JUDGMENT ASHIM KUMAR BANERJEE, J. (1) ON November 5, 2003 at about 1.50 p.m. there had been a bank robbery in Punjab National Bank, Salboni Branch in the District of Midnapore (W). Shri Satyabadi Behara (P.W. 15) lodged a written complaint with the Officer in-charge, Salboni Police Station inter alia stating that on the said date i.e. November 5, 2003 at about 10.00 a.m. the bank was open for public transactions. Five bank staff being P.W. 1 (Kanchan Kirit Das), P.W. 2 (Smt. Joyanti Mondal), P.W. 15 (Satyabadi Behara), P.W. 16 (Santosh Kumar Mondal) and P.W. 17 (Raju Singh) were working there. Mr. Kanchan Kirit Das (P.W. 1) was at the Cash Counter. At about 1.50 p.m. a gang of six persons armed with firearms, knives and other weapons entered the bank premises. They immediately cut the alarm system of the bank. Two of them entered into the Cash Counter while others gheraoed the customer and other staff, threatening them with the fire arms. Two miscreants who entered the Cash Counter forcibly took away cash amounting to rupees forty- one thousand nine hundred and ten. They forced the Manager as well as Cashier to open the vault and from there they also took away rupees ten thousand in cash causing loss aggregating to rupees fifty-one thousand nine hundred and ten. The miscreants also snatched a mobile phone from one Pravat Kumar Dey (P.W. 22), a customer of the bank. The miscreants also snatched the bag of the Manager containing bunch of keys of the bank as well as the scooter/bike keys being used by the Manager and the other staff. The miscreants belonged to the age group of thirty years. They left the bank premises at about 2.15 p.m. confining all the staff members and customers inside the strong room by closing the same from outside. After the miscreants had left, Ananda Mohan Mondal, the landlord of the said premises got the confined staff and customers freed by opening the strong room. (2) THE police team chased and ultimately arrested three of the miscreants being the appellants above named. THE police also seized a part of the amount robbed from the bank. Despite frantic efforts the other miscreants could not be identified and arrested. All the three accused were chargesheeted. THEy pleaded not guilty and opted to be tried. Altogether twenty seven witnesses were examined. THE police also seized a part of the amount robbed from the bank. Despite frantic efforts the other miscreants could not be identified and arrested. All the three accused were chargesheeted. THEy pleaded not guilty and opted to be tried. Altogether twenty seven witnesses were examined. THEy were customers, staff of the bank apart from the Police Personnel and the Investigating Team. THE learned Additional Session Judge, 4th Court, Paschim Midnapur by judgment and order dated July 27, 2005 and July 30, 2005, held all the three accused guilty of the offence under Sections 395, 397 and 412 of the Indian Penal Code. Perusal of the judgment depicts that the learned Judge held all the accused guilty of the offence under Sections 395 and 297 of the Indian Penal Code whereas the accused Ajit Ghnati and Mojaffar alias Moja were held guilty of the charges under Section 412 of the Indian Penal Code. THE other accused Saidar Khan was acquitted of the charge brought under Section 412 of the Indian Penal Code against him. While awarding sentence the learned Judge passed an order of sentence for ten years for the "respective offences" under Sections 395 and 412 of the Indian Penal Code and seven years for the offence committed under Section 397. THE three convicts were directed to suffer rigorous imprisonment for ten years coupled with a fine of rupees five thousand each and in default rigorous imprisonment for one year more for the offence committed under Section 395 and rigorous imprisonment for seven years coupled with a fine of rupees three thousand each and in default to suffer imprisonment for six months for the offence committed under Section 397 of the Indian Penal Code. THE learned Judge also sentenced Ajit and Moza for ten years and to pay a fine of rupees three thousand each and in default to suffer further imprisonment for one year for the offence committed under Section 412 of the Indian Penal Code. Being aggrieved Mojaffar alias Moja preferred appeal being CRA 701 of 2005 whereas the other two convicts being Ajit and Saidar preferred the other appeal being CRA 702 of 2005. Both the appeals were heard by us simultaneously and are being disposed of by this common judgment. (3) MR. Kamal Zahiruzemal, learned counsel appearing for the appellants being led by MR. Both the appeals were heard by us simultaneously and are being disposed of by this common judgment. (3) MR. Kamal Zahiruzemal, learned counsel appearing for the appellants being led by MR. S. S. Roy, learned counsel placed the deposition of all the twenty seven prosecution witnesses and pointed out anomalies, which according to them, would deserve a benefit of doubt in favour of the appellants. MR. Roy, however, in his usual fairness did not seriously contend that there had been no incident at all or that the appellant did not have any hand in it. MR. Roy rather attacked the judgment and order of the learned Additional District Judge on a legal proposition. According to MR. Roy, once the Court found that the accused were guilty of the offence by committing dacoity and were convicted under Section 395 there could not be any separate conviction and sentence imposed under Section 397. According to MR. Roy this apporoach of the learned Judge was totally erroneous and contrary to law. MR. Roy also drew our attention to the reply given by the appellants while being examined under Section 313 of the Criminal Procedure Code to the extent that all the witnesses were shown the accused before the Test Identification Parade. Hence the so-called Test Identification Parade held by the learned Magistrate was farce and the learned Judge should not have relied on the same. MR. Roy also contended that there had been unusual delay in holding the Test Identification Parade which would lead to a genuine suspicion in the mind of the Court that the accused were earlier identified by the Police Personnel to the witnesses. MR. Roy further contended that having regard to the fact that there was no recovery from Saider and having regard to the fact that all three of them suffered the period of detention for last seven years this Court, if not satisfied with the case made out by the appellants for acquittal, should modify the sentence by lessening the same. To support the legal proposition so advanced by MR. Roy on the issue of imposition of separate sentence under Section 397 MR. Roy cited the following decisions :- i) Gaya Bhakta v. The State of Orissa, reported in 1988 Criminal Law Journal 1576. ii) Kallu alias Ramkumar v. State of Madhya Pradesh, reported in 1992 Criminal Law Journal 2380. To support the legal proposition so advanced by MR. Roy on the issue of imposition of separate sentence under Section 397 MR. Roy cited the following decisions :- i) Gaya Bhakta v. The State of Orissa, reported in 1988 Criminal Law Journal 1576. ii) Kallu alias Ramkumar v. State of Madhya Pradesh, reported in 1992 Criminal Law Journal 2380. iii) Kamal Haldar v. State of West Bengal, reported in 2002 Calcutta Criminal Law Journal 488. (4) TO support the other legal proposition that the conviction under Sections 395 and 412 could not go simultaneously, Mr. Roy cited the decisions reported in 1991 Criminal Law Journal 2171 (Dilip Malik v. State of West Bengal) and in the case of Mohan Chetri v. State of West Bengal reported in 1992 Criminal Law Journal 2374. Sk. Abdul Salam, learned counsel appearing for the prosecution while opposing the appeal contended that the dacoity was committed in broad day light. All the staff members as well as customers came forward to support the case of prosecution. P.W. 15, 16 and 17 identified the accused in Test Identification Parade. Part of the money was recovered from Moza and Ajit. Taking a sum total of such salient features the learned Additional Judge wrote the judgment and conviction which did not deserve any interference from this Court. (5) WE have considered the rival contentions. On a close look to the evidence we find that P.W. 1, 2, 15, 16 and 17 all five members of the bank staff supported the case of the prosecution. They corroborated each other. The other eye-witnesses being P.W. 1, 6, 11, 12, 13, 22 and 26 also corroborated the bank staff. With due respect to Mr. Zahiruzemal, we do not find any anomaly in the evidence led by the prosecution on the occurrence. The learned Magistrate (P.W. 21) supported his report on the Test Identification Parade. The incident occurred on November 5, 2003. On the same day Ajit was arrested. Money was recovered from him. On November 20, 2003 Saider and Moza were arrested. Ajit was identified in Test Identification Parade on November 18 whereas the other two were identified on December 4. There was no unusual delay in conducting the parade. On that score, we do not find any scope of interference. (6) LET us now come to the legal issue raised by Mr. Roy. Ajit was identified in Test Identification Parade on November 18 whereas the other two were identified on December 4. There was no unusual delay in conducting the parade. On that score, we do not find any scope of interference. (6) LET us now come to the legal issue raised by Mr. Roy. A composite interpretation of dacoity as provided in Indian Penal Code would be fruitful for our present purpose. Sections 390 to 402 of the Indian Penal Code deal with the offence of "robbery" and "dacoity". Section 390 defines "robbery" as theft or extortion. Theft is a robbery and when it is done threatening the victim and causing voluntary hurt to the person or causing death in him or by any wrongful restraint whereas robbery is done in identical circumstance through extortion. When five or more persons are involved in robbery the offence is termed as "dacoity" under Section 391 and would attract punishment under inter alia Sections 395, 396 and 397 of the Indian Penal Code. Section 395 provides for punishment for imprisonment for life or rigorous imprisonment for a maximum term of ten years coupled with a fine whereas Section 396 provides for an identical punishment when any murder is committed in course of dacoity. Section 397 however provides for an enhanced punishment when any weapon is used for committing dacoity by causing grievous hurt to any person and in such case an additional punishment of minimum seven years is provided therein. In the instant case, the eye-witnesses clearly deposed that all the gang members involved in dacoity were armed. In this regard we may refer to page 25 being the evidence of P.W. 1, the Cashier, P.W. 2 being a customer and P.W. 3 being another customer who consistently stated in pages 16, 25 and 28 of the Paper Book that all of them were armed with weapons including firearms. Hence, in our view the offence committed by the appellants squarely comes with the mischief of Section 397. Now question remains whether the learned Judge was right in awarding separate sentence for the same. Hence, in our view the offence committed by the appellants squarely comes with the mischief of Section 397. Now question remains whether the learned Judge was right in awarding separate sentence for the same. In the case of Gaya Bhakta (1988 Cri LJ 1576) (supra) the learned single Judge of the Orissa High Court considered similar case and held that Section 397 did not create any substantive offence and the Court should have charged the accused under Section 395 read with Section 397 of the Indian Penal Code. In the case of Kallu alias Ramkumar (1992 Cri LJ 2380) (supra), the learned single Judge of the Madhya Pradesh High Court observed in the similar way. According to the learned single Judge of Madhya Pradesh High Court, Section 397 provided for an enhanced punishment and there could be only one punishment for an offence committed under Section 395 read with Section 397 and no separate sentence was permissible. In the case of Kamal Haldar (supra), the Division Bench of our Court observed in the same way as referred to above. We fully agree with the proposition of law so canvassed by Mr. Roy on this score. The learned Judge should have enhanced the punishment by taking recourse to Section 397 instead of imposing separate sentence as there could be only one punishment under Section 395 read with Section 397 of the Indian Penal Code. With regard to the other proposition that Section 395 and Section 412 could not be simultaneously invoked, our attention was drawn to the decision in the case of Dilip Malik (1991 Cri LJ 2171) (supra). The Division Bench observed, when the accused was convicted of having committed dacoity there could not be any further conviction under Section 412. In the other case being in the case of Mohan Chetri (1992 Cri LJ 2374) (supra), an other Division Bench of this Court held in the same day. In the case of Phool Kumar v. Delhi Administration reported in All India Reporter 1975 Supreme Court 905 : (1975 Cri LJ 778) the Apex Court observed that the provision of Section 397 would apply to the offender who would use deadly weapon at the time of committing dacoity. In the case of Phool Kumar v. Delhi Administration reported in All India Reporter 1975 Supreme Court 905 : (1975 Cri LJ 778) the Apex Court observed that the provision of Section 397 would apply to the offender who would use deadly weapon at the time of committing dacoity. The Apex Court considering such fact ultimately held that if an offender was armed with a deadly weapon at the time of committing robbery whether the weapon was put to any fruitful use or whether the offender succeeded in committing robbery, would be of no consequence. Once the person was armed with deadly weapon the mischief of Section 397 would automatically attaract. The Apex Court observed that the evidence against the appellant was that he carried the knife in his hand when he went to the shop of the victim, was sufficient to support the conviction. In the instant case all the persons were armed as consistently stated by the prosecution witnesses. Hence, that would attract enhanced, punishment and not a separate punishment. (7) HENCE, we modify the punishment to the extent that the punishment of ten years so imposed by the learned Judge should be considered a single punishment for the act committed by Ajit and Moza as well as Saidar under Section 395 rend with Section 397. With regard to the offence committed under Section 412, we are of the view that no separate sentence could be passed in view of the decision in the case of Dilip (1991 Cri LJ 2171) (supra) and such conviction and sentence is set aside. Similarly the separate sentence given under Section 397 inter alia for seven years is also set aside. The imposition of fine of rupees fifty-three thousand as against all the three appellants would however remain as a single punishment of fine and in default to suffer rigorous imprisonment for one year more. (8) LEARNED Trial Court is directed to issue modified jail warrant in respect of the appellants in accordance with Rules. Let a copy of this judgment be sent to the Superintendent, Correctional Home where the appellants are now suffering his sentence for information and necessary action. (9) LET a copy of this judgment along with Lower Court Records be sent down at once to the learned Trial Court for necessary action. (10) APPEALS are disposed of accordingly. Let a copy of this judgment be sent to the Superintendent, Correctional Home where the appellants are now suffering his sentence for information and necessary action. (9) LET a copy of this judgment along with Lower Court Records be sent down at once to the learned Trial Court for necessary action. (10) APPEALS are disposed of accordingly. Urgent xerox certified copy will be given to the parties, if applied for. Order accordingly.