Judgment Z.K. Saiyed, J.—The present Criminal Appeal is preferred by the appellant - original accused No. 2, under Section 374 of the Code of Criminal Procedure, 1973, against the judgment and order of conviction dated 31.05.2006 passed by the Additional Sessions Judge, Rajkot in Sessions Case No. 52 of 2005, whereby the accused has been convicted of the charges leveled against him. 1.1 The appellant - accused has been ordered to undergo rigorous imprisonment for seven years for offence under Section 397 (under Section 394 no separate sentence) of Indian Penal Code and fine of Rs. 5000/- in default to undergo simple imprisonment for six months. The learned Sessions Judge has also held the appellant - accused guilty for the offence under Section 188 of I.P. Code and imposed fined Rs. 1000/- in default to undergo simple imprisonment for one month and fifteen days. 2. It is the case of the prosecution that on 13.12.2004, the complainant along with four other people namely Driver Jaffarbhai, Umarbhai, Sureshbhai and Amin alias Tako was standing near Deepak Industries. At that time, the original accused Nos. 1 to 3 threatened them by showing knife. The accused forcibly took away gold chain worth Rs. 20,000/- worn by the complainant, two gold rings worth Rs. 8000/-, cash worth Rs. 6000/- and Nokia mobile phone worth Rs. 5000/- from the complainant. When the complainant tried to protest, the original accused Asif also injured the complainant on his nose, stomach, ring finger of left hand with the knife. 2.1 Thereafter on the strength of the complaint filed by the complainant, the offence was registered against the present appellants for the offences punishable under Sections 379, 394, 397, 504, 216(a), 188-114 of Indian Penal Code and after their arrest chargesheet was submitted against the appellants. Thereafter, as the case was exclusively Triable by the Sessions Court, the same was committed to the Sessions Court. 2.2 The trial was initiated against the appellant and during the course of trial the prosecution examined the following 15 witnesses as oral evidences: i. Chandubhai Jagabhai Patel Exhibit 18 ii. Vijay Bhimji Rupareliya Exhibit 36 ii. Jitenbhai Anilbhai Exhibit 39 iv. Atulbhai Premjibhai Exhibit 47 v. Bharatbhai Bhagwanjibhai Exhibit 51 vi. Tejasbhai Bipinbhai Exhibit 52 vii. Ketanbhai Khimjibhai Exhibit 53 viii. Umarbhai Gagubhai Exhibit 56 ix. Jaferbhai Tarmohmad Exhibit 57 x. Amin alias Tako dadubhai Exhibit 63 xi. Dr. Vijay Bhimji Rupareliya Exhibit 36 ii. Jitenbhai Anilbhai Exhibit 39 iv. Atulbhai Premjibhai Exhibit 47 v. Bharatbhai Bhagwanjibhai Exhibit 51 vi. Tejasbhai Bipinbhai Exhibit 52 vii. Ketanbhai Khimjibhai Exhibit 53 viii. Umarbhai Gagubhai Exhibit 56 ix. Jaferbhai Tarmohmad Exhibit 57 x. Amin alias Tako dadubhai Exhibit 63 xi. Dr. Hemang Vasavda Exhibit 41 xii. Bhikhubhai Kesarisinh Exhibit 45 xiii. Kishoresinh Jhanubha Exhibit 67 xiv. Rakeshkumar Prabhudasbhai Exhibit 78 xv. Jentilal Shantilal Joshi Exhibit 83 2.3 The prosecution also exhibited the following 27 documents as documentary evidences: i. Original Complaint Exhibit 19 ii. Panchnama prepared at Asif’s house Exhibit 32 iii. Panchnama about seizure of muddamal Exhibit 37 iv. Panchnama of local place Exhibit 40 v. Certificate by Dr. Vasavda regarding injury caused to the complainant Exhibit 42 vi. History in hospital form Exhibit 43 vii. Treatment papers of the complainant in all 1 to 8 pages Exhibit 44 viii. Copy of circular of arms prohibition Exhibit 46 ix. Regn. Book of herohonda No. GJ-3-PP-1277Ex. 55 x. Original copy of the evidence of Bharat Keshavlal Exhibit 65 xi. Arrest panchnama in respect of sessions case No. 32/05 Exhibit 66 xii. Extract of station diary No. 3570/04 Exhibit 68 xiii. Application requesting custody of accused Exhibit 69 xiv. Letter granting police custody of the accused from jail Exhibit 70 xv. Arrest memo of accused Exhibit 71 xvi. Letter regarding making note of arrest of the accused in the station diary. Exhibit 72 xvii. Application in the Court by PSI for adding sections 216(1) and 411 Exhibit 73 xviii. Muddamal receipt No. 476/04 Exhibit 74 xix. Muddamal receipt No. 475/04 Exhibit 75 xx. Letter for handing over the muddamal by Gandhigram police station to Bhaktinagar police station Exhibit 77 xxi. Application submitted before the Judicial Magistrate to add Section 379 Exhibit 79 xxi.. Yadi to districts and police stations Exhibit 80 xxiii. Special report of serious offence Exhibit 81 xxiv. Investigation order by Bhaktinagar PSO Exhibit 82 xxv. Forwarding letter by complainant Exhibit 84 xxvi. Yadi to Executive magistrate for taking dying declaration Exhibit 85 xxvii. Yadi to police control room with respect to investigation of stolen muddamal Exhibit 86 4. At the end of trial, after recording the statement of the accused, and hearing arguments on behalf of prosecution and the defence, the learned Sessions Judge convicted the appellant of the charges leveled against him by judgement and order dated 31.05.2006. 5. Yadi to police control room with respect to investigation of stolen muddamal Exhibit 86 4. At the end of trial, after recording the statement of the accused, and hearing arguments on behalf of prosecution and the defence, the learned Sessions Judge convicted the appellant of the charges leveled against him by judgement and order dated 31.05.2006. 5. Being aggrieved by and dissatisfied with the aforesaid judgement and order passed by the Sessions Court the appellant has preferred the present appeal. 6. Ms. Roopal Patel, learned Advocate appearing on behalf of the appellant - accused has submitted that the prosecution has miserably failed to prove the charges under Sections 394, 144, 188 and 397 of Indian Penal Code. She has submitted that the prosecution has also failed to prove the role of the present appellant - accused. She has contended that the identification of the present appellant is not proved beyond reasonable doubt and the T.I. Parade is also not carried out as per the provision of law and only in the Court room the appellant accused was identified and due to such type of identification the present appellant - accused cannot be held guilty for the charges alleged against him. She has also contended that the recovery as alleged by the prosecution is also not proved beyond reasonable doubt. She has contended that the prosecution has failed to appreciate that ingredients of robbery and decoity have not been proved successfully by the prosecution. She has contended that the prosecution story is based on mere presumption and surmises. She has contended that the prosecution has failed to lead cogent evidence which would prove the guilt of the accused in the alleged offence. She has contended that the injury which is alleged to have been caused to the complainant is not a grievous in nature and even if the case against the appellant - accused is assumed, he ought to have been convicted under Section 394 of I.P. Code and not under Section 397 of I.P. Code. She has also relied upon the Judgment of this Court in Criminal Appeal No.520 of 2007, decided on 24.7.2009, which was filed by the co-accused and contended that the ratio of the said Judgment would be applicable in the present case also. 7. Mr. She has also relied upon the Judgment of this Court in Criminal Appeal No.520 of 2007, decided on 24.7.2009, which was filed by the co-accused and contended that the ratio of the said Judgment would be applicable in the present case also. 7. Mr. K.P. Raval, learned APP appearing for the respondent State has supported the order of the trial Court and submitted that looking to the facts of the complainant and the driver Jaferbhai and Umarbhai who was an employee of the complainant, the trial court’s appreciation of the fact and evidence is just and proper. He has submitted that the prosecution has successfully proved the presence of all the three accused at the time of the incidence and has convicted the accused as per law. However, Mr. Raval is not in a position to controvert the submission regarding wrong imposition of Section 397. 8. We have gone through the judgement and order passed by the trial court. We have also perused the oral as well as documentary evidence led by the trial Court and also considered the submissions made by learned Advocate for the appellant as well as learned APP. 9. The trial Court has gone through the evidences of the complainant as well as witnesses at length. The complainant in his deposition has stated that there were three persons who has roughed him up and forcibly taken jewellery, cash and a mobile phone from him. Apart from the jewellery, the cash and mobile phone and other muddamal articles have been recovered from the accused. It appears that the gold ornaments had been sold off to some jeweller. However, no evidence regarding the same is coming forward. The prosecution has proved the recovery of the rest of the muddamal successfully. 10. Moreover, on a close scrutiny of the evidences of the witnesses, it is borne out that there are no contradictions in the evidences of the witnesses. As regards the proper identification of the accused though the incident took place late night, it is clear that the road was sufficiently lit up by street lamps of the municipality. It is also observed that there are certain industries and factories in the vicinity which also added to the light. The said observations are not controverted by the learned advocates for the accused. 11. It is also observed that there are certain industries and factories in the vicinity which also added to the light. The said observations are not controverted by the learned advocates for the accused. 11. The appellant has taken up a contention that the identification parade is done in the Court room for the first time. However, considering the other facts and circumstances of the case coupled with the evidences against the accused, this contention will not support the case of the appellant. Identification parade is only a mode to satisfy a complainant, the investigating agency and the Court with regard to the actual person/s involved. It cannot be considered as primary proof. In the instant case, the witnesses have identified the accused and even the evidences are against him. Hence the conviction seems to be just and proper. 12. The trial Court has also gone through the evidence of Dr. Hemang Vasavda P.W. 4 Exhibit 41. The injuries Nos. 1, 2, 3 & 5 more particularly on nose, upper left lips and rear part of the stomach on right side were caused due to some sharp object. The medical officer has very clearly stated that these injuries required only a period of about ten days to heal and are not grievous in nature. The doctor has also stated in his cross examination that the injuries are general in nature and that the complainant was treated for only two days in the hospital. 13. In the above view of the matter, we are of the considered opinion that the trial Court was completely justified in convicting the appellant of the charges leveled against him. However, considering the nature of the hurt and injury which is general the trial Court ought not to have convicted the accused under Section 397. The said contention of the appellant is required to be accepted. 14. Accordingly, this appeal is partly allowed. The conviction of the appellant under Sections 394 & 188 of the Indian Penal Code vide judgment and order dated 31.05.2006 passed by the Additional Sessions Judge, Fast Track Court No. 5, Rajkot in Sessions Case No. 52 of 2005 is upheld. 15. 14. Accordingly, this appeal is partly allowed. The conviction of the appellant under Sections 394 & 188 of the Indian Penal Code vide judgment and order dated 31.05.2006 passed by the Additional Sessions Judge, Fast Track Court No. 5, Rajkot in Sessions Case No. 52 of 2005 is upheld. 15. The conviction and sentence imposed upon the appellant under Section 397 of the Indian Penal Code vide judgment and order dated 31.05.2006 passed by the Additional Sessions Judge, Fast Track Court No. 5, Rajkot in Sessions Case No. 52 of 2005 is quashed and set aside. However, the appellant - accused is held guilty for the offence under Section 394 of I.P. Code and he is ordered to undergo rigorous imprisonment for five years. The remaining part of the judgement and order of the trial Court is confirmed. 16. As the main Criminal Appeal is disposed of, no order is passed in Criminal Misc. Application No. 2349/2010 and the same is disposed of accordingly. P P P P P