JUDGMENT : 1. The appellants have preferred this appeal under Section 374 (2) of the Code of Criminal Procedure, 1973 against the judgment and order dated 28.10.2013 passed by learned 7th Additional Sessions Judge, Nadiad, in Sessions Case No.100 of 2010, whereby the appellants-original accused nos.1 and 3 are held guilty for the offences punishable under Sections 394, 397 read with Section 34 of the Indian Penal Code and sentenced to suffer rigorous imprisonment for seven years and to pay fine of Rs.500/- for each offence and, in default of payment of fine, eight days imprisonment was awarded for each of the offence, however, the sentences were ordered to run concurrently and the accused has been given set off. 2. As per the case of the complainant, on the fateful day, the accused hired his rickshaw from Ghodasar Crossroads bearing registration No.GJ-1-BU-5928 for going to Bhumapura for Darshan. It is alleged that the fare of Rs.250/- was agreed to be paid for the journey. When the rickshaw crossed Amsaran Patiya, the accused persons asked to stop the rickshaw to answer the nature’s call. Out of the four accused persons, one thrown shawl on the face of the complainant and dragged him to the field and caused serious injuries by a sharp edged weapon. It is also alleged that the accused persons looted the rickshaw worth Rs.75,000/-, one mobile phone of Samsung company, a wrist watch, and Rs.150/- cash from the complainant. With such allegations, a complaint was filed against the accused persons and investigation commenced. 2.1 During the course of investigation, it is found that the accused formed an unlawful assembly to commit the offence and after committing the robbery decided to sell the rickshaw and though the accused were knowing that this rickshaw is of robbery, they tried to sell it by keeping it at different places. Since the rickshaw could not be sold, they left it unattended, which was recovered by the police. As the sufficient evidence was found against the accused persons, charge sheet was filed in the Court of learned Judicial Magistrate. 2.2 As the offence was triable by Court of Sessions, the learned Magistrate committed the case to the Court of Sessions under Section 209 of the Criminal Procedure Code. The learned Sessions Judge framed charge against the accused. The charge was read over and explained to the accused. 2.2 As the offence was triable by Court of Sessions, the learned Magistrate committed the case to the Court of Sessions under Section 209 of the Criminal Procedure Code. The learned Sessions Judge framed charge against the accused. The charge was read over and explained to the accused. The accused denied all the charges and pleaded to be tried. Hence, the prosecution was asked to prove the guilt against the accused. 2.3 To prove the guilt against the accused, prosecution examined following witnesses:- Sr. No. Name of the witness Exh. 1 Manthan Namish Patel 66 2 Dr. Dinesh Ramanbhai Patel 70 3 Kuldipsinh Mahendrasinh Rajput 74 4 Lalkrushna Ramabhai Sundarsath 93 5 Vitthalbhai Tisabhai Parmar 98 6 Harishbhai Narottamdas Parmar 99 7 Mohammadmiya Punjamiya Malek 101 8 Chimanbhai Galabhai Khristi. 107 9 Manibhai Kanjibhai Makwana 109 10 Govindbhai Vashrambhai Rabari 112 11 Alpeshbhai Gordhanbhai Sharma 117 12 Mohammadmiya Husainmiya Malek 127 13 Kanubhai Hothabhai Bhoi 129 14 Dineshbhai Chhotalal Barot 138 15 Somabhai Desaibhai Sodha 144 16 Kanubhai Udesinh Sodha 150 17 Vinubhai Mafatbhai Makwana 160 18 Sureshbhai Maangilal Rana 167 19 Siyaram Chiranjilal Rana 169 20 Virendrabhai Arvindbhai Patel 175 21 Pirsabbhai Nizambhai Chauhan 177 22 Udesinh Budhabhai Sodha 178 23 Ramesbhai Kabhaibhai Sodha 185 24 Budhabhai Chhotabhai Sodha 186 25 Vijaybhai Chhotabhai Dabhi 187 26 Abhesing Dhulabhai Chauhan 188 27 Usmangani Mohammadkhan Pathan 192 28 Kantibhai Ishwarbhai Patel 199 29 Yadav Girvantsinh Samantsinh 202 30 Sandip Mahendrasinh Rajput 204 31 Jayeshbhai Manubhai Parghi 206 32 Vimlaben Mahendrasing Rajput 215 33 Maheshbhai Girdharbhai Chauhan 216 34 Manharbhai Naranbhai Makwana 218 35 Jesingbhai Ranchhodbhai Chauhan 220 36 Girishbhai Vashrambhai Vaghela 222 37 Randhirsinh Sardarsinh Dodiya 225 38 Abdulmiya Anvarmiya Malek 226 39 Rameshbhai Khemjibhai Modhiya 227 2.4 The prosecution has also led following documentary evidence:- Sr. No. Document Exh. 1 Complaint of the complainant Kuldipsinh Rajput dated 26.12.2009. 66 2 Panchnama of the place of offence shown by the complainant dated 26.12.2009. 102 3 Panchnama of the cloths of the complainant, which he was wearing at the time of offence dated 27.12.2009. 116 4 Panchnama dated 3.1.2010 of the mobile phone produced by the witness. 108 5 Panchnama dated 27.1.2010 of the muddamal recovered from accused Chetan @ Jitubhai, accused Chirag @ Chichu and Lakhvirsing @ Bablu. 118 6 Panchnama dated 27.1.2010 of the physical condition of the accused. 116 4 Panchnama dated 3.1.2010 of the mobile phone produced by the witness. 108 5 Panchnama dated 27.1.2010 of the muddamal recovered from accused Chetan @ Jitubhai, accused Chirag @ Chichu and Lakhvirsing @ Bablu. 118 6 Panchnama dated 27.1.2010 of the physical condition of the accused. 128 7 Panchnama dated 29.1.2010 for recovery of the muddamal knife shown by accused Chiragkumar. 139 8 Panchnama dated 1.1.2010 of the CNG rickshaw found in unattended position. 145 9 Panchnama of investigation of the CNG rickshaw which was taken into possession. 161 10 Panchnama dated 1.2.2010 of the physical condition of the accused-Sandipkumar and the muddamal recovered from him. 168 11 Panchnama dated 1.2.2010 of the physical condition of the accused Sanjay and Bharatbhai. 170 12 Panchnama dated 2.2.2010 of the physical condition of the accused Kalubhai @ Kabhai. 171 13 Panchnama dated 2.2.2010 of seizure of autorickshaw bearing no.GJ-7 TT-3385. 179 14 Panchnama dated 3.2.2010 of recovery of mobile phone used in the offence by the accused. 176 15 Panchnama dated 6.2.2010 of the physical condition of the accused-Bhavnaben. 172 16 Medical certificate of the complainant dated 11.1.2010. 71 17 Medical certificate of the V.S. Hospital dated 13.2.2010. 68 18 Report of FSL investigation van dated 26.12.2009. 228 19 Report of FSL mobile van dated 1.2.2009. 229 20 Dispatch note. 230 21 FSL receipt dated 24.2.2010. 231 22 FSL letter dated 9.4.2010. 232 23 FSL report dated 8.4.2010. 233 24 FSL serological report dated 8.4.2010. 234 25 FSL letter dated 8.6.2010. 235 26 FSL report dated 5.6.2010. 236 27 Extract of Shivshakti Guest House. 200 2.5 After considering the evidence on record, learned trial Court has convicted the accused by the impugned judgment, as aforesaid. Being aggrieved by the impugned judgment, the appellants have preferred present appeal. 3. Learned advocate Ms. Mayuri Chauhan appearing for the appellants has submitted that originally there were seven accused persons, out of which learned trial Court has convicted three accused and only two of them have preferred present appeal. She further submitted that out of these two accused, one accused viz. Chirag has already undergone the entire sentence awarded by the trial Court and, therefore, present appeal survives only qua Sandipkumar @ Jitu Maganlal Rana. According to her submission, learned trial Court has convicted present appellant under Section 394 read with Section 34 and also under Section 397 read with Section 34 of the IPC. Chirag has already undergone the entire sentence awarded by the trial Court and, therefore, present appeal survives only qua Sandipkumar @ Jitu Maganlal Rana. According to her submission, learned trial Court has convicted present appellant under Section 394 read with Section 34 and also under Section 397 read with Section 34 of the IPC. She has read entire evidence on record and submitted that as per the evidence on record, knife was brought and used by juvenile accused, and there was no use of any deadly weapon by present accused-Sandip. She has also submitted that Sandip has not brought the knife and has not used the same, hence, he may be acquitted from the offence under Section 397. She has also stated that on the same facts and evidence, learned trial Court has given benefit of doubt to accused nos.4 to 7 and same benefit may be given to present accused-Sandip. While referring to the evidence on record, she has submitted that it was an attempt of robbery of rickshaw and rickshaw was found from the highway and, therefore, there is no complete robbery of rickshaw. She has also referred to identification parade and has stated that while carrying out the identification parade, the Executive Magistrate has not made change of the persons nor has re-shuffled them, though identification parade was carried out for different persons for two times. She has also submitted that the discovery of knife was from the closed house and it does not belong to Sandip. According to her submissions, the incident had happened in the mid night of winter and the accused were wearing shawl and cap, and therefore, the complainant could not have identified them at the relevant time. While referring to the charge, she has submitted that entire episode and motive for the incident was that brother of Chirag was in jail and to get him released on bail money was required and, therefore, this offence might have been committed. She has also submitted that according to the complainant, at the time of incident head of the complainant was covered with shawl and this shawl has not been recovered by the prosecution. She has also referred to the evidence and submitted that there is no call details obtained by the police to show that the accused were talking to each other at the relevant time. She has also referred to the evidence and submitted that there is no call details obtained by the police to show that the accused were talking to each other at the relevant time. There is no meeting of minds and, therefore, Section 34 cannot be applied in respect of the present accused-Sandip. She has also stated that whatever injury has been caused to the complainant was a simple one and which was caused by minor accused, who has been acquitted by the concerned Court. She has prayed to acquit Sandip from all the charges levelled against him by setting aside the impugned judgment so far as present appellant Sandip is concerned. She has relied on following decisions. (1) Mullu and Another v. State of U.P. reported in 2010 (2) GLH 471. (2) Decision of Delhi High Court in the case of Ravinder Kumar v. State passed in Criminal Appeal No.10 of 1988 dated 14.3.1991. (3) Decision of Karnataka High Court, Circuit Bench at Gulbarga in the case of Sharanu @ Sharanappa v. State of Karnataka passed in Criminal Appeal No.3557 of 2008 and allied appeal on 21.2.2013. 4. Per contra, learned APP, Ms. Jirga Jhaveri has submitted that there is ample evidence on record to show that the present accused Sandip was involved in the crime. According to learned APP, the accused have been identified by not only the complainant but they have been identified by hotel owner and manager of the hotel where the accused stayed after the incident. She has also submitted that from the evidence, it transpires that there was common intention and meeting of minds of the accused and they were going together by sitting in a rickshaw and it was their plan to rob the rickshaw or any vehicle. She has also referred to medical evidence and has stated that the complainant has got serious injury and the knife was discovered by the discovery panchnama, which has been proved. According to her submission, as Section 34 of the IPC has been applied, argument regarding individual role of the appellant is devoid of merits. She has submitted that the judgment of conviction and sentence passed by learned trial Court is legal and proper and it may be confirmed. According to her submission, as Section 34 of the IPC has been applied, argument regarding individual role of the appellant is devoid of merits. She has submitted that the judgment of conviction and sentence passed by learned trial Court is legal and proper and it may be confirmed. 4.1 Regarding the judgments relied upon by learned advocate for the appellant, learned APP submitted that the judgments are factually not applicable to the facts of the present case and rather observations made in the judgment of the Supreme Court, Mullu and Another v. State of Uttar Pradesh (supra), are supporting the case of the prosecution. She has prayed to dismiss the present appeal. 5. Heard learned advocate for the appellants and learned APP appearing for the respondent-State. I have also gone through the impugned judgment and relevant evidence available on record. 6. On perusal of the record, it transpires that there is no dispute that filing of the complaint against the present accused and acquittal of four accused by giving benefit of doubt by the trial Court. It also reveals that out of three accused who have been convicted and sentenced by the trial Court only two accused have preferred present appeal. It is also found that the person, who has not filed the appeal has undergone entire sentence, whereas out of present two accused-appellants, Chiragkumar @ Chichu Sureshbhai Babula Joshi has also served out the entire sentence. Therefore, as stated by learned advocate for the appellant, the appeal has become infructuous so far as accused Chiragkumar @ Chichu Sureshbhai Babula Joshi is concerned. Therefore, the evidence against the remaining accused viz. Sandipkumar @ Jitu Ramjilal Mangilal Rana is required to be considered. 6.1 On perusal of the entire evidence on record, it transpires that the complainant in his evidence has corroborated the facts of the complaint and has also identified the present accused in the Court as well as during test identification parade. The evidence also reveal that the present accused was accompanying remaining accused and was sitting in the rickshaw of the complainant along with other accused. Of course, it has been contended by the appellant that version of the complainant regarding identifying the accused cannot be believed as during robbery the accused had covered his head by shawl but the complainant has categorically stated that while the accused boarded his rickshaw from Ghodasar he had seen the accused. Of course, it has been contended by the appellant that version of the complainant regarding identifying the accused cannot be believed as during robbery the accused had covered his head by shawl but the complainant has categorically stated that while the accused boarded his rickshaw from Ghodasar he had seen the accused. Thus, at the relevant time, he might have seen the accused. He has also stated that three accused were of slim body, wearing pant-shirt, aged around 25 years and two of them had covered their faces with shawl. He has been thoroughly cross-examined on behalf of the accused with regard to identification of the accused, however, nothing fruitful has come out. 6.2 From the evidence of the Executive Magistrate, Exh.93, it is found that during identification parade the complainant has identified accused persons one by one. The grievance of the accused is that the T.I.parade was not carried out as per the prescribed procedure and there was no re-shuffling of the persons, who were in queue and there was no re-shuffling of the panchas also and no person similar to accused have been kept in the T.I.parade. During his cross-examination, the Executive Magistrate has admitted these facts. It is also revealed from this evidence that police station and office of the Executive Magistrate are in the same compound. On a perusal of decision in Mullu and Another v. State of Uttar Pradesh (supra), it is clear that while referring to many decisions on T.I.parade, it has been observed in paragraphs 31 and 32 as under:- “31. The identification parades are not primarily meant for the Court. They are meant for investigation purposes. The object of conducting a test identification parade is two-fold. First is to enable the witnesses to satisfy themselves that the accused whom they suspect is really the one who was seen by them in connection with the commission of the crime. Second is to satisfy the investigation authorities that the suspect is the real person whom the witnesses had seen in connection with the said occurrence. 32. First is to enable the witnesses to satisfy themselves that the accused whom they suspect is really the one who was seen by them in connection with the commission of the crime. Second is to satisfy the investigation authorities that the suspect is the real person whom the witnesses had seen in connection with the said occurrence. 32. Therefore, the following principles regarding investigation parade emerge: (1) an identification parade ideally must be conducted as soon as possible to avoid any mistake on the part of witnesses; (2) this condition can be revoked if proper explanation justifying the delay is provided; and, (3) the authorities must make sure that the delay does not result in exposure of the accused which may lead to mistakes on the part of the witnesses.” 6.3 Though it is found that there was some irregularity in conducting the identification parade, it does not go to the root of the case as the complainant has specifically identified the accused in T.I.parade as well as in the Court. 6.4 So far as judgment in the case of Sharanu @ Sharanappa v. State of Karnataka (supra) is concerned, it is found that this case was also relating to case of robbery. Accused were convicted under Sections 394 and 397 of IPC along with offence punishable under Section 25 of the Arms Act. Considering the factual aspect of the case, conviction under Section 394 and 397 of IPC was set aside and conviction under Section 25 of the Arms Act against accused no.1 was confirmed. 6.5 It is pertinent to note that witness no.29, Yadav Girvatsinh Samantsinh, in his evidence at Exh.202, has categorically stated that on the date of the incident, the accused had stayed in his guest house and this witness has identified all the accused in the Court. At the same time, the owner and manager of the guest house, Shri Kantibhai Ishwarbhai Patel, in his deposition at Exh.199 has also identified the accused and has produced the copy of the hotel register at Exh.200. From the copy of the register, it is revealed that mobile number of the accused and the number of the rickshaw in which they have reached to the guest house have also been mentioned. 6.6 It is found from the evidence of the police witnesses that during investigation, the accused were arrested. From the copy of the register, it is revealed that mobile number of the accused and the number of the rickshaw in which they have reached to the guest house have also been mentioned. 6.6 It is found from the evidence of the police witnesses that during investigation, the accused were arrested. There is sufficient evidence for connecting the accused with the offence. Upon perusal of the impugned judgment, it is clearly transpired that learned trial Court has rightly convicted three accused and has given benefit of doubt to remaining four accused. Therefore, contention on behalf of the accused-Sandipkumar for his acquittal cannot be acceded to. Of course, it is found that he has been convicted under Section 394 read with Section 34 of IPC and has been punished for rigorous imprisonment of seven years and fine of Rs.500/- and, in default thereof to undergo simple imprisonment of 8 days. It also reveals that that he is also convicted with the aid of Section 34 for the offence under Section 397 of IPC and has been awarded 7 years of imprisonment and fine of Rs.500/- and in default thereof to suffer simple imprisonment of 8 days. 6.7 At this stage, it is relevant to reproduce Sections 397 and 34 of the IPC for the purpose of considering the role of the present appellant. “397. Robbery, or dacoity, with attempt to cause death or grievous hurt.—If, at the time of committing robbery or dacoity, the offender uses any deadly weapon, or causes grievous hurt to any person, or attempts to cause death or grievous hurt to any person, the imprisonment with which such offender shall be punished shall not be less than seven years.” “34. Robbery, or dacoity, with attempt to cause death or grievous hurt.—If, at the time of committing robbery or dacoity, the offender uses any deadly weapon, or causes grievous hurt to any person, or attempts to cause death or grievous hurt to any person, the imprisonment with which such offender shall be punished shall not be less than seven years.” “34. Acts done by several persons in furtherance of common intention.—When a criminal act is done by several persons in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if it were done by him alone.” 6.8 In the case of Ravindrankumar v. State (supra), it appears that there was a case of robbery wherein while committing robbery, hurt was caused to the complainant on his thigh by a knife and both the accused ran away from the scene of offence, thereafter they were prosecuted and tried for offence punishable under Section 394 read with Section 34 and under Section 397 of IPC and they were convicted. Against their conviction appeal was filed before Honourable High Court wherein there was a question as to whether the punishment should be awarded under Section 394 read with Section 34 of IPC or only for offence under Section 397 read with Section 34 of IPC. While answering this point, it was observed by Delhi High Court that Section 397 of IPC does not create “substantive offence” but merely prescribed minimum sentence for the offence of robbery and dacoity under the circumstances mentioned in the Section. It was also observed therein that this Section relates to offender and essential ingredients of the offence are (i) offence of dacoity or robbery must have been committed, (ii) offender should have taken part in the offence, (iii) the offender should have used deadly weapon or caused grievous hurt at the time of committing offence. While referring to Section 397 of IPC, it was observed therein that Section 397 of IPC implies word “use of any deadly weapon”. Therefore, deadly weapon was used for the purpose of creating such an impression upon the mind of a person that he was compelled to part with his property, that would amount to use of weapon within the meaning of Section 397. Therefore, deadly weapon was used for the purpose of creating such an impression upon the mind of a person that he was compelled to part with his property, that would amount to use of weapon within the meaning of Section 397. Considering the facts of the case that it was apparent that the provisions of Section 397 of IPC was not at all attracted against the concerned appellant as the complainant could not tell which of the appellants used knife and caused injury to him. It is also observed therein that it is settled law that to bring case within the purview of Section 397 of IPC, the accused must be proved to have used deadly weapon. While confirming sentence under Section 394 read with Section 34 of IPC, sentence under Section 397 was set aside. 6.9 Now so far as the present case and conviction of the accused-Sandipkumar under Section 397 read with Section 34 is concerned, it is found from the evidence that, at the relevant time, deadly weapon knife was used by one minor accused and the present accused, Sandipkumar was not having any deadly weapon in his hand. In view of Section 397, a person who has used deadly weapon can be punished and can be awarded punishment but in view of wording of Section 397 of IPC, a person who has not used any deadly weapon at the time of committing robbery cannot be convicted for the said offence with the aid of Section 34. My this view has been fortified by the decision in the case of Phool Kumar v. Delhi Administration reported in AIR 1975 SC 905 , wherein Honourable Supreme Court has held in paragraph 5 to the following effect. “5. Section 392 of the Penal Code provides: "Whoever commits robbery shall be punished with rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine; and, if the robbery be committed on the highway between sunset and sunrise, the imprisonment may be extended to fourteen years." The sentence of imprisonment to be awarded under Section 392 cannot be less than 7 years if at the time of committing robbery the offender uses any deadly weapon or causes grievous hurt to any person or attempts to cause death or grievous hurt to any person: vide Section 397. A difficulty arose in several High Courts as to the meaning of the word "uses" in Section 397. The term 'offender' in that section, as rightly held by several High Courts, is confined to the offender who uses any deadly weapon. The use of a deadly weapon by one offender at the time of committing robbery cannot attract Section 397 for the imposition of the minimum punishment on another offender who had not used any deadly weapon.......” 6.10 Therefore, in view of aforesaid decision of the Honourable Supreme Court, the conviction of the present accused-Sandipkumar under Section 397 read with Section 34 is required to be set aside. 6.11 So far as conviction of the present accused Sandipkumar under Section 394 read with Section 34 is concerned, there is no need of convicting the accused with the aid of Section 34 and it is required to be confirmed only under Section 394. Section 394 reads as under:- “394. Voluntarily causing hurt in committing robbery. - 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.” 6.12 So far as question of imposing sentence is concerned, it appears from record the present accused viz. Snadipkumar has undergone substantial part of his sentence and his conviction under Section 394 is being upheld and considering the totality of the facts and circumstances of the case, if rigorous imprisonment of five years for the offence under Section 394 of IPC is inflicted upon him, it will serve the ends of justice. However, imposition of fine and default sentence imposed by the trial Court for the offence under Section 394 of IPC is upheld. 7. Resultantly, the present appeal is required to be partly allowed. So far as accused Chiragkumar @ Chichu Sureshbhai Babulal Joshi is concerned, since he has served out entire sentence, present appeal qua him has become infructuous and the same is disposed of accordingly. 7. Resultantly, the present appeal is required to be partly allowed. So far as accused Chiragkumar @ Chichu Sureshbhai Babulal Joshi is concerned, since he has served out entire sentence, present appeal qua him has become infructuous and the same is disposed of accordingly. So far as accused-Sandipkumar @ Jitu Ramjilal Mangilal Rana is concerned, his conviction for the offence punishable under Section 394 recorded by judgment and order dated 28.10.2013 passed by learned 7th Additional Sessions Judge, Nadiad, in Sessions Case No.100 of 2010 is maintained by modifying the sentence of seven years’ rigorous imprisonment to five years’ rigorous imprisonment. However, fine and default sentence for the offence under Section 394 of IPC imposed by the trial Court is maintained as it is. So far as conviction of the accused-Sandipkumar @ Jitu Ramjilal Mangilal Rana for the offence under Section 397 read with Section 34 is concerned, the same is set aside and he is acquitted from the charge of offence under Section 397 read with Section 34 of IPC and fine, if any, paid for this offence be refunded to him. Bail bond, if any, stands cancelled. Record and proceedings be sent back to the concerned trial Court forthwith.