JUDGMENT - PARKAR S.S., J.:-The original accused Nos. 1, 2 and 3 being appellants in these two appeals were convicted for the offences under sections 452, 392 both read with section 34 of I.P.C. and under section 392 read with section 397 and under section 342 read with section 34 of I.P.C. in Sessions Case Nos. 460 of 1995 and 773 of 1995 by the judgment and order dated 13-10-1999 delivered by the Additional Sessions Judge, Greater Bombay. Since both the Sessions Cases arose from the common incident of robbery which took place on 7-11-1992 at about 10 p.m. at Bhuleshwar in Mumbai, common trial was held in both the Sessions Cases against these three appellants and disposed of by common judgment of the Sessions Court dated 13-10-1999. Consequently, these two appeals, arising out of the common judgment, filed by the co-accused were heard together and are being disposed of by this common judgment. 2. The facts leading to the present appeals are as follows: On 7-11-1992 at about 10 p.m. four persons entered the premises of Nakoda Enterprise situated on the 2nd floor of the building on Dr. Atmaram Merchant Road at Bhuleshwar, Mumbai. Out of those four persons who had entered the said premises, three are the present appellants and the fourth person-Yadlla Bhumanna Dubai Shankar Railingoo was discharged and ultimately only present appellants were prosecuted in the aforesaid two Sessions Cases. While the proprietor or owner of the said firm had left the office premises, the other staff, including P.W. 1 and P.W. 5, were working in the office. After the staff members took their meals around 10 p.m. four persons entered the office by pushing Amrut, the cook in the said office premises. One of the persons took out a revolver and pointed it out at the stomach of the complainant P.W. 1 Jagdish Chaudhary and threatened him that if he made noise he would be killed. One of the persons was standing as guard at the door. Another person shut the door of the balcony and the third person cut the telephone wire. One person was having chopper in his hand while the third person was having button knife in his hand. The person who was guarding at the gate was also having revolver in his hand. Another person shut the door of the balcony and the third person cut the telephone wire. One person was having chopper in his hand while the third person was having button knife in his hand. The person who was guarding at the gate was also having revolver in his hand. All the six persons, who were present in the office at that time, were made to sit in a cabin in that office. The person carrying the revolver in his hand opened the cupboard and removed the golden chain from the complainant's neck forcibly. They also took National Panasonic tape recorder. They also threw away the files from the adjoining room. They gagged the mouths of the inmates of the office with cloth pieces and tied their hands on the back and thereafter left the premises by bolting the door from outside. With the help of scissor available there, one of the office staff cut the cloth tied to his hands and of other person's hands. They then went to the neighbour's house through the balcony and from there they contacted their boss on telephone. Their boss came to the place at about 12 O' clock in the night along with police. Police recorded the complaint, which is produced at Exh. 17. 3. The police had apprehended accused No. 1 on 10-1-1995 along with another person, who was discharged in connection with some other crime. In the course of their interrogation, it came to the light that accused Nos. 1 and 3 were involved in the present robbery. During interrogation of accused No. 1 the name of accused Nos. 2 and 3 were revealed. Accused No. 1 was shown arrested in this case on 10-1-1995 accused Nos. 2 and 3 were brought by Bombay Police from Andhra Pradesh on 31-3-1995 and were shown arrested in the present case. After arresting the accused No. 1 on 10-1-1995. The II parade was held on 13-1-1995. All the witnesses had identified the accused No. 1. After the arrest of accused Nos. 2 and 3 on 31-3-1995, the II parade was held for their identification on 1-4-1995. They were also identified at the TI parade by the witnesses. At the instance of accused Nos. 2 and 3 there was recovery of tape recorded and golden chain respectively pursuant to the statements made by them after their arrest. 2 and 3 on 31-3-1995, the II parade was held for their identification on 1-4-1995. They were also identified at the TI parade by the witnesses. At the instance of accused Nos. 2 and 3 there was recovery of tape recorded and golden chain respectively pursuant to the statements made by them after their arrest. The recovery at the instance of accused No. 2 was made 8-5-1995 of the tape recorder. While the discovery of golden chain was made at the instance of accused No. 3 from the custody of P.W. 6, a jeweller on 8-5-1995. The properties which were recovered, were identified by the complainant. After the completion of the investigation charge-sheet came to be filed against accused No. 1 on 15-3-1995 and against accused Nos. 2 and 3 on 7-6-1995. Both the cases were committed to the Sessions Court. 4. Sessions Court framed the charges against these appellants for offences under section 452 read with section 34, under section 392 read with section 34, under section 392 read with section 397 and under section 342 read with section 34 of I.P.C. in the aforesaid two Sessions Cases, to which all the accused pleaded not guilty. On behalf of the prosecution seven witnesses have been examined. P.W. 1 is Jagdish Chaudhary, the complainant, P.W. 2 is Suresh Jain, the panch for spot panchnama. P.W. 3 is Special Executive Magistrate Moreshwar Thakur, who conducted TI parades. P.W. 4 is Suresh Gorawade, the panch for the panchnama Exh. 24 about the identification of the properties recovered at the instance of the accused. P.W. 5 is Kirtikumar Jain, who was working at the place of offence and, therefore, was an eye-witness to the incident. P.W. 6 is Shantilal Shah, a jeweller, from whose custody golden bangles and chain were recovered at the instance of accused No. 3. P.W. 7 is P.S.I. Shrirang Shinde, who investigated the case. The defence of the accused was of denial. 5. After considering the entire evidence on record, the trial Court convicted all the three appellants, firstly, for offence under section 452 read with section 34 of I.P.C. and sentenced them to R.I. for 7 years and to pay a fine of Rs. 10,000/- each in default to suffer R.I. for six months. 5. After considering the entire evidence on record, the trial Court convicted all the three appellants, firstly, for offence under section 452 read with section 34 of I.P.C. and sentenced them to R.I. for 7 years and to pay a fine of Rs. 10,000/- each in default to suffer R.I. for six months. Secondly, they were convicted for offence under section 392 read with section 34 of I.P.C. and sentenced to R.I. for 10 years and/to pay a fine of Rs. 10,000/- each in default to suffer R.I. for one year. Thirdly, they were convicted for offence under section 392 read with section 397 of I.P.C. and sentenced to R.I. for 7 years and to pay a fine of Rs. 10,000/- each in default to suffer R.I. for six months. Lastly, they were convicted for offence under section 342 read with section 34 of I.P.C. but no separate sentence was imposed for the said offence. All the substantive sentences were directed to run concurrently. The said judgment and order of conviction and sentences recorded against the appellants is under challenge in these two appeals. 6. On behalf of the appellants-accused it is firstly contended that the identification of the accused by the two witnesses, held after more than two years, should, not be believed. The defence Advocates pointed out certain irregularities also in the holding of TI parades by the Special Executive Magistrate. Secondly, it is contended that the recovery of the stolen articles at the instance of accused Nos. 2 and 3 also should not be believed as the panchas were not examined and the panchnamas of recovery themselves were not exhibited for not having been proved by the panchas. Lastly, it was submitted that the accused are in custody from the date of their arrest i.e. for/a period of more than 8 years and, therefore, the sentence may be reduced to already undergone. 7. The prosecution had led evidence of two eye-witnesses who were working in the office of the firm known as "Nakoda Enterprise". They are Jagdish Chaudhary P.W. 1 and Kirtikumar Jain P.W. 5. Their working hours were between 8.30 a.m. to 9.00 p.m. A cook was also kept for the purpose of preparing meals for them. The complainant was staying in the same premises. They had their meals before 10 p.m. At that time about six persons were in the office premises. They are Jagdish Chaudhary P.W. 1 and Kirtikumar Jain P.W. 5. Their working hours were between 8.30 a.m. to 9.00 p.m. A cook was also kept for the purpose of preparing meals for them. The complainant was staying in the same premises. They had their meals before 10 p.m. At that time about six persons were in the office premises. When they opened the door at about 10 p.m. for going out, four persons entered the office. When the complainant inquired as to whom they wanted to meet, they replied they wanted to meet the boss and had work with him. When they were informed that the owner was not available and had left for his residence at Kandivali and would come on Monday, one person took out revolver and pointed out at the stomach of P.W. 1 and warned him not to make noise otherwise he would be killed. The other person also armed with a revolver, was guarding at the gate. Another person who was having chopper shut the door of the balcony and the fourth person who way carrying button knife cut the telephone line. They broke open a suitcase and threw out the contents thereof. Thereafter they opened cupboard with the key which was in the key hole of the cupboard itself and removed the cash of Rs. 13,500/- from there. One of the persons removed the golden chain from the person of the complainant forcibly. Those persons also took the possession of a tape recorder of National Panasonic make. Then they ransacked files of the adjoining room. They opened a bundle of cloth and gagged the mouth of the office staff and tied their hands behind their back and left the premises after bolting the door from outside. With the help of scissor P.W. 5 Kirtikumar Jain managed to free himself and thereafter he untied the hands of other staff. From the balcony the staff members went to the adjoining neighbour's residence and from there they contacted the proprietor on telephone. The proprietor came to the place of incident alongwith the police in a van. The complaint of P.W. 1 was recorded which is produced at Exh. 17. All the facts deposed by the complainant Jagdish Chaudhary have been corroborated by the F.I.R. Exh. 17 lodged by him. The proprietor came to the place of incident alongwith the police in a van. The complaint of P.W. 1 was recorded which is produced at Exh. 17. All the facts deposed by the complainant Jagdish Chaudhary have been corroborated by the F.I.R. Exh. 17 lodged by him. He had made mention in the complaint about the articles and the cash which were stolen by the accused persons. The evidence with regard to the incident in question is fully corroborated by P.W. 5 Kirtikumar Jain who was also working in the said firm. There is absolutely no inconsistency between the evidence of these two eye-witnesses and their depositions are not demolished in their cross-examinations. 8. After the arrest of accused No. 1 on 10-1-1995, TI parade was held on 13-1-1995 by the Special Executive Magistrate Moreshwar Thakur, who is examined as P.W. 3. At that time there were two suspects who were brought for the purpose of identification. The police had arranged for ten dummies. Out of the persons brought by the police the SEM had nominated two persons as panchas. At that parade all the witnesses, including P.Ws. 1 and 5, had identified accused No. 1 being one of the accused who had committed robbery. The panchnama of the said identification parade is produced on record at Exh. 21. P.W. 1 had identified accused No. 1 in his deposition in Court as a person who had pointed out revolver at him. P.W. 5 also had identified accused No. 1 in his deposition in Court as person who was having revolver in his hand. 9. Similarly, the same SEM P.W. 3 held TI parade on 1-4-1995 for the identification of accused Nos. 2 and 3. Both these accused were identified by P.W. 1 as well as P.W. 5 at the TI parade, which is supported by the panchnama Exh. 22. P.W. 1 the complainant in his deposition in Court had identified accused No. 2 as a person who closed the door of the balcony. According to his evidence the person who closed the door of the balcony was having chopper in his hand. He has also deposed that accused No. 3 who cut the telephone connection had a button knife in his hand. Similarly, P.W. 5 Kirtikumar Jain had identified both accused Nos. According to his evidence the person who closed the door of the balcony was having chopper in his hand. He has also deposed that accused No. 3 who cut the telephone connection had a button knife in his hand. Similarly, P.W. 5 Kirtikumar Jain had identified both accused Nos. 2 and 3 at the TI parade held on 1-4-1995 as the persons who were party to the robbery, carrying weapons with them. In his deposition in Court P.W. 5 has stated that accused No. 2 had chopper in his hand and accused No. 3 had knife in his hand. Thus, both these witnesses have attributed role to the accused persons and identified them with reference to the weapons carried by them. 10. The defence Advocates have criticized the holding of the TI parade by P.W. 3 on the ground that the SEM had not ensured that the dummies were similar in appearance like suspects and of more or less same age as of suspects. The SEM also could not remember whether the suspects were brought under veil in the parade room. I do not think these irregularities would be fatal to accept the identification of the accused by the witnesses. 11. It is contended on behalf of the accused that when the TI parades were held after more than two years after the date of the incident, it was not possible for the witnesses to identify the accused at the TI parade. Considering the fact that three accused were in the premises for a span of half an hour doing various activities like holding out threats, lying the hands and gagging the mouths of the staff of the office and removing cash and other articles from the cupboard and emptying the suitcase and thereafter ransacking the files, the witnesses had sufficient time to have a close look at the feature of the accused who were not many in number. In my view, it was not difficult for the witnesses to identify them even after a period of two years when they were put up in TI parade. The time span of more than half an hour to watch and see the accused persons from close range was sufficient to note and remember the features of the accused persons to be able to identify them even after a lapse of more than two years. The time span of more than half an hour to watch and see the accused persons from close range was sufficient to note and remember the features of the accused persons to be able to identify them even after a lapse of more than two years. In that connection the trial Court has relied on the judgment of the Supreme Court in the case of (Ronny @ Ronald James Alwaris v. State of Maharashtra)1, reported in 1998 Bom.C.R.(Cri) (S.C.)811. I have, therefore, no hesitation in accepting the identification of the accused by the witnesses both in the TI parade and in the Court. The identification of all the accused as the persons who had committed robbery on the date of the incident from the office of the complainant is sufficient to uphold their conviction for offence of robbery as well as criminal trespass under section 452 of I.P.C. and for offence for wrongful confinement under section 342 of I.P.C. As stated earlier, the evidence of the complainant is fully corroborated by the immediate complaint lodged with the police on the same night as well as the spot panchnama. The spot panchnama was drawn on the same night between 1.40 a.m. to 2.40 a.m., which is produced at Exh. 19. The said panchnama is proved by panch Suresh Jain P.W. 2. As per the evidence of the panch as well as panchnama Exh. 19 the premises consisted of a hall, two cabins and a kitchen. The cupboard was found open and the articles thrown on the floor. There were cloth pieces on the rack in the cabin. There was also one open briefcase in the premises. The telephone line in the hall was cut off. The cloth and plastic pieces were also found on the table in the hall as well as the kitchen. The button knife was also found there which was left by the accused. Thus, the evidence of the complainant P.W. 1 and P.W. 5 is fully corroborated by the spot panchnama. 12. Apart from the identification of the accused at the TI parade and in the Court by the witnesses, the prosecution is also relying on the recovery made at the instance of accused Nos. 2 and 3. There was no recovery made at the instance of accused No. 1. 12. Apart from the identification of the accused at the TI parade and in the Court by the witnesses, the prosecution is also relying on the recovery made at the instance of accused Nos. 2 and 3. There was no recovery made at the instance of accused No. 1. After the arrest of accused No. 2 on 31-3-1995, as per the evidence of IO PSI Shinde P.W. 7, accused No. 2 made a voluntary statement on 8-5-1995 pursuant to which a National Panasonic tape recorder was recovered. Similarly, on the same day accused No. 3 had also volunteered for discovery of golden chain which was recovered from the custody of P.W. 6 Shantilal Shah who was carrying on the business of jewellery in the name of Nakoda Bhairav. Both these articles were identified by the complainant P.W. 1 as well as P.W. 5. The tape recorder is Article No. 4 while the golden chain belonging to the complainant is Article No. 5. Though the panchnamas were drawn of the memoranda of statements made by the two accused as well as of the recovery but the same were not exhibited as they were not proved. They are marked only "X" and "X-1" because the prosecution could not lead the evidence of panchas who according to the 10 were not available. Prosecution has led evidence of jeweller Shantilal Shah as P.W. 6 from whom recovery of two bangles and two chains was made. One of the chains i.e. article No. 5 pertains to this case which was identified by the complainant P.W. 1, according to whom the same was removed by the accused from his person at the time of incident. But the jeweller P.W. 6 has turned hostile and has claimed that the said chain belonged to him. As the jeweller Shantilal Shah P.W. 6 did not support the prosecution case and the panchas were not examined, the defence Advocates have contended that the said recovery cannot be believed. However, the article No. 5 being gold chain was identified by the witness in respect of which the prosecution had led the evidence of panch Suresh Gorawade P.W. 4. Out of two chains, complainant P.W. 1 has identified one chain which is article No. 5. However, the article No. 5 being gold chain was identified by the witness in respect of which the prosecution had led the evidence of panch Suresh Gorawade P.W. 4. Out of two chains, complainant P.W. 1 has identified one chain which is article No. 5. In my view even if the recovery evidence is not believed the accused cannot escape conviction for the offences under sections 452, 392 and 342 of I.P.C. As the accused are involved in other cases of robbery also, it is not desirable to reduce the sentence of imprisonment recorded against them. 13. In view of the above discussions, I have no hesitation in upholding the order of conviction of the accused for the aforesaid three offences. The trial Court has convicted all the three accused separately for offence under section 392 read with section 34 of I.P.C. and sentenced them to R.I. for ten years and to pay a fine of Rs. 10,000/- each in default R.I. for one year. The trial Court has also convicted all the accused for offence under section 392 read with section 397 of I.P.C. and sentenced them to R.I. for seven years and to pay a fine of Rs. 10,000/- each in default R.I. for six months. In my view the accused cannot be convicted separately for offence under section 392 read with section 34 of I.P.C. as well as for offence under section 392 read with section 397 of I.P.C. and awarded separate sentences. From the scheme of the provisions of sections 390 to 402 relating to the offences of robbery and dacoity under Chapter XVII of the Penal Code, it is clear that section 397 of the Code is in the nature of proviso to the main punishing sections like sections 392, 394, 395 and 396 of the Code which prescribe punishments for the said offences. 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 substantive sentence, which can be awarded either under sections 392, 394, 395 or 396, cannot be lesser than seven years imprisonment by virtue of section 397 of the Code. If, however, the provisions of section 397 are not attracted in case of offence of robbery or dacoity, which are punishable under sections 392, 394, 395 and 396 of the Code, the Court has discretion to impose substantive sentence which may be lesser or more than seven years upto maximum prescribed by the aforesaid provisions. This is quite clear from the wording of section 397 which does not prescribe the maximum punishment. Therefore, as a matter law, the trial Court could not have convicted and sentenced the appellants-accused for offence under section 392 read with section 34 as well as for offence under section 392 read with section 397 of I.P.C. In the facts and circumstances of this case, the appellants can be convicted and sentenced for offence under section 392 read with section 34 of I.P.C. only and, therefore, the separate conviction order and sentence recorded by the trial Court for offence under section 392 read with section 397 is liable to be quashed and set aside. 14. In the result, the appeals are partly allowed. The order of conviction and sentence recorded by the trial Court against the appellants for offence under section 452 read with section 34 of I.P.C. is confirmed so also the order of conviction recorded by the trial Court against the appellants for offence under section 342 read with section 34 of I.P.C. The order of conviction and sentence recorded by the trial Court against the appellants for offence under section 392 read with section 34 of I.P.C. is confirmed. However, the order of conviction and sentence recorded by the trial Court against the appellants for offence under section 392 read with section 397 of I.P.C. is quashed and set aside as the appellants could not have been convicted and sentenced twice for offence under section 392 of I.P.C. Appeal partly allowed. -----