JUDGMENT : Arvind Kumar Verma, J. By way of present appeal under Section 374(2) of the Code of Criminal Procedure, 1973, the appellants have been convicted by the impugned judgment of conviction and order of sentence dated 03.01.2022 passed by the First Additional Sessions Judge, Saraipali, District Mahasaund (C.G.) in Sessions Case No. 23/2020 for the offence punishable under Sections 459/34, 397 and 392 IPC and Section 25(1) (B)(a) of the Arms Act and sentenced to undergo RI for ten years and to pay fine of Rs.500/- u/s. 459/34; to undergo RI for seven years and to pay fine of Rs. 500/- u/s. 397; to undergo RI for 5 years and to pay fine of Rs. 500/- u/s. 392 IPC and to undergo RI for 3 years and to pay fine of Rs. 500/- u/s. 25(1)(B)(a) thee Arms Act, in default of payment of fine to further undergo RI for six months. However, the appellant No.1 has been convicted for the offence under Section 25(1)(B)(a) of the Arms Act and sentenced to undergo RI for 3 years and to pay fine of Rs. 500/-with default stipulations. 2. Brief facts of the case are that complainant namely Meghnath Patel has lodged a complaint at police station Basna alleging that on 11.01.2020, at about 3.00 pm. when he was working in the brewery shop (sharab bhatti), three unknown persons came in a motorcycle, fired in the air and entered the shop and threatened the salesman Vijay Sidar to kill and looted Rs. 18,530/- and ran away in their vehicle. On the basis of the said information, report was lodged against unknown persons in Cr. No. 20/2020 at police station Basna, District Mahasamund for the offence under Sections 392 IPC and 25/27 of the Arms Act. Dehati Nalishi Ex.P-3 was registered and spot map Ex.P-4 of the place of incident was prepared. Spot map was prepared by the Patwari bide Ex.P-31 and panchnama Ex.P-31 was prepared. Notice Ex.P-24 was given and thereafter the CCTV footage was seized from the complainant under Section 65b of the Indian Evidence Act. Seizure Ex.P-25 was made memorandum statement of accused Lakeshwar, Dilip and Dhansai was recorded on the basis of which panchanama Ex.P-8,9 & 10 was made. Vide Ex.P-12 and 13, seizure of cash amounting to Rs. Notice Ex.P-24 was given and thereafter the CCTV footage was seized from the complainant under Section 65b of the Indian Evidence Act. Seizure Ex.P-25 was made memorandum statement of accused Lakeshwar, Dilip and Dhansai was recorded on the basis of which panchanama Ex.P-8,9 & 10 was made. Vide Ex.P-12 and 13, seizure of cash amounting to Rs. 8500-, scarf, clothes and motor vehicle Platina (Bajaj) were made from accused Lakheswhar, vide Ex.P-14 and 16, seizure of cash amounting to Rs. 6,000/-,one jacket and motor bike (Hero HF Deluxe) was made from Diilip and vide Ex.P-15, seizure of cash amounting to Rs. 1400/- was made from accused Dhansai. Seizure of one Desi Katta and empty box was seized from appellant Lakeshwar which was sent to the Reserve Centre Mahasamund. The seized article was kept in the maalkhana vide Ex.P-33C. Notification of the seized fire arm was produced as Ex.P-27. Appellants were arrested vide arrest memo Ex.P-17,18 and 19 after sending information to their family members vide Ex.P-20,21 and 22. Vide Ex.P-23 notice was sent to the Executive Magistrate Basna and identification parade was conducted vide Ex.D-1 and produced the TIP report Ex.P-2. Seized articles were deposited in the maalkhana vide Ex.P-33C. After framing of charges before the trial court, offence was registered against the appellants as Criminal Case No. 88/20 and the case was committed to the court of Sessions Judge, Mahasamund against the appellants under Sections 459/34, 392 and 397 IPC and Section 25(1-B)(a) and 27(1) of the Arms Act to which they denied and claimed trial. 3. The prosecution in order to prove its case, examined as many as 12 witnesses and also relied upon the documentary evidence. Statements of the appellants under Section 313 Cr.P.C. was recorded wherein they denied the evidence produced by the prosecution and claimed that they have been falsely implicated in the crime in question. The trial court after evaluating the facts and evidence convicted the appellants as aforesaid. Hence this appeal. 4. Learned counsel for the appellants submits that the trial court has failed to appreciate the fact that the appellants were not known to the complainant and the report was lodged against unknown persons. It is stated that subsequently, the appellants have been falsely implicated in this case. He submits that the trial court has utterly failed to appreciate the evidence properly and in its right perspective. It is stated that subsequently, the appellants have been falsely implicated in this case. He submits that the trial court has utterly failed to appreciate the evidence properly and in its right perspective. He further submits that the evidence of the complainant and other witnesses are not corroborated by the prosecution witnesses. He submits that the complainant has not identified the present appellants during the identification parade conducted by the police and the police has added the names of the present appellants without any cogent evidence. Therefore the learned trial court has committed gross error in convicting the appellants under Sections 459/34, 392/344 and 397/34 IPC and 25(1-B)(a) and 27(1) of the Arms Act. He submits that the complainant has admitted in his deposition that the appellants were neither identified nor any seizure has been made from the appellants. He submits that in the present case, the independent witnesses ie. PW-5, PW-11 and other prosecution witnesses have turned hostile. The prosecution has failed to prove the seizure, memorandum and other articles against the appellants. Lastly, he submits that there are full omissions and contradictions in the statements of the witnesses and therefore the conviction of the accused/appellants is liable to be set aside. 5. Per contra, learned State counsel opposes the arguments advanced by the learned counsel for the appellants and submits that the order of the trial Court below is well merited which do not call for any interference. 6. I have heard learned counsel for the parties and perused the record of the Court below and the statements of the witnesses. 7. The question would be whether the learned trial Court is justified in convicting the appellants herein for the offences under Sections 392, 397 and 459/34 of IPC and Section 25(1) (1-B)(a) of the Arms Act? On the date of incident i.e. on 11.01.2020, the appellants were suspected to be authors of crime in question and, therefore, they were taken into custody on 12.01.2020 and their memorandum statements were recorded vide Ex.P/5, 6 & 7, pursuant to which, looted amount of Rs. 18,500/-, desi katta, scarf, unnumbered platina motorcycle were seized vide seizure memos (Ex.P/11, P/12 and P/13). On the basis of memorandum statement of accused Dilip, part of the looted amount of Rs. 6,000/-, scarf and motorcycle were seized vide Ex.P-14. 18,500/-, desi katta, scarf, unnumbered platina motorcycle were seized vide seizure memos (Ex.P/11, P/12 and P/13). On the basis of memorandum statement of accused Dilip, part of the looted amount of Rs. 6,000/-, scarf and motorcycle were seized vide Ex.P-14. On the basis of memorandum statement of appellant Dhansai, the his part of looted amount was seized vide Ex.P-16. On the basis of the statement of PW-11 Nirmal Bagh, the police seized part of the looted amount of Rs. 8500/-, desi Katta and unnumbered Platina Motorcycle from the possession of accused Lakeshwar Yadav. 8. Vijay Sidar (PW-1) has deposed that on the date of incident, he was present at the brewery shop (sharab bhatti). The appellants came there, purchased liquor and gave less money and on being asked, accused Lakheshwar on the point of gun, abused and committed maar peeth and have also threatened them. At that time, he was sitting in the counter. They broke open the door, hold his collar and took him outside the shop and after pointing the gun on his head, threatened him. The accused persons have also looted the money kept in the box. He has deposed that the supervisor Meghnath Patel lodged the report at police station vide Ex.P-1. 9. Ashish Kumar Pradhan (PW-4) has deposed that on the date of incident, loot was committed in the brewery shop(sharab bhatti) at village Pirda. He has stated that at the time of incident, he went to ease himself and when he returned, he saw that the money was scattered in the counter and it seems that loot has been committed. Meghnath Patel (PW-5) has stated that on the date of incident, at about 3.00 p.m. he went home to take his meals and received a phone call that there was loot in the brewery and when he reached there, he found that the money was scattered and on verification, there was shortage of Rs. 18530/- and informed the Excise Inspector S.N.Sahu, who in turn informed the police. From the Cctv footage, the police came to know that the accused persons after covering their face with mask, two persons entered inside the brewery and committed loot on the point of gun and thereafter left the place. Written report was lodged at police station Basna vide Ex.P-29. Hemsagar Patel (PW-6) is working as salesman in the brewery. From the Cctv footage, the police came to know that the accused persons after covering their face with mask, two persons entered inside the brewery and committed loot on the point of gun and thereafter left the place. Written report was lodged at police station Basna vide Ex.P-29. Hemsagar Patel (PW-6) is working as salesman in the brewery. He has stated that on the date of incident, he was not well and therefore he was sitting outside under the sun and after a while he went home. At about 3-4.00 pm. Vijay Sidar informed him by phone that three persons came and committed loot in the brewery. Thereafter he went to the shop and saw that money was scattered here and there and when they verified, there was shortage of Rs. 18,530/-. 10. A bare perusal of Section 459 IPC, makes it crystal clear that for satisfying the essential ingredients of this section, grievous hurt is required to be caused while committing lurking house-trespass or house-breaking. However, in the case in hand, no grievous hurt/injury was found on the person of the complainant and intrinsically, offence U/s 459 IPC is not made out against the accused. Section 459 IPC provide as under: Grievous hurt caused whilst committing lurking house trespass or house breaking-Whoever, whilst committing lurking house-trespass or house breaking, causes grievous hurt to any person or attempts to cause death or grievous hurt to any person, shall be punished with imprisonment for life or imprisonment of either description for a term which may extend to ten years and shall also be liable to fine.” 11. In this provision, expression "Whilst" prefixed to the words committing lurking house trespass or house breaking has given rise to a cleavage of judicial opinion and in case of Said Ahmad and Another Vs. King-Emperor, it was held by Allahabad High Court that if assault has been caused after entering in the house then, provision of Section 459 of IPC shall not be attracted. Such assault of causing grievous hurt or attempt to cause death should be done in the course of commission of offence of lurking house trespass or house breaking. In the present case, the accused/appellants after covering their face with scarf, armed with desi katta and firing in the air, entered the brewery (sharab bhatti) and looted Rs. 18,530/- and threatened the complainant Viay Sidar to kill. In the present case, the accused/appellants after covering their face with scarf, armed with desi katta and firing in the air, entered the brewery (sharab bhatti) and looted Rs. 18,530/- and threatened the complainant Viay Sidar to kill. Hence, it is very much clear by the statement of the complainant that the culprits did not assault anyone while committing offence of house trespass. 12. So far as the conviction under Sections 397 and 392 IPC is concerned, learned counsel for the appellants contended that the complaint lodged by complainant and the evidence tendered by him are not sufficient to indicate that the appellants are guilty of the charge alleged against them. With reference to the said judgment, it is contended that firstly, the charge under Section 397 of the IPC would not be sustainable since the desi katta has been shot in the air and not upon any person and the conviction can be sustained only if the ‘offender’ uses any deadly weapon while committing robbery. It is contended that even otherwise, the charge under Section 397 IPC would not be sustainable against the appellant herein since there is no serious allegation or proof of the appellants having used any weapon much less deadly weapon even if the incident of robbery which occurred is held to be proved against them. In that view, it is contended that the charge under Section 392 IPC is proved. 13. The charges having been proved, the trial court has arrived at the conclusion that the contention as put forth by the appellants is not acceptable. It is contended that the unnumbered motorcycle and amount which has been looted by the accused had been recovered and the desi katta which was used was also seized and examined by the expert. In that circumstance, it is contended that when the expert has opined that the gun was in working condition, the actual use of the firearm by firing from it is not required but the exposure of the weapon so as to create fear in the mind of the victim is sufficient to prove the charge under Section 397 IPC. It is, therefore, contended that the judgment passed by the trial court does not call for interference. 14. It is, therefore, contended that the judgment passed by the trial court does not call for interference. 14. The question which needs consideration is with regard to the contention that the firearm had not been put to use and therefore the charge under Section 397 IPC is not sustainable and also the further contention that the charge under Section 397 even otherwise would not be sustainable against the appellants on the ground that since there is no material or evidence to indicate that the appellants had used or shot the firearm upon any person, even if it is held that the incident had occurred as alleged. 15. For better understanding, it would be appropriate to take note of the provisions contained in Sections 392 and 397 of IPC which read as hereunder: “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. 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.” 16. In Dilawar Singh Vs. State of Delhi (2007) 12 SCC 641 , it is held as hereunder: “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.” 17. In the instant case, admittedly, no injury has been inflicted. 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.” 17. In the instant case, admittedly, no injury has been inflicted. The use of weapon by offender for creating terror in mind of victims is sufficient. It need not be further shown to have been actually used for cutting, stabbing or shooting, as the case may be.” (Emphasis supplied) 18. In the decision of Ganesan vs. State Rep. by Station House Officer (Crl. Appeal No.903 of 2021 and connected appeal i.e Crl. Appeal No.904 of 2021) has been referred and held as hereunder: “12.7. Thus, as per the law laid down by this Court in the aforesaid two decisions the term ‘offender’ under Section 397 IPC is confined to the ‘offender’ who uses any deadly weapon and 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 has not used any deadly weapon. Even there is distinction and difference between Section 397 and Section 398 IPC. The word used in Section 397 IPC is ‘uses’ any deadly weapon and the word used in Section 398 IPC is ‘offender is armed with any deadly weapon’. Therefore, for the purpose of attracting Section 397 IPC the ‘offender’ who ‘uses’ any deadly weapon Section 397 IPC shall be attracted.” 19. In light of the above observations and the law laid down by this Court in the aforesaid two decisions the case on behalf of the accused in the present appeals is required to be considered. Even as per the case of the prosecution and even considering the evidence on record it can be seen that the present accused Appellant No.2 and 3 are not alleged to have used any weapon. The allegation of use of any weapon was against appellant No.1. Therefore, in absence of any allegations of use of any deadly weapon by the appellants No.2 & 3 under Section 397 IPC shall not be attracted and to that extent the learned Counsel appearing on behalf of the appellants accused submits that they ought not to have been convicted for the offence punishable under Section 397 IPC.” 20. Therefore, in absence of any allegations of use of any deadly weapon by the appellants No.2 & 3 under Section 397 IPC shall not be attracted and to that extent the learned Counsel appearing on behalf of the appellants accused submits that they ought not to have been convicted for the offence punishable under Section 397 IPC.” 20. From the position of law as enunciated by this Court and noted above, firstly, it is clear that the use of the weapon to constitute the offence under Section 397 IPC does not require that the ‘offender’ should actually fire from the firearm or actually stab if it is a knife or a dagger but the mere exhibition of the same, brandishing or holding it openly to threaten and create fear or apprehension in the mind of the victim is sufficient. The other aspect is that if the charge of committing the offence is alleged against all the accused and only one among the ‘offenders’ had used the firearm or deadly weapon, only such of the ‘offender’ who has used the firearm or deadly weapon alone would be liable to be charged under Section 397 IPC. 21. Though the above would be the effect and scope of Section 397 IPC as a standalone provision, the application of the same will arise in the totality of the allegation and the consequent charge that will be framed and the accused would be tried for such charge. In such circumstance, in the set of the offence under Section 397 IPC being applicable to the offender alone, the variability of the same will also have to be noted if the charge against the accused under Section 34 IPC and such other provisions of law, which may become relevant, is also invoked along with Section 397 IPC. In such event, it will have to be looked at differently in the totality of the facts, evidence and circumstances involved in that case and the provisions invoked in that particular case to frame a charge against the accused. 22. In such event, it will have to be looked at differently in the totality of the facts, evidence and circumstances involved in that case and the provisions invoked in that particular case to frame a charge against the accused. 22. Keeping this aspect in view, it is necessary to examine the manner in which the complainant has alleged against the appellants so as to consider whether the appellants 2 & 3 are also an ‘offender’ who used the firearm so as to be charged under both, Section 392 and 397 IPC even if he is complicit to the incident, more particularly when Section 34 IPC has not been invoked in the instant case. 23. Apart from the narration of the incident contained in the FIR, the evidence rendered by the complainant Meghnath Patel about the incident alleging that the appellants came in a motorcycle, covering their face with mask, shot in the air with the desi katta and entered the brewery shop (sharab bhatti). They have threatened to kill the salesman Vijay Sidar and looted Rs. 18,530/- which was captured on CCTV footage. 24. From the extracted portion and more particularly the emphasized portion of the evidence of Vijay Sidar (PW-1), his account is specific to the fact that on the date of incident, the appellants came to the brewery shop, purchased liquor and gave less amount and on being asked, one of the appellant namely Lakheshwar threatened the complainant on the point of gun and after breaking open the door, hold his collar and took him out of the shop. Thereafter appellants Dilip and Lakheshwar entered the shop and looted the money. It is no doubt true, that the appellants had committed the offence of robbery and it has come in the CCTV footage also that the money was looted from the cash box by them. On the basis of memorandum statement of accused/appellant No.3-Dilip, part of the looted amount of Rs. 6,000/-, scarf and motorcycle were seized vide Ex.P-14. On the basis of memorandum statement of appellant Dhansai, the part of looted amount was seized vide Ex.P-16. On the basis of the statement of PW-11 Nirmal Bagh, the police seized part of the looted amount of Rs. 8500/-, desi Katta and unnumbered Platina Motorcycle from the possession of accused Lakeshwar Yadav. 25. On the basis of memorandum statement of appellant Dhansai, the part of looted amount was seized vide Ex.P-16. On the basis of the statement of PW-11 Nirmal Bagh, the police seized part of the looted amount of Rs. 8500/-, desi Katta and unnumbered Platina Motorcycle from the possession of accused Lakeshwar Yadav. 25. Keeping in view the facts and circumstances of the case, I find that it cannot be planted and the recovery of desi katta (country made gun), is proved beyond reasonable doubt against the appellant No.1. From the evidence of witness, PW-3 Investigating Officer Veena Yadav, has proved the charge-sheet against the accused-appellant Lakheshwar Yadav under Section 25 (1)(1-B)(a) of the Arms Act and the steps taken under the investigation. From it, it is proved beyond reasonable doubt that one country made gun, Rs. 8,500/-, Scarf, Jacket, unnumbered platina motorcycle were recovered from the accused-appellant Lakheshwar. 26. Close scrutiny of the evidence makes it clear that on the date of incident, accused/appellant Lakheshwar entered the brewery shop holding gun and after purchasing liquor, entered inside the counter along with the appellants No. 2 & 3 and on the point of gun threatened the complainant Vijay Sidar and looted the money. So far as the appellants No.2 & 3 are concerned, accused Dileep Yadav had looted the money from the shop whereas accused Dhansai was standing outside the shop and therefore, the offence under Section 397 is related only to the offender who actually uses deadly weapon himself or caused grievous hurt or attempted to cause death or grievous hurt at the time of committing robbery. It has been held that where only one of the robber was armed with a deadly weapon all who took part in the robbery would not be liable to punishment under Section 397 IPC. This view stands affirmed by the Supreme Court that the term in Section 397 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 from the imposition of a minimum punishment, on another offender who had not used any deadly weapon. The word offender means actual offender and it does not include all persons who participated in robbery or dacoity. 27. The use of a deadly weapon by one offender at the time of committing robbery cannot attract Section 397 from the imposition of a minimum punishment, on another offender who had not used any deadly weapon. The word offender means actual offender and it does not include all persons who participated in robbery or dacoity. 27. 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. 28. Considering the facts and circumstances of the case, I am of the view that the complicity of the accused/appellant No.1 in the commission of the offence has been duly proved by the prosecution and thus looking to the act of appellant No.1 and the evidence adduced by the prosecution, his conviction under Section 397 IPC is justified. So far as the conviction of the appellants No. 2 & 3 under Section 397 IPC is concerned, they are acquitted of the charge levelled against them. However, appellants No.2 & 3 are convicted under Section 392 IPC. 29. As far as the offence under Section 459/34 of IPC is concerned, the offence under this Section has not been proved by the prosecution therefore the appellants are acquitted of the charge under Section 459/34 IPC. The learned trial court has rightly held that offence under Section 25(1)(1-B)(a) of the Arms Act is proved beyond reasonable doubt against the appellant Lakheswar and has rightly convicted and sentenced him to undergo rigorous imprisonment for three years and a fine of Rs.500/- according to law, which requires no interference. 30. In the result, the appeal is partly allowed. While maintaining conviction of the appellants No.2 & 3 under Section 392 IPC, it is hereby maintained. In respect of appellant No.1 Lakheswar, his conviction for the offence under Sections 392 and 397 IPC and 25(1)(B) (a) is maintained. As the appellants are reported to be in jail, therefore no further order is required to be passed in respect of their arrest etc.