appeals on merits as the appellants have remained in jail for nearly 2 years and 101/2 months and, therefore, it is contended that there is a clear cut case by which they deserve to be released for imprisonment already undergone by them, it is pointed out that under Section 379 IPC no vicarious liability can be fastened on any of the appellants and the accused appellants can be held liable for their own individual liability, therefore, the prosecution has to prove for each of the accused appellant to have committed offence under Section 397 IPC. Under the provisions of Section 397 IPC it is clear that if at the time of committing robbery or dacoity the offender used any deadly weapon or causes grevious hurt to any person or attempts to cause death or grevious hurt to any person, then alone he shall be liable to imprisonment, which shall not be less than 7 years. It is pointed out that appellants Omveer Singh, Chanderpal Singh, Sonveer Singh and Balveer Singh have not been shown to possess any deadly weapon at the time of occurrence. This is proved from the fact that no weapon whatsoever has been recovered from these 4 persons. Therefore, the offence under Section 397 IPC is not made out against any one of these 4 accused persons and at the most they can be held to have committed offence under the provisions of Section 395 IPC. It is also contended that even though one Deshi Katta which was recovered from accused appellants Ganga Sharan and Satish Kumar, but it has not come in evidence that who of these two accused used this Katta in causing any hurt to the injured person. 6. It is also contended that even though one Deshi Katta which was recovered from accused appellants Ganga Sharan and Satish Kumar, but it has not come in evidence that who of these two accused used this Katta in causing any hurt to the injured person. 6. It may be mentioned that from the evidence it is clear that none of the persons have received any injury on account of gun shots and only one simple lacerated injury has been caused to the driver of Mahendra Singh (PW 10) who also, in his statement has clearly stated that he cannot say who caused this injury to him. He has not even identified any of the accused persons. It is therefore, stressed that in these circumstances, these two accused appellants also cannot be held to have committed offence under Section 397 IPC. Learned counsel in these circumstances contend that the accused appellants have been wrongly convicted to have committed offence under Section 397 IPC and at the most only the offence which can be brought home to them is under the provisions of Section 395 IPC, for which each of them have been sentenced to imprisonment for 7 years and a fine of Rs. 2000/- as indicated above. 7. Learned Public Prosecutor, appearing on behalf of the State states that accused appellants Ganga Sharan and Satish Kumar have been properly convicted under Section 397 IPC as 2 Deshi Kattas were recovered from them. Regarding other 4 accused persons, learned Public Prosecutor has not been able to show from the evidence on record, how other 4 accused persons have been fastened the liability to have committed offence under Section 397 IPC. 8. My attention has been drawn to the case of Phool Kumar v. Delhi Administration, AIR 1975 SC 905 ., in which their Lordships of the Supreme Court have stated that "the use of deadly weapon by one offender at the time of committing robbery cannot attract Section 397 IPC for imposition of minimum punishement on other offender who had not used any deadly weapon. 9. In the case of Jang Singh & Ors. v. State of Rajasthan, 1984 Cr. LJ 1135 . 9. In the case of Jang Singh & Ors. v. State of Rajasthan, 1984 Cr. LJ 1135 . this court has held that Section 397 IPC does not create substantive offence but merely prescribes minimum sentence for the accused who actually uses deadly weapons or causes or attempts to cause grevious hurt to a person in the course of committing docoity. Section 397 IPC thus postulates individual act of the accused. It has no scope for constructive liability. It cannot be pressed in to service against those miscreants who, though committed dacoity, but did not use deadly weapon or caused grievouse hurt. The individual act of an offender covered by Section 397 IPC does not make his fellow miscreants liable under Section 397 and Section 34 and 149 IPC have no applicability to the case covered by Section 397 IPC. 10. In the present case, Kattas were said to be recovered from 2 accused persons Ganga Sharan and Satish Kumar, but even in their case, injured Mahendra Singh has not been able to identify any of the accused persons and no witness has stated that he saw both these accused appellants to have used the Kattas, which are said to have been recovered from them. In Jang Singhs case (supra) it has been observed that it must be proved as a fact that a particular accused used the weapons. It is not sufficient merely to allege that one or two or some of the dacoits were armed with deadly weapons. It is incumbent on the prosecution to prove during trial that the particular accused used deadly weapon in order to justify his conviction under Section 397 IPC besides conviction under Section 395 IPC. It will, therefore; be seen that keeping in view the criteria mentioned above, none of the prosecution witnesses have stated that they saw either of these two accused persons to have used the deadly weapons. Therefore, in my opinion none of the accused persons can be held liable to have committed offence under Section 397 IPC. 11. Regarding the quantum of punishment to be awarded to the accused appellants under Section 395 IPC, learned counsel for the appellants have drawn my attention of the case of Kesho Mehton and another v. State of Bihar, 1980 SC 788 ., wherein the accused persons were convicted under Section 395 IPC. 11. Regarding the quantum of punishment to be awarded to the accused appellants under Section 395 IPC, learned counsel for the appellants have drawn my attention of the case of Kesho Mehton and another v. State of Bihar, 1980 SC 788 ., wherein the accused persons were convicted under Section 395 IPC. On appeal, it was held that since there was no attempt to cause injury to any of the inmates of the house or other persons at the time of commission of offence or even thereafter, the ends of justice will be served if the sentence is reduced to the imprisonment already undergone, which in this case was about 11/2 years. In the case of Sivappa and others v. State of Maysore (4) regarding quantum of sentence, their Lordships held as under:- "As regards the sentence, the offence no doubt was serious, but no injury beyond one appears to have caused, therefore, we think that a sentence of 3 years R.L will met the ends of justice in this case. The sentence is reduced to 3 years R.L The sentence of fine will stand." In the present case also only one simple lacerated injury has been caused to driver Mahendra Singh, who has not been able to say who was the author of this injury. In these circumstances, I am of the opinion that the ends of justice will be met if all the accused appellants who have been in jail for about 2 years and 101/2 months are released on the sentences already undergone by them. The sentence of fine as awarded will stand. 12. In the result, the appeal is allowed to the extent indicated above. The conviction of the accused persons under Section 397 IPC and the sentence awarded under this section, is set-aside. The sentence awarded under Section 395 IPC is modified to the extent as indicated above. The fine will stand as awarded in the judgment and order of the trial court.Appeal partly allowed. *******