GITESH RANJAN BHATTACHARJEE, J. ( 1 ) THIS Criminal Appeal is directed against the order of conviction and sentence passed on 31-7-87 by the Additional Sessions Judge, Cooch Behar in Session Case No. 33 of 1986 (Session Trial No. 2 (6) of 1986 ). By his impugned order the learned judge convicted the two accused appellants Mohan Chetri and Bazley Rahaman under S. 394 read with S. 397 I. P. C. and also under S. 412, I. P. C. and sentenced them to rigorous imprisonment for 7 years each for conviction under S. 394 read with S. 397, I. P. C. and also to rigorous imprisonment for 7 years each for conviction under S. 412, I. P. C. with the direction that both the sentences imposed on each shall run concurrently. ( 2 ) THE prosecution case, in short, is that in the evening of the 5/03/1984 at about 7/ 7. 30 p. m. while PW 1 Ratanlal Lakhotia, his father Motilal Lakhotia and his brother-in-law PW 4 Ratanlal Somani were present in the Godighar of PW-1, three miscreants entered therein being armed with weapon and caused PW 1 under threat to open the iron-chest and almirah and took away about Rs. 1,500/- and also snatched away the wrist watches of PW 1 and PW 4 and thereafter the three miscreants went inside the house and took away the ornaments etc. for the women-folk of the house and then fled away with the booty after confining all the inmates of the house including PW-1 and PW-4 inside a room and closing the door of the room from outside. This broad aspect of the prosecution case has received support from the evidence of PW 1 Ratanlal Lakhotia and PW 4 Ratanlal Somani. The further evidence of PW 1 is that when the miscreants were engaged in the acts of collecting booty inside the house, he managed to contact his uncle PW 2 Rukum Chand Lakhotia over phone from his bedroom situated inside the house as he could not contact police in spite of efforts and reported to him (PW 2) about the crime which was being committed in his house at that time by the miscreants with a request to report the matter to the police immediately. It is also the evidence of PW 1 that all the electrical lights were glowing during the occurrence and he was able to see the miscreants in that light. From his evidence it also appears that they had a telephone in their Godighar which the miscreants damaged at the very beginning of the operation. We also got it from his evidence that there was an extension of that telephone to his bed-room inside the house and he rang up PW 2 from that telephone which escaped the notice of the miscreants. PW 3 Smt. Santi Somani who is the sister of PW 1 and wife of PW 4 also corroborates the prosecution version of commission of robbery in their house by three miscreants. She also describes the ornaments and articles taken away by the miscreants. That there was a robbery in their house and that the miscreants took away ornaments and articles from their house by committing robbery have been amply established by the direct evidence of PWs. 1, 3 and 4 who are the inmates of the house. PW 2 Hukum Chand Lakhotia testifiesthat on receipt of telephonic information from PW 1 he reported the matter to the P. S. over phone and then came to the house of PW 1 and saw that police had already arrived there. ( 3 ) PW 1 has tobacco business and he has also a work house on the opposite side of their Godighar where his tobacco workers work. According to the evidence of PW 1 he also noticed that 2/3 more miscreants were standing at the work house. If his evidence on this point is belived then the total number of miscreants comes to 5 or more including the three who had entered inside the Godighar and had gone further inside the house and carried on the actual snatching away of cash, articles and ornaments as stated by PW 1 and the other inmates of the house. In that event of course the offence would amount to dacoity. The F. I. R. which was made in that very evening by PW 1 however does not disclose anything about the presence of any miscreants at the work house. The F. I. R. rather speaks of only three miscreants. PW 5 Mukter Miah was a tobacco worker of PW 1 at the relevant time. The F. I. R. which was made in that very evening by PW 1 however does not disclose anything about the presence of any miscreants at the work house. The F. I. R. rather speaks of only three miscreants. PW 5 Mukter Miah was a tobacco worker of PW 1 at the relevant time. He of course spaks about presence of 2/3 miscreants in front of their work house and also speaks about the entry of three other miscreants in the Godighar. He was, however, declared hostile by the prosecution. PW 6 Khokan Miah is another tobacco worker under PW 1. The only person who has identified in Court the two appellants as the miscreants is PW 1 and he also identified them at the T. I. parade. It is the prosecution case and PW 1 also says in evidence that one of the miscreants assaulted him and his brother-in-law (PW 4) with bamboo lathi. PW 4 also corroborates PW 1 on the point. ( 4 ) IT is the prosecution case that on the following day, that is, on 6/03/1984 the two appellants were detained by the members of the public with stolen properties at Sutkabari area and on receipt of that information police went there and arrested the two appellants and also seized stolen articles (mostly ornaments ). PW 11 Shyama Prasad Sarkar, S. I. of police who was the O. C. of thd Kotwali P. S. at that time testifies to the fact that on 6-3-84 at about 3. 10 a. m. on receipt of information that the R. G. party members of Sutkabari area had detained at about 1. 00 p. m. on that day two persons on suspicion with some stolen properties he went there at about 6. 10 p. m. and arrested the two appellants and also sezied the ornaments etc. found in their possession in presence of witnesses. Exh. 7 is the seizure list in respect of the ornaments etc. recovered from the possession of the two appellants. ( 5 ) IN this connection, it is to be mentioned here that the seized ornaments etc. which were recovered from the possession of the two appellants as stated above have been identified by PW 1 and PW 3 Smt. Santi Somani as the things taken away by the miscreants during the occurrence. It is true that the seized ornaments etc. which were recovered from the possession of the two appellants as stated above have been identified by PW 1 and PW 3 Smt. Santi Somani as the things taken away by the miscreants during the occurrence. It is true that the seized ornaments etc. were not placed in T. I. parade but the I. O. has given an explanation in this regard that similar articles were not available for the purpose of placing in T. I. parade along with the seized articles which indeed appears to be a very plausible explanation. The identification of seized ornaments and the silver box by the inmates of the house particularly by a lady is quite credible. It is a matter of common experience that ladies are generally very accurate in respect of the identification of the ornaments which they possess or use or which they have occasion to see in the household. The quantity of the valuable ornaments etc. seized under the seizure list exs. 7 must be of such considerable monetary value that it is very difficult to imagine that the recovery of these valuable ornaments could be a planted drama, more so where the recovery was made from the accused persons at a place away from the place of occurrence by the police who went there on receipt of information that the villagers had detained them with suspected articles. PW 7 Hamidul Haque is a witness to the seeizure list exs. 7. He was, however, declared hostile by the prosecution. At first he admitted his signature in the seizure list, but thereafter he tried to even disown his signature and that is why he was declared hostile. The prosecution case is that this witness is now trying to shield the accused on the ground that the accused Buzley is a witness in a criminal case pending against him, which, however, he denies although he admits that a criminal case is pending against him. However, in his cross-examination by the prosecution with the permission of the Court he says that Daragababu obtained his signature on 'that paper' meaning the seizure list. He also says that the local people were present there who arrested the two appellants. PW 8 Abdul Haque is another witness, who was also declared hostile by theprosecution. He, however, testifies that at about 1/ 1. He also says that the local people were present there who arrested the two appellants. PW 8 Abdul Haque is another witness, who was also declared hostile by theprosecution. He, however, testifies that at about 1/ 1. 30 p. m. in the afternoon he was in his house when he heard a row and came out and went to the school ground and came to know that two dacoits were arrested and he also saw them. He identifies the two appellants as those two persons. He is also a seizure list witness and he identifies his signature in the seizure list as exs. 7 / 2. He however says that he did not see any articles with the two accused persons when they were arrested by police. It appears from his evidence that he is an accused of a rape case. Be that as it may, the evidence of these two seizure list witnesses lends strong support to the prosecution case that these two appellants were detained by the local people at about 1/ 1. 30 p. m. on the day immediately followign the date of the occurrence on the allegation that they were carrying stolen articles with them. It is also evident from the deposition of the O. C. that on receipt of such information he went to the spot and saw that the local people had detained the two appellants and he then arrested the two appellants and seized the ornaments etc. found in the possession of the appellants at that time. Those articles, as we have already found, have been identified by the PW 1 and PW 3 as the ornaments etc. taken away by the miscreants during the occurrence which we have no reason to disbelieve. The recovery of stolen articles in such a large quantity within 24 hours of the occurrence, raises a, very legitimate presumption under S. 114 (a) of the Evidence Act against the two appellants from whom those stolen articles were recovered that they were involved in the commission of the offence in the house of PW 1 in the previous evening or they received the articles knowing them to be stolen. The direct evidence of PW 1 about the participation of the appellants in the commission of the offence in his house in the evening of 5/03/1984, fortified by his identification of them both in Court and at the T. I. parade leads to the inevitable conclusion, in the background of the said recovery, that the appellants committed the robbery in the house of PW 1. Since however the presence of some miscreants at the work house in additon to the three miscreants who entered in the Godighar does not find place in the F. I. R. that part of the prosecution case as introduced in the evidence relating to the presence of some more miscreants at the work house, we feel, should not be accepted and consequently the offence which is proved beyond reasonable doubt in this case is one punishable under S. 394, I. P. C. The court below was therefore right in not convicting the appellants under S. 395, I. P. C. although a charge under that head was also framed. The learned trial Judge has, of course, imported S. 397, I. P. C. also along with S. 394, I. P. C. in convicting the appellants. Section 397, I. P. C. is, however, attracted only when it can be definitely established that, the particular accused while committing robbery or dacoity has used any deadly weapon. In the present case, however, the evidence of PW 1 does not specifically fix up any particular appellant with the user of any deadly weapon during the commission of the robbery. The mere fact that one of the miscreants might have used a deadly weapon does not indiscriminately import S. 397, I. P. C. against all the miscreants. Section 397, I. P. C. is attracted only against the particular accused who uses the deadly weapon or does any other thing as mentioned in that section, but the other accused persons are not vicariously liable under that section for the acts of the co-accused. The position under S. 394, I. P. C. is however different. Under S. 394, I. P. C. if any accused voluntarily causes hurt in committing robbery, in that case not only he but any other person jointly concerned in committing such robbery shall also be liable to punishment under that section. The position under S. 394, I. P. C. is however different. Under S. 394, I. P. C. if any accused voluntarily causes hurt in committing robbery, in that case not only he but any other person jointly concerned in committing such robbery shall also be liable to punishment under that section. In this case we have it in evidence that during the commission of robbery one of the miscreants assaulted PW 1 and his brother-in-law. That being so, for a conviction under S. 394, I. P. C. it is not necessary to fix up the identity of the particular miscreant who made such assault and all the miscreants jointly concerned in the commission of the robbery will be liable under S. 394, I. P. C. Both the appellants were therefore rightly convicted under the said section. In the absence of any specific evidence that any of the appellants, in particular was in possession of or had used any deadly weapon during the occurrence S. 397, I. P. C. , we feel, is not attracted against any of the appellants. The conviction under S. 397, I. P. C. in this case, therefore, cannot be upheld although we confirm the order of conviction so far it relates to S. 394, I. P. C. ( 6 ) AGAIN since it was a conviction under S. 394, I. P. C. read with S. 397 in the trial Court, there could not have been a simultaneous conviction under S. 412 inasmuch as a person who is guilty of the offence of robbery cannot be simultaneously guilty under S. 411, I. P. C. of receiving stolen property which he has taken by such robbery. It is also surprising that while the learned trial judge convicted the appellants under S. 394/ 397, I. P. C. he convicted them again under S. 412, I. P. C. quite oblivious of the fact, first, that S. 412 is not attracted unless it was a case of dacoity (and not robbery) and secondly, no conviction under S. 412 or S. 411 is permissible simultaneously with the conviction under S. 395 or 394, I. P. C. , as the case may be, in respect of the self-same accused. In the result the conviction under S. 412, I. P. C. must be set aside. In the result the conviction under S. 412, I. P. C. must be set aside. So far as the sentence is concerned, we are of the opinion that rigorous imprisonment for 7 years for the conviction under S. 394, I. P. C. should be reduced to rigorous imprisonment for 5 years as that will, having regard to the facts and circumstances of the case, meet the ends of justice. In the result we maintain the conviction under S. 394, I. P. C. but reduce the sentence to rigorous imprisonment for 5 (five) years for that conviction. We, however, set aside the Conviction under S. 397, I. P. C. and also set aside the order of conviction and sentence passed by the learned trial court under S. 412, I. P. C. subject to the aforesaid modifications, the appeal is dismissed. ( 7 ) J. N. HORE, J. :- I agree. Order accordingly.