JUDGMENT : 1. This Criminal Appeal under Section 374 (2) of CrPC has been filed against the judgment of conviction and order of sentence dated 28.10.1999 passed by Second Additional Sessions Judge, Ambikapur in Sessions Trial No. 64 of 1995 by which the appellant has been convicted under Sections 394 and 397 of the Indian Penal Code and has been sentenced to undergo rigorous imprisonment for 7 years and to pay fine of Rs. 200/- under Section 394 of the IPC, rigorous imprisonment for 7 years and to pay fine of Rs. 200/- under Section 397 of the IPC with default stipulations. Prosecution Case 2. The necessary facts for disposal of the present appeal in short are that on 23.03.1994 an information (Ex.P-5) was received at Police Station Ambikapur in connection with robbery at the point of knife and admission of injured Pramod Shukla in District Hospital Ambikapur, thereafter, the Police registered information in Rajnamcha (Ex.P-1) and reached the hospital and recorded the statement of injured wherein he has stated that on 23.03.1994 at about 7.45, while he was going to duty at forest barrier then the appellant along along with co-accused stopped him and demanded money for drinking liquor and when he denied to give money then the appellant caused injury by knife on the various parts of his body and looted Rs. 2000/- from his pocket. On the complaint of injured, Police registered the FIR (Ex.P-9) under Crime No. 268 of 1994 under Section 307, 392 and 34 of the IPC. During investigation, dying declaration statement of injured was also registered before Executive Magistrate thereafter the injured was sent to hospital for medical treatment under Ex.P-13. The appellant was arrested and knife under (Ex.P-10) was seized from the appellant. After completion of the investigation, charge sheet was filed before the Court of Judicial Magistrate Ambikapur, who in turn committed the case to the Court of Sessions Judge, Ambikapur which was registered as Sessions Case No. 64 of 1995. 3. The prosecution in order to prove the guilt of the appellant examined 9 witnesses, Kashiram (PW-1), Rajesh Sahi (PW-2), constable Ramanand Singh (PW-3), injured Pramod Shukla (PW-4), Dr. 3. The prosecution in order to prove the guilt of the appellant examined 9 witnesses, Kashiram (PW-1), Rajesh Sahi (PW-2), constable Ramanand Singh (PW-3), injured Pramod Shukla (PW-4), Dr. K.K. Bhutani (PW-5),Mulwar Pandey (PW-6), Annu @ Shrawan Kashyap (PW-7), Sub Inspector G.P. Annat (PW-8) and Dilip Pandey (PW-9) and exhibited the documents statement of kashiram (Ex.P-1), dying declaration (Ex.P-2), MLC of injured (Ex.P-3), Expert opinion (Ex.P-4), information of admission by the hospital (Ex.P-5 and Ex.P-6), statement of Annu (Ex.P-7), query made by police (Ex.P-8), FIR (Ex.P-9), seizure memo (Ex.P-10), Map (Ex.P-11), querry (Ex.P-12), arrest memo (Ex.P-13). 4. The prosecution examined injured victim as PW-1 who has stated in the chief examination that the accused has looted Rs. 2000/-from him and assaulted with knife, as a result of which he sustained injuries on the chest, stomach and hand. The witness was cross examined wherein he has stated that he has seen Narayan Gupta, present appellant assaulted him with knife. Dr. J.K. Bhutani (PW-5) deposed that he has examined the injured on 24.01.1994 wherein he found the following injuries on the body of the injuries as :- (I) incised wound in the size of 4x1 cum on the right side of chest and depth will be given by G. Surgeon (II) Incised wound in the size of ½ x ½ cum on the right side of abdomen and depth will be given by G. Surgeon (III) Abrasion in the size of 3x3 cm at forearm Injury No. 1 and 2 were caused by hard and blunt object and he was advised for general surgeon. 5. Dilip Pandey (PW-9) Investigating Officer who has stated in his evidence that seizure of knife from the appellant was made by Ajit Patle, and the seizure memo (Ex.P-10) has been written by Ajit Patle wherein he has put his signature and he identified the same as he has worked with him. 6. The appellant has examined Narayan Prasad Gupta (DW-1),Rajaram Dubey (DW-2),Sheela (DW-3) and constable Alwar Marshal (DW-1) and compounder B.P. Sahu (DW-2) and exhibited the documents Rojnamcha Sanha Ex.D-1 and medical report of the appellant (Ex.D-2) in his support and statement of accused/appellant has been recorded under Section 313 Cr.P.C., in which he has pleaded innocence and false implication. 6. The appellant has examined Narayan Prasad Gupta (DW-1),Rajaram Dubey (DW-2),Sheela (DW-3) and constable Alwar Marshal (DW-1) and compounder B.P. Sahu (DW-2) and exhibited the documents Rojnamcha Sanha Ex.D-1 and medical report of the appellant (Ex.D-2) in his support and statement of accused/appellant has been recorded under Section 313 Cr.P.C., in which he has pleaded innocence and false implication. Defense witnesses B.P. Sahu (DW-2) has brought the medical report of the appellant and stated that the appellant was admitted in the District Hospital, Ambikapur from 24.03.1994 to 01.04.1994 and also exhibited documents pertaining to treatment. Constable Alwar Marshal (DW-1) has registered Rojnamcha sanha where incident happened with appellant on 23.03.1994 has been described and the time of accident has been mentioned as 21.30. Findings of the trial court 7. Learned trial Court has recorded its finding in paragraph 23 that on 23.03.1994 when the victim after taking his meals at 8.30 was going to join his barrier duty, other person namely Muldhar Pandey and Anupam Kashyap have taken him to his house and victim Pramod Shukla has informed him that he has been assaulted by Narayan with knife and they have seen injury also. Thereafter, Ramanand has taken him to hospital. The trial Court has further recorded its finding that witness Ramand in his cross examination has stated that injured has informed the Tahsildar about the incident committed by the appellant and statement of injured has been confirmed from the statement of Ramnath Singh (PW-3), Dr. J.K. Bhutani (PW-5) and Dilip Pandey (Pw-9) and J.P. Anand (PW-8) therefore, there is no reason to disbelieve the statement of the injured and accordingly it has held that there is sufficient material available on record to prove the guilt of the appellant for commission of offence under Sections 394 and 397 of the IPC. Being aggrieved with the judgment of conviction and order of sentence of the trial Court, the appellant has preferred the appeal before this Court. Submission of the counsel for the Appellant. 8. Learned counsel for the appellant would submit that the trial Court has wrongly convicted the appellant without proper appreciation of evidence and there are material contradictions and omissions in the statements of the prosecution witnesses. Submission of the counsel for the Appellant. 8. Learned counsel for the appellant would submit that the trial Court has wrongly convicted the appellant without proper appreciation of evidence and there are material contradictions and omissions in the statements of the prosecution witnesses. Learned counsel for the appellant has also submitted that the conviction of the appellant under Section 397 of I.P.C is erroneous as the ingredients of the said offence requires that the deadly weapon must have been used or grievous hurt ought to have been caused or attempted to cause death or grievance hurt ought to have taken place in the said incident. Dr. K.K. Bhutani (PW-5) advised for general surgeon, therefore, it cannot be said that the victim has received grievous injuries. He would further submit that looted money was not recovered from the possession of the appellant. He would further submit that the injured stated that the appellant caused knife injury but the seizure of knife has not been proved by the seizure witnesses Rameshchand and Mahesh and the seizure memo prepared by Ajit Patle but he has not been examined before the trial Court which is glaring defect by the prosecution, as such conviction of the appellant is bad in law, therefore, the judgment and sentence passed by the trial Court be set aside and the appellant be acquitted. He would further submit that eyewitness Kanshiram (PW-1) and Annu @ Shrawan Kashyap (PW-7) have also not supported the case of the prosecution therefore, no case for conviction under Section 394 and 397 of the IPC is made out. He would further submit that the appellant has also lodged report against the complainant prior to the incident happened with him under Crime No. 267 of 1994 and would pray for acquittal of the appellant. To substantiate his submission, learned counsel for the appellant has relied upon the judgments in the cases of Umesh Kamat vs. State of Bihar 2005 CRLJ 908 para 12 and Baliraj Singh vs. State of M.P. 2017 (14) SCC 291 . 9. On the other hand, learned Dy. Advocate General appearing on behalf of the respondent-State would support the judgment, finding and sentence passed by the trial Court mainly contending that the prosecution has proved its case beyond reasonable doubt and the appellant has rightly been convicted for the offence committed by the appellant. 9. On the other hand, learned Dy. Advocate General appearing on behalf of the respondent-State would support the judgment, finding and sentence passed by the trial Court mainly contending that the prosecution has proved its case beyond reasonable doubt and the appellant has rightly been convicted for the offence committed by the appellant. He would further submit that the knife was recovered (ExP-10) from the appellant which clearly shows overt act of the appellant. Learned counsel for the State opposes the submission and would submit that from the evidence produced before the trial Court it is quite vivid that the appellant was involved in the alleged crime, therefore, he has rightly be charged and sentenced, thus, he would pray for dismissal of the appeal. 10. I have heard learned counsel for the parties and perused the record. 11. On the above factual matrix the point to be determined by this Court:- (i) Whether the prosecution has proved the case against the appellant beyond reasonable doubt? (ii) Whether non-examination of witness relates to seizure Ex.P-10 is fatal for prosecution?. (iii) Whether in absence of corroboration of the fact regarding grievousness of injury learned trial Court was justified in convicting the appellant under Section 394 and 397 of the IPC? 12. Learned counsel for the appellant has forcefully submitted that the prosecution has failed to examine seizure of knife, as such recovery of knife is not legally proved from the appellant, therefore, conviction cannot be sustainable. Now the submission has been considered by this Court. The Investigation Officer PW-9 in his evidence has categorically stated that knife was seized and seizure memo Ex.P-10 was prepared by Sub- Inspector Ajit Patle, since he has worked with him therefore, he is aware about his signature and there was no cross examination on this aspect by the defence. Thus, it cannot be said that seizure was proved by the prosecution. It is well settled legal position of law that in official duty the officers may be available or may not be available but if the other officers who is available and able to identify the signature and the author of the document, it is admissible in evidence. The law with regard to evidence regarding author of any document can be tendered by the following ways (i) by examining the person who is conversant and familiar with the hand writing of such person. The law with regard to evidence regarding author of any document can be tendered by the following ways (i) by examining the person who is conversant and familiar with the hand writing of such person. (ii) through the testimony of an expert who is qualified and competent to make comparison of disputed writing and admitted writing on a scientific basis (iii) by the Court comparing the dispute document with admitted one. 13. In the present case the prosecution has resorted to the first mode by calling the person who was also member of the investigating team and have worked with Mr. Ajit Patle, as such the submission made by the counsel for the appellant that seizure memo has not been proved is misconceived and deserves to be rejected. Hon’ble Supreme court in the case of State of Maharastra vs. Sukhdeo Singh reported in 1992 (3) SCC 700 has considered this issue. 14. Further submission of the counsel for the appellant is that there is discrepancy, contradiction and omission in the evidence adduced by the prosecution. Thus the accused is entitled to get acquittal. This Court in foregoing paragraph has already extracted the evidence and finding of the learned trial Court by which it has convicted the appellant. The evidence of the injured person in his evidence has clearly deposed about assault made by the appellant and also narrated the injury sustained by him. The injury is also corroborated by the statement of Dr. J.K.Bhutani (PW-5) and this evidence clearly proves the involvement of the appellant. The importance of injured witnesses in a trial cannot be overstated unless there are compelling circumstances or evidence placed by the defense to doubt such witnesses, this has to be accepted as an extremely valuable evidence in a criminal trial. The law with regard to evidence of appreciation of an injured eyewitness has been well settled by the Hon’ble Supreme Court in the recent judgment reported in 2023 SCC Online 355 in the case of Balu Sudam Khalde and Another vs. State of Maharastra wherein the Hon’ble Supreme court in paragraph 26 has held as under:- 26. The law with regard to evidence of appreciation of an injured eyewitness has been well settled by the Hon’ble Supreme Court in the recent judgment reported in 2023 SCC Online 355 in the case of Balu Sudam Khalde and Another vs. State of Maharastra wherein the Hon’ble Supreme court in paragraph 26 has held as under:- 26. When the evidence of an injured eye-witness is to be appreciated, the under- noted legal principles enunciated by the Courts are required to be kept in mind: (a) The presence of an injured eye-witness at the time and place of the occurrence cannot be doubted unless there are material contradictions in his deposition. (b) Unless, it is otherwise established by the evidence, it must be believed that an injured witness would not allow the real culprits to escape and falsely implicate the accused. (c) The evidence of injured witness has greater evidentiary value and unless compelling reasons exist, their statements are not to be discarded lightly. (d) The evidence of injured witness cannot be doubted on account of some embellishment in natural conduct or minor contradictions. (e) If there be any exaggeration or immaterial embellishments in the evidence of an injured witness, then such contradiction, exaggeration or embellishment should be discarded from the evidence of injured, but not the whole evidence. (f) The broad substratum of the prosecution version must be taken into consideration and discrepancies which normally creep due to loss of memory with passage of time should be discarded. 15. Recently the Hon’ble Supreme court in the case of Neeraj Sharma vs. State of Chhattisgarh reported in 2024 (3) SCC 125 has reiterated the same principle. 16. From the evidence and material on record it is quite vivid that the offence has been committed by the appellant. Now this Court has to examine whether the conviction of the appellant for both the offence under Section 394 and 397 of the IPC is legally sustainable or not. To appreciate this issue it is expedient for this Court to extract Section 394 and 397 of the IPC. Now this Court has to examine whether the conviction of the appellant for both the offence under Section 394 and 397 of the IPC is legally sustainable or not. To appreciate this issue it is expedient for this Court to extract Section 394 and 397 of the IPC. Section 394 of the IPC 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. Section 397 of the IPC 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. 17. Robbery have been defined in Section 390 of the IPC and Dacoity has been defined in Section 391 of the IPC which reads as under:- Section 390- In all robbery there is either theft or extortion. When theft is robbery.— Theft is “robbery” if, in order to the committing of the theft, or in committing the theft, or in carrying away or attempting to carry away property obtained by the theft, the offender, for that end, voluntarily causes or attempts to cause to any person death or hurt or wrongful restraint, or fear of instant death or of instant hurt, or of instant wrongful restraint. When extortion is robbery.— Extortion is “robbery” if the offender, at the time of committing the extortion, is in the presence of the person put in fear, and commits the extortion by putting that person in fear of instant death, of instant hurt, or of instant wrongful restraint to that person or to some other person, and, by so putting in fear, induces the person so put in fear then and there to deliver up the thing extorted. Explanation.— The offender is said to be present if he is sufficiently near to put the other person in fear of instant death, of instant hurt, or of instant wrongful restraint. Explanation.— The offender is said to be present if he is sufficiently near to put the other person in fear of instant death, of instant hurt, or of instant wrongful restraint. When five or more persons conjointly commit or attempt to commit a robbery, or where the whole number of persons conjointly committing or attempting to commit a robbery, and persons present and aiding such commission or attempt, amount to five or more, every person so committing, attempting or aiding, is said to commit “dacoity”. 18. The difference between section 394 and 397 IPC has come up for consideration before the Hon’ble Supreme Court in the case of Ganesan vs. State of Tamil Naidu reported in 2022 (15) SCC 634 wherein the Hon’ble Supreme Court has held as under:- 22. As per Section 390 IPC, for ‘robbery’ there is either theft or extortion. When in the committing of the theft, or in committing the theft, or in carrying away or attempting to carry away property obtained by the theft, the offender, voluntarily causes or attempts to cause to any person death or hurt or wrongful restraint or fear of instant death or of instant hurt, or of instant wrongful restraint the theft can be said to be ‘robbery’. In similar situation the ‘extortion’ can be said to have committed ‘robbery’. As pe r explanation to Section 390 IPC the offender is said to be present if he is sufficiently near to put the other person in fear of instant death, of instant hurt, or of instant wrongful restraint. 22.1 Section 391 IPC defines ‘dacoity’. When five or more persons conjointly commit or attempt to commit a robbery, the accused then can be said to have committed the ‘dacoity’. 22.2 As per Section 392 IPC 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. However, if the robbery is committed on the highway between sunset and sunrise, the imprisonment may be extended to fourteen years. 22.3 As per Section 393 IPC even an attempt to commit robbery is punishable with rigorous imprisonment for a term which may extend to seven years with fine. However, if the robbery is committed on the highway between sunset and sunrise, the imprisonment may be extended to fourteen years. 22.3 As per Section 393 IPC even an attempt to commit robbery is punishable with rigorous imprisonment for a term which may extend to seven years with fine. As per Section 394 IPC 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. 22.4 Section 395 IPC provides for punishment for ‘dacoity’. Whoever commits dacoity 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. 22.5 In case of dacoity with murder if any one of five or more persons, who are conjointly committing dacoity, commits murder in so committing dacoity, every one of those persons shall be punished with death, or imprisonment for life, or rigorous imprisonment for a term which may extend to ten years with fine. 22.6 As per Section 397 IPC 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. Similarly, if, at the time of committing robbery or dacoity the offender is armed with any deadly weapon, the imprisonment with which such offender shall be punished shall not be less than seven years. 23. On conjoint reading of the aforesaid provisions, commission of ‘robbery’ is sine qua non. The ‘dacoity’ can be said to be an exaggerated version of robbery. If five or more persons conjointly commit or attempt to commit robbery it can be said to be committing the ‘dacoity’. Therefore, the only difference between the ‘robbery’ and the ‘dacoity’ would be the number of persons involved in conjointly committing or attempt to commit a ‘robbery’. The punishment for ‘dacoity’ and ‘robbery’ would be the same except that in the case of ‘dacoity’ the punishment can be with imprisonment for life. Therefore, the only difference between the ‘robbery’ and the ‘dacoity’ would be the number of persons involved in conjointly committing or attempt to commit a ‘robbery’. The punishment for ‘dacoity’ and ‘robbery’ would be the same except that in the case of ‘dacoity’ the punishment can be with imprisonment for life. However, in the case of ‘dacoity with murder’ the punishment can be with death also. However, in a case where 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. Learned Counsel appearing on behalf of the appellants have rightly submitted that to bring the case within Section 397 IPC, the offender who uses any deadly weapon, or causes grievous hurt to any person shall be liable for minimum punishment under Section 397 IPC. 24. Section 392 and Section 390 IPC are couched in different words. In Sections 390, 394, 397 and 398 IPC the word used is ‘offender’. Therefore, for the purpose of Sections 390, 391, 392, 393, 394, 395, 396, 397, 398 IPC only the offender/person who committed robbery and/or voluntarily causes hurt or attempt to commit such robbery and who uses any deadly weapon or causes grievous hurt to any person, or commits to cause death or grievous death any person at the time of committing robbery or dacoity can be punished for the offences under Sections 390, 392, 393, 394, 395 and 397 and 398 IPC. For the aforesaid the accused cannot be convicted on the basis of constructive liability and only the ‘offender’ who ‘uses any deadly weapon….’ can be punished. However, so far as Section 391 IPC ‘dacoity’ and Section 396 IPC – ‘dacoity with murder’ is concerned an accused can be convicted on the basis of constructive liability, however the only requirement would be the involvement of five or more persons conjointly committing or attempting to commit a robbery – dacoity/dacoity with murder. 25. At this stage, the decision of this Court in Shri Phool Kumar (Supra) is required to be referred to. In the aforesaid decision this Court has observed and considered Sections 397 and 398 IPC and on interpretation of the aforesaid provisions, it is observed and held in paragraphs 5 to 7 as under: “5. 25. At this stage, the decision of this Court in Shri Phool Kumar (Supra) is required to be referred to. In the aforesaid decision this Court has observed and considered Sections 397 and 398 IPC and on interpretation of the aforesaid provisions, it is observed and held in paragraphs 5 to 7 as under: “5. Section 392 of the Penal Code provides: 392 Punishment for robbery- 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 seven 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. In that view of the matter use of the gun by one of the culprits whether he was accused Ram Kumar or somebody else, (surely one was there who had fired three shots) could not be and has not been the basis of sentencing the appellant with the aid of Section 397. So far as he is concerned he is said to be armed with a knife which is also a deadly weapon. To be more precise from the evidence of PW 16 “Phool Kumar had a knife in his hand”. He was therefore carrying a deadly weapon open to the view of the victims sufficient to frighten or terrorize them. Any other overt act, such as, brandishing of the knife or causing of grievous hurt with it was not necessary to bring the offender within the ambit of Section 397 of the Penal Code. 6. He was therefore carrying a deadly weapon open to the view of the victims sufficient to frighten or terrorize them. Any other overt act, such as, brandishing of the knife or causing of grievous hurt with it was not necessary to bring the offender within the ambit of Section 397 of the Penal Code. 6. Section 398 uses the expression “armed with any deadly weapon” and the minimum punishment provided therein is also seven years if at the time of attempting to commit robbery the offender is armed with any deadly weapon. This has created an anomaly. It is unreasonable to think that if the offender who merely attempted to commit robbery but did not succeed in committing it attracts the minimum punishment of seven years under Section 398 if he is merely armed with any deadly weapon, while an offender so armed will not incur the liability of the minimum punishment under Section 397 if he succeeded in committing the robbery. But then, what was the purport behind the use of the different words by the Legislature in the two sections viz. “uses” in Section 397 and “is armed” in Section 398. In our judgment the anomaly is resolved if the two terms are given the identical meaning. There seems to be a reasonable explanation for the use of the two different expressions in the sections. When the offence of robbery is committed by an offender being armed with a deadly weapon which was within the vision of the victim so as to be capable of creating a terror in his mind, the offender must be deemed to have used that deadly weapon in the commission of the robbery. On the other hand, if an offender was armed with a deadly weapon at the time of attempting to commit a robbery, then the weapon was not put to any fruitful use because it would have been of use only when the offender succeeded in committing the robbery. 7. If the deadly weapon is actually used by the offender in the commission of the robbery such as in causing grievous hurt, death or the like then it is clearly used. 7. If the deadly weapon is actually used by the offender in the commission of the robbery such as in causing grievous hurt, death or the like then it is clearly used. In the cases of Chandra Nath v. Emperor [AIR 1932 Oudh 103] ;Nagar Singh v. Emperor [AIR 1933 Lah 35] and Inder Singh v. Emperor [AIR 1934 Lah 522] some overt act such as brandishing the weapon against another person in order to overawe him or displaying the deadly weapon to frighten his victim have been held to attract the provisions of Section 397 of the Penal Code. J.C. Shah and Vyas, JJ. of the Bombay High Court have said in the case of Govind Dipaji More v. State [ AIR 1956 Bom 353 ] that if the knife was used for the purpose of producing such an impression upon the mind of a person that he would be compelled to part with his property, that would amount to ‘using’ the weapon within the meaning of Section 397. In that case also the evidence against the appellant was that he carried a knife in his hand when he went to the shop of the victim. In our opinion this is the correct view of the law and the restricted meaning given to the word “uses” in the case of Chand Singh [ILR (1970) 2 Punj and Har 108] is not correct.” 26. The aforesaid view has been subsequently reiterated by this Court in the case of Dilawar Singh (Supra) and in paragraphs 19 to 21 it is observed and held as under: “19. The essential ingredients of Section 397 IPC are as follows: 1. The accused committed robbery. 2. While committing robbery or dacoity (i) the accused used deadly weapon (ii) to cause grievous hurt to any person (iii) attempted to cause death or grievous hurt to any person. 3. “Offender” refers to only culprit who actually used deadly weapon. When only one has used the deadly weapon, others cannot be awarded the minimum punishment. It only envisages the individual liability and not any constructive liability. Section 397 IPC is attracted only against the particular accused who uses the deadly weapon or does any of the acts mentioned in the provision. But the other accused are not vicariously liable under that section for acts of the co-accused. 20. It only envisages the individual liability and not any constructive liability. Section 397 IPC is attracted only against the particular accused who uses the deadly weapon or does any of the acts mentioned in the provision. But the other accused are not vicariously liable under that section for acts of the co-accused. 20. As noted by this Court in Phool Kumar v. Delhi Admn. [ (1975) 1 SCC 797 : 1975 SCC (Cri) 336 : AIR 1975 SC 905 ] the term “offender” under Section 397 IPC is confined to the offender who uses any deadly weapon. Use of deadly weapon by one offender at the time of committing robbery cannot attract Section 397 IPC for the imposition of minimum punishment on another offender who had not used any deadly weapon. There is distinction between “uses” as used in Sections 397 IPC and 398 IPC. There is distinction between “uses” as used in Sections 397 IPC and 398 IPC. SC 614 Section 397 IPC connotes something more than merely being armed with deadly weapon. 21. In the instant case admittedly no injury has been inflicted. The use of weapon by offender for creating terror in mind of victim is sufficient. It need not be further shown to have been actually used for cutting, stabbing or shooting, as the case may be. [See Ashfaq v. State (Govt. of NCT of Delhi) [ (2004) 3 SCC 116 : 2004 SCC (Cri) 687 : AIR 2004 SC 1253 ].” 19. The learned counsel for the petitioner to substantiate his submissions has relied upon the judgment of Hon’ble Supreme Court in case of Baliraj Singh (supra) is distinguishable on the facts itself as the judgment relates to the opinion of expert wherein the Hon’ble Supreme Court has held that unless expert opinion is corroborated by other evidence it cannot be relied on and in the present case Dilip Pandey (PW-9) has identified signature of Ajit Patle as he was member of the Investigating team. 20. 20. From perusal of both the sections, it is necessary for the prosecution to prove the case of the appellant for conviction under Section 397 of the IPC that five persons should be involved in the commission of the offence and for robbery the offender at the time of committing extortion is in the presence of person put in fear and commit extortion by putting that person in fear of instant death or instant hurt or of instant wrongful retrain to that person or to some other person and by so putting in fear, induce the person so put in fear and then there to deliver the things extorted. Thus in absence of five persons the conviction of the appellant for commission of offence under Section 397 as well as on the basis of medical report it is quite vivid that the injuries sustained by the victim are not grievous in nature, as such offence under Section 397 is not attracted. Thus the appellant is entitled to be acquitted from the charges of offence under Section 397 of the IPC. From the appreciation of the evidence and the material placed by the prosecution it is quite vivid that the prosecution has proved its case beyond reasonable doubt for commission of offence under Section 394 of the IPC, therefore, conviction under Section 394 of the IPC is maintained. 21. Now the question that remains for consideration is whether the sentence of rigorous imprisonment of 7 years imposed upon the appellant deserves to be reduced. It may be noted here that the appellant is a first offender. He has no criminal antecedents. The incident was taken place on 23.03.1994 and more than about 30 years has already been lapsed and the appellant remained in jail from date of conviction i.e. 28.10.1999 and he was granted bail by this Court on 04.02.2000 thus he remained in jail for about 2 months and 6 days. Considering the age of the appellant who must be now 66 years and also considering the fact that the appellant must have attended the trial Court during the trial as well as during the pendency of the appeal, therefore, mental tension and agony he must have suffered. Also considering the fact that for commission of offence under Section 394 of the IPC, no minimum sentence has been prescribed. Also considering the fact that for commission of offence under Section 394 of the IPC, no minimum sentence has been prescribed. The substantive jail sentence of rigorous imprisonment for a period of 7 years is reduced to rigorous imprisonment for a period of 1 year and six months. The appellant is entitled to get set off of sentence as per provisions of Section 428 of the CrPC already remained in jail which is 2 months and six days only. 22. The appellant shall surrender before the trial Court on 05.11.2024 to serve out remaining part of his sentence. In case, he does not appear before the trial Court on that date, the trial Court shall issue an arrest warrant to the accused to serve out remaining part of his sentence. 23. Accordingly, Criminal appeal is partly allowed.