JUDGMENT 1. - The above mentioned three appeals have been preferred by the accused appellants challenging the judgment dated 27.3.2009 passed by the learned Additional Sessions Judge, Fast Track, Jalore, Camp Bhinmal in Sessions Case No. 74/2007, State v. Pradeep Kumar & Ors. , whereby the learned trial Judge convicted and sentenced the appellants as under: Pradeep Kumar & Deepak Soni : (Appellants in DB Criminal Appeal No. 309/2009) Section 395 I.P.C. Imprisonment for life and a fine of Rs. 20,000/- in default whereof, to further undergo 2 years' rigorous imprisonment. Section 3971.P.C. Imprisonment for life and a fine or Rs. 20,000/-, in default whereof, to further undergo 2 years' rigorous imprisonment. Section 3/25(1-B) (A) Arras Act Two years' rigorous imprisonment and a fine or Rs. 20,000/- in default whereof to further undergo six months' R.I. Section 27 Arms Act Three years' rigorous imprisonment and a fine of Rs. 20,000/-, in default whereof to further undergo six months' rigorous imprisonment. All the sentences were ordered to run concurrently. Shrawan Singh : (Appellant in SB Criminal Appeal No. 275/2009) Section 3/25(1-B)(A) Arras Act: Two years' rigorous imprisonment and a fine of Rs. 20,000/- in default whereof, to further undergo six months' rigorous imprisonment. 2. Today, the matter was listed for consideration of application for suspension of sentence filed on behalf of Pradeep Kumar and Deepak Soni in D.B. Criminal Appeal No. 309/2009 but since the counsel for the appellants argued that his highest challenge to the judgment in issue is as regards the nature of the offence and he does not wish to challenge the conviction of the appellants and that the appellants are in custody for the last more than four years, the prayer of the counsel for the appellants was that the appeals itself be disposed of, on the question of nature of offence committed by the appellants and the sentences awarded thereupon. In view of the submissions made above, the appeals have been heard finally with the consent of the counsel for the parties. 3. Briefly stated the facts of the case necessary for disposal of these appeals are that a written report was filed by the complainant Jabar Singh at the Police Station, Sanchore on 21.5.2007 alleging inter alias that in the night between 12-12.30 AM, three armed robbers came to his petrol pump. 3. Briefly stated the facts of the case necessary for disposal of these appeals are that a written report was filed by the complainant Jabar Singh at the Police Station, Sanchore on 21.5.2007 alleging inter alias that in the night between 12-12.30 AM, three armed robbers came to his petrol pump. One hid behind the wall of the petrol pump and the remaining two persons pointed revolver on the complainant and threatened him not to shout. The accused persons also demanded money from the complainant. While the gun was so pointed at the complainant, the third accused took but the key from his pocket and he was taken into his office and the amount of Rs. 14,600/- lying in the cash box of the petrol pump was looted by the accused persons. Thereafter, the accused persons inquired as to who other were present with the first informant took them to the hotel of Jeevan Ram where Jeevan Ram where Jeevan Ram was taking food and Peer Mohd. was taking tea. Thereafter, the accused persons threatened the complainant as well as the other two persons at gunpoint and beat up Peer Mohd. and also fired the guns twice. On hearing the cries. Ran Singh, who was nearby, became alert and started going towards his vehicle for informing the police on which, two of the accused persons, caught hold of Ran Singh and asked for the key of the vehicle and on denial, Ran Singh was beaten due to which he received a bleeding injury on his ear. On hue and cry being raised, the accused persons ran away. After that, the police was informed. The Investigating Officer of the Police Station, Sanchore reached the place of occurrence where the written report was given to him and thereupon, a F.I.R. No. 134/2007 was lodged at the Police Station, Sanchore. The accused persons were arrested and the following recoveries were effected from them: Recoveries from accused Pradeep Kumar: Accused Pradeep Kumar was arrested vide arrest memo Ex.P-8 and on the personal search of the accused being taken, a sum of Rs. 1,500/- is said to be recovered from the accused and the place of arrest has been shown as Sarhad Sanchore. 1,500/- is said to be recovered from the accused and the place of arrest has been shown as Sarhad Sanchore. [It may be mentioned that apart from the cash recovered, nothing else is mentioned in the personal search of the accused.] Country made pistol (Desi Katta) and 24 live cartridges were recovered on 21.5.2007 vide recovery memo Ex.P-10. Two shoes belonging to the accused were recovered on 21.5.2007 vide recovery memo Ex.P-11. Recoveries from accused Deepak Son: Accused Deepak Soni was arrested vide Arrest Memo Ex.P-9. On the personal search of the accused, driving license, two pocket diaries, Nokia Mobile, wristwatch and purse having Rs. 2,500/- recovered. Two Chappals were recovered on 21.5.2007 vide recovery memo Ex.P-13. One 12-Bore Country made pistol was recovered vide recovery memo Ex.P-12 (which has been marked twice at the trial) on 24.5.2007 from a field in Makhupura, Sanchore. Recoveries from accused Shrazvan Singh: Accused Shrawan Singh is alleged to have given information Under Section 27 of the Evidence Act Ex.P-39 and in pursuance thereto, one 8mm country made was recovered on 25.5.2007 vide recovery memo Ex.P-30 from behind the petrol pump where the dacoity took place. Recoveries from Ajmeri @ Ajmer Ali: Accused Ajmeri @ Ajmer Ali is alleged to have give information vide Ex.P-36 and in pursuance thereto one country made pistol on 21.5.2007 was recovered vide recovery memo Ex.P-37 from under the earth behind the petrol pump where the dacoity took place. 4. During the course of investigation, these two appellants Pradeep Kumar and Deepak Soni were subjected to test identification parade, the witnesses Jabbar Singh, Ran Singh and Peer Mohd. and they were correctly identified by the witnesses. It is relevant to mention here that the F.I.R. was registered only under Section 394 I.P.C. because admittedly only three persons were alleged to have participated in the occurrence but at the time of conclusion of investigation, the charge-sheet was filed against the appellants and Ajmer Ali and other non-charge-sheeted accused for the offences under Sections 395, 397, 400 I.P.C. and Sections 3/25 (1-B)(A) and 27 of the Arms Act. The case was committed to the Court of learned Additional Sessions Judge, Fast Track, Jalore, Camp Bhinmal for trial. The appellants were charged with the offences mentioned above. The appellants were charged with the offences mentioned above. The appellants pleaded not guilty and claimed trial. The case was committed to the Court of learned Additional Sessions Judge, Fast Track, Jalore, Camp Bhinmal for trial. The appellants were charged with the offences mentioned above. The appellants were charged with the offences mentioned above. The appellants pleaded not guilty and claimed trial. Another accused Ajmeri @ Ajmer Ali was also charged along with the appellants but he absconded during the course of trial and as such proceedings against him have, been kept pending. The prosecution examined as many as 24 witnesses in supports of its case and exhibited 40 documents. It may be mentioned here that Ex.P-12 has been exhibited twice, one as the site memo of incident and other is recovery memo of country made pistol and cartridge from accused Deepak Soni. The accused, in their statements under Section 313 Cr.P.C., denied the allegations of prosecution but did not choose to lead evidence in defense. 5. However, it appears that while the learned trial Judge was dictating the judgment, the report of the F.S.L. regarding serviceability of the weapons was received and thereupon the learned trial Judge has placed reliance on the said report making it as Ex.P-41 and has used the same against the accused persons. [It is relevant to mention here that an objection regarding the use of the said report has been made in the appeal that a copy of the report was neither supplied to the accused nor a question in relation thereto has been but to the accused in their statements under Section 313 Cr.P.C.] At the conclusion of trial, the learned trial Judge, in absence of any identification of Shrawari Singh, proceeded to acquit him from the charges under Sections 395, 397 and 400 I.P.C. and Section 27 of the Arms Act but based on the recovery of country made pistol, he has been convicted for the offence under Section 3/25(1-B)(A) of the Arms Act against which he has preferred S.B. Criminal Appeal No. 275 of 2009. Accused Pradeep Kumar and Deepak Soni, having been convicted for the offences punishable tinder Sections 395 and 397 I.P.C. and Section 3/25 (1-B)(A) and 27 of the Arms Act, have been sentenced as above, aggrieved whereof, they have preferred D.B. Criminal Appeal No. 309 of 2009. 6. Accused Pradeep Kumar and Deepak Soni, having been convicted for the offences punishable tinder Sections 395 and 397 I.P.C. and Section 3/25 (1-B)(A) and 27 of the Arms Act, have been sentenced as above, aggrieved whereof, they have preferred D.B. Criminal Appeal No. 309 of 2009. 6. Assailing the judgment of the learned trial Judge, Shri Pradep Shah along with Shri D.L. Rawla, counsel for the appellants, submitted that the case of the prosecution was that there were only three persons who had come to commit the robbery at the petrol pump and there was no allegation in the testimony of the prosecution witnesses that there was any other person who had aided the commission of offence and as such there was no justification for the invocation of the provisions of Sections 395 and 397 I.P.C. in the case. The application of Section 395 I.P.C. arises only when the offence is one of dacoity as defined under Section 391 I.P.C. This provision is applicable only when there is a conjoint attempt by five or more persons to commit or attempt to commit the robbery or that there are more that five persons who are aiding the commission of such an attempt. Shri Shah has submitted that from the oral evidence, which has been adduced at the trial, there is no allegation that apart from the appellants and one other person, who was hiding behind the wall of petrol pump, there was somebody else who also participated in the commission of the robbery or the attempt to commit the robbery or was aiding the commission of such an attempt. Therefore, as per Shri Shah, the application of Section 395 I.P.C. could not be made in the present case. The accused could, at best, be held guilty for the offence tinder Section 392 I.P.C. or at the highest, for the offence under Section 394 I.P.C. 7. Per contra, the learned Public Prosecutor has supported the judgment of the learned trial Judge and has submitted that the accused were arrested immediately after the incident and recovery of the weapons and cash has been made from them. He has further submitted that the eye-witnesses have identified the accused persons in the test identification parade as well as in the Court and thus, no interference is called for in the judgment of conviction. 8. He has further submitted that the eye-witnesses have identified the accused persons in the test identification parade as well as in the Court and thus, no interference is called for in the judgment of conviction. 8. We have heard the learned counsel for the appellant and have perused the record of the case. The participation of appellants Pradeep Kumar and Deepak Soni has been proved by the prosecution witnesses by producing content evidence of the three eye-witnesses, namely, Jabber Singh PW-1, Ran Singh PW-3 and Peer Mohd. PW-4 and Shri Shah has fairly conceded that he cannot dispute or assail conviction of the appellants for having committed the robbery on the Petrol Pump because the testimony of three eye-witnesses mentioned above proves beyond doubt the complicity of these accused persons in the crime. These three witnesses have correctly identified appellants Pradeep Kumar and Deepak Soni in the test identification parade as well as in their testimonies before the Court. 9. Shri Shah has submitted that the appellant Pradeep Kumar is the son of a teacher and was young man of 31 years when the incident took place and was doing a business of running a tent house, whereas Deepak was young man of 25 years at the time of occurrence and was a driver by profession. There was no previous conviction or previous criminal record against them and as such Shri Shah has submitted that while considering alteration of the conviction of the appellants from the offence under Section 395 I.P.C. they should be liable to be dealt with under Section 394 I.P.C. He has further submitted that the offence under Section 397 I.P.C. would also not be made out against the appellants because neither any deadly weapon was used nor any grievous hurt was caused or any attempt to cause grievous hurt was made by the accused. 10. 10. As has been submitted by Shri Shah and on perusal of the record, it clearly appears that so far as participation of the appellants in robbery is concerned, there is distinct and unimpeachable evidence of the three eye-witnesses mentioned above and which has not even been disputed and thus, the conviction of the appellants for the offence of committing robbery at the Petrol Pump of the first informant Jabbar Singh cannot be called into question, However, the question is as to what would be the offence for which the appellants would be liable to be punished and what sentence should be awarded to them for the said offence. Since there is not cogent evidence available on the record of the case to show that there were five or more persons who participated in the commission-of robbery or aided the commission thereof, the charge of Section 395 I.P.C. cannot be sustained against the appellants. However, since hurt has been caused to Ran Singh in the commission of robbery, therefore, the provisions of Section 394 I.P.C. are applicable to the present case. The offence of Section 397 I.P.C. is also clearly made out against these two appellants, namely, Pradeep Kumar and Deepak Soni because there is an allegation against them of having carried deadly weapons at the time of commission of offence. Though the question of recovery of the weapons is being dealt with separately, but even if the recovery is disbelieved, then too, since the evidence of the prosecution witnesses regarding accused carrying a fire arm at the time of robbery is unimpeachable, therefore, the conviction of the appellants for the offence under Section 397 I.P.C. cannot be said to be illegal or unjustified. 11. Coming to the question of commission of offence under Sections 3/25 (1-B)(A) and 27 of the Arms Act, we find that though, no arguments challenging the conviction of the appellant for the offence under the Arms Act have been made but on a perusal of the record of the case and on the careful scrutiny of the evidence, we find that the same is illegal for the following reasons: (A) The sanction to prosecute the appellants under the provisions of Section 3/25(1-B)(A) of the Arms Act, has been passed in a mechanical fashion as has been elicited from the cross-examination of PW-22 Arun Kumar Purohit, the District Magistrate. (B) The report of the Forensic Science Laboratory was not put to the accused under the provisions of Section 313 Cr.P.C. and as such the same could not be relied upon in convicting the appellants for the offence Under Sections 3/25(1-B)(A). and 27 of the Arms Act. (C) The recovery of the weapons by itself is extremely doubtful. It is seen that appellant Pradeep Kumar was arrested vide arrest memo Ex.P-8 on, 21.5.2007 at about 8.00 A.M. though the time of recovery in the arrest memo has been shown. as 10.15 A.M. From the statement of PW-24, Surendra Kumar, it is revealed that accused Pradeep Kumar and Deepak Soni were arrested at 8.00 A.M. near the temple. Accused Pradeep Kumar's arrest and his personal search memo, as per the document Ex.P- 8 and particularly the column 8 thereof, reveals that a sum of Rs. 1,500/- cash was recovered from his person and nothing else was recovered. In these circumstances, showing the recovery of the country made pistol from his person vide Ex.P-10 on the very same day at 10.45 O'clock, is clearly demonstrative of the fact that this recovery has been concocted. To our minds, it is unbelievable that a person, who has run away from the-scene of occurrence after having committed dacoity, would retain the weapons with him so that the same could be recovered later on. (D) The recovery from the appellant from accused Deepak Soni is also not believable because the same has been effected from an open field and that too 'after three days of the arrest of the accused. (E) The use of these very weapons in the incident has also not been proved by the prosecution because no injury has been caused by the fire arm to any of the members of the complainant party. (E) The use of these very weapons in the incident has also not been proved by the prosecution because no injury has been caused by the fire arm to any of the members of the complainant party. (F) As regards appellant Shrawan Singh, we find that he was been convicted on the basis of the recovery of the country made pistol vide Ex.P-30 but surprisingly enough, the said pistol does not appear to have 'been forwarded to the Forensis Science Laboratory because as per Ex.P- 41 (report of Forensic Science Laboratory), though not put to the accused under Section 313 Cr.P.C., but still a reading of the said report discloses that only two weapons have been sent to the Forensic Science Laboratory, one being 8mm/.315 country made pistol from the packet 'B' (recovered from Pradeep Kumar) and one 12-bore country made pistol from packet 'G' (recovered from Deepak Soni). When the prosecution has not had the weapon examined from the Forensic Science Laboratory, then it cannot be said that what was recovered at the instant of Shrwan Singh was a fire arm what to talk of serviceable fire arm. Thus, when the recoveries of the weapons at the instance of the accused are obviously concocted and since the report of the Forensic Science Laboratory was not put to accused in their statement under Section. 313 Cr.P.C., the conviction of the accused under the Arms Act cannot stand. (G) Further, since no injury has been caused by a firearm to any of the victims, conviction of the appellants for the offences under Sections 3/25(1-B)(A) and 27 of the Arms Act is patently illegal. Also considering that since the weapon alleged to be recovered from Shrawan Singh was never forwarded to the Forensic Science Laboratory and since the weapons alleged too be recovered from the accused persons, have not been exhibited in the Court, the conviction for the offences under the Arms Act is vitiated. Production of mudda mal or the weapon is essential for proving the recovery thereof as has been held by the Hon'ble Supreme Court in the case reported in AIR 2009 SC (Supp) 852, Noor Agha v. State of Punjab . Production of mudda mal or the weapon is essential for proving the recovery thereof as has been held by the Hon'ble Supreme Court in the case reported in AIR 2009 SC (Supp) 852, Noor Agha v. State of Punjab . In another judgment of the Hon'ble Apex Court reported in 2010 (1) Cr.L.R. 487, Niranjan Panja v. State of West Bengal , the Hon'ble Apex Court has held as under: "The High Court has accepted the evidence of the recovery of the so called weapon. We fail to follow as to how the said discovery could at all be relied upon in absence of the weapon being produced in the Court." The sanction for the prosecution of the appellants has been granted in a mechanical fashion without application of mind as is apparent from the perusal of testimony of PW-2, Shri Arun Kumar Purohit, who in his cross-examination, has admitted that he did not consider whether the recovered weapons were serviceable or not or whether he had seen the recovery documents prior to the grant of section. 12. We, therefore, hold that appellant Shrawan Singh deserves to be acquitted from the charge under Section 3/25(1-B)(A) of the Arms Act because neither the recovery of weapon from him has been proved by proper evidence nor his weapon has been sent to the Forensic Science Laboratory for examination. The conviction of appellants Pradeep Kumar and Deepak Soni for the offence under Sections 3/25(1-B)(A) and 27 of the Arms Act is also set aside and they are acquitted from the said charge. However, the conviction of appellants Pradeep Kumar and Deepak Soni for the offence under Section 395 I.P.C. is converted to one under Section 3941.P.C. 13. Coming to the question of sentence, we find that accused-appellants Pradeep Kumar and Deepak Soni are of decent backgrounds. Appellant Pradeep Kumar is son of a teacher and was doing the business of tent house and Deepak Kumar was engaged in profession of driving. The learned Public Prosecutor has not been able to point out any material on record to show that either of the is involved in any other offence before the case at hand. As such, while converting the conviction of the appellants from one under Section 395 I.P.C., to Section 394 I.P.C., direct the to undergo a sentence of 7 years rigorous imprisonment and a fine of Rs. As such, while converting the conviction of the appellants from one under Section 395 I.P.C., to Section 394 I.P.C., direct the to undergo a sentence of 7 years rigorous imprisonment and a fine of Rs. 20,000/-, in default whereof to further undergo six months' rigorous imprisonment. We uphold the conviction of the appellants for the offence under Section 397 I.P.C. and instead of sentencing them for life, we direct that they shall suffer the minimum sentence prescribed under Section 397 I.P.C., i.e. 7 years' rigorous imprisonment. In reducing the sentence as aforesaid, we are swayed by the fact that only two simple injuries being a lacerated wound of 3 cm X 0.5 cm on the ear and a bruise of 3 cm x 1 cm on the scapular region of Ran Singh were caused and they were also admittedly caused after the amount of Rs. 14,600/- was looted and the, fact that the quantum of amount involved in the alleged robbery is not very big. We also have taken into account the young age of the appellants and the backgrounds from which they come and we feel that a sentence of seven years would suffice. The Hon'ble Apex Court, in the judgment reported in Ram Babu v. State of U.P., AIR 2010 SC 2143 , has upheld the conviction of the accused for the offence under Section 395 I.P.C., wherein the accused were sentenced to rigorous imprisonment for a period of five years. 14. In the result, S.B. Criminal Appeal No. 275/2009 is allowed. The accused Shrawan Singh is acquitted of the charge under Section 3/25(1-B)(A) of the Arms Act. The appellant Shrawan Singh is on bail. He need not surrender; his bail bonds are hereby cancelled.The D.B. Criminal Appeal No. 309/2009 and D.B. Criminal Jail Appeal No. 308/2009 are partly allowed. The conviction of appellants Pradeep Kumar and Deepak Soni for the offence under Section 3/25(1-B)(A) and 27 of the Arms Act is set aside. The conviction of the appellants under Section 395 I.P.C. is converted to Section 394 I.PC., and they are sentenced to undergo seven years' rigorous imprisonment and a fine of Rs. 20,000/- in default whereof to further undergo simple imprisonment of six months. The conviction of the appellants under Section 395 I.P.C. is converted to Section 394 I.PC., and they are sentenced to undergo seven years' rigorous imprisonment and a fine of Rs. 20,000/- in default whereof to further undergo simple imprisonment of six months. The conviction of the appellants for the offence under Section 397 I.P.C., is upheld but instead of sentence of life imprisonment as awarded by the learned trial Judge, they are sentenced to a punishment of seven years' rigorous imprisonment along with a fine of Rs. 20,000/-, in default whereof, to further undergo six months' simple imprisonment. All the sentences are ordered to run concurrently. Appellants Pradeep Kumar and Deepak Soni are in jail. They shall serve out the remaining part of their sentences awarded to them.Appeal No. 275/2009 allowed and Appeal Nos. 308/2009, 309/2009 party allowed. *******