Judgment Ravi alias Ravi Kumar, the first accused, and Madukanth, the second accused, challenging the conviction imposed upon them for the offence under Sec. 397 read with 34, I.P.C. and the sentence to undergo rigorous imprisonment for 7 years and to pay a find of Rs. 3, 000, in default to undergo simple imprisonment for 6 months, have filed these two appeals in C.A. No. 922 of 1997 and C.A.No.929 of 1997 respectively. 2. The short facts leading to the conviction of the accused are as follows: “(a) P.W. 1 Muthumala, who is a diploma-holder in Civil Engineering, was working in Tamil Nadu Water Supply Board. Her husband Sundar is P.W. 2. On 23.7.1996 at about 9.15 p.m., they left their house at Saibaba Colony for shopping and after purchase of some articles, they were coming back home. (b) When they were crossing Subbanna Gounder Street, the appellants (A-1 and A-2) came in a motor cycle. Madukanth (A-2) was driving the motor cycle and Ravi alias Ravikumar (A-1) was the pillion rider. A-2 stopped the motor cycle nearer to them and A-1 took a knife and put the same on the stomach of P.W. 1 and threatened her to remove her ‘thali’ chain and hand over the same to him. Both P.Ws. 1 and 2 cried. In the meantime, A-1 Ravikumar snatched the chain from her neck and both of them fled away in the motor cycle. (c) On hearing the hue and cry raised by P.Ws. 1 and 2, P.W. 4 Soundararajan, who is the resident of that area, and others chased the motorcycle and some of the witnesses stood in front of the motor cycle preventing it to proceed further and ultimately, the motor cycle fell down into a nearby pit. Both the accused were caught and taken to the police station. (d) At about 9.45 p.m., P.W. 1 Muthumala gave a complaint to P.W. 8 Head Constable attached to Saibaba Colony Police Station. P.W. 9 Inspector of Police took up investigation and arrested both A-1 and A-2, who were caught red-handed and recovered M.Os. ‘thali’ chain, M.O. 1 knife and M.O. 3 motor cycle under Ex.P-2 mahazar attested by P.W. 5 Sivaraman. (d) Then, P.W. 9 Inspector of Police went to the spot and prepared Ex.P-3 observation mahazar and rough sketch. Due to the fall into the pit, A-2 sustained injury on his knee. ‘thali’ chain, M.O. 1 knife and M.O. 3 motor cycle under Ex.P-2 mahazar attested by P.W. 5 Sivaraman. (d) Then, P.W. 9 Inspector of Police went to the spot and prepared Ex.P-3 observation mahazar and rough sketch. Due to the fall into the pit, A-2 sustained injury on his knee. He was treated by P.W. 7 Doctor. P.W. 7 Doctor gave Ex.P-5 accident register extract giving opinion that the injury sustained by A-2 was simple. (e) P.W. 9 Inspector of Police finished investigation and filed charge-sheet against both the accused for the offences under Secs. 392 and 397, I.P.C. (f) On behalf of the prosecution, P.Ws. 1 to 9 were examined, Exs. 1 to 7 were filed and M.Os. 1 to 3 were marked. (g) The accused stated in the questioning under Sec. 313, Crl.P.C. that they were innocent. (h) The trial Court ultimately found them guilty for the offence under Sec. 397 read with 34, I.P.C. and sentenced them to undergo rigorous imprisonment for 7 years and to pay a fine of Rs. 3, 000 in default to undergo simple imprisonment for six months. 3. This is the subject matter of these two appeals filed before this Court by the first and the second accused separately. 4. Mr. Ramamoorthy, the learned counsel appearing for the first accused, the appellant in C.A. No.922 of 1997, would make the following contentions: “The evidence of P.Ws. 1, 2 and 4 is not consistent with the case of the prosecution. As a matter of fact the evidence of P.W. 1 with regard to the part played by A-1 and A-2 is quite contradictory to Ex.P-1 F.I.R. and the evidence of P.W. 2. P.W. 1 specifically disclosed that A-2 snatched the chain from her, while A-1 was driving the motor cycle. This is totally contrary to the case of the prosecution. The evidence of P.Ws. 1, 2 and 4 would go to show that these persons would not have witnessed the occurrence, especially, when the occurrence took place in a dark place. Without framing the charge under Sec. 34, I.P.C. the conviction for the offence under Sec. 397 read with 34, I.P.C. is wrong”. 5. In support of his contention, he would cite the decisions in (1) State of U.P. v. Krishna Gopal A.I.R. 1988 S.C. 2154 and (2) Harchand Singh v. State of Haryana 1975 L.W. (Crl.) 216. 6. Without framing the charge under Sec. 34, I.P.C. the conviction for the offence under Sec. 397 read with 34, I.P.C. is wrong”. 5. In support of his contention, he would cite the decisions in (1) State of U.P. v. Krishna Gopal A.I.R. 1988 S.C. 2154 and (2) Harchand Singh v. State of Haryana 1975 L.W. (Crl.) 216. 6. Mr.V.K. Muthusamy, the learned senior counsel appearing for the second accused, the appellant in C.A.No.929 of 1997, would make the following contentions: “The conviction under Sec. 397 read with 34, I.P.C. would be perfectly illegal, as Sec. 34, I.P.C. has no application to the provisions of Sec. 397, I.P.C. Admittedly, A-2 was not having any deadly weapon. Therefore, it is not sufficient to fall back upon the provisions of Sec. 34, I.P.C. in order to convict A-2, who was unarmed at the time of occurrence. Furthermore, the charge framed against A-1 under Sec. 397, I.P.C. does not create a substantive offence and therefore, the conviction under Sec. 397 read with 34, I.P.C. is illegal. Sec. 397, I.P.C. postulates individual act of the accused and therefore, it has no scope for constructive liability. Sec. 397 read with 34, I.P.C. cannot be pressed into service against A-2, who did not use any deadly weapon. The use of deadly weapon by one of the offenders cannot attract Sec. 397, I.P.C. for imposing punishment upon another offender, who has not used any weapon. In the absence of acceptable evidence and in view of the failure to frame proper charge, the conviction has got to be set aside.” 7. In support of his contention, the learned senior counsel would cite the following decisions: (1) Labedan Sain v. Emperor A.I.R. 1931 Pat. 49; (2) Jan Singh v. State of Rajasthan 1984 Crl.L.J. 1135; (3) Bachan v. Emperor A.I.R. 1927 Lah. 149; (4) Akmat Ali v. The State A.I.R. 1937 Tri. 48; (5) Pool Kumar v. Delhi Administration A.I.R. 1975 S.C. 905: 1975 Crl.L.J. 778; (6) Union Territory of Manipur v. M.K. Singh A.I.R. 1971 Manipur 43; (7) Willson v. State of Maharashtra 1995 Crl. L.J. 4042 and (8) Rayar IN RE. 1982 Crl. L.J. NOC. 122 (Mad.). 8. 149; (4) Akmat Ali v. The State A.I.R. 1937 Tri. 48; (5) Pool Kumar v. Delhi Administration A.I.R. 1975 S.C. 905: 1975 Crl.L.J. 778; (6) Union Territory of Manipur v. M.K. Singh A.I.R. 1971 Manipur 43; (7) Willson v. State of Maharashtra 1995 Crl. L.J. 4042 and (8) Rayar IN RE. 1982 Crl. L.J. NOC. 122 (Mad.). 8. In reply to the above submissions, Mr.E. Raja, the learned Additional Public Prosecutor, on the strength of the decisions in (1) Pool Kumar v. Delhi Administration A.I.R. 1975 S.C. 905 (2): 1975 Crl.L.J. 778; Mohinder Singh and another v. State of Haryana (1996)4 Crimes 11; (3) Kammari Brahmaiah v. Public Prosecutor (1999)2 S.C.C. 522 ; (4) Shri Bhagwan v. State of Rajasthan (2001)3 Crimes 35 and (5) Sanjay alias Kak v. The State (N.C.C.C. of Delhi) would submit that there are materials, which are consistent to establish that both the accused have committed robbery by snatching the ‘thali’ chain from P.W. 1 and thereby, they are liable to be punished for the offence under Sec. 392 read with 397, I.P.C., instead of under Sec. 397 read with 34, I.P.C. 9. According to the learned Additional Public Prosecutor, though there is no specific charge in respect of the offence under Sec. 397 read with 34, I.P.C., they were tried for those charges separately and as such, they can be convicted for the offence under Sec. 392 read with 397, I.P.C., as there are sufficient materials to impose punishment upon the accused for those offences. 10. I have given by careful consideration to the respective submissions made by the learned counsel for the parties. 11. At the outset, I shall mention that the evidence of P.Ws.1, 2 and 4, the eye-witnesses, would clearly go to show that on 23.7.1996 at about 9.15 p.m., when both P.Ws.1 and 2 were walking along the road after finishing their shopping, A-1 and A-2 came in M.O.3 motor cycle and at the point of knife, the ‘thali’ chain was snatched from P.W. 1 and they tried to escape from the scene by starting the motor cycle speedily. However, they were caught at the spot itself by P.Ws. 3 to 5 when the motor cycle fell down into the nearby pit. 12. According to the prosecution, the first accused Ravi alias Ravi kumar was the pillion rider and the second accused Madukanth was riding the motor cycle. However, they were caught at the spot itself by P.Ws. 3 to 5 when the motor cycle fell down into the nearby pit. 12. According to the prosecution, the first accused Ravi alias Ravi kumar was the pillion rider and the second accused Madukanth was riding the motor cycle. In Ex.P-1 complaint, P.W. 1 would specifically state that A-1, who was sitting on the back seat as pillion rider, got down from the motor cycle and put the knife on the stomach of P.W. 1, a woman of 30 years old, in a bazaar and on getting shocked, P.Ws. 1 and 2 raised noise. In the meantime, A-1 snatched the ‘thali’ chain from P.W. 1's neck and got into the motor cycle and A-2 speedily started the motor cycle proceeding towards the opposite side. At that point of time, P.W. 3 Ganesh, P.W. 4 Soundararajan, P.W. 5 Sivaraman stopped the motor cycle from proceeding further and in that process, the motor cycle fell down into the nearby pit as a result of which, A-2, who was riding the motor cycle, sustained injury on his leg. 13. This aspect of evidence has been clearly spoken to by P.Ws. 1 to 5. Though P.Ws. 3 and 5 did not see the occurrence, on hearing the hue and cry of P.Ws. 1 and 2 as “thief, thief, they swiftly stopped the motor cycle from proceeding further. 14. As a matter of fact, the evidence of P.W. 4 whose house situate near to the spot would clearly corroborate the case of the prosecution projected by P.Ws. 1 and 2. 15. It may be true that P.W. 1 in the course of her deposition would state that A-1 was riding the motor cycle and A-2 was snatching the ‘thali’ chain. This is purely a mistake, since the reading of the entire evidence of P.W. 1 would clearly show that Madukanth (A-2) was riding the motor cycle and Ravi alias Ravikumar (A-1) was the pillion rider. 16. According to P.W. 1, she is a Diploma Holder in Civil Engineering and she was working in Tamil Nadu Water Supply Board at Dindigul. P.W. 2, who is the husband of P.W. 1, was working in a private concern. P.W. 4 Soundararajan was doing printing work having his residence at Door No. 97 Saibaba Colony, which is situate very near to the place of occurrence. P.W. 2, who is the husband of P.W. 1, was working in a private concern. P.W. 4 Soundararajan was doing printing work having his residence at Door No. 97 Saibaba Colony, which is situate very near to the place of occurrence. According to him, Ravi Kumar (A-1), who was the pillion rider, snatched the ‘thali’ chain from P.W. 1 and Madukanth (A-2) was riding the motor cycle. Therefore, the accused cannot escape from the criminal liability merely because P.W. 1 has stated in her deposition that A-1 was riding the motor cycle and A-2 was the person who snatched the chain. 17. It is the consistent case of the prosecution through P.Ws. 1, 2 and 4 that A-1 got down from the motor cycle and snatched the ‘thali’ chain and A-2 was riding the motor cycle. It is also the case of the prosecution that both the accused, while attempting to escape from the scene place by staring the motor cycle speedily, were prevented by the witnesses from proceeding further by standing in front of the motor cycle and in that process, the motor cycle fell down into the nearby pit. Consequently, A-2, the rider of the motor cycle, sustained injury on his knee. 18. P.W. 7 Doctor gave treatment to A-2 at about 3.30 a.m. on 24.7.1996 and issued Ex.P-5 certificate. It is clear from the evidence of P.W. 7 Doctor and Ex.P-5 that A-2 himself stated to P.W. 7 Doctor that he was riding the motor cycle and he fell down and sustained injury. Therefore, there is no difficulty in holding that A-2 was riding the motor cycle and A-1, who was the pillion rider, snatched the ‘thali’ chain from P.W. 1. 19. The decisions cited by Mr. Ramamoorthy, the learned counsel appearing for the first accused, reported in State of U.P. v. Krishna Gopal A.I.R. 1988 S.C. 2154. and Harchand Singh v. State of Haryana 1975 L.W. (Crl.) 216 would lay down that the Court has to find out whether there is any reliable and trustworthy evidence for basing the conviction of the accused and if there is a doubt, the accused has to be acquitted. 20. and Harchand Singh v. State of Haryana 1975 L.W. (Crl.) 216 would lay down that the Court has to find out whether there is any reliable and trustworthy evidence for basing the conviction of the accused and if there is a doubt, the accused has to be acquitted. 20. There cannot be any quarrel over these principles, since in these decisions it is clearly held that a person has a profound right not to be convicted to an offence, which is not established by the evidential standard of proof beyond reasonable doubt. Though this standard is a higher standard, there is no absolute standard. What decree of probability amounts to “proof is an exercise particular to each case. 21. In other words, the doubt must be actual. A reasonable doubt is not an imaginary, trivial or a merely possible doubt; but a fair doubt based upon reason and common sense. 22. In the light of these principles, if we look at the present facts of the case, it can be safely stated that the prosecution has clearly established the part played by both the accused, who came in a motor cycle at about 9.15 p.m. and snatched the ‘thali’ chain from P.W. 1, who along with her husband was walking along the road, and attempted to escape. 23. Furthermore, both the accused were caught red handed at the spot itself and the knife as well as the ‘thali’ chain in the possession of A-1 had been recovered. Under those circumstances, there are enough materials to show that both the accused are liable to be punished for the acts committed by them. 24. The main important point urged by the learned senior counsel for the second accused is that the conviction under Sec. 397 read with 34, I.P.C. is illegal, as Sec. 34, I.P.C. would not apply to Sec. 397 as laid down in the decisions in (1) Labedan Sain v. Emperor A.I.R. 1931 Pat. 49. (2) Jan Singh v. State of Rajasthan 1984 Crl.L.J. 1135. and (3) Bachan v. Emperor A.I.R. 1927 Lah. 149. 25. The learned senior counsel would further submit that Sec. 397, I.P.C. does not create a substantive offence and as such, the conviction under Sec. 397 read with 34, I.P.C. especially, when A-2 did not use any weapon, is clearly illegal, in view of the decisions in (1) Akmat Ali v. The State A.I.R. 1937 Tri. 149. 25. The learned senior counsel would further submit that Sec. 397, I.P.C. does not create a substantive offence and as such, the conviction under Sec. 397 read with 34, I.P.C. especially, when A-2 did not use any weapon, is clearly illegal, in view of the decisions in (1) Akmat Ali v. The State A.I.R. 1937 Tri. 48; (2) Pool Kumar v. Delhi Administration A.I.R. 1975 S.C. 905: 1975 Crl.L.J. 778; (3) Union Territory of Manipur v. M.K. Singh A.I.R. 1971 Manipur 43. (4) Willson v. State of Maharashtra 1995 Crl.L.J. 4042 and (5) Rayar IN RE. 1982 Crl. L.J. NOC. 122. 26. As far as the first point is concerned, it is conceded by the learned Additional Public Prosecutor that Sec. 34, I.P.C. has no applicability to the case covered under Sec. 397, I.P.C. 27. In regard to the second point, it is strenuously contended by the learned Additional Public Prosecutor that both the accused persons conjointly committed robbery and as such, both could be convicted under Sec. 392 read with 397, I.P.C. For this submission, the learned Additional Public Prosecutor would cite the judgment rendered by the Supreme Court in Mohinder Singh v. State of Haryana (1996)4 Crimes 11. 28. On going through the aforesaid decision, it is clear that the facts of the case in the said decision would fully apply to the facts of the present case. 29. The facts of the case in Mohinder Singh v. State of Haryana (1996)4 Crimes 11. in short, are as follows: “The victim was a taxi driver. When he was standing in the taxi stand with his car, one accused, a clear shaven young man, came to him and hired his car for going to Hissar. The fare was settled and he gave Rs. 400 as advance. A few minutes later, a Sikh gentleman, who is the friend of the clean shaven young man joined him and both of them got into the car. When the car was proceeding towards Balsamand, the clean shaven man placed a revolver on the neck of the driver and asked him to stop the car. The man who was carrying the revolver fired a shot in the air and demanded the return of the amount of Rs. 400. After getting the amount, the driver was pushed out of the car and both of them took the car and drove away.” 30. The man who was carrying the revolver fired a shot in the air and demanded the return of the amount of Rs. 400. After getting the amount, the driver was pushed out of the car and both of them took the car and drove away.” 30. In the above case, both the accused were convicted for the offence under Sec. 392 read with 397, I.P.C. When the matter was challenged before the Supreme Court, the Supreme Court would hold that both of them were liable to be convicted for the offence under Sec. 392 read with 397, I.P.C., since it is held that both committed robbery conjointly. 31. It is true that in this case, A-1 and A-2 were charged for the offence under Sec. 392, I.P.C. and A-1 alone was charged for the offence under Sec. 397, I.P.C. Therefore, there is no difficulty to hold that Sec. 397, I.P.C. simpliciter could not create a substantive offence. Sec. 392, I.P.C. is the rider to the punishment Sec. 397, I.P.C. 32. According to the prosecution, both of the accused were proceeding from Southern side to northern side in a motorcycle. A-2 was driving the motorcycle and A-1 was sitting on the backside. At that time, P.Ws. 1 and 2 were proceeding towards southern side. After crossing them, both the accused turned their motorcycle to southern side from northern side and came nearer to P.Ws. 1 and 2 and stopped the motor cycle, thereby waylaid and restrained both P.Ws. 1 and 2. Then A-1 got down from the motor cycle and put the knife on the stomach of P.W. 1 and demanded the ‘thali’ chain. When P.Ws. 1 and cried, A-1 snatched the ‘thali’ chain from her neck and got on the pillion seat. On noticing that the act of snatching was accomplished by A-1, A-2 swiftly started the bike and tried to escape by speedily driving the motorcycle. On hearing the crises of P.Ws.1 and 2, the people in the baser, namely, P.Ws. 3, 4, 5 and others prevented the motor cycle from proceeding further. Unable to find a way out to escape, the motor cycle fell down into a pit and thereafter, both the accused were caught. 33. The above facts would clearly show that both the accused conjointly committed the act of robbery. 34. It is true that A-2 did not use knife. Unable to find a way out to escape, the motor cycle fell down into a pit and thereafter, both the accused were caught. 33. The above facts would clearly show that both the accused conjointly committed the act of robbery. 34. It is true that A-2 did not use knife. But, the fact remains that he also actively joined in the commission of robbery. For assisting the act of snatching away of the ‘thali’ chain by A-1, A-2 stopped the motorcycle nearer to P.Ws. 1 and 2 and after A-1, snatched away the ‘thali’ chain from P.W. 1 at the point of knife, A-2 swiftly started the motorcycle and tried to escape by speedily driving the motorcycle. 35. Under those circumstances, instead of convicting the appellants for the offence under Sec. 397 read with 34, it would be appropriate to convict them for the offence under Sec. 392 read with 397, I.P.C. 36. It is held by the Supreme Court in the decisions in Kammari Brahmaiah v. Public Prosecutor (1999)2 S.C.C. 522 , that if the facts are such that a charge could be framed and yet it is not framed but no failure of justice has in fact been occasioned thereby, the finding, sentence or order of the Court of competent jurisdiction is not to be set aside on that ground, in view of Sec. 464, Crl.P.C. 37. As a matter of fact, the materials to substantive the ingredients of the above offences, namely, Sec. 392 read with 397, I.P.C. are very much available in the case on hand in the form of oral and documentary evidence. Both A-1 and A-2 were given opportunity to cross-examine the witnesses and all the facts were put to the accused while questioning under Sec. 313, Crl.P.C. Under these circumstances, the conviction under Sec. 392 read with 397, I.P.C. even in the absence of the said specific charge cannot be said to have caused any prejudice. 38. Therefore, the conviction imposed upon both the accused under Sec. 397 read with 34, I.P.C. is modified to the effect that they are liable to be convicted for the offence under Sec. 392 read with 397, I.P.C. and sentenced to undergo rigorous imprisonment for 7 years and to pay a fine of Rs. 3, 000, in default to undergo simple imprisonment for six months. 39. With this observation, these two criminal appeals are dismissed. S.S.-----Appeal dismissed.