Judgment A.N.Jindal, J. 1. The accused-appellants Kulwant Singh and Hari Singh (hereinafter referred as `the accused), have called in question the judgment of conviction and sentence dated 23.5.1994 passed by the learned Additional Sessions Judge, Sirsa, vide which all the accused were convicted under Section 397 IPC and were sentenced to undergo rigorous imprisonment for a period of seven years. 2. Mohinder Singh was residing in a farm house in the area of village Abub Shahar along with his wife, daughter-in-law Raj Kaur and his son Bawa Singh. 3. On the night of 24.1.1992, at about 10.00 p.m., Bawa Singh had gone to have a round of the fields; Mohinder Singh (PW-3), Raj Kaur (PW-4) and Gurdeep Kaur wife of Mohinder Singh were present at the farm house, then the accused came there and inquired about Bawa Singh. Mohinder Singh told them that Bawa Singh was not present in the house then all the accused made their entry into the house. Des Raj accused while holding a pistol demanded from Mohinder Singh all the belongings which he was having in his house but Mohinder Singh showed his innocence. At this, they searched almirah of Bawa Singh lying in the baithak (front room) and robbed Rs. 8,500/- from there. Hari Singh went in the other room occupied by Gurdeep Kaur and Raj Kaur from where he removed a sum of Rs. 3,500/- from the box of Gurdeep Kaur. He also removed some golden ornaments consisting of ear ring and bangles besides a suitcase containing some cloths. Thereafter, they decamped with all the aforesaid articles after bolting all the inmates of the house in a room. At about 7.00 a.m., when Kashmir Singh (PW-5) a workman of Mohinder Singh came there and he opened the door set them free. 4. The aforesaid incident as narrated by Mohinder Singh before ASI Ishwar Singh (PW-11) was put into writing Ex. PD at about noon time on 25th January, 1992, on the basis of which FIR No. 24 was registered on the same day at Police Station Sadar Dabwali by MHC Om Parkash (PW-7). It will be significant to mention here that though Mohinder Singh did not name the accused in the FIR but had given their full description and had stated that he could identify them if they were face to face with him. 5. It will be significant to mention here that though Mohinder Singh did not name the accused in the FIR but had given their full description and had stated that he could identify them if they were face to face with him. 5. After reaching the place of occurrence, ASI Ishwar Singh prepared the rough site plan Ex. PG of the place of occurrence and recorded the statements of the witnesses. 6. On 3.3.1992, the accused Des Raj was arrested by ASI Tehal Singh (PW-9) in connection with a case FIR No. 15 of 1992, Police Station Kotbhai, wherein, during interrogation, the stolen property of this case consisting of pair of gold rings, two other rings, bangles, suitcase and some cloths were recovered from his possession which he took into possession vide memo Ex. PE under Section 102 of Code of Criminal Procedure. Thereafter the said property was handed over by the ASI Tehal Singh to MHC Gurjant Singh (PW-10). Later on, on 24.3.1992 witnesses Mohinder Singh and Bawa Singh identified those articles which were robbed by the accused. 7. On 6.3.1992, on receipt of the wireless message, the Investigating Officer secured the custody of all the three accused. They were provided opportunity to join the identification parade but vide their statements Ex. PC/2, Ex. PC/3 and Ex. PC/4 respectively, refused to join the identification parade. The learned Magistrate recorded order Ex. PC/1 in this regard. 8. On completion of the investigation, accused were challaned under Sections 392/506 read with Section 34 of IPC and Section 25 of Arms Act. However, subsequently, the Court of Sessions detected that the offence under Section 397 IPC was made out, therefore they were charged accordingly, to which they pleaded not guilty and claimed trial. 9. In support of its case, the prosecution examined PW-1 Madho Parshad draftsman, PW-2 SI Dharampal, PW-3 Mohinder Singh, PW-4 Raj Kaur, PW-5 Kashmir Singh, PW-6 Gian Chand, PW-7 HC Om Parkash, PW-8 Bawa Singh, PW-9 ASI Tehal Singh, CIA Staff, Faridkot, PW-10 HC Gurjant Singh, PW-11 ASI Ishwar Singh and closed its evidence. 10. On closure of the prosecution evidence, accused were examined under Section 313 Cr.P.C. in which the accused denied all the incriminating circumstances appearing against them and pleaded their false implication in the case. Despite the opportunity provided to them, they did not lead any evidence in defence. 10. On closure of the prosecution evidence, accused were examined under Section 313 Cr.P.C. in which the accused denied all the incriminating circumstances appearing against them and pleaded their false implication in the case. Despite the opportunity provided to them, they did not lead any evidence in defence. After conclusion of the trial, all the accused were convicted under Section 397 IPC and were sentenced accordingly. Hence this appeal. 11. The prime question posed by the learned counsel for the appellants before me is with regard to question of identification of the accused. It has been urged by the learned counsel for the accused that the accused were not named in the FIR; they were arrested after 1-1/2 months i.e. on 3.3.1992, whereas occurrence allegedly took place on 24.1.1992. Even if, some recoveries have been effected from the accused, the same are hardly sufficient to connect them with the crime. The identification of the accused for the first time in the Court assumes no significance. The prosecution is short of definite evidence to connect the accused with the crime. 12. Having given my thoughtful consideration to the aforesaid contentions advanced on behalf of the accused, I do not find myself in agreement with the same. PW-3 Mohinder Singh and PW-4 Raj Kaur were present on 24.1.1992 at their house when the occurrence took place. They being the owners of the house in all human probabilities were presumed to be present at their house. Their presence at the house can never be said to be per chance or improbable in any manner. They were last persons to substitute false persons in place of real culprits. It is not necessary that the identification should always be by name but it may be by description. Mohinder Singh PW-3, in the FIR has given description of the accused as under:- "Out of three persons, one person was having medium height wearing white kurta pajama, small beard of whitish colour and was holding pistol. The other two persons were having medium heights wearing light coloured kurta pajamas, out of them one person was dressed with turban of light badami colour and the other person was dressed with Parna. Both the persons were of wheatish colour and having some beard. Both of them were young and one of the persons was having big type of eyes." 13. It is further mentioned in the FIR Ex. Both the persons were of wheatish colour and having some beard. Both of them were young and one of the persons was having big type of eyes." 13. It is further mentioned in the FIR Ex. PD/2 that they had a talk with Mohinder Singh and they stayed with him for sufficient time. He stated that he could identify them if they are face to face with him. Ultimately when Mohinder Singh appeared in the Court, he identified the accused. He while pointing at them had said that they were the same persons who had committed the crime. He also described their participation in the crime. His statement has been duly corroborated by Raj Kaur PW-4. She also identified the accused by pointing them in the Court. 14. The other significant factor from where the inference can be drawn against the accused is that when they were offered to join the test identification parade, then they, vide their statements Ex. PC/2, Ex. PC/3 and Ex.PC/4, refused to do so. The aforesaid statements do not disclose the reasons for declining to join the identification parade. They did not disclose in their statements if they are refusing the identification parade for having already shown them to the witnesses. Therefore, obviously the reason for refusing to join identification parade may be that the witnesses had identified them at the time of committing robbery in the house. Not only this, the witnesses have also not disputed that they could not be identified by the witnesses. Therefore, it will be in the fitness of things to draw inference that identity of the accused is not doubtful. 15. The matter does not end here. The recovery of the robbed articles from the possession of the accused Des Raj was established by ASI Tehal Singh PW-9 who vide memo Ex. Therefore, it will be in the fitness of things to draw inference that identity of the accused is not doubtful. 15. The matter does not end here. The recovery of the robbed articles from the possession of the accused Des Raj was established by ASI Tehal Singh PW-9 who vide memo Ex. PE recovered one pair of ear-ring of gold; two kurtas and one chadra of white colour; two light yellow coloured kurtas; one white check shirt of silk; one check chadra; one piece of white colour cloth; one unstitched lady suit of mehendi colour; one piece of cotton cloth; one flowered table cloth; one stitched lady suit of red colour; one white dupatta and one piece of cloth of terricot from the accused under Section 102 of Cr.P.C. on 3.3.1992 in the presence of MHC Gurjant Singh PW-10 when he was arrested in connection with the case FIR No. 15 registered at Police Station Kotbhai. Further these robbed articles were identified by Mohinder Singh PW-3 and his son Bawa Singh PW-8 on 24.3.1992 at Police Station Kotbhai. The accused persons have failed to explain the possession of the aforesaid stolen articles, therefore, inference has to be drawn against them. A similar view was taken in case Baiju v. State of Madhya Pradesh, AIR 1979 SC 522 where the Honble apex Court observed as under :- "It will be recalled that the offences were committed on the night intervening January 20 and 21, 1975 and stolen property was recovered from the house of the appellant or at his instance on January 28, 1975. The appellant was given an opportunity to explain his possession as well as his conduct in decoying Smt. Lakhpatiya and the other persons who died at his hand, but he was unable to do so. The question whether the preemption should be drawn under illustration (a) of Section 114 of the Evidence Act is a matter which depends on the evidence and the circumstances of each case. The question whether the preemption should be drawn under illustration (a) of Section 114 of the Evidence Act is a matter which depends on the evidence and the circumstances of each case. Thus the nature of the stolen article, the manner of its acquisition by the owner, the nature of evidence about its identification, the manner in which it was dealt with by the appellant, the place and circumstances of its recovery, the length of the intervening period, the ability or otherwise of the appellant to explain his possession, are factors which have to be taken into consideration in arriving at a decision." 16. Not much time had expired between the robbery and the recovery of the articles when the accused persons were caught in case FIR No. 15 of Police Station Kotbhai and recovery of articles was effected from accused Des Raj which were identified by Mohinder Singh (PW-3) and Bawa Singh (PW-8), therefore, it cannot be said by any stretch of imagination that these articles did not belong to them especially when there is an ample evidence on the record to prove that these accused had committed robbery at their house. It is also not the case where identification of the accused was for the first time in the Court as the witnesses had seen the accused on the day when the crime was committed. They had sufficient time to identify them. It is something different that witnesses were not in the knowledge of their names, therefore, names of the accused could not be recorded in the FIR. 17. The argument that since Mr. Bawa Singh had faced trial with Des Raj accused under Section 307 IPC, therefore, Mohinder Singh must be knowing Des Raj personally and by his name, and would have named him in the FIR, creates a doubt over the prosecution case, it is not acceptable as there is no evidence on the file that Bawa Singh was present in the house at the time of commission of offence of robbery. There is also no evidence that Mohinder Singh was attending trial of Bawa Singh or that he was in the knowledge of the case pending against Bawa Singh and Des Raj. 18. There is also no evidence that Mohinder Singh was attending trial of Bawa Singh or that he was in the knowledge of the case pending against Bawa Singh and Des Raj. 18. In any case Mohinder Singh had no enmity with Des Raj (non-appellant) for falsely implicating him in this case, therefore, this contention raised by the learned counsel for the appellant is hereby repelled. 19. Another submission made by the learned counsel for the appellant is that as per prosecution, Des Raj was holding a pistol in his hand and he used the same, therefore, the use of deadly weapon by Des Raj (non-appellant) at the time of committing robbery cannot attract Section 397 IPC for imposing minimum sentence on the other offenders who were not in possession of any deadly weapon and had not used the same. 20. Having pondered over this argument advanced by the learned counsel for the appellant, I find some substance in the same. Before proceeding to decide this legal proposition, it will be essential for me to reproduce Section 397 IPC which reads as under :- "397. 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 imprisonment with which such offender shall be punished shall not be less than seven years." 21. On bare reading of this section it comes out that minimum sentence of 7 years is awarded if at the time of committing robbery the offender uses any deadly weapon or causes grievous hurt to any person or attempts to cause death or grievous hurt to any person under Section 397 but the word "offender" in section is confined to the same person who uses any deadly weapon and not the other offenders who may be empty handed at the time of commission of offence. A similar view was taken in case Phool Kumar v. Delhi Administration, AIR 1975 SC 905 wherein the Honble Apex Court observed as under :- "The use of a deadly weapon by one offender at the time of committing robbery cannot attract Section 397 for the imposition of the minimum punishment on another offender who had not used any deadly weapon. In that view of the matter use of the gun by one of the culprits whether he was accused Ram Kumar or some body else "surely one was there who had fired three shots" could not be and has not been the basis of sentencing the appellant with the aid of Section 397. So far as he is concerned, he is said to be armed with a knife which is also a deadly weapon." 22. In the instant case also, it was only Des Raj (non-appellant) who was armed with pistol and he used this pistol to frighten and terrorize Mohinder Singh so as to compel him to part with all the belongings lying in his house, therefore, it is only Des Raj (non-appellant) who can be awarded minimum sentence of seven years, whereas the other accused namely Hari Singh and Kulwant Singh can be convicted and sentenced under Section 392 IPC which is also punishable for a term which may extend to 10 years and shall also be liable to fine. The net result, in the given circumstances of the case, is that when the accused with an intention to rob Mohinder Singh and his family of the belongings entered into the house of Mohinder Singh, Des Raj (non-appellant) who was armed with pistol compelled Mohinder Singh at the pistol point to part with the belongings lying in his house, then while examining the offence in para-materia with the crime committed by the accused no lenient view can be taken. However, accused Kulwant Singh and Hari Singh can be convicted and awarded same sentence under Section 392 IPC. 23. For the foregoing reasons, I do not find any merit in the appeal and the same is hereby dismissed. Accused are stated to be on bail, therefore, necessary steps be taken to procure their custody for serving remaining part of their sentence.