JUDGMENT S.L. Jain, J. This judgment shall govern the disposal of this appeal as well as Criminal Appeal No. 595/2003, Antu vs. State of M.P., as both the appeals arise out of the same judgment and order. Both the appellants have been convicted under sections 458, 397 and 398, Indian Penal Code and sentenced to R.I. for seven years with fine of Rs. 500/- on each count vide impugned judgment dated 28-2-2003 passed by the 3rd Addl. Sessions Judge, Jabalpur in S.T. No. 198/2002. 2A. The prosecution case, in brief, is that complainant Dharmendra Jain was running a grocery shop in his own house situated at Marhatal, Nai Basti Jabalpur. Three-four days prior to the date of the incident, appellant Antu went to the shop of complainant and informed that he was a goon of the locality and asked him as to how he had purchased the house and started running the shop in the locality without giving him anything and demanded a sum of Rs. 5000.00 from the complainant. On this, complainant informed appellant Antu that he will consult his father in the matter. On 28-1-2001, at about 8.30 P.M., appellant Antu along with other appellant Durgesh and acquitted accused Babloo went to the shop of the complainant. Both the appellants were armed with sword and acquitted accused Babloo was armed with a knife. They demanded a sum of Rs. 5000.00 from the complainant. When the complainant refused, the accused persons entered the shop. Appellant Antu picked up the purse which was lying in the drawer of the shop and other accused persons started breaking the articles lying in the shop and the kitchen. Thereafter, appellants fled away from the spot after committing robbery. The complainant lodged the first information report at police station, Gohalpur, vide Ex. P. 4. During investigation, spot map was prepared as per Ex. P.5. Appellants and acquitted accused persons were arrested. In pursuance of the information given by appellant Antu, some cash amount and a sword was recovered as per Ex. P. 7. Pursuant to the information given by appellant Durgesh, a sword was recovered as per Ex. P. 9. On completion of the investigation, a challan was filed and the case was committed to the Court of sessions. In pursuance of the information given by appellant Antu, some cash amount and a sword was recovered as per Ex. P. 7. Pursuant to the information given by appellant Durgesh, a sword was recovered as per Ex. P. 9. On completion of the investigation, a challan was filed and the case was committed to the Court of sessions. The learned Additional Sessions Judge, Jabalpur framed charges for the offences punishable under sections 458, 397 and 398, Indian Penal Code against the appellants and acquitted accused person. All the accused persons abjured their guilt and pleaded that complainant was owing some money to them and in order to avoid the payment thereof, the complainant has lodged a false report against them and they have been falsely implicated. After concluding the trial, the learned Additional Sessions Judge, Jabalpur did not find appellant Babloo guilty of any offence and accordingly acquitted him but the trial Court found appellants guilty of the offence punishable under sections 458, 397 and 398, Indian Penal Code and as such convicted and sentenced them as indicated above. It is against this conviction and sentence that appellant Durgesh has filed Criminal Appeal No. 264/2003 and appellant Antu has preferred Criminal Appeal No. 595/2003. I have heard Ku. Kiran Mehta, learned counsel, appearing for appellant Durgesh and Shri R.N. Yadav, learned counsel for the State/respondent. None appeared on behalf of appellant Antu to argue the case and thus, in view of the judgment rendered in Bani Singh and ohters Vs. State of U.P., , the case was closed for orders. Ku. Kiran Mehta, led me through the record and contended that the learned trial Judge erred in holding the appellant guilty of the offences punishable under sections 458, 397 and 398, Indian Penal Code. She submitted that conviction and sentence recorded by the trial Court is bad, improper and illegal. Per contra, learned State counsel supported the judgment of the trial Court and contended that the sentence imposed upon the appellants was lawful and reasonable and does not call for any interference. On careful scrutiny of the trial Court's judgment, I find that the conviction of the appellant's is based on eye-witness account of complainant Dharmendra Jain (PW. 4), Arun Kumar Jain (PW. 5), (wrongly mentioned as Ashok Jain in the judgment of the trial Court) and Shri Shanker Babely (PW. 6) Dharmendra Jain (PW. On careful scrutiny of the trial Court's judgment, I find that the conviction of the appellant's is based on eye-witness account of complainant Dharmendra Jain (PW. 4), Arun Kumar Jain (PW. 5), (wrongly mentioned as Ashok Jain in the judgment of the trial Court) and Shri Shanker Babely (PW. 6) Dharmendra Jain (PW. 4) has stated that on the date of incident at about 8.00 PM, he was sitting in his shop situated at Marhatal. At that time appellants and acquitted accused Babloo came to his shop and demanded a sum of Rs. 25,000/-. Appellants were armed with sword and acquitted accused Babloo was empty handed. When he told appellant Antu that he did not have money, appellant Antu asked him to vacate the shop. Then he told him to wait so that he may consult his family members in the matter. At that time, appellant Antu dealt a sword blow on him, but as he sat below the counter, it struck on the counter. He rushed towards the inner room and appellant Antu took out Rs. 2200.00 from a purse which was kept in the drawer of his counter. His brother Arun was studying in the inner room. Appellant Durgesh entered the room and dealt a sword blow on his brother, which he undertook on the lid of pressure cooker. He and his younger brother escaped through the rear door. Both the appellants threatened them that if they will lodge the report, they will be done to death. He ran towards Tripuri Chowk and returned after sometime and thereafter he lodged the report as per Ex. P. 4. Arun Kumar Jain (PW. 5) has stated that on the date of incident at about 8,00 PM he was studying in the inner room of the house and his brother Dharmendra and his friend Shivshankar and Babloo were sitting at the shop. On hearing commotion in the shop, he came out and saw appellant Antu demanding Rs. 5000.00 from his brother. Appellant Antu struck a sword on the counter of the shop. Appellant Durgesh was also armed with a sword and due to fear, he (Arun Kumar) rushed towards the inner room and his brother Dharmendra also followed him. Both the appellants entered the inner room and appellant Durgesh dealt a sword blow on him, which he undertook on the lid of the pressure cooker. Appellant Durgesh was also armed with a sword and due to fear, he (Arun Kumar) rushed towards the inner room and his brother Dharmendra also followed him. Both the appellants entered the inner room and appellant Durgesh dealt a sword blow on him, which he undertook on the lid of the pressure cooker. He along with his brother ran away towards the Nala. After sometime, they came back to their house. His brother confined him in the room by bolting the door from outside and went to Tripuri Chowk to inform the elder brother of his father and returned after sometime from there and thereafter, lodged the first information report in the police station. Shiv Shankar Babely has corroborated the testimony of aforesaid two witnesses. Other eye witnesses to the incident namely Ramlal (PW.1), Ram Swaroop Thakur (PW. 2) and Smt. Indira Gautam (PW. 3) have not supported the prosecution case and they have been declared hostile by the prosecution. Learned counsel for appellant Durgesh has submitted that the conviction is based on the testimony of complainant, his brother Arun Kumar Jain and his friend Shiv Shanker Babely. She further submitted that they being the interested witnesses, the learned trial judge has committed grave error in convicting the appellants on their testimony. It is wrong as a general proposition to discard a witness merely because he is interested. The evidence must be discarded or accepted on the merits of that evidence and not merely because a man is interested. The mechanical rejection of such evidence on the sole ground that it has come from the mouth of a relative or it is partisan would invariably lead to failure of justice. Simply because the witnesses are relatives or interested their evidence cannot be discarded. It is true that when a criminal Court has to appreciate the evidence given by the witnesses, who are close relatives of the victim or partisan, it has to be very careful in weighing such evidence but it cannot be said that evidence given by such witnesses should be wholly discarded only because it is evidence of partisan or interested witness. The presence of Arun Kumar Jain (PW. 5) who is the brother of the complainant in the house is quite natural. Shiv Shanker Babely is also the friend of the complainant and his presence at the shop of his friend is also not unnatural. The presence of Arun Kumar Jain (PW. 5) who is the brother of the complainant in the house is quite natural. Shiv Shanker Babely is also the friend of the complainant and his presence at the shop of his friend is also not unnatural. Learned counsel for appellant Durgesh has vehemently argued that there are material discrepancies in the evidence of complainant, his brother Arun Kumar Jain and Shiv Shankar Babely as on the one hand, complainant and Shiv Shanker Babely have stated that appellant Antu demanded Rs. 25,000/-, on the other hand Arun Kumar Jain has stated that appellant Antu demanded Rs. 5000.00. Appellant Antu demanded a sum of Rs. 5000.00 saying that he was a goon of the locality. It is not necessary that such people should stick to their demand, rather their demand may be oscillating. Therefore, on account of some difference about the demand made by appellant Antu in the statements of prosecution witnesses, their evidence cannot be discarded. The trial Court has rightly believed the evidence of prosecution witnesses. Learned counsel for appellant Durgesh also contended that he there is an inordinate delay in lodging the first information report. She further contended that Court should always view the evidence with grave suspicion when there is delay in lodging first information report. Such delay quite often results in embellishment which is a creature of afterthought. On account of delay, report not only gets bereft of the advantage of spontaneity but also danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of deliberation and consultation. Therefore, unexplained delay in lodging the first information report is fatal to the prosecution and the accused is entitled to benefit of doubt. The contention is not acceptable. It is true that in certain cases where there is inordinate delay in lodging the first information report, accused persons are entitled to benefit of doubt but in this case the incident occurred at about 8.30 PM and the first information report was lodged at 10.30 PM. The delay of two hours cannot be said to be inordinate, more so when the appellants had threatened the complainant and other witnesses with dire consequences. Dharmendra (PW. 4) and Arun Kumar Jain (PW. 5) have stated that because of the fear of appellants, they ran away towards the Nala. The delay of two hours cannot be said to be inordinate, more so when the appellants had threatened the complainant and other witnesses with dire consequences. Dharmendra (PW. 4) and Arun Kumar Jain (PW. 5) have stated that because of the fear of appellants, they ran away towards the Nala. Thereafter Dharmendra went to Tripuri Chowk to inform the brother of his father and when he returned to his house, he lodged the report. Thus, there is satisfactory explanation for the delay and on this ground also, the prosecution witnesses cannot be disbelieved. Learned counsel for appellant Durgesh has also submitted that complainant owed certain money to appellant Antu and in order to get rid of payment, appellants have been falsely implicated. Appellant Antu has not furnished any documentary or oral evidence in support of his claim that complainant owned certain money to him. Complainant denied the suggestion in the cross examination in this respect. The trial Court after proper assessment of the evidence has rightly relied upon the prosecution witnesses. I also do not find any fault in the finding recorded by the trial Court in this respect. The learned trial Court has convicted the appellants for the offence punishable u/s 458, Indian Penal Code. Learned counsel for appellants contended that a person can be convicted under this section if he commits lurking house trespass at night or house breaking at night. Since the appellants did not take any precaution to conceal, the house trespass, it cannot be a case of lurking house trespass. She also submitted that the entry was not made in the shop through the passage made by the complainant, therefore, it cannot be a case of house breaking also. From the evidence of prosecution witnesses, it is clear that appellants entered the shop by threatening the complainant, therefore, the case falls within the purview of sections 445, Indian Penal Code. Since house breaking has been committed in the night, having made preparation for causing hurt to complainant or for assaulting the complainant, the conviction u/s 458 cannot be faulted with. So far as conviction under sections 397 and 398, Indian Penal Code is concerned, in the facts and circumstances no separate conviction for the offence punishable under sections 397 and 398 could have been recorded by the trial Court. So far as conviction under sections 397 and 398, Indian Penal Code is concerned, in the facts and circumstances no separate conviction for the offence punishable under sections 397 and 398 could have been recorded by the trial Court. Enhanced sentence can be awarded u/s 398 when there is an attempt to commit robbery or dacoity, armed with deadly weapon. Enhanced sentence u/s 397, Indian Penal Code can be awarded where robbery or dacoity is committed, armed with deadly weapon. When according to the finding of the trial Court, robbery was committed, separate conviction could not have been recorded by the trial Court. The trial Court has committed manifest error in convicting the appellants u/s 397 or 398, Indian Penal Code without adding section 395, 392 or 393, Indian Penal Code. Section 397 or 398, Indian Penal Code do not create a substantive offence and conviction under these sections alone cannot be recorded. Conviction ought to be under these sections read with some other sections like 395, 392 or 393 as the case may be. Similarly while framing the charge itself, it is proposed to use 397 or 398 Indian Penal Code some section constituting substantive offence like sections 395, 392 or 393, Indian Penal Code should be definitely referred to in the charge so that accused persons may know exactly what they have to meet. In the present case, proper course for the trial Court was to frame charge u/s 392 read with section 397, Indian Penal Code and instead of holding the accused guilty of offence punishable under sections 397 and 398, Indian Penal Code, should have added sections 397 or 398, Indian Penal Code along with sections 392 or 393. Since the robbery was committed and both the appellants were armed with deadly weapons, offence of the appellants falls u/s 392 read with section 397, Indian Penal Code. Separate conviction and sentence u/s 398, Indian Penal Code cannot be upheld as it is not a case of attempt to commit robbery. Accordingly, conviction u/s 398 Indian Penal Code is set aside. The conviction recorded under sections 458 and 397, Indian Penal Code is maintained, which infact will be treated as conviction under sections 458 and 392 read with section 397, Indian Penal Code. Accordingly, conviction u/s 398 Indian Penal Code is set aside. The conviction recorded under sections 458 and 397, Indian Penal Code is maintained, which infact will be treated as conviction under sections 458 and 392 read with section 397, Indian Penal Code. So far as sentence is concerned, looking to the seriousness of the offence, sentence of R.I. for seven years u/s 458, Indian Penal Code cannot be said to be harsh. Similarly, section 397, Indian Penal Code also provides for minimum sentence of seven years RI therefore, the sentence of seven years RI imposed for the offence punishable u/s 392 read with section 397, Indian Penal Code cannot be said to be harsh. Accordingly the sentence awarded under sections 458 and 392 read with section 397 Indian Penal Code is maintained. However, the sentence awarded u/s 398 Indian Penal Code is set aside. With the aforesaid modification in the sentence as indicated above the appeal is partly allowed. Final Result : Allowed