JUDGMENT 1. This appeal arises out of judgment and order of conviction and sentence dated 12.09.2007 passed by the Sessions Judge, Nagpur in Sessions Trial No.132/2007 whereby, the accused-appellant herein was convicted for an offence punishable under S.307 r/w S.34 and under S.397 r/w S.34 of the Indian Penal Code (For short “IPC”). For the offence punishable under S.397 r/w S.34 of the IPC, he was awarded rigorous imprisonment for seven years and for the offence punishable under S.307 r/w S.34 he was sentenced to suffer rigorous imprisonment for four years. Both the sentences were ordered to run concurrently. 2. Briefly stated, the prosecution case is as under: On 28.11.2006 at about 11.00 p.m., PW1Imran Khan was returning to his house via LIC square, Nagpur. When he reached near the LIC square, two persons riding on motorcycle stopped him and demanded his mobile. When he refused to part with it, one of the culprits dealt blow of knife on his abdomen. PW1Imran Khan raised alarm, which attracted passers by. One of the culprits was caught hold by PW1Imran Khan. Others succeeded in fleeing away. Police also arrived on the spot. PW1Imran Khan was carried to Mayo Hospital where his statement was recorded and on that basis offence was registered with Police Station, Sadar, Nagpur. The accused, who was apprehended on the spot was carried to Police Station and was interrogated. 3. On 29.11.2006, RohitA2 was arrested. During investigation, spot was inspected by Police in presence of Panchas. One knife and one motorcycle found lying on the spot were seized. The statements of witnesses were recorded. The complainant, who was admitted as an indoor patient, was discharged on 05.12.2006. MushtaqA3 was arrested on 21.12.2006. At his instance, one motorcycle, mobile handset and clothes were seized. After investigation, charge-sheet was submitted. 4. The prosecution examined in all 12 witnesses. After considering the evidence, mainly that of PW1Imran Khan, supported by medical evidence and other two witnesses namely PW2Nishant and PW3Kishor, learned Sessions Judge held that an offence punishable under S.307 r/w S.34 and under S.397 r/w S.34 of the IPC has been proved against accused no.1 and accordingly convicted and sentenced him as stated above. As regards accused nos. 2 and 3, the evidence being insufficient, they came to be acquitted. 5. Mr. As regards accused nos. 2 and 3, the evidence being insufficient, they came to be acquitted. 5. Mr. R. M. Daga, learned counsel for the appellant-accused no.1, contended that the learned Sessions Judge committed error in appreciating the evidence brought on record by the prosecution. According to him, the averments in the FIR do not at all point out that there was theft of any mobile handset. At the most, it points out only an attempt to commit robbery. The learned counsel further criticized conviction of accused no.1 for the offence under S. 397 with the aid of S. 34 of the IPC. According to him, there is no evidence to point out that the accused no.1 was holding knife or was the author of injury sustained by PW1Imran Khan. His next submission is that framing the charge under S.397 r/w S.34 of the IPC itself is incorrect. Further, there being no proof of the accused no.1 giving knife blow on the person of PW1Imran Khan, his conviction under S.307 r/w S.34 of the IPC is wholly unwarranted. He, therefore, submitted that the judgment impugned may be set aside. 6. Mr. Joshi, learned A.P.P. for respondent-State, contended that there is overwhelming evidence to bring home guilt of the accused under S.397 r/w S.34 and under S.307 r/w S.34 of the IPC. 7. PW1-Imran Khan related the incident as under: On 28.11.2006 at about 11.00 p.m. he was returning to his house. When he reached near the LIC Sq. four persons came on motorcycle. They demanded his mobile handset. When he refused to part with it, one of them stabbed him in his abdomen. He succeeded in catching hold of one person, whereas, others fled away. Passers by came to his rescue. He was carried to the Mayo Hospital. The accused, who was apprehended, was handed over to the police. According to him, accused no.1 before the Court was the same, who was apprehended on the spot. He refused to identify accused nos. 2 and 3. While he was in the hospital, his statement at Exh.11 was recorded. He further deposed that accused no.1 was holding a knife and other knife was lying on the road. 8. The evidence of PW1Imran Khan that he had sustained stab injury, is supported by PW4Dr. Gajbhiye. On 29.11.2006 he had examined PW1Imran Khan and admitted him as an indoor patient. He further deposed that accused no.1 was holding a knife and other knife was lying on the road. 8. The evidence of PW1Imran Khan that he had sustained stab injury, is supported by PW4Dr. Gajbhiye. On 29.11.2006 he had examined PW1Imran Khan and admitted him as an indoor patient. Surgery (laparotomy) was performed by him. He proved Discharge Card Exh.16. 9. On the point of incident, there are two more witnesses namely PW2Nishant and PW3Kishor. Both were passing by the road and after hearing screams, went to the rescue of PW1Imran Khan. They saw that the accused no.1 was caught hold by PW1Imran Khan. They also saw one motorcycle lying on the spot. Police arrived on the spot. PW1Imran Khan was taken to the hospital, whereas one boy, who was held by PW1Imran, was given in the custody of police. While deposing, PW3Kishor identified accused no.1 as the same person, who was caught hold by PW1Imran Khan. Although, both these witnesses had not seen the actual incident, soon after the incident of stabbing, they reached to the spot and saw accused no.1 being held by PW1Imran and also saw injury on the abdomen of PW1Imran Khan. The contents in the FIRExh. 11 are consistent with the prosecution case to the extent that PW1Imran Khan was intercepted by four persons and they had demanded the mobile handset from him. When he refused to part with it, he was assaulted by knife. 10. Considering the fact that the accused has been charged with S.397 as well as S.307, it is necessary to find out as to whether accused no.1 was the author of the injury sustained by PW1Imran Khan. A close scrutiny of the evidence adduced by prosecution creates a doubt about the role of accused in possessing knife and inflicting its blow on the person of PW1Imran Khan. What appears is that somebody out of those four persons had caused knife injury on the person of PW1Imran Khan. FIR Exh.11 reads as under: “Four persons came on motorcycle and stopped the vehicle and started demanding mobile from me. When I refused to part with it, one out of those four persons had dealt a blow of knife on my abdomen. I suffered injury and hence cried and there was scuffle. I caught hold of one of them. That time remaining three fled away. When I refused to part with it, one out of those four persons had dealt a blow of knife on my abdomen. I suffered injury and hence cried and there was scuffle. I caught hold of one of them. That time remaining three fled away. Some boy from Mominpura carried me on Scooty to Mayo Hospital. I did not give them mobile and, therefore, I was assaulted.” This is the end of the FIR. It is true that the FIR need not contain all the minute details of the incident. However, when something is specifically stated, leaving no ambiguity, then supplying omission is impermissible. In para 1 of the deposition, PW1Imran Khan stated as follows: “They demanded mobile phone from me and when I refused to give it, one of the four persons gave a blow of knife on my abdomen. I caught hold of one person but the remaining three persons took away my mobile.” Thereafter in para 3, he improved upon his version by stating as follows: “The person who was caught hold of by me was holding a knife and other knife was lying on the road.” That means he put forth a theory that accused no.1 was holding knife and one more knife was lying on the spot. 11. The evidences of PW2Nishant and PW3Kishor are inconsistent with the evidence of PW1Imran Khan. These are the witnesses, who reached at the scene of occurrence immediately but did not see any knife in the hands of accused no.1. Even they did not see any knife lying on the spot. PW11Madhukar is Pancha witness. The Police had shown him one motorcycle and one knife lying on the spot. PW10PSI Vaidya had reached to the spot, saw one motorcycle and one knife lying on the spot. That being so, the evidence of PW1Imran Khan that one knife was in the hands of accused no.1 and other knife was lying on the road cannot be accepted. This creates a doubt as to whether he was the accused no.1, who was holding the knife, muchless caused him, stab wound. In that view of the matter, what is in the FIR Exh.11 that PW1Imran Khan was assaulted by one of those four and out of them three succeeded in fleeing away, appears more probable and consistent. This creates a doubt as to whether he was the accused no.1, who was holding the knife, muchless caused him, stab wound. In that view of the matter, what is in the FIR Exh.11 that PW1Imran Khan was assaulted by one of those four and out of them three succeeded in fleeing away, appears more probable and consistent. In that view of the matter, it cannot be held as proved beyond reasonable doubt that he was the accused no.1, who caused stab wound on the person of PW1Imran Khan. 12. As regards PW1Imran Khan being robbed of his mobile phone, there is substance in the contention of Mr.Daga, learned counsel for the appellant that this is merely a case of attempt to commit robbery. In the FIR, it is categorically mentioned that when PW1Imran Khan refused to part with the mobile handset, he was assaulted with knife. At the end, he again repeated that because he did not hand over them (accused persons) his mobile handset, he was assaulted. In the FIR there is no mention about the details of mobile handset nor mobile phone number. Both, the Investigating Officers did not state that any additional statement of PW1Imran Khan was recorded to ascertain the details of mobile handset, mobile phone number etc. Moreover, no attempt was made to find out from the Service Provider as to whom the said number was allotted. As regards Station Diary entry Exh.46, it appears to be dated 29.11.2006 recorded at 23.15 hrs. That means after 24 hours of the incident. It is not understood how the said document can be admitted in the evidence since it is a reproduction of what was stated to the Police by the witness PW1Imran Khan. It is not signed by any of the officers. It has come in the evidence of PW10PSI Vaidya that on the night of the occurrence, he went to Mayo hospital and recorded FIRExh.11. On that basis, the sections under which the offence was registered were noted as S.307 r/w S.34 of the IPC. The prescribed form of the FIR Exh.34 further lends corroboration to this fact. It further reveals that the FIR was recorded on 29.11.2006 at 01.30 hrs. and there appears a general diary reference no.6/29.11.2006. This does not reconcile with what is mentioned in Exh.46. The prescribed form of the FIR Exh.34 further lends corroboration to this fact. It further reveals that the FIR was recorded on 29.11.2006 at 01.30 hrs. and there appears a general diary reference no.6/29.11.2006. This does not reconcile with what is mentioned in Exh.46. That means, whatever is stated, apart from the fact that it is inadmissible, nothing was gathered by Police like mobile number, simcard, details of mobile and calls. What appears is that only statement of PW1Imran Khan was recorded only once and thereafter he was never questioned. It, therefore, creates a serious doubt about the prosecution case that there was a robbery and the details of mobile handset were divulged to the police. 13. Further Exh.45 is the note of arrest of accused nos. 1 and 2. In that also, offence registered against the accused is shown to be only under S.307 r/w S.34 of the IPC. This is recorded on 29.11.2006 at 14.10. hrs. The Arrest Forms Exh.43 and 44 also point out that both these accused were booked under S.307 r/w S.34 of the IPC without there being any mention of S.394 or any other sections. In that view of the matter, there is a substance in the contention of learned counsel for accused that there was merely an attempt to commit robbery. This is, apart from the fact that the recovery of mobile, at the instance of accused no.3, has not been proved. Moreover, a very strange procedure was adopted by the Investigating Officer in calling PW1Imran Khan to Police Station and showing him mobile handset. Absolutely, nothing prevented the Police Officers in collecting call details from the Service Provider. Therefore, what appears to have been established by the prosecution is that while attempting to commit robbery, one of the four assailants caused stab wound on the person of PW1Imran Khan. Accused no.1 was amongst those four persons and was apprehended on the spot. Therefore, his act would squarely come under S. 394 of the IPC. 14. The learned Sessions Judge charged accused nos. 1 to 3 simplicitor under S.397 r/w S.34 of the IPC and then under S.307 r/w S. 34 of the IPC. S. 397 and S. 398 of the IPC do not create any substantial offence but regulate the measure of punishment when certain facts are found in an aggravated situation. 14. The learned Sessions Judge charged accused nos. 1 to 3 simplicitor under S.397 r/w S.34 of the IPC and then under S.307 r/w S. 34 of the IPC. S. 397 and S. 398 of the IPC do not create any substantial offence but regulate the measure of punishment when certain facts are found in an aggravated situation. Therefore, there cannot be a charge simplicitor under S.397 of the IPC. The charge has to be under S.392 r/w S.397 or under S.394 r/w S.397 or under S.395 r/w S.397 of the IPC. Moreover, when S.397 does not refer to any substantial offence, S.34 of the IPC would be inapplicable. The word “offender” in S.397 refers only to the person who is proved to have actually used deadly weapon and not to the others, who, in combination with such persons, have committed robbery or dacoity. Therefore, S.34 of IPC has no application in construction of S.397 and S.398 though it may r/w Ss.392, 394 or 395 of the IPC to determine the substantial offence. 15. The law is very well explained, as early as, in the case of Emperor ..vs.. Ali Mirza, 1924 ILR (VOL. LI) Calcutta Series 265. In this case, it is held as follows: “Section 397 and 398 of the Penal Code do not create any offence but regulate the measure of punishment when certain facts are found. ….. Section 34 of the Penal Code has no application in the construction of ss. 397 and 398, though it may be read with ss. 392 and 395 to determine the substantive offence which is created.” Thereafter in Emperor ..vs.. Dulli and ors.; 1925 ILR (VOL.XLVII) Allahabad Series 59 it is held as follows: “Before section 397 of the Indian Penal Code can be made applicable it is necessary that each of the accused should be proved to have been the offender doing the acts mentioned therein. When section 397 does not refer to any substantive offence, section 34 of the Indian Penal Code would be inapplicable. For the purposes of section 397 all the persons participating in the dacoity would not be held responsible for the acts of the others.” In PhoolKumar ..vs.. Delhi Administration; 1975 CRI. When section 397 does not refer to any substantive offence, section 34 of the Indian Penal Code would be inapplicable. For the purposes of section 397 all the persons participating in the dacoity would not be held responsible for the acts of the others.” In PhoolKumar ..vs.. Delhi Administration; 1975 CRI. L. J. 778, the Supreme court held as under: “The use of a deadly weapon by one offender at the time of committing robbery cannot attract S.397 for the imposition of the minimum punishment on another offender who had not used any deadly weapon.” The apex Court in Ashfaq..vs.. State (Govt of NCT of Delhi), 2004 CRI.L.J. 936 explained the provision of S.397 I.PC. and held as follows: “No doubt the provision postulates only the individual act of the accused to be relevant to attract S. 397, I.P.C. and thereby inevitably negates the use of the principle of constructive or vicarious liability engrafted in S.34, I.P.C.” In view of the aforesaid legal position, framing the charge simplicitor under S.397 of the IPC was contrary to law. Further, applying S.34 to S.397 of the IPC was another defect in the charge as well as in recording conviction of the accused under S.397 r/w S. 34 of the IPC. 16. In the present case, the evidence fell short to prove beyond reasonable doubt that accused no.1 inflicted stab wound on the person of PW1Imran Khan. The question is; whether conviction under S.307 r/w S. 34 is sustainable? In fact, when the charge was framed under S.397, which embodies the ingredients of voluntarily causing hurt or attempting to cause death in commission of robbery or dacoity, then there was no necessity of charging the accused under S.307 of the IPC. 17. In the case of Mahabir Singh. .vs.. State of U.P.; 1997 CRI. L. J. 1703; the accused was charged with the offence punishable under Ss.302; 394 of the IPC. While upholding the conviction of the accused under S.394, their conviction under S.302 r/w S.34 was set aside. It was observed by the Division Bench of the Allahabad High Court that: “However, no evidence adduced to show who had assaulted deceased during robbery or that there was common intention to kill her. In absence of such evidence, accused could not be convicted under Ss. 302/32 IPC.” Rajjo alias Gingin and etc. ..vs.. The State; 1999 CRI. It was observed by the Division Bench of the Allahabad High Court that: “However, no evidence adduced to show who had assaulted deceased during robbery or that there was common intention to kill her. In absence of such evidence, accused could not be convicted under Ss. 302/32 IPC.” Rajjo alias Gingin and etc. ..vs.. The State; 1999 CRI. L. J. 2996, was a case before the Division Bench of the Allahabad High Court wherein two accused persons were charged with offence of committing robbery and murder. It was held that offence under S.395 of the IPC was made out against both the persons, whereas only one accused, who actually caused death was convicted under S. 304II of the IPC. Similarly, in Kushaland ors. ..vs.. State; 2003 CRI. L. J. 3458, the Court held as follows: “However since common intention of other accused was not to cause death of deceased but only to relieve her of her ornament, accused who assaulted her with tabbal convicted for offence of murder and other accused convicted for offence of robbery.” 18. In the light of aforesaid legal position and in the premise of the evidence brought on record, the conviction of the accused under S.397 r/w S.34 and S.307 r/w S.34 of the IPC will have to be set aside. Instead, the accused would be liable to be convicted for an offence punishable under S.394 r/w S.34 of the IPC. 19. On the point of sentence, Mr. Daga, the learned counsel for the appellant, contended that when the incident occurred, accused no.1 was just 19 years old. Arrest Memo Exh.43 supports his contention about the age of accused at the time of incident. He further contended that the appellant-accused had performed marriage and has children and is leading a peaceful life by serving as driver of the vehicle. Considering the gravity of the offence in which the PW1Imran Khan was stabbed on vital part by one of the four culprits in the night and on public road, reducing the sentence to the period already undergone i.e. about 270 days would amount to showing too much leniency. In such a case, punishment has to be of deterrent nature. In the facts and circumstances of the present case, two years' imprisonment would meet the ends of justice. 20. In this view of the matter, following order is passed. The appeal is allowed partly. In such a case, punishment has to be of deterrent nature. In the facts and circumstances of the present case, two years' imprisonment would meet the ends of justice. 20. In this view of the matter, following order is passed. The appeal is allowed partly. The judgment and order dated 12.09.2007 passed by Sessions Judge, Nagpur in Sessions Trial No.132/2007, convicting the appellant/accused no.1 for an offence punishable under S.397 r/w S.34 and under S.307 r/w S. 34 of the IPC is quashed and set aside. Instead, the appellant/accused no.1 is convicted for an offence punishable under S.394 r/w S.34 of the IPC and sentenced to suffer Rigorous Imprisonment for two years and to pay a fine of Rs.500/(Rs. Five Hundred Only), in default to suffer Rigorous Imprisonment for one month. It is submitted that the fine has already been deposited. The accused, who is on bail, shall surrender to his bail bonds to serve out remaining part of the sentence. Two weeks time is granted to surrender.