P. K. JAIN, J. Appellants Dhani Ram and Jagdish have preferred this appeal against the judgment and order dated 26- 7-1980 passed by Sri S. N. Singh, the then Ad ditional Sessions Judge, Lalitpur convicting the appellants under Sections 392/397, IPC and sentencing each of them to undergo 10 years rigorous imprisonment. 2. Heard Sri P. N. Mishra, learned counsel for the appellants and the learned A. G. A. 3. The main contention of the learned counsel for the appellants is that a charge under Section 397, IPC is not established by the evidence on record and therefore, con viction of the appellants under Section 392, IPC with the aid of 397, IPC can not be sustained. The learned counsel further con tends that the sentence awarded is too severe. Learned A. G. A. contends that there is specific allegation of use of fire- arm, a deadly weapon, in commission of the crime. Therefore, the appellants were rightly con victed under Sections 392/397, IPC. It is further contended that the minimum sen tence where an accused convicted for of fence of robbery and dacoity with the charge under Section 397, IPC, is 7 years. There fore, the sentence awarded can not be said to be too severe. 4. The occurrence is said to have taken place on 30-6-77. The allegations in short are that at about 8. 30 P. M. the first inform ant an employee of the Sahkari Samiti, Said-pur was going to his house on a cycle of Secretary of the society when he reached on the culvert of the canal near village Nain-wara two miscreants stopped him by flash ing torch light. He saw that one Bantu Chamar was being robbed by the miscreants. The miscreants also asked the first informant to give his belongings to them and threatened at the pistol point that if he did not do so he would be killed. The miscreants looted the complainants cycle, clothes and shoe. Thereafter hands and legs of both Bantu and the complainant were tied and the miscreants ran away. The com plainant and Bantu, however, managed to free themselves after the miscreants fled away from the place of occurrence and a report about the incident was lodged on 1-7- 1977 at P. S. Maihrauni. 5. After the two appellants were ar rested they were put up for test identifica tion. The com plainant and Bantu, however, managed to free themselves after the miscreants fled away from the place of occurrence and a report about the incident was lodged on 1-7- 1977 at P. S. Maihrauni. 5. After the two appellants were ar rested they were put up for test identifica tion. Both Surendra Pal Singh P. W. 4 and Bantu P. W. 5 correctly identified them during the test identification proceedings. 6. At the trial, the prosecution ex amined in all fourteen witnesses. The appel lants denied the prosecution allegations and alleged that they were falsely implicated at the behest of the police. The appellants did not adduce any evidence in their defence. 7. The trial Court believed the prosecution evidence and accordingly con victed and sentenced the appellants. 8. This is, no doubt, borne out from the prosecution evidence that pistol was used in the commission of the crime as there are clear allegations that the victims were looted at the pistol point. In Phool Kumar v. Delhi Administration, (1975) 1 SCC 797 , it was held that if the offender uses any deadly weapon at the time of committing robbery Section 397 is attracted. That was also a case in which the victims were robbed at the pistol point. It was held by the Supreme Court that if the deadly weapon was within the vision of the victim so as to be capable of creating a terror in his mind, the offender must be deemed to have used that deadly weapon in the commission of the robbery. However, there must be positive evidence as to which of the several miscreants had used the deadly weapon. There is no vicarious liability under Section 397, IPC as in the case of Sections 34 and 149, IPC. This is evident from the language of Section 397, IPC which reads as follows:- "397.-Robbery or dacoity, with attempt to cause death or grievous him.-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. " Only such of the several miscreants who use deadly weapon or cause grievous hurt to any person or attempt to cause death or grievous hurt could be covered by mis chief of Section 397, IPC. Other participat ing with such miscreants and not proved to have used the deadly weapon or caused grievous hurt or attempt to cause death or grievous hurt can not be convicted under Section 397, IPC. The prosecution should lead evidence as to which of the several miscreants had actually used the deadly weapon. In the present case, such evidence is lacking. Neither in the first information report nor in the statements before the Court it has been specifically pointed out that as to which of the appellants involved in the commission of the crime had used the deadly weapon. In the absence of such evidence none of the appellants could have been convicted under Section 397, IPC. Therefore, the appellants conviction under Section 397, IPC can not be sustained. Of fence under Section 392, IPC is, however, proved against them beyond reasonable shadow of doubt. 9. The trial Court awarded sentence of 10 years RI to the appellants. I agree with the learned counsel for the appellants that considering the nature of the robbery com mitted and the nature of the criminal force used by the appellants the punishment awarded is too severe. Considering the na ture of the offence committed by the appel lants in my view, the sentence of two and a half years under Section 392, IPC would meet the ends of justice. 10. The appeal is consequently partly allowed. The conviction of the appellants under Sections 392/397, IPC is set aside. They are instead convicted under Section 392, IPC and sentenced to undergo R. I. for a period of two and a half years. They shall surrender before the C. J. M. Lalitpur to serve out the sentence awarded to them. Appeal partly allowed. .