JUDGMENT 1. - This appeal by appellant Manoj Kumar arises out of the judgment and order dated 17.12.2002 passed by the learned Additional Sessions Judge, (Fast Track) No. 1, Jaipur City, Jaipur, whereby the learned Judge has convicted and sentenced the accused appellant in the following manner : For Offence under section 395, LP.C. : Ten years rigorous imprisonment with a fine of Rs. 500/-, in default thereof to further undergo 3 months ' imprisonment. For offence under section 397, I.P.C. : Life imprisonment with a fine of Rs. 1,000/-, in default thereof, to further undergo six months' imprisonment. On 9.10.2000, P.W. 5 Yogesh Kumar Vijay lodged a written report. Ex. P-2 at Police Station Shipra Path, Mansarovar alleging therein that on 8.10.2000 at 8 P.M. while he alongwith his wife and two sons were taking meals at their house bearing No. 92/247. 4-5 persons duly armed with weapons entered into his house, tied their hands and legs and made them to sit in a room. The accused threatened them at the point of gun and knife and told that they have just committed murder and that they will stay at his house during night and will leave the place before 5 A.M. Thereafter, the accused demanded jewellery and cash at the point of 'deshi katta' and then searched the entire house. The accused collected costly articles and stayed out side his room throughout night and left the house at 5.00 A.M. after locking the room and getting the tape recorder on. At about 6.30 A.M.. the complainant broke open the door and came out of the room. His car and scooter were found missing. While enclosing a list the complainant alleged that miscreants have stolen huge house hold items. Lastly, the complainant stated that he will identify the stolen property and the accused if confronted. 2. On the above report, the police registered a case for offence under sections 395 and 397. I.P.C. vide F.I.R. Ex. P-3 and proceeded with the investigation. After completion of investigation, the investigating submitted charge sheet against the accused appellant in the Court of Judicial Magistrate No. 8 Jaipur City. Jaipur and kept pending investigation against other accused. Having found the offence exclusively triable by the Court of Sessions, the learned Magistrate committed the case to the Court of Sessions. 3. P-3 and proceeded with the investigation. After completion of investigation, the investigating submitted charge sheet against the accused appellant in the Court of Judicial Magistrate No. 8 Jaipur City. Jaipur and kept pending investigation against other accused. Having found the offence exclusively triable by the Court of Sessions, the learned Magistrate committed the case to the Court of Sessions. 3. On the basis of evidence and material available on record, the learned Trial Court framed charges under sections 395 and 397. I.P.C. The appellant denied the charges and claimed trial. 4. In order to prove its case, the prosecution examined as many as 18 witnesses and got exhibited some documents. After the prosecution evidence was over, the appellant was examined under section 313, Cr. P.C. At the conclusion of trial, the learned Trial Court convicted and sentenced the appellant in the manner stated herein above. Hence the present appeal against conviction. 5. We have heard learned Counsel for the parties and gone through the judgment impugned in this appeal and the evidence and material available on record.At the very outset it may be stated that section 397, I.P.C. does not create any substantive offence. It merely regulates the punishment already provided for dacoity, by fixing a minimum term of imprisonment when its commission had been attended with certain aggravating circumstances, viz., (1) use of a deadly weapon, or (2) causing of grievous hurt, or (3) attempting to cause death or grievous hurt. The provisions of this section are obligatory as the imprisonment with which such offender shall be punished shall not be less than seven years.Despite the fact that section 397, I.P.C. does not create any substantive offence, the learned Trial Court has convicted the appellant under this section and has sentenced him to imprisonment for life with fine. In this view of the matter, the conviction of the appellant under section 397, I.P.C. and the sentence awarded thereunder cannot be sustained and are liable to be quashed and set aside. However, if the provisions of section 397. I.P.C. are attracted in the case at hand, the same would be taken into consideration while passing the sentence for offence under section 395. I.P.C., if found proved.There are two types of evidence viz., (1) identification of appellant at the test identification parade and in the Court, and (2) recovery of stolen articles. However, if the provisions of section 397. I.P.C. are attracted in the case at hand, the same would be taken into consideration while passing the sentence for offence under section 395. I.P.C., if found proved.There are two types of evidence viz., (1) identification of appellant at the test identification parade and in the Court, and (2) recovery of stolen articles. The test identification of appellant was held in the Central jail on 29.11.2000 in the presence of P.W. 16 K.P. Saxena. Judicial Magistrate. Four witnesses, namely P.W. 2 Smt. Kiran, P.W. 4 Soneli Vijay. P.W. 5 Yogesh Gupta and P.W. 12 Yoki Vijay identified the accused in the test identification parade. P.W. 2 Smt. Kiran, an eye witness of the Incident has deposed that at about 8/8.15 P.M. 4-5 persons duly armed with pistol, knife and Katta entered into her house and closed the door of the house and made her children to stand who were taking their meals. Thereafter, the accused dragged all of them in the bed room and closed the door and then committed dacoity. She has given the description of all the five dacoits. According to her, all the miscreants were of the age of 25-30 years, some of them were wearing Jeans and Shirts and some were wearing paints and shirts. She then stated that after the incident she identified the accused appellant in the Jail in the presence of Magistrate. as one of the accused who had entered into her house. She has also identified him in the Court by stating that he was the person who had entered into her house at the time of incident. She deposed that it was for the first time after the incident that she had-seen the accused in the Jail. Another eye witness P.W. 4 Soneli Vijay S/o complainant has deposed that while he and his brother were taking meals. 5 person duly armed with pistol. knife and katta entered into the drawing room and said that they have come after committing murder and police was behind them and therefore, they needed shelter. They threatened the family members at the point of weapons. The accused then snatched the phone from the hand of his father and took out the plug. Thereafter the accused persons while dragging took them to the bed room. They threatened the family members at the point of weapons. The accused then snatched the phone from the hand of his father and took out the plug. Thereafter the accused persons while dragging took them to the bed room. The accused tied the hands of all except his mother and then committed theft in the house. According to this witness all the accused were wearing Jeans and T-shirts. He had seen the faces of three accused in road light. He had also seen the faces of remaining two accused. The accused while leaving the place had left behind a cigarette packet and a piece of cigarette. They identified the accused among 10-15 persons in the Central Jail. The Magistrate had drawn the proceedings of the identification. which is Ex. P-1 and it bears signatures from C to D. The witness has identified the appellant in the Court as well. Yoki Vijay P.W. 12 in whose presence the incident took place has also given similar some what similar statement as that of the statement of his brother P.W. 4 Monil Vijay. This witness has identified the appellant both at the test identification parade conducted in Central Jail and in the Court during trial of the case. P.W. 5 Yogesh Kumar Vijay, author of the report and an eye witness of the incident has also stated similar to what other three eye witnesses have deposed about the commission of offence. He has also correctly identified the appellant in the Central Jail and in the Court as well. The witness admits his signatures from E to F on the memo of identification. P.W. 16 K.P. Saxena, Additional Chief Judicial Magistrate Dausa in whose presence the test identification parade was conducted has deposed that pursuant to the order dated 27.10.2000 of the Chief Judicial Magistrate, he visited the Central Jail, Jaipur and arranged and completed test identification parade of accused Manoj . Monu S/o Suresh Chand Sharma, aged 22 years. accused in case No. 240/2000 of Police Station Shipra Path, Jaipur, which bears his signature from I to J and that of accused Manoj Kumar from K to L. According to him, in the identification parade he included 7 other persons of the description similar as that of accused, as detailed in Ex. P-17 and thereafter called all the four witnesses separately and all of them correctly identified the accused. P-17 and thereafter called all the four witnesses separately and all of them correctly identified the accused. In cross-examination, the witness stated that since the accused was clean shaved, none of the seven persons included in the parade had beard and moustaches. 6. Having minutely scanned the prosecution evidence it must be concluded that all the four eye witnesses of the incident have correctly identified appellant Manoj as one of the miscreants who had participated in commission of dacoity in the house of complainant Yogesh Kumar Vijay in the night of 8.10.2000.Now comes the evidence of recovery of stolen property. Appellant was arrested by SHO, Vidhayak Puri. Jaipur. P.W. 17 Bhanwar Lal, Investigating Officer has stated that in the course of investigation, appellant furnished information, Ex. P-19 about a pant and T-shirt and said that he can get the same recovered from his house situated in Anantpada, Agra. Pursuant to the above information, the Investigating Officer recovered one pant and a T-shirt in the presence of Veer Singh and Ghanshyam and prepared memo Ex. P-13. The appellant while in custody also furnished information Ex. P-20 as regards recovery of Yashika Camera and silver coins. Having furnished information, the appellant got recovered one Yashika Camera from his house at Mathura vide recovery memo Ex. P. 11, in the presence of Ghanshyam and Kalu Ram. constables. One wrist watch and 3 silver coins were seized at the time of arrest of accused vide seizure memo Ex. P. 15, in the presence of Jagpat Singh and Virendra Singh. P.W. 7 Kalu Ram, P.W. 8 Veer Singh, P.W. 13 Ghanshyam Meena, P.W. 10 Jagpat Singh and P.W. 17 Bhanwar Lal have proved the recovery as having been made from the house of the appellant in pursuance of his information and at his instance. The complainant Yogesh Kumar Vijay, P.W. 5, Sonil Vijay P.W. 4 and Yoki Vijay P.W. 12 have correctly identified these recovered articles as belonging to him and which were taken away by the accused from his house in the course of commission of dacoity. 7. The word used in section 397, I.P.C. should be construed in a wide sense so as to include not merely cutting, stabbing, shooting (as the case may be) but also carrying the weapon for the purpose of overawing the person robbed. 7. The word used in section 397, I.P.C. should be construed in a wide sense so as to include not merely cutting, stabbing, shooting (as the case may be) but also carrying the weapon for the purpose of overawing the person robbed. In the case at hand, the appellant alongwith other was armed with deadly weapon and all of them used weapon for the purposes of overawing the complainant and his family members so as to commit dacoity. As such the appellant is liable to be convicted for offence under section 395 read with section 397, I.P.C.For the reasons, we do not find any merit in the instant appeal and the same stands accordingly dismissed. We maintain the conviction of appellant under section 395 read with section 397. I.P.C. and sentence him to suffer rigorous imprisonment for ten years and fine of Rs. 500/- in default to further suffer three months rigorous imprisonment. Independent finding of sentence under section 397, I.P.C. whereby appellant was sentenced to suffer imprisonment for life and fine of Rs. 1,000/- shall however stand set aside. Appeal Dismissed. *******