Judgment N.K. Jain, J.-Learned Additional District and Sessions Judge (Fast Track) No. 2 Jaipur City, Jaipur vide its Judgment and order dated 16.04.2002 in Sessions Case No. 18/2001 (18/1999) convicted and sentenced accused appellants Moti Lal Swami son of Rameshwar Das Swami and Mahesh Kumar son of Prabhu Dayal as under : Under Section Imprisonment to each 397 of the Indian Penal Code To ten years R.I. and fine of Rs. 5,000/-, in default of payment of fine, to further undergo additional six months R.I. 392 of the Indian Penal Code To seven years R.I. and fine of Rs. 2,000/-, in default of payment of fine, to further undergo additional three months R.I. 4/25 of the Indian Arms Act To one year R.I. and fine of Rs. 5,00/-, in default of payment of fine, to further undergo additional one month R.I. 2. All the sentences to run concurrently. 3. Being aggrieved with the same the accused appellants have preferred these two separate appeals. Both the appeals are directed against common order, hence they are being disposed of by this common order. 4. PW. 5 Satya Narain lodged a written report (Exhibit P-6) at Police Station Jhotwara, Jaipur City, wherein it was alleged by him that he is working as watchman in Hari Oil Mill, Factory Area, Jhotwara, and he used to do the work of bringing cash from Bank. On 110.1998 at about 10.00 AM a cheque of Rs. 75,000/-was given to him to bring the cash. He withdrew the amount from Bank and was coming on cycle alongwith cash amount of Rs. 75,000/-at about 11.00 AM. When he reached near Sangi Oxygen Factory then all of sudden one Maruti Car came in front of his cycle. There were four persons and out of them two persons came out of Maruti Car and by using knife snatched away his bag containing the amount of Rs. 75,000/-and thereafter ran away from the spot. The age of these four persons were 25 to 30 years and he can identify them. 5. The S.H.O. Police Station, Jhotwara, registered an FIR No. 441/1998 (Exhibit P-7) under Section 392, IPC and started investigation. The accused persons were arrested on 011.1998. They gave information under Section 27 of the Evidence Act about currency notes and in pursuance of the said information the currency notes were recovered from different persons. 5. The S.H.O. Police Station, Jhotwara, registered an FIR No. 441/1998 (Exhibit P-7) under Section 392, IPC and started investigation. The accused persons were arrested on 011.1998. They gave information under Section 27 of the Evidence Act about currency notes and in pursuance of the said information the currency notes were recovered from different persons. The deadly weapon used by them was also recovered as per their information. The identification parade was also conducted. After completion of investigation, charge-sheet was submitted against accused appellants as well as other two co-accused persons, namely, Navneet Singh @ Guddu and Smt. Suman Devi wife of Moti Lal. 6. The learned trial Court framed charge against accused appellants under Sections 397 and 392 of the IPC and under Section 4/25 of the Arms Act. The charge against accused Navneet Singh was framed for the offence under Section 392, IPC and against accused Smt. Suman Devi under Section 411, IPC. The accused persons denied the charge and claimed to be tried. The prosecution examined 29 witnesses and produced documentary evidence also. Thereafter statement of the accused persons were recorded under Section 313, CrPC. The learned trial Court after considering the evidence on record and hearing the arguments from all the sides, acquitted the co-accused persons, namely, Navneet Singh @ Guddu and Smt. Suman Devi from the charge levelled against them but convicted and sentenced the accused appellants as mentioned above. 7. The learned Counsel for the accused appellants contended that the learned trial Court has committed an illegality in convicting and sentencing the accused appellants for the above offences as the veracity of identification of the accused as well as recovery of currency notes and deadly weapon was doubtful and not proved beyond reasonable doubt. 8. The learned Counsel for the accused appellant Moti Lal contended that the accused was identified by PW. 3 Amar Singh and PW. 5 Satya Narain. PW. 3 Amar Singh has been declared hostile. So far as PW. 5 Satya Narain is concerned, there are material and serious contradictions in his statement in respect of identification parade conducted in the case. Therefore, in his submission, the identification of the accused in the present case was not proved. 3 Amar Singh and PW. 5 Satya Narain. PW. 3 Amar Singh has been declared hostile. So far as PW. 5 Satya Narain is concerned, there are material and serious contradictions in his statement in respect of identification parade conducted in the case. Therefore, in his submission, the identification of the accused in the present case was not proved. He also contended that the recovery of currency notes from Ram Dutt, Hari Singh, Jagdish and Buddhi Prakash, as per information given by accused under Section 27 of the Evidence Act, is also not proved beyond reasonable doubt. He contended that all the witnesses to recovery memo have not supported the prosecution case. He further contended that PW. 7 Prabhu Dayal Saini and PW. 12 Laddu Lal were the independent witnesses to recovery of weapon vide Exhibit P-7 on the information of the accused Moti Lal but both the witnesses were declared hostile. He also contended that PW. 20 Pahad Singh, the Investigating Officer, admitted in his statement that he did not collect any evidence from the Bank about withdrawal of money by PW. 5 Satya Narain, therefore, it is not proved in the case that he was coming with currency notes of Rs. 75,000/-. Therefore, his contention is that this is a case of no evidence against the accused Moti Lal and he should be acquitted. 9. The learned Counsel for the accused appellant Mahesh Kumar contended that in the FIR PW. 5 Satya Narain stated that there were four persons in the Maruti Car whereas in his statement during trial he stated that there were only three persons. He also referred cross-examination of PW. 5 Satya Narain wherein he stated that he identified the accused persons only once and all the three persons were identified by him at one time whereas the identification parade of accused appellants Moti Lal and Mahesh Kumar was conducted on 211.1998 and identification parade of accused Navneet Singh was conducted on 15.03.1999. He also contended that written report Exhibit P-6 was not written by PW. 5 Satya Narain himself but it was written by another person Nainu Ram Yadav. He also assailed the testimony of prosecution witnesses relating to identification parade and recovery of knife as well as currency notes, and contended that the independent witness of Exhibit P-18, recovery memo of knife, namely PW. 17 Kailash and PW. 5 Satya Narain himself but it was written by another person Nainu Ram Yadav. He also assailed the testimony of prosecution witnesses relating to identification parade and recovery of knife as well as currency notes, and contended that the independent witness of Exhibit P-18, recovery memo of knife, namely PW. 17 Kailash and PW. 18 Ram Kumar were declared hostile by the prosecution. The accused appellant Mahesh Kumar gave an information about Rs. 3,000/-and the same were recovered vide recovery memo Exhibit P-19. There were two witnesses PW. 19 Mahendra Singh and PW. 24 Ratan to this recovery but both the witnesses were declared hostile, therefore, he contended that the prosecution failed to prove a case beyond reasonable doubt against accused appellant Mahesh Kumar. 10. The learned Counsel for both the accused appellants lastly contended that accused appellant Mahesh Kumar has already remained in custody for about six years and accused appellant Moti Lal for about five years, therefore, all though in the facts and circumstances of the case the accused appellants are entitled to be acquitted but if this Court does not agree with their contention then their sentences of imprisonment of ten years under Section 397, IPC may be reduced to a minimum sentence of imprisonment of seven years. 11. The learned Public Prosecutor as well as the learned Counsel for the complainant contended that there is sufficient evidence in the present case to prove the charge against accused appellants and the trial Court has considered all relevant evidence while convicting them for the above offences. 12. I have considered the rival submissions of the learned Counsel for the parties and examined the impugned Judgment as well as the record of the trial Court. 10.13. In this case the prosecution has produced three types of evidence in support of its case, namely (1) identification of the accused persons, (2) recovery of currency notes, and (3) recovery of weapon used by them in the incident. 114. The accused appellant Moti Lal was identified by PW. 5 Satya Narain, the complainant, and his identification memo Exhibit P-4 has also been proved by PW. 27 Ravindra Kumar, the Additional Civil Judge, in whose presence the identification parade was conducted. Although PW. 3 Amar Singh, who was the witness to Exhibit P-4 has been declared hostile but still Exhibit P-4 has been proved by PW. 5 Satya Narain and PW. 27 Ravindra Kumar, the Additional Civil Judge, in whose presence the identification parade was conducted. Although PW. 3 Amar Singh, who was the witness to Exhibit P-4 has been declared hostile but still Exhibit P-4 has been proved by PW. 5 Satya Narain and PW. 27 Ravindra Kumar. 115. Similarly the accused appellant Mahesh Kumar has also been identified by PW. 5 Satya Narain and his evidence has been corroborated by the statement of PW. 27 Ravindra Kumar, the Additional Civil Judge (Jr. Div.)-cum-Judicial Magistrate, who prepared the document Exhibit P-3. Although PW. 3 Amar Singh, another witness, has been declared hostile but Exhibit-3 has been proved by the statement of PW. 5 Satya Narain and PW. 27 Ravindra Kumar. 116. The accused appellant Moti Lal gave information (Exhibit P-24) under Section 27 of the Evidence Act about Rs. 10,000/-given to Ram Dutt (PW-8); information about deposit of Rs. 7,000/-by accused in Punjab National Bank, information about Rs. 9,000/-given to Hari Singh. Rs. 10,240/-given to Jagdish and Rs. 10,000/-given to Buddhi Prakash. In pursuance of the information furnished by accused under Section 27 of the Evidence Act, recovery of Rs. 10,000/-was made from Ram Dutt vide Exhibit P-8; Rs. 9,000/-from Hari Singh vide Exhibit P-16, Rs. 10,240/-from Jagdish vide Exhibit P-15 and Rs. 10,000/-from Buddhi Prakash. Although PW. 8 Ram Dutt was declared hostile but PW. 21 Buddhi Prakash and PW. 22 Hari Singh have proved recovery of currency notes vide Exhibit P-27 and Exhibit P-16, recovery memos; and PW. 14 Gopal Lal proved recovery memo (Exhibit P-15) in respect of recovery of currency notes. PW. 20 Pahad Singh, Investigating Officer, has also proved the Exhibits relating to information given by accused under Section 27 of the Evidence Act and recovery of the currency notes made in pursuance of the same. 117. Similarly in the case of accused Mahesh Kumar, he gave information about currency notes of Rs. 3,000/-, which were recovered vide Exhibit P-19. Although PW. 19 Mahendra Singh and PW. 24 Ratan both witnesses to Exhibit P-19 were declared hostile but PW. 20 Pahad Singh, the Investigating Officer, has proved it. I do not find any material contradiction in the statement of PW. 20 so as to discard his testimony. 18. 3,000/-, which were recovered vide Exhibit P-19. Although PW. 19 Mahendra Singh and PW. 24 Ratan both witnesses to Exhibit P-19 were declared hostile but PW. 20 Pahad Singh, the Investigating Officer, has proved it. I do not find any material contradiction in the statement of PW. 20 so as to discard his testimony. 18. Now evidence in respect of recovery of knife is concerned, the same was recovered from accused appellant Mahesh Kumar vide Exhibit P-18 which has been proved by PW. 20 Pahad Singh and recovery of weapon from accused Moti Lal vide Exhibit P-7 has also been proved by PW. 20 Pahad Singh, the Investigating Officer. 19. There is a categorical evidence in the case about use of deadly weapon for committing extortion by putting PW . 5 Satya Narain in fear of instant hurt. PW . 5 Satya Narain has stated that by putting a knife on his person, his bag containing the currency notes of Rs. 75,000/-was snatched by accused persons. In these circumstances I find that although some of the independent witnesses of the recovery as well as of identification parade have been declared hostile but the same have also been proved from other independent witnesses as well as by Investigating Officer and there is no reason to disbelieve their testimony. Further I am satisfied that the findings of the learned trial Court convicting the accused persons is based on appreciation of evidence and no interference is called for. 20. The learned Counsel for both the accused appellants also contended that complainant PW. 5 Satya Narain did not sustain any injury and in fact, the knife was not used, therefore, prima facie, no offence under Section 397, IPC is made out and at the most the accused appellants may be convicted under Section 392, IPC, and their sentence of imprisonment may be reduced to a period of sentence of imprisonment already undergone by them. After considering the provisions of Section 397, IPC, I find that mere use of weapon is sufficient to prove the offence under Section 397, IPC and it is not necessary that any injury by sharp edged or deadly weapon should come. The Honble Supreme Court in Ashfaq vs. State of Government of NCT of Delhi, 2004 RCC 850 (SC), held that use of deadly weapon is sufficient to convict an accused person under Section 397, IPC. The Honble Supreme Court in Ashfaq vs. State of Government of NCT of Delhi, 2004 RCC 850 (SC), held that use of deadly weapon is sufficient to convict an accused person under Section 397, IPC. It was further held that the provisions of Section 397, IPC does not create any new substantive offence as such but merely serves as complementary to Sections 392 and 395 by regulating the punishment, already provided for dacoity by fixing a minimum term of imprisonment when the dacoity committed was found attendant upon certain aggravating circumstances viz., use of a deadly weapon, or causing of grievous hurt or attempting to cause death or grievous hurt. 21. However, after considering the quantity of currency notes and the fact that the accused persons did not inflict actual injury on the person of PW . 5 Satya Narain, I think it fit and proper to reduce their sentence of imprisonment of ten years under Section 397, IPC, to a minimum sentence of imprisonment of seven years R.I. 22. Consequently, both the appeals are partly allowed. The conviction and sentence of both the accused appellants under Section 392, IPC and under Section 4/25 of the Indian Arms Act, is maintained. However, while maintaining the conviction of both the accused appellants under Section 397, IPC, their sentence of ten years R.I. is reduced to a period of seven years R.I. and fine of Rs. 1,000/-, in default of payment of fine, to further undergo one months S.I. The Judgment of the learned trial Court impugned in these appeals is modified to the above extent. 23. Both the appeals are disposed of in the manner indicated above.