Judgment 1. Both the appeals are filed against the judgment and order of Sessions Case No. 194/2009, which was pending in the Court of Additional Sessions Judge, Jalgaon. The Sessions Court has convicted and sentenced the appellants from both the appeals for offences punishable under section 394 and 397 of Indian Penal Code. Both the sides are heard. This Court has perused the original record of the case. 2. In short, the facts leading to the institution of the present proceedings can be stated as follows:- The complainant Ashok Kamble works as a taxi driver. The incident took place on 21.7.2009. On that day, the complainant was returning from Dhule to Jalgaon in his taxi bearing No. MH-19/AE-4409. When the taxi reached at Dhule Parola Chaufula, accused No. 1, who was present there, gave signal to stop the taxi. Ashok stopped the taxi. Accused No. 1 informed that he wanted to go to Jalgaon. After negotiations, the fair was decided. Accused Nos. 2 and 3 were present near a pan stall at this spot. Accused No. 1 called them and they boarded as passengers in the taxi of Ashok. It was at about 10.30 a.m. 3. When the taxi crossed the distance of 10 to 15 k.m., one of the accused started complaining that he had a feeling of vomitting. Ashok stopped the taxi, but the accused did not vomit and so Ashok again started the taxi and started proceeding towards Jalgaon. After crossing Patherkheda and when the taxi was on highway, the same accused again started complaining that he had a feeling of vomitting. When Ashok stopped the taxi, this accused alighted from the taxi and rushed towards driver side of the taxi and started making attempts to open the door on that side. In the meantime, one of the accused who was sitting on the back seat, hit something on the head of Ashok. A revolver was also shown to Ashok. Ashok sustained bleeding injury and he somehow came out of taxi. As soon as Ashok came out from the taxi, the accused who had alighted from the taxi occupied driver's seat and the three accused took the taxi towards Erandol. It was at about 12.00 noon. 4. A revolver was also shown to Ashok. Ashok sustained bleeding injury and he somehow came out of taxi. As soon as Ashok came out from the taxi, the accused who had alighted from the taxi occupied driver's seat and the three accused took the taxi towards Erandol. It was at about 12.00 noon. 4. In the taxi car, there were articles of Ashok like mobile handset having SIM card bearing No. 9850040912, the driving licence along with the papers in respect of taxi, the spectacle of Ashok and also the car tape. Ashok somehow took a bus and went to Erandole Police. His report came to be recorded. Ashok showed the spot from where his taxi was taken away by these three accused. Ashok gave the description of all the three accused in the F.I.R. On the basis of the report of Ashok, Crime at C.R. No. 55/2009 came to be registered for offences under sections 394 and 397 of I.P.C. at about 2.10. p.m. Ashok was referred to Government Hospital. 5. There was no facility of electricity in the Government Hospital and so X-ray could not be taken in respect of the injury sustained to the head. Ashok went to private hospital, where X-ray was taken. In the X-ray, one bullet was seen in the skull portion of Ashok. Ashok then was admitted in the hospital of one Dr. Bhangale. Operation was performed in this hospital and the bullet came to be removed from the skull. This bullet was handed over to police by Dr. Bhangale. 6. On 30.7.2009, on the basis of IMEI number of the mobile handset, police collected information from mobile company and located the position of the mobile handset. When police went to the spot, they found one Jaiswal, employer of accused No. 3. Jaiswal informed that the mobile handset was in the use of accused No. 3, though the SIM card was in the name of Jaiswal. Jaiswal told that accused No. 3 was present at a Dhaba, which was situated in the vicinity and so police went there. Police traced accused No. 3 and when in presence of panch witnesses, his personal search was taken, the mobile handset of Ashok was recovered from the person of accused. During interrogation, accused No. 3 gave information against the accused Nos. 1 and 2. Police traced accused No. 3 and when in presence of panch witnesses, his personal search was taken, the mobile handset of Ashok was recovered from the person of accused. During interrogation, accused No. 3 gave information against the accused Nos. 1 and 2. Accused No. 3 took police to the house of accused No. 1 situated at Indor, Madhya Pradesh. Accused No. 1 was present in the house. When the search of his house was taken in presence of the panch witnesses, one pistol with magazine came to be recovered and they were found in the concealed condition. One taxi car, was found in front of the house of accused No. 1. Though it was bearing different number, there were papers of Ashok in the taxi and so all these articles were seized in presence of the panch witnesses. During investigation, accused No. 1 gave statement under section 27 of the Evidence Act on 5.8.2009 and on the basis of this statement, the car tape, which was removed from the taxi of Ashok, came to be recovered from the house of accused No. 1 situated at Indore. It was also seized under the panchanama. 7. The bullet removed from the head of Ashok, the pistol recovered from the house of accused No. 1 and the live cartridges recovered from the house of accused No. 1 came to be sent to ballistic department. The expert gave opinion that the bullet removed from the head of Ashok was fired from the same pistol. 8. After arrest of all the three accused, test identification parade (T.I. parade) was held through Tahsildar. The complainant identified all the three accused in presence of panch witnesses in T.I. parade. After completion of investigation, chargesheet came to be filed for offences punishable under sections 394 and 397 of I.P.C. For proving the offences, the prosecution examined 14 witnesses. The accused took the defence of total denial. In the evidence, the complainant identified all the accused. The articles were already handed over to the complainant. The Trial Court has held that the prosecution evidence is sufficient to prove both the offences. 9. In the appeal, the advocate of the appellants argued on the evidence of test identification parade and the evidence of recovery of various articles at the instance of accused Nos. 1 to 3. The articles were already handed over to the complainant. The Trial Court has held that the prosecution evidence is sufficient to prove both the offences. 9. In the appeal, the advocate of the appellants argued on the evidence of test identification parade and the evidence of recovery of various articles at the instance of accused Nos. 1 to 3. It was submitted that the evidence regarding recovery of the articles has no independent corroboration. Alternatively, it was submitted that accused are entitled to a lenient view, as they were not involved in the past in any other crime. The learned A.P.P. supported the decision of the Trial Court and submitted that in view of the minimum penalty provided for offence punishable under section 397 of I.P.C., minimum penalty is given by the Trial Court and there is no possibility of interference on any point in the judgment and order of the Trial Court. 10. Ashok (PW 3) has given evidence on the incident. He has given the particulars as to how and where all the three accused boarded in his taxi and as to how they pretended him as passengers for getting taxi. He has given evidence that on the second occasion, when he stopped the taxi, one of the accused, who had alighted from the taxi reached at the door from driver side and other accused hit something on his head. It can be said that Ashok did not realize that actually bullet was fired at his head from backside and due to that he sustained bleeding injury. He has given evidence that when he alighted from the taxi, the accused took away his taxi towards Erandole and in the taxi there were articles like mobile handset etc. He has identified all the three accused in the Court. His evidence shows that the articles recovered from the accused like mobile handset, car tape recorder etc. were handed over to him by way of giving him interim custody. The defence had no grievance regarding this circumstance. The F.I.R. was given immediately and the crime was registered at about 2.00 p.m. on the same day. The F.I.R. is consistent with the evidence of Ashok. Ashok has given evidence that T.I. parade was held and in the different identification parades, he identified all the three accused. 11. The defence had no grievance regarding this circumstance. The F.I.R. was given immediately and the crime was registered at about 2.00 p.m. on the same day. The F.I.R. is consistent with the evidence of Ashok. Ashok has given evidence that T.I. parade was held and in the different identification parades, he identified all the three accused. 11. For proving the record of T.I. parade, the prosecution has examined panch witness Rohidas (PW 6) and Tahsildar Amarsingh (PW 7). Their evidence and the record show that for giving an opportunity to the complainant, T.I. parade was held three times and on every occasion different persons were selected by the Tahsildar. This record is duly proved as Exhs. 67, 70 and 71. This record is consistent with the evidence of complainant, panch witnesses and Tahsildar. The evidence and the record show that the guidelines given in the Criminal Manual were duly followed. Nothing is brought on the record to create a probability that prior to 10.8.2009 the accused were shown to complainant or on that date just prior to the T.I. parade, there was an opportunity to the complainant to see these accused separately. Thus, the evidence of T.I. parade is consistent with the evidence of Ashok. There was no reason for Ashok to falsely implicate these three accused persons as they were not known to him prior to the date of incident. He had sufficient opportunity to observe the three accused as the incident took place in day time and they were in his company for more than one and half hours. There is the ring of truth in the evidence of Ashok and further, there is corroboration of circumstances to the evidence of Ashok. 12. Dr. Manish (PW 9) took X-ray of the head of Ashok on 21.7.2009. He has given evidence that he found one bullet in the skull, which had virtually penetrated in to the skull. The X-ray report is proved as Exh. 82. Dr. Bhangale (PW 11) has given evidence that the complainant was admitted in his hospital and he removed the bullet from the head of the complainant. It appears that by mistake Dr. Bhangale has stated that the operation was performed on 31.7.2009, when as per the record, the complainant was indoor patient from 21 to 23 September 2009. The certificate is duly proved in the evidence of Dr. Bhangale as Exh. 92. It appears that by mistake Dr. Bhangale has stated that the operation was performed on 31.7.2009, when as per the record, the complainant was indoor patient from 21 to 23 September 2009. The certificate is duly proved in the evidence of Dr. Bhangale as Exh. 92. This record and the oral evidence of Dr. Bhangale gives necessary corroboration to the evidence of Ashok. 13. A.P.I. Lagad (PW 14) made some investigation of the case. He has given evidence that as per the directions of the Superior Officer, he collected the record from Mobile Company in respect of mobile of Ashok on 30.7.2009. He has deposed that on the basis of this information, he located the mobile handset of Ashok and then he approached Jaiswal as the SIM card in the name of Jaiswal was in this mobile handset. He has deposed that Jaiswal informed that the mobile handset was in the use of accused No. 3, though his SIM card was used in the mobile handset. He has deposed that on the basis of information given by Jaiswal, he went to a Dhaba, where accused No. 3 was present. He has deposed that the personal search of accused No. 3 was taken in presence of panch witness and mobile handset of Ashok was recovered from the person of accused No. 3. The panchanama of seizure of mobile handset is proved as Exh. 120. 14. Lagad (PW 14) has given evidence that from accused No. 3 he collected the information as against accused Nos. 1 and 2. He has deposed that accused No. 3 took him and panch witnesses to the house of accused No. 1. He has deposed that accused No. 1 was present in his house from Indore and the search of his house was taken. He has deposed that one country made pistol and one magazine were recovered from his house. He has deposed that one car, taxi bearing No. MP-09/4124 was found in front of the house of accused No. 1, but in this car, there was the record of Ashok, the complainant in respect of the car. He has given evidence that as the car belonged to Ashok and as the aforesaid articles were recovered from the house of accused No. 1, they were taken over under the panchanama which is at Exh. 121. He has given evidence that as the car belonged to Ashok and as the aforesaid articles were recovered from the house of accused No. 1, they were taken over under the panchanama which is at Exh. 121. He has deposed that when the car was taken over, he noticed that the car tape was not present at its place. The articles like country made pistol, magazine, bullet removed from the head are identified by Lagad. Though there is no evidence of panch witness on the recovery of pistol from the house of accused No. 1, this Court sees no reason to take doubt about the evidence of Lagad. There is the ring of truth in the evidence of Lagad and further, there is other evidence giving corroboration to the evidence of Lagad. 15. Dr. Manish (PW 9) has given evidence that he took X-ray of the skull of the complainant. He found that there was bullet in the skull. The certificate of this Doctor is proved as Exh. 82. Dr. Bhangale (PW 11) has given evidence that in his hospital, operation was performed and bullet was removed from the head of Ashok. He has given evidence that he handed over the bullet to police. The panch witness Shashikant Rajshirke has given evidence that in his presence, police took over the bullet from Dr. Bhangale. The seizure panchanama is proved as Exh. 35. Carrier Constable Sidharth Jadhav (PW 10) has given evidence that he carried the pistol, the bullet and the magazine to Kalina laboratory. The Ballastic Expert Munj (PW 12) has given evidence that the bullet, which was used, was found to be fired from the pistol handed over to them along with the bullet. The record regarding examination of these articles in the laboratory is proved as Exhs. 84 and 85 and also 98 to 100. In view of this record and the evidence of the witnesses, this Court holds that it is not possible to take doubt about the evidence. This evidence gives corroboration to the evidence of complainant and also to the evidence of Lagad. 16. Lalsing (PW 8), the Head Constable, has given evidence that accused No. 1 gave statement to him on 5.8.2009 and then accused took him and panch witnesses to the house from Indore. This evidence gives corroboration to the evidence of complainant and also to the evidence of Lagad. 16. Lalsing (PW 8), the Head Constable, has given evidence that accused No. 1 gave statement to him on 5.8.2009 and then accused took him and panch witnesses to the house from Indore. He has given evidence that from the house, accused No. 1 produced a car tape recorder and it was seized under the panchanama. Both the memorandum of statement and seizure panchanama are duly proved in the evidence of panch witness Bhagwan Patil (PW 4) and Lalsing (PW 8) and they are at Exhs. 45 and 46. This evidence gives further corroboration to the version of complainant. 17. It is already observed that Ashok had no reason to falsely implicate the accused in the case. All the articles of Ashok are recovered at least from accused Nos. 1 and 3. Accused No. 2 is identified in the Court by Ashok. All the accused were identified in T.I. parade also. A bullet injury was found on the head of Ashok on the backside and the said bullet was fired by using pistol recovered from accused No. 1. In view of all these circumstances, this Court holds that there is sufficient evidence for proving of both the offences against all the three accused. Thus, the Trial Court has not committed any error in convicting and sentencing the accused persons for both the offences. 18. Section 397 of I.P.C. shows that the minimum penalty is provided for this offence. In the present case fire arm was used. Injury was caused to head of Ashok but he was fortunate to survive. As the minimum penalty is provided and no discretion is left with the Court in section 397 of I.P.C., there is no question of giving less than the minimum penalty in this case. The imprisonment period also cannot be reduced. 19. In the result, the appeal stands dismissed. 20. The copy of the judgment is to be supplied to all the three appellants through the Jail Superintendent. It is to be informed to them that this decision can be challenged in the Supreme Court and for that also they can get legal aid. 21. Fees of the advocate appointed for the appellants is quantified as Rs. 5000/-(Rupees five thousand) and this is the fees for both the appeals together.