JUDGMENT 1. - The aforesaid six criminal appeals by 7 accused appellants arise out of two Sessions Cases bearing No. 21/96 and 2/2001. In Sessions Case No. 21/96, 5 accused persons namely Ami Khan, Mohammedin, Hasan, Nasru Khan and Yusuf were found guilty of having committed offence punishable under Sections 395, 397, 398 and 120-B IPC and were accordingly convicted and sentenced in the following manner: Under Section 395 IPC : 7 years rigorous imprisonment with a fine of Rs. 5000/-, in default thereof, each was to further undergo 6 months rigorous imprisonment. Under Section 397 IPC 7 years rigorous imprisonment with a fine of Rs. 5000/-, in default thereof, each was to further undergo 6 months rigorous imprisonment. Under Section 398 IPC : 7 years rigorous imprisonment with a.fine of Rs. 5000/-, in default thereof, each was to further undergo 6 months rigorous imprisonment. Under Section 120-B IPC : No separate sentence was awarded. 2. In Sessions Case No. 2/2001, two appellants were held guilty for offence under Sections 395, 398 and 120-B IPC and were accordingly convicted and sentenced in the following manner: Under Section 395 IPC : 7 years rigorous imprisonment with a fine of Rs. 5000/-, in default thereof, each was to further undergo 6 months rigorous imprisonment. Under Section 398 IPC : 7 years rigorous imprisonment with a fine of Rs. 5000/-, in default thereof, each was to further undergo 6 months rigorous imprisonment. Under Section 120-B IPC : No separate sentence was awarded. 3. Since all these six appeals arise out the same incident, they are being decided by this common judgment. 4. I have heard learned counsel for the accused appellants and the learned Public Prosecutor and have gone through the impugned judgment, the evidence and material on record. Having gone through the record it appears that there are two sets of evidence viz., (i) recovery and (ii) identification of the accused, which led the trial court in basing conviction of the appellants. Firstly, I shall deal with the appeals arising out of Sessions Case No. 21/96. 5. Learned counsel appearing for the appellants (in sessions case No. 21/96) have vehemently argued that the impugned judgment is based purely on surmises and conjectures. The prosecution has miserably failed to bring home guilt against the appellants. Firstly, I shall deal with the appeals arising out of Sessions Case No. 21/96. 5. Learned counsel appearing for the appellants (in sessions case No. 21/96) have vehemently argued that the impugned judgment is based purely on surmises and conjectures. The prosecution has miserably failed to bring home guilt against the appellants. According to the learned counsel, the entire prosecution case solely rests on the testimony of PW28 Thandi Ram Jain, complainant and the inmates of the houses who were present at the place and time of incident. Referring the evidence of Thandi Ram and his house inmates, learned counsel argued that their testimony is highly unreliable and not worthy of credence, inasmuch as their assertions are based purely on surmises and as such the learned court has committed grave error in relying on their testimony. As regards recovery of stolen property, learned counsel argued that the stolen articles allegedly recovered from the appellants have not been proved by the prosecution with the help of cogent and convincing evidence. Similarly, the identification of the stolen articles at the instance of informant also does not inspire confidence. 6. I have considered the above arguments. I shall first deal with the question whether conviction of six appellants, namely Mohammedin, Yusuf, Ami Khan Nasru, Hasan (in Sessions Case No. 21/96) and Jumma (in Sessions Case No. 2/2001) is sustainable or not? 7. Appellant Mohammedin was arrested on 22.6.1994 vide arrest memo Ex.R39. He furnished information Ex.R07as regards recovery of time piece watch (make Jayco) and pursuant to his information, a watch was recovered vide memo Ex.R34. PW 29 Arun Kumar has specifically deposed that dacoits took over prime piece watch. Appellant Mohammedin was identified by PW 3 Ramavatar, PW4 Bimlesh Jain, PW 5 Manish, PW28 complainant Thandi Ram and PW29 Arun Kumar as is evident from the identification memo Ex.R9. PW26 Asutosh Mishra, Judicial Magistrate has proved the identification memo Ex.P9. In this view of the matter, it can safely be said that the evidence of recovery and identification conclusively prove the charge under Section 395 IPC against appellant Mohammedin. 8. Appellant Yusuf was apprehended on 26.7.94 vide arrest memo Ex.R44. He furnished information, Ex.R102 for recovery of ornaments and in pursuance of his information, ornaments were recovered vide memo Ex.R24. In this view of the matter, it can safely be said that the evidence of recovery and identification conclusively prove the charge under Section 395 IPC against appellant Mohammedin. 8. Appellant Yusuf was apprehended on 26.7.94 vide arrest memo Ex.R44. He furnished information, Ex.R102 for recovery of ornaments and in pursuance of his information, ornaments were recovered vide memo Ex.R24. PW28 Thandi Ram has conveniently identified the recovered ornaments in the presence of PW 40 Bharat Lal Meena, who has proved the identification memos Exs. P76 to P85. Appellant Yusuf was identified by as many as 8 witnesses, namely, PW6 Ritu Jain, PW4 Bimlesh, PW28 Thandi Ram, PW3 Ramavatar, PW29 Arun Kumar, PW13 Prem Chand, PW12 Sushila and PW16 Deepak vide identification memo Ex.R8. PW26 Asutosh Mishra, Judicial Magistrate has proved the memo Ex.P.8. In this view of the matter, the evidence of recovery and identification conclusively prove the charge under Section 395 IPC against Yusuf as well. 9. Appellant Ami Khan was arrested on 20.6.1994 vide arrest memo Ex.R38. After arrest, he furnished information EX.R104 in respect of recovery of looted ornaments. Pursuant to his information, the police recovered the ornaments vide recovery memo Ex.P28 and prepared the site plan, Ex.P29, of the place of recovery'. PW28 Thandi Ram identified the recovered ornaments vide memos Exs.P76 and P85 in the presence of PW40 Bharat Ram Meena Tehsildar. As regards notification, it appears that PW 3 Ramavatar, PW28 Thadi Ram and PW29 Arun Kumar have identified appellant Ami Khan in the identification parade as one of the culprits vide memo Ex.PIO. PW12 Smt. Sushila Jain and PW13 Prem Chand Jain have also correctly identified the appellant vide memo E/ P17. Similarly, PW4 Smt. Bimlesh Jain and PW16 Deepak Kumar Jain have also correctly identified appellant Ami Khan vide memos Ex.R72 to P18, respectively. PW 26 Asutosh Mishra, Judicial Magistrate has proved memos Exs. P10, 17, 18 and 72. Evidently thus, the prosecution has been able to prove charge under Section 395 IPC against appellant Ami Khan. 10. Appellant Nasru was arrested on 3.9.94 vide arrest memo Ex.P3 and he got recovered six silver ornaments kept concealed in his house, vide memo Ex.P95. A memo, Ex.P.96 of the place of recovery was also prepared. PW28 Thandi Ram complainant identified the silver ornaments recovered from the possession of appellant Nasru, in the presence of PW40 Bharat Ram Meena, who has proved Exts. A memo, Ex.P.96 of the place of recovery was also prepared. PW28 Thandi Ram complainant identified the silver ornaments recovered from the possession of appellant Nasru, in the presence of PW40 Bharat Ram Meena, who has proved Exts. P76 to P85 concerning identification of the looted ornaments. PW3 Ramavtar and PW28 Thadi Ram have identified the appellant in the identification parade vide memo Ex.P13, which has been proved by PW26 Asutosh Mishra, Judicial Magistrate. In this view of the matter, the offence under Section 395 IPC stands established against appellant Nasru. 11. Appellant Hasan was arrested on 7.10.1994 vide memo Ex.R99 and after arrest, he got recovered 4 silver ornaments. A memo Ex.P27 of the place of recovery was also prepared. PW28 Thandi Ram and PW40 Bharat Ram have proved Exts. P76 to 95 concerning identification of recovered ornaments. PW3 Ramavtar, PW4 Smt. Bimlesh, PW6 Ritu Jain, PW28 Thandi Ram and PW29 Arun Kumar have identified appellant Hasan as one of the culprits, vide memo Ex.R 12. RW. 26 Asutosh Mishra, Judicial Magistrate has proved the identification memo Ex.R 12. Thus, it must be concluded that prosecution has been able to prove beyond doubt the charge under Section 395 IPC against appellant Hasan. 12. Now comes the conviction of appellant Jumma under Section 395 IPC in Sessions Case No. 2/2001. He was arrested on 12.9.94 vide arrest memo Ex.R15. He furnished information (Ex.R 16) under Section 27 of the Evidence Act regarding recovery of silver ornaments weighing 5 Kgs. Pursuant to his information, 4 silver ornaments were recovered vide memo Ex.R 17 and a site plan, Ex.P18 of the place of recovery, was also prepared. PW5 Thandi Ram identified the recovered ornaments vide memo Ex.R11. PW8 Bharat Lal Meena has certified the identification proceedings and has proved the memo Ex.P.11. PW5 Thandi Ram and PW4 Ramavtar have correctly identified the appellant .as one of the accused vide identification memos Ex.P1/P14. Likewise, PW3 Manish, PW2 Ritu and PW9 Arun Kumar have also correctly identified the appellant. PW9 Asutosh Mishra, Judicial Magistrate has proved the memos Ex.P1/P1 4. 13. Another accused, namely Nikka @ Ismail in Sessions Case No. 2/2001 was arrested on 10.12.1999 vide memo Ex.R5. It appears from the record that neither any information was furnished nor any recovery was made from this accused. PW9 Asutosh Mishra, Judicial Magistrate has proved the memos Ex.P1/P1 4. 13. Another accused, namely Nikka @ Ismail in Sessions Case No. 2/2001 was arrested on 10.12.1999 vide memo Ex.R5. It appears from the record that neither any information was furnished nor any recovery was made from this accused. He was identified by PW3 Ramavatar only vide identification memo Ex.RG which has been proved by Harendra Singh, Judicial Magistrate. According to the prosecution case, a large number of accused persons participated in the incident. Their Lordships of the Apex Court in Chandra Shekhar Bind and others v. State of Bihar (2001 Cr.L.J. 4693) while relying on Masalti v. State of UP ( AIR 1965 SC 202 ) and Binay Kumar Singh v. State of Bihar ( 1997(1) SCC 283 ) adopted two witnesses theory and extended benefit of doubt to three accused (accused Nos. 9, 10 and 12) on the ground that they were not identified by more than one witness. In Masalti's case (supra) it was held that the above test in a sense may be described as mechanical but it cannot be treated as irrational or unreasonable. In Binay Kumar's case (supra) it was held that when size of unlawful assembly is quite large and many persons would have witnessed the incident, it would be a prudent exercise to insist on atleast two reliable witnesses to vouchsafe the identification of an accused as a participant in the rioting. In the present case also, a large number of accused persons participated in the incident and numerous persons witnessed the incident, but only one witness Ramavatar could be able to identify accused Nikka @ llias during identification parade. That apart, no recovery of any looted property was made from his possession. Therefore, the above two witnesses formula adopted by the Apex Court equally applies to the case of appellant Nikka and consequently, he deserves to be extended the benefit of doubt. 14. The evidence of recovery and identification coupled with narration of incident by the eye witnesses of the incident satisfy the ingredients of the offence of robbery and dacoity as envisaged in Sections 390 and 391 of the Indian Penal Code. Therefore, conviction of all the appellants, except appellant Nikka @ Ismail under Section 395 IPC is liable to be maintained. 15. Therefore, conviction of all the appellants, except appellant Nikka @ Ismail under Section 395 IPC is liable to be maintained. 15. The question which now emerges for adjudication of this court is, whether conviction of appellants Ami Khan, Mohammedin, Hasan, Nasru and Yusuf under Section 397 IPC and that of appellants Ami Khan, Mohammedin, Hasan, Nasru Khan, Yusuf, Jumma and Nikka @ Ismail under Section 398 IPC is sustainable in the eye of law? 16. Section 397 merely regulates the punishment provided for dacoity. To attract the provisions of Section 397 IPC it is necessary to establish that at the time of committing robbery/dacoity, the offender had used any deadly weapon or had caused grevious hurt to any person or had attempted to cause death or grevious hurt to any person. The term "offender" used in Section 397 IPC is confined to the offender who uses any deadly weapon. In the case at hand, there is no iota of evidence on record to prove that which of the accused had deadly weapon. Thus, in the absence of any specific evidence about possession and use of deadly weapon by any particular accused, none could have been convicted under Section 397 IPC. The learned trial court, in my considered view has committed grave error in convicting above named five appellants for offence under Section 397 IPC. 17. Section 398 IPC punishes only the actual holder of deadly weapon and not others. Further, section 34 nor Section 114 IPC is applicable to it and that too in the event of his attempt to commit robbery or dacoity. In the instant case, there is no evidence to the effect that any particular accused was holding any deadly weapon. Secondly, the offence of dacoity itself completed. Therefore, none of these 7 accused persons could have been convicted for offence under Section 398 IPC. 18. As regards conviction of appellants under Section 120-B IPC, suffice it to say that there is no evidence worth the name to prove that the appellants hatched conspiracy thereby constituting offence under Section 120-B IPC and as such they are entitled to be acquitted of the charge. 19. The up-shot of the above discussion is that the appeals of appellants are partly allowed. 19. The up-shot of the above discussion is that the appeals of appellants are partly allowed. The conviction of appellants Ami Khan, Mohammedin, Hasan, Nasru Khan and Yusuf under Section 397 and 398 IPC and that of appellants Jumma and Nikka @ Ismail under Section 398 IPC and the sentences awarded to them thereunder are set aside. The conviction of appellant Nikka @ Ismail under Secs. 395 & 397 IPC and the sentence awarded thereunder are set aside and he is acquitted of the above charges. 20. The conviction of all the appellants (except Nikka @ Ismail) under Section 395 IPC is maintained. However, taking into consideration the facts and circumstances of the case, the sentence of 7 years awarded to each of the appellants is reduced to the period of five years with a fine of Rs. 2000/- each, in default thereof, each of the appellant shall have to undergo imprisonment for 3 months. 21. The conviction of ali the appellants under Section 120-B IPC is set aside and they are acquitted of the charge. 22. Appellants Ami Khan and Jumma are on bail. They have already undergone the sentence of 5 years 5 months and 5 years 7 months respectively. Therefore, they need not surrender to their bail bonds, which stand discharged. 23. Other appellants are in jail and if all or any of them have completed the term of sentence awarded to them, they be set at liberty forthwith. *******