Judgment ( 1. ) THIS judgment shall also govern the disposal of Cr. A. No. 817/04 (Ramsevak and Anr. v. State of M. P.) and Cr. A. No. 1143/04 (Ram Sharan @ Laxman v. State of M. P. ). All these appeals arise out of a common judgment dated 7-4-2004 passed by the Additional Sessions Judge, Panna, in Sessions Trial Nos. 71/2000 and 70/2001, convicting the appellants under Section 395 read with Section 397, IPC and sentencing them to RI for 7 years. ( 2. ) THE prosecution story is that on 20-2-2000 a dacoity was committed in the house and shop of complainant Vijay Kumar (P. W. 15) in Village Vikrampur. At about 8-9 oclock in the night, when Vijay Kumar was at his house alongwith his father Ramcharan and brother Ramgopal, Suraj Prasad and Ram Kumar, suddenly about 8 persons armed with gun, lathi, axe and Farsa reached there and assaulted them. Persons who were armed with guns, fired gun shots. When they shut down their doors, they broke open the doors and after entering into the house, they broke open almirah and robbed their silver ornaments, weighing about 6-7 kilograms, gold about 6-7 Tolas and cash Rs. 10,000/ -. When they tried to resist, they were assaulted as a result of which Suraj, Ram Kumar, Saligram suffered injuries. When Satendra Bahadur Singh and Surendra Singh came there and fired their guns, all the miscreants ran away alongwith the looted property. Among the robbers, one man was of short stature and olive complexion and another was of good height with beared. On his round when Station Officer of Police Station, Amanganj, viz. , Ashok Kumar Pandey reached the Village Vikrampur, a written report by way of Dehati Nalishi, Ex. P-31 was recorded. Injured persons, viz. , Peer Khan, Saligram, Suraj, Ramkumar, Chand Khan and Mohammad were sent for medical examination to PHC, Amanganj, where Dr. E. G. Dube examined their injuries. Saligram, vide his injury report, was found to have suffered 6 injuries. Suraj Prasad suffered 5 injuries and Ram Kumar suffered 3 injuries. All the injuries were found to be simple in nature. ( 3. ) A. K. Pandey, the Investigation Officer, during investigation, prepared spot map and seized pieces of broken doors, broken box, some pellets and pieces of cartridges from the spot. Ramcharan Soni submitted the list of the stolen properties to him on 21-2-2000. All the injuries were found to be simple in nature. ( 3. ) A. K. Pandey, the Investigation Officer, during investigation, prepared spot map and seized pieces of broken doors, broken box, some pellets and pieces of cartridges from the spot. Ramcharan Soni submitted the list of the stolen properties to him on 21-2-2000. Similarly, Suraj Prasad, Mithilesh Soni and Anita Soni also submitted lists of their properties stolen in the occurrence. On 7-3-2000, he obtained custody of accused Ramsevak from Police Station Orchha Road and also seized the property recovered from him, vide Ex. P-26, By Orchha Police, Ramsevak, was formally arrested on 14-3-2000. Accused Ramavtar, Natthu and Ashok (Absconding) were arrested by Police Station Londi. Their custody was also obtained by him on 7-4-2000. On 28-4-2000, on the information of accused Natthu, vide memo Ex. P-12, he seized the property from the forest of Gehdara, vide seizure memo Ex. P-15. On the information of accused Ramavtar, he seized stolen silver Payal, ear rings and some small coloured stones from the forest of Gehdara on the same day, vide seizure memo Ex. P-13. According to prosecution, accused Ram Sharan was arrested by Kanwar Prasad Sen, ASI on 21-3-2001. However, there is nothing on record to show that any property was recovered from his possession. Arrested accused persons were put up for test identification by the witnesses, where they were identified by P. W. 7 Ram Kumar, P. W. 15 Vijay Kumar and P. W. 18 Suraj. Accused Ramsevak was identified by Suraj, Vijay and P. W. 17 Ramcharan. After requisite investigation, the charge-sheet was filed and the case was committed for trial. ( 4. ) LEARNED Trial Court framed the charges under Sections 395 and 397, IPC against the accused persons. Accused abjured their guilt and pleaded false implication. According to them, they were shown to the witnesses before the identification parade. ( 5. ) DURING trial, prosecution examined 23 witnesses to bring home the charges against the appellants. On appreciation of prosecution evidence and relying upon it, Trial Court held the appellants guilty and convicted and sentenced them as mentioned above. Aggrieved appellants have hence filed these appeals. ( 6. ) LEARNED Counsel for the appellants, Shri Sharad Verma submitted, that the evidence of prosecution witnesses, who are said to have identified the appellants, is not reliable. On appreciation of prosecution evidence and relying upon it, Trial Court held the appellants guilty and convicted and sentenced them as mentioned above. Aggrieved appellants have hence filed these appeals. ( 6. ) LEARNED Counsel for the appellants, Shri Sharad Verma submitted, that the evidence of prosecution witnesses, who are said to have identified the appellants, is not reliable. Test identification parade of the appellants was conducted after inordinate delay and the accused were shown to witnesses prior thereto. He has submitted that the occurrence is said to have taken place in the night and there is no evidence about presence of light wherein the miscreants could have been identified by the witnesses. He has submitted that there is no specific and categoric evidence to prove as to which of the accused was armed with weapon and in the absence of such evidence none of them could be pin-pointed to have been armed with weapon. Hence, their conviction with the aid of Section 397, IPC is not justified. ( 7. ) LEARNED Counsel for the State, Shri T. K. Modh, Dy. A. G. , on the other hand, submitted that the evidence of eye witnesses is reliable. They had identified the accused persons in the torch light which accused themselves possessed. The evidence of identification is reliable. There is no evidence on record to show that during the period of custody, the accused were shown to witnesses and they were not kept Baparda. Merely on the ground of delay, in the absence of evidence that the accused persons were shown to witnesses, the evidence of identification of accused cannot be disbelieved. He submitted that the properties recovered from the possession of the accused were duly identified by the witnesses as the stolen property. He has also submitted that from the evidence of P. W. 7 Ram Kumar it is proved that all the accused persons were armed with weapon. Hence, the finding of conviction recorded by the Court below cannot be said to be erroneous calling for any interference. ( 8. ) I have heard the Counsel of both the sides and perused the evidence and material on record. From the perusal of the evidence of P. W. 7 Ram Kumar, P. W. 15 Vijay Kumar, P. W. 16 Ramcharan and P. W. 18 Suraj Prasad, it clearly transpires that a dacoity had been committed in their house. ( 8. ) I have heard the Counsel of both the sides and perused the evidence and material on record. From the perusal of the evidence of P. W. 7 Ram Kumar, P. W. 15 Vijay Kumar, P. W. 16 Ramcharan and P. W. 18 Suraj Prasad, it clearly transpires that a dacoity had been committed in their house. All the witnesses have categorically stated that 7-8 persons had come to their house armed with guns and axe and had tied Vijay Kumar and Saligram with tractor trolley and had assaulted them by axe and had broken down their doors. They had looted their silver and gold ornaments. According to them, when people of village had come and fired guns, they had run away. P. W. 7 Ram Kumar has though said that some of the accused were armed with guns and some were armed with lathi, Kulhari and Farsa, he has not specified before the Court as to which accused was armed with and used what weapon in the commission of the offence. This witness has categorically deposed that he had identified appellant Ramavtar, Natthu and Ashok in Chhatarpur jail. Similarly, P. W. 15 Vijay and P. W. 18 Suraj Prasad have also deposed that they had identified Natthu and Ramavtar at Chhatarpur jail. The test identification memo is Ex. P-23. This identification parade was conducted by P. W. 13 R. P. Tiwari, Naib Tehsildar. It is apparent from, the evidence of R. P. Tiwari that he had mixed about 14 similar persons with the accused in the identification parade wherein witnesses had identified Natthu, Ashok and Ramavtar. Even on close scrutiny of the evidence of P. W. 13, his evidence does not appear to suffer from any irregularity or illegality. However, this witness deposed that none of the witnesses had told him about any specific act done by the accused in the incident. Appellant Ramsevak was put up for identification on the same day, Le. , 8-6-2000, in Sub-Jail, Londi of District Chhatarpur. The identification parade was conducted by P. W. 9 Harivansh Sharma, Tehsildar, Londi, Witnesses Suraj Prasad Soni, Vijay Soni and Ramcharan had identified accused Ramsevak. The test identification memo is Ex. P-25. Harivansh Sharma has categorically denied that the accused had complained to him that he had been shown to witnesses prior to identification parade. ( 9. The identification parade was conducted by P. W. 9 Harivansh Sharma, Tehsildar, Londi, Witnesses Suraj Prasad Soni, Vijay Soni and Ramcharan had identified accused Ramsevak. The test identification memo is Ex. P-25. Harivansh Sharma has categorically denied that the accused had complained to him that he had been shown to witnesses prior to identification parade. ( 9. ) SO far as accused Ramcharan is concerned, he was arrested on 21-3-2001 and was put up for test identification before P. W. 20 S. L. Prajapati, Tehsildar Gunnaur on 13-6-2001. Shankarlal Prajapati has deposed that he had mixed 7 other similar persons in the identification parade. Witnesses Ram Kumar, Vijay and Suresh had correctly identified Ramcharan. He deposed that the accused had not complained that he had been shown to witnesses beforehand. Investigating Officer P. W. 22 Ashok Kumar Pandey has denied that the accused persons were not kept Baparda after their arrest till the were put up for identification. He has also denied that the accused were shown to witnesses before the identification. The evidence of identification of the accused has been meticulously appreciated by the Trial Court in Paras 78 to 81 of the judgment. It does not appear to carry any infirmity. ( 10. ) THOUGH identification parades of the accused were held after two months of their arrest, yet no question was put to Investigating Officer in this regard to explain the aforesaid delay. Since the evidence of Investigating Officer appears to be reliable on the point that the accused were kept Baparda before the identification, mere delay in holding the identification parade cannot render the testimony of eye witnesses unreliable, There is nothing on record to indicate that the accused were shown to witnesses before the identification parade was held. ( 11. ) SO far as the recovery of the stolen property from the possession of the accused Natthu, Ramavtar and Ramsevak is concerned, evidence of P. W. 2, P. W. 15 and P. W. 16 is reliable. Mithilesh wife of Suraj Prasad had deposed that dacoits had robbed her of her gold and silver ornaments. She has described the ornaments in her deposition before the Court. Investigating Officer Ashok Kumar Pandey has deposed that Mithilesh Soni had given a list of ornaments which were looted in the incident. The list has been proved as Ex. P-37. Mithilesh wife of Suraj Prasad had deposed that dacoits had robbed her of her gold and silver ornaments. She has described the ornaments in her deposition before the Court. Investigating Officer Ashok Kumar Pandey has deposed that Mithilesh Soni had given a list of ornaments which were looted in the incident. The list has been proved as Ex. P-37. Smt. Mithilesh had duly identified the articles in the test identification parade vide memo Ex. P-9. This identification parade was held by P. W. 14 S. L. Shakya, Naib Tehsildar. Similarly P. W. 15 Vijay Kumar Soni and P. W. 18 Suraj had also identified their stolen property in the identification parade on 6-6-2000. On perusal of their evidence, there appears no irregularity in the aforesaid identification. Witnesses had duly identified the property before the Court. The recovery of the stolen property from the accused has been proved by Ashok Kumar Pandey (P. W. 22 ). ( 12. ) ON due appreciation of the evidence as discussed above, I am of the view that it is established beyond reasonable doubt that the appellants had committed dacoity in the house of Vijay Kumar and had caused injuries to Suresh, Ram Kumar, Saligram and some other persons. ( 13. ) SO far as the question about applicability of Section 397, IPC is concerned, learned Counsel for the appellants has vehemently argued that there is no reliable evidence as to which particular accused was armed with weapon, therefore, the conviction of appellants under Section 397, IPC was not warranted. P. W. 7 Ram Kumar has deposed that three of the miscreants were armed with guns and others were armed with axe, lathi and Farsa. As regards other eye witnesses, P. W. 15 Vijay, P. W. 16 Ramcharan and P. W. 18 Suraj have deposed that all the accused persons were armed with weapons. But none of the witnesses pointed out before the Court as to which of the accused was armed and with what weapon. Notwithstanding the difficulty of the witnesses in the midst of the commotion of an armed dacoity in the night to pin-point as to which of the miscreants was armed and with what weapon, still for holding an accused liable under Section 397, IPC, it is essential that the evidence on record in this regard should be categoric and clear. Notwithstanding the difficulty of the witnesses in the midst of the commotion of an armed dacoity in the night to pin-point as to which of the miscreants was armed and with what weapon, still for holding an accused liable under Section 397, IPC, it is essential that the evidence on record in this regard should be categoric and clear. The essential ingredients for proving the charge under Section 397, IPC are that at the time of committing robbery or dacoity, the offender (i) uses any deadly weapon, or (ii) causes grievous hurt to any person, or (iii) attempts to cause death or grievous hurt to any person. As none of the above ingredients has been proved in the present case, in my opinion, conviction of the appellants under Section 397, IPC is not justified. ( 14. ) FOR the foregoing reasons, the finding of the conviction of the appellants under Section 395, IPC is affirmed. However, the conviction under Section 397, IPC is set aside and sentence awarded to appellants is reduced to RI for 5 years. ( 15. ) APPEALS partly allowed.