JUDGMENT : Sadhana S. Jadhav, J. 1. Applicant herein was tried along with two others by Ad hoc Assistant Sessions Judge in Sessions Case No. 713/2006 for offences punishable under sections 452, 393, 394, 398, 307r/w. 34 of Indian Penal Code and section 3 r/w. 25/27 of the Indian Arms Act. Learned Ad-hoc Assistant Sessions Judge was pleased to acquit the original accused No. 2 of all the charges levelled against him. Original accused No. 3 had died. Present applicant was convicted of all the charges levelled against him and sentenced to undergo rigorous imprisonment for three years and pay fine of Rs. 5,000/- i.d. to suffer simple imprisonment for one year, for offence punishable under section 452 r/w. 34 of Indian Penal Code. He was sentenced to undergo rigorous imprisonment for seven years and fine of Rs. 5,000/- i.d. to suffer simple imprisonment for one year for offence under section 394 & 398 of Indian Penal Code and 326 r/w. 34 of Indian Penal Code on each count. For offence under section 3 r/w. 25 of the Indian Arms Act, he was sentenced to undergo rigorous imprisonment for three years and fine of Rs. 1,000/- i.d. to suffer simple imprisonment for six months vide Judgment and Order dated 15/11/2007. Being aggrieved by the said Judgment and Order, applicant herein had filed Criminal Appeal No. 674/2007 before Sessions Court. Learned Additional Sessions Judge, Greater Bombay, vide Judgment and Order dated 03/03/2010 was pleased to dismiss the appeal. Hence, this Revision Application. 2. Such of the facts necessary for the decision of this Revision Application are as follows. 3. One Zaverilal Bhansali along with Ramesh Bhansali runs a Jewellers shop at Mulji House. Mumbai in the name and style of 'Mahavir Associates'. Mangilal Bhansali, their cousin also runs jewellers shop in the name of "Mahavir Jewellers" at Prabhadevi road. On 04/04/2006, at about 2.00 pm, Zaverilal and Ramesh were in the shop. Mangilal had been to their shop. Two persons intruded into the shop, brandished their pistols and asked the brothers to hand over all the gold and silver ornaments from the shop. Mangilal and Zaverilal raised cries. They blew the siren in the shop. They grappled the first intruder. One of the associates of two intruders was standing guard outside the shop. Upon hearing the shouts and siren, the second intruder ran out of the shop. Mangilal and Zaverilal raised cries. They blew the siren in the shop. They grappled the first intruder. One of the associates of two intruders was standing guard outside the shop. Upon hearing the shouts and siren, the second intruder ran out of the shop. In the meanwhile, the brothers had apprehended the first intruder. After second intruder had run out of the shop, the glass was broken and three rounds of revolver were fired from outside. One of the rounds had struck Zaverilal on the right thigh and he fell down. The first intruder attempted to flee from the shop, however, he collided with the person outside who caught hold of him, however, other two accused accompanying the first intruder had succeeded in fleeing away. The people who gathered near the shop had taken the accused to Prabhadevi Police Station. In the meanwhile, one person was knocked down by the motor cyclist in an accident. The injured was brought to Prabhadevi Police Station. It appeared that he was also partisan in the said offence. Fire arms were recorded from both the accused. Zaverilal was taken to Hinduja Hospital. Mangilal was present in the hospital. He narrated the incident to the police. On the basis of the report of Mangilal, Crime No. 123/2006 was registered against the accused. Investigation was set in motion. After completion of investigation, charge-sheet was filed against accused. In the course of investigation, Test Identification Parade was held and the witnesses had identified the accused. 4. At the time of trial, prosecution examined 18 witnesses to bring home guilt to the accused. Material evidences are P.W. 1 Mangilal Bhansali i.e. first informant. P.W. 2 Zaverilal Bhansali who is injured and P.W. 3 Ramesh Bhansali, investigating officers, etc. 5. P.W. 1 Mangilal Bhansali has deposed before the Court in accordance with his first statement. According to him, present applicant was the first intruder in the shop. He had brandished his pistol and had demanded golden and silver ornaments from the complainant and his brothers. It is pertinent to note that according to him, present applicant was apprehended in the shop itself. Accused No. 2 had managed to escape from the clutches of the informant and his brothers. Within seconds, the glass door was broken by a revolver. It is pertinent to note that according to him, present applicant was apprehended in the shop itself. Accused No. 2 had managed to escape from the clutches of the informant and his brothers. Within seconds, the glass door was broken by a revolver. It is therefore, clear that the role attributed to the present applicant was demand of golden and silver ornaments on the point of revolver. He was accompanied by accused 2 and 3 who were standing guard outside the shop. He was confronted with the previous statement. Portion marked 'A' from his statement under section 161 of Code of Criminal Procedure indicated that second intruder who went out actually fired round and broke the glasses by the butt of the revolver. This was brought to the notice of the witness and witness had said that it is incorrect. There are omissions and contradictions in the evidence of P.W. 1. There is a discrepancy in the description of the accused in the previous statement and in the supplementary statement. 6. Zaverilal has also deposed just in line with P.W. 2. According to him, first intruder i.e. present applicant had escaped from the clutches of Mangilal and he was attempting to flee, he was nabbed by the public. According to him, second intruder had escaped the clutches, fled from the spot and thereafter, broke the glass by firing the round. According to witness, Vinayak, accused No. 2 was not present at the time of recording of evidence. He has further stated that third person was standing outside the shop and threatening the public at large. 7. P.W. 3 Ramesh Bhansali was the one who had raised cries. He has also deposed in line with P.W. I & 2. He has categorically deposed before the Court that accused No. 1 Arvind is the one whom he had apprehended and accused No. 2 was the one who was standing outside the shop, pointing revolver to the public and was apprehended by the public. On 12/04/2006, the witness was shown the dead body of one of the accused persons. P.W. 3 has specifically admitted that dummies paraded at the Test Identification Parade were of different heights, complexions, etc. 8. P.W. 4 is an independent person who was engaged in the business of repairs of motor cycle. He had nabbed the accused outside the shop. On 12/04/2006, the witness was shown the dead body of one of the accused persons. P.W. 3 has specifically admitted that dummies paraded at the Test Identification Parade were of different heights, complexions, etc. 8. P.W. 4 is an independent person who was engaged in the business of repairs of motor cycle. He had nabbed the accused outside the shop. He has specifically admitted in the cross-examination that he went on the scene after hearing the shouting. As far as Test Identification Parade is concerned, he admits that it was conducted in an open place and it was visible. The dummies were of different appearances, height, complexion and body constitution. The person identified by him had an injury to his head. He has admitted in the cross-examination that he would not be able to say as to whether the accused No. 1 i.e. present applicant was the same person, whom he had nabbed at the time of incident. There is a contradiction in respect of original accused No. 2. 9. P.W. 5 Rohit Nishad was declared hostile. 10. P.W. 6A.S.I. RamdasAmbre was attached to Dadar Police Station. According to him, on 04/04/2006, while he was on duly at about 2.15 pm, he heard some shouts from Prabhadevi Road. Some police officers were proceeding towards Veer Sawarkar Road. A person armed with revolver was apprehended by public. They took charge of the said person and took him to police chowky. The said person had disclosed his name as Arvind i.e. present applicant. In his personal search, police had found five live cartridges along with cellphone and cash. Another person was found lying injured on the road. In his personal search, police found a revolver and rexine bag contending 22 cartridges. There were six cartridges in the revolver. The statement of the said witness was recorded on 06/04/2006. 11. P.W. 7 Mahendra Vace is an independent witness who had seen the accused being arrested and he was also witness to the seized revolver. 12. P.W. 8 P.S.I. Jalindar Thorat was on duty on the wireless van of Dadar Police Station. 13. P.W. 9 is Special Executive Officer who conducted Test Identification Parade. He has admitted before the Court that there was variance in appearances of original accused No. 1 & 2 and yet he had conducted a common Test Identification Parade. 12. P.W. 8 P.S.I. Jalindar Thorat was on duty on the wireless van of Dadar Police Station. 13. P.W. 9 is Special Executive Officer who conducted Test Identification Parade. He has admitted before the Court that there was variance in appearances of original accused No. 1 & 2 and yet he had conducted a common Test Identification Parade. He has admitted that accused No. 2 Vinayak was brought on a wheel chair during Test Identification Para Je and has also admitted that dummies paraded were of different age groups, body constitution, complexion and heights. It is also admitted that accused and dummies were brought in for identification parade in the presence of panchas. 14. P.W. 10 Babulal Soni had reached the shop of Mahavir Jewellers after the incident. He has stated that nothing was seized in his presence. Panchanama was not read over to him. Hence, he was declared hostile. Similarly P.W. 11, Rashtrapol Waghmare, the panch is also declared hostile. 15. P.W. 12 Jitendra Jain was also called as a panch at the time of obtaining finger prints. He had admitted in the cross-examination that he is a good friend of Mangilal, Zaverilal& Ramesh. 16. P.W. 13 Vinayak Palav is finger print expert. According to him, finger prints were of the accused No. 1. He has identified the same with the specimen finger prints brought by the police constable from Dadar Police Station. 17. P.W. 14 Shersingh Jain was also called as panch. Me has deposed that accused No. 1 Arvind had injuries on his head and accused No. 2 had injuries on his hand. He has admitted before the Court that accused No. 1 was assaulted by the public. 18. P.W. 15 Santosh Chavan is the Medical Officer who had examined Arvind i.e. present applicant at 3.20 pm and had sutured the wounds. M.L.C. Is at Exhibit 43. M.1..C. of accused No. 2 is at Exhibit 44. 19. P.W. 16P.S.I. MarutiPatil& P.W. 17 P.S.I. Sarjerao Kankare investigating officers. They have proved the omissions and contradictions of the witnesses. 20. P.W. 18 Subhash Raikar attached to Dadar Police Station is also investigating officer who has proved the sanction for prosecution under the Arms Act. Learned Sessions Judge has acquitted the original accused No. 2 on the ground that there is ambiguity as to whether he was the person who had fired on the glass from outside the shop. 20. P.W. 18 Subhash Raikar attached to Dadar Police Station is also investigating officer who has proved the sanction for prosecution under the Arms Act. Learned Sessions Judge has acquitted the original accused No. 2 on the ground that there is ambiguity as to whether he was the person who had fired on the glass from outside the shop. In respect of accused No. 2, learned Sessions Court has placed implicit reliance upon lest Identification Parade and has held that prosecution has not proved the presence of original accused No. 2. 21. It appears that both the Courts have convicted the present applicant on the ground that he was nabbed at the spot in the shop by P.W. 1. 2 & 3 and that witnesses had established his presence and the role attributed to him to the extent that he had brandished the revolver for demanding the ornaments. Present applicant had not caused any injury to Zaverilal. Applicant had not fired the revolver from outside the shop. It is true that prosecution has established the charge under section 452 of Indian Penal Code as against present applicant. 22. Present applicant has been convicted under section 394 of Indian Penal Code which contemplates: "if any person, in committing or in attempting to commit robbery, voluntarily causes hurt, such person, and any other person jointly concerned in committing or attempting to commit such robbery, shall be punished with [imprisonment for life], or with rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine." 23. The prosecution has established that present applicant had committed offence along with two other persons. Although, accused No. 2 is acquitted, there is no appeal against acquittal filed by the State as against the original accused No. 2. He has been acquitted on the ground of faulty investigation and the lacunas in the Test Identification Parade as well as the discrepancies in the evidence of material witnesses. However, it is clear that present applicant had shared the common intention along with original accused No. 2, although, he had not actually caused hurt to Zaverilal, he would be liable for conviction under section394 as it contemplates the involvement of other person, jointly concerned in committing or attempting to commit such robbery. However, it is clear that present applicant had shared the common intention along with original accused No. 2, although, he had not actually caused hurt to Zaverilal, he would be liable for conviction under section394 as it contemplates the involvement of other person, jointly concerned in committing or attempting to commit such robbery. The present appellant not only caused hurt but conjointly with the other accused and hence he would be liable for the offence as contemplated by section 394 of Indian Penal Code. The appellant had committed criminal trespass into the shop and therefore, his conviction under section 452 deserves to be upheld. The prosecution has established the charge under section 394, 326 and 393 of Indian Penal Code. Charge under section 398 of Indian Penal code as against present applicant is not established, however, applicant is also convicted and sentenced under section 3 r/w. 25 & 27 of Indian Arms Act and is sentenced to rigorous imprisonment for 3 years and fine of Rs. 1,000/-. "ORDER (i) The Revision Application is partly allowed. (ii) The conviction of the applicant for offences punishable under Section 452, 394, 393 and 326 is upheld. (iii) The applicant is acquitted for offence punishable under Section398 of the Indian Penal Code. (iii) The applicant was sentenced to suffer 3 years rigorous imprisonment for offence punishable under Section 452 of the Indian Penal Code. He has undergone the said sentence inclusive of the default sentence. (iv) For offences punishable under Section 394 and 326 read with Section 34 of the Indian Penal Code, the applicant has been sentenced to suffer R.I. for 7 years and fine of Rs. 5000/- i.d. to undergo S.I. for one year. Taking into consideration the fact that the applicant has undergone the substantive sentence of 4 years, 9 & 1/2 months, he is sentenced to the period already undergone. (v) The sentence of fine for offence punishable under Section 452 of the Indian Penal code is maintained. (vi) The sentence of fine awarded for offence punishable under section 394 and 326 read with Section 34 is modified to the extent that he is sentenced to a fine of Rs. 1000/- on each count, in default to undergo S.I. for 15 days. (vii) No separate sentence is awarded for offence punishable under Section 393 read with Section 34 of the Indian Penal Code. 1000/- on each count, in default to undergo S.I. for 15 days. (vii) No separate sentence is awarded for offence punishable under Section 393 read with Section 34 of the Indian Penal Code. (viii) The conviction of the applicant for offence punishable under Section 3 read with 25 read with 27 of the Indian Arms Act is quashed and set aside. He is acquitted of the said charge. (ix) The applicant be released subject to the condition that he deposits the fine amount." The Revision Application is disposed of accordingly.