Judgment M.D. Shah, J.—All the three appeals arise from the judgment and order dated 2-3-2007 passed by the learned Addl. Sessions Judge and Presiding Officer, Fast Track Court No. 1, Valsad, in Sessions Case No. 90 of 2006 whereby the learned Judge has convicted all the original accused Nos. 1 to 4 for the offences punishable under Sections 394 and 397 of IPC. However, they were acquitted for the offence under Section 25(1)B(A) of Arms Act. 2. For the offence punishable under Section 394 of IPC, each of the original accused was sentenced to suffer five years RI and to pay fine of Rs. 1000/-, in default, to suffer further one month SI. For the offence punishable under Section 397 of IPC, each of the original accused was sentenced to suffer RI for 7 years and to pay fine of Rs. 2000/-, in default, to suffer further two months SI. All the sentences were ordered to run concurrently. The accused were given set off for the period already undergone in jail. 3. Criminal Appeal No. 753 of 2007 has been preferred by the original accused No. 1, Criminal Appeal No. 887 of 2007 has been preferred by the original accused No. 4 while Criminal Appeal No. 1609 of 2008 has been preferred by the original accused No. 3. It may be noted that the original accused No. 2 is absconding and no appeal has been preferred on his behalf. 4. The facts in short are that a complaint was filed by the original complainant, Vijaybhai Balbirsinh Yadav, the driver of truck bearing registration No. RJ-02-G-5406 inter alia alleging that on 29-5-2006 between 2330 hours and 2400 hours on National Highway No. 8 near Bhagwad Tol Booth, when he and his Cleaner Rambhagat Ganpatram were in the truck stopped on the roadside, all the appellants together with the absconding accused No. 2 armed with knives and country made pistols assaulted, threatened and committed dacoity. The complainant was robbed off Rs. 16,000/- while his Cleaner was robbed off Rs. 7,800/- together with the truck containing copper wire weighing 9 tons worth Rs. 27.00 lakhs. The complaint was registered for the offences punishable under Sections 394 and 397 of IPC and also under Section 25(1)B(A) of Arms Act at Pardi Police Station being I.C.R.No.80 of 2006 and investigation was entrusted to Circle Police Inspector, Shri H.R.Vagh. 5. 7,800/- together with the truck containing copper wire weighing 9 tons worth Rs. 27.00 lakhs. The complaint was registered for the offences punishable under Sections 394 and 397 of IPC and also under Section 25(1)B(A) of Arms Act at Pardi Police Station being I.C.R.No.80 of 2006 and investigation was entrusted to Circle Police Inspector, Shri H.R.Vagh. 5. During the course of investigation, the Investigating Officer recorded statements of various witnesses and also drew panchnama of place of incident. The accused were arrested on 31-5-2006 along with the muddamal articles near Kadodara Four Cross Road by drawing panchnama to that effect. At the end of investigation, as there appeared to be prima facie case against the accused, charge sheet was submitted against the accused in the Court of learned J.M.F.C., Pardi. As the learned J.M.F.C., Pardi, has no jurisdiction to try the case, the case was committed to the Court of Sessions at Valsad where it was numbered as Sessions Case No. 90 of 2006. The learned Addl. Sessions Judge framed charge against the accused at Ex.4. The charge was read over and explained to the accused. The accused denied all the charges and prayed for trial. 6. To prove the case, the prosecution examined 11 witnesses in all viz., P.W.No.1, Vijaypal Balbirsinh Yadav, the driver, who is the original complainant at Ex.11; P.W. No. 2 Rambhagat Shriganpatram Saini, the Cleaner of the truck at Ex.15; P.W.3 Shailesh Bachubhai Patel at Ex.16; P.W.13, Investigating Officer, Shri Hiralal Ratanlal Vagh at Ex.39, panchas of identification parade, discovery panchnama and other witnesses. The prosecution also produced and relied on many documentary evidences such as complaint Ex.12; panchnama of seizure of muddamal from accused Nos. 1 and 2 at Ex.17; panchnama of blood stained clothes of complainant at Ex.25; panchnama of scene of offence at Ex.26; panchnama of seizure of truck at Ex.27; panchnama of Hero Honda Splendor used by the accused Santosh Ramnaresh Sharma in the commission of offence at Ex.30, forwarding letter to FSL at Ex.40; FSL report at Ex.47; panchnama of identification parade at Ex.56, etc. 7. On submission of closing pursis by the learned APP, further statements of the accused were recorded under Section 313 of the Code of Criminal Procedure. All the accused denied the charges and stated that they have been falsely implicated. They also denied to have the muddamal truck seized from their custody. 8. 7. On submission of closing pursis by the learned APP, further statements of the accused were recorded under Section 313 of the Code of Criminal Procedure. All the accused denied the charges and stated that they have been falsely implicated. They also denied to have the muddamal truck seized from their custody. 8. Upon hearing the arguments of learned advocates appearing for the respective parties, the learned Addl. Sessions Judge, Valsad, delivered the impugned judgment and order of conviction and sentence as mentioned in the earlier part of this judgment giving rise to the respective appeals. 9. Heard learned Senior Advocate, Mr. J.B.Pardiwala for the for the appellant-original accused No. 1 in Criminal Appeal No. 753 of 2007, Ms. Nita C. Banker for the appellant-original accused No. 4 in Criminal Appeal No. 887 of 2007, Ms. K.D. Parmar for the appellant-original accused No. 3 in Criminal Appeal No. 1609 of 2008 and learned APP, Mr. K.P. Raval for the respondent-State in all the three appeals. 10. Learned Senior Advocate for the original accused No. 1, Mr. J.B. Pardiwala, has submitted that the judgment and order passed by the court below is contrary to law and evidence on record. It is further submitted that once an accused is acquitted for the offence under the Arms Act, he could not have been convicted for the offence under Section 397 of IPC. It is further submitted that the accused No. 1 has not used any weapon in the commission of offence. Taking this Court through the evidence of complainant-driver as well as the injured witness-cleaner of the truck, he has submitted that these witnesses have specifically stated in their cross-examination that they were not aware as to which weapon was used by the original accused No. 1. Though they identified the accused Nos. 2 and 3 along with the weapons allegedly used by them, nothing has come out from their evidence to indicate that the accused No. 1 has used any weapon in committing the offence of robbery. Drawing my attention towards the judgment reported in 1995 Criminal Law Journal page 4042 in the case of Willson Abraham Chouriappa vs. State of Maharashtra, it is submitted that the word ‘the offender’ pertains to actual offender and it does not include all persons who participated in robbery or dacoity. Drawing my attention towards the judgment reported in 1995 Criminal Law Journal page 4042 in the case of Willson Abraham Chouriappa vs. State of Maharashtra, it is submitted that the word ‘the offender’ pertains to actual offender and it does not include all persons who participated in robbery or dacoity. Part of paragraph 13 of the judgment reads as under: “The difference in the language used in Sections 396, IPC and 397 IPC, in our opinion, leaves no room for doubt that the expression ‘the offender’ used in Section 397 pertains to the actual offender or accused persons who at the time of committing robbery or dacoity uses any deadly weapon or causes grievous hurt to any person or attempts to cause death or grievous hurt to any person and it does not include all such persons who participate in the commission of such robbery or dacoity.” 11. In view of the aforesaid principle laid down by the Apex Court, it is submitted that since the use of weapon by the original accused No. 1 in the commission of offence either in the evidence of complainant or injured witness-Cleaner of the truck, he ought not to have been convicted under Section 397 of IPC and hence, a grave illegality has been committed by the court below in convicting him under Section 397. In the absence of any allegation regarding the weapons used by the original accused No. 1, he could not have been held guilty for the offence under Section 397 of IPC but could only have been held guilty for the offence under Section 394 of IPC. He is therefore pressing this appeal only on this point and does not press any other points. It is further submitted that this is the first offence committed by the accused No. 1. He is a young boy and is in jail since long. He has also relied on 37 (2) GLR page 251 in the case of Gordhanbhai Dhulabhai Damor vs. State of Gujarat and 1998 Cri.L.J. Page 1196 in the case of Shravan Dashrath Datrange vs. State of Maharashtra. 12. Respective learned advocates for the original accused Nos. 3 and 4, Mr. K.D. Parmar and Ms. Nita Banker have submitted that prosecution could not prove its case against the original accused Nos. 3 and 4 beyond reasonable doubt. 12. Respective learned advocates for the original accused Nos. 3 and 4, Mr. K.D. Parmar and Ms. Nita Banker have submitted that prosecution could not prove its case against the original accused Nos. 3 and 4 beyond reasonable doubt. The prosecution also could not prove that the accused committed the crime with weapons allegedly armed by them and so also, the accused can be held liable only for the offence under Section 392 or Section 394 of IPC and not under Section 397 of IPC. They have also submitted that only on the basis of colour of the clothes worn by the accused, the witnesses identified the accused persons. According to them, there are major contradictions in the evidence of these witnesses as to the colour of clothes worn by the accused and therefore also, they are entitled to the benefit of doubt. According to them, this aspect has not been considered by the trial court thereby committed a material irregularity in convicting these accused. 13. Learned Additional Public Prosecutor for the respondent-State, Mr. K.P. Raval, has submitted that since no illegality or irregularity has been committed by the trial court in the impugned judgment and order of conviction and sentence, it is not required to be interfered with. 14. This Court has gone through the oral as well as documentary evidence on record together with the impugned judgment and order of conviction and sentence. This Court has also gone through the decision relied on by the learned Senior Advocate, Mr. Pardiwala. Keeping in mind the principles laid down in the said decision, I proceed further. 15. This Court is in agreement with the submission made on behalf of the learned Senior Advocate for the original accused No. 1, Mr. Pardiwala in view of the fact that no weapon was attributed either by the complainant or the injured witness. In absence of specific attribution of weapon on the original accused No. 1, he cannot be held liable for the offence under Section 397 of IPC. Hence, in view of the principle laid down by the Apex Court in Willson’s case (Supra) relied on by the learned Senior Advocate, Mr. Pardiwala, conviction of the original accused on this count is required to be set aside and he is required to be convicted under Section 394 of IPC only. 16. Hence, in view of the principle laid down by the Apex Court in Willson’s case (Supra) relied on by the learned Senior Advocate, Mr. Pardiwala, conviction of the original accused on this count is required to be set aside and he is required to be convicted under Section 394 of IPC only. 16. This Court however does not find any substance in the submissions made on behalf of the original accused Nos. 3 and 4. On going through the impugned judgment as well as the evidence of complainant as well as the injured witness, it is clear that the prosecution has proved the case against these accused beyond reasonable doubt through the evidence of complainant and the injured witness as to which weapon was used by these accused in committing the crime. Moreover, the witnesses have identified these accused as they were in close proximity. There is no reason to discard the evidence of these witnesses especially when the incident in question has taken in their presence. Merely because there is minor contradiction in the evidence of witnesses, the otherwise convincing and reliable evidence of the complainant and injured witness cannot be discarded by the Court as it is not fatal to the case of the prosecution. Reference in this regard is made to the decision of the Apex Court reported in (2006) 2 Supreme Court Cases (Cri) 353 in the case of State of A.P. vs. S. Rayappa and Others. It has been held at head note-C as under: “C.Criminal Trial-Appreciation of Evidence—Minor discrepancies in statement of PWs__Held, every such discrepancy not fatal to the prosecution case-Discrepancies which do not materially affect the prosecution case do not create any infirmity. (Para 9)” 17. In the opinion of this Court, taking into consideration the entire evidence on record and the submissions made by learned advocate for the appellants-accused, the question of attracting Section 397 of IPC on the accused No. 1 does not arise and can be held guilty for the offence under Section 394 of IPC only. However, since the case against the accused Nos. 3 and 4 has been proved by the prosecution beyond reasonable doubt, their conviction cannot be altered. 18. In view of the above, the judgment and order passed by the learned Addl. Sessions Judge is required to be modified to the aforesaid extent. 19. Thus, Criminal Appeal No. 753 of 2007 is partly allowed. 3 and 4 has been proved by the prosecution beyond reasonable doubt, their conviction cannot be altered. 18. In view of the above, the judgment and order passed by the learned Addl. Sessions Judge is required to be modified to the aforesaid extent. 19. Thus, Criminal Appeal No. 753 of 2007 is partly allowed. The judgment and order passed by the learned Addl. Sessions Judge is hereby quashed and set aside qua conviction and sentence of the original accused No. 1 under Section 397 of IPC. His conviction for the offence punishable under Section 394 of IPC is however confirmed. 20. Criminal Appeal Nos. 887 of 2007 and 1609 of 2008 are however dismissed. 21. As far as original accused No. 2 is concerned, he has not preferred any appeal and hence, his conviction and sentence has become final. 22. The judgment and order passed by the learned Addl. Sessions Judge is modified to the aforesaid extent. Remaining part of judgment and order passed by the learned Addl. Sessions Judge including fines, etc. will remain unaltered. 23. Office is directed to place a copy of this judgment in each appeal.