B.K. Behera, J.
1. The appellant stood charged along with two other co-accused persons under Section 392 of the Indian Penal Code ( for short, 'the Code' ) with having committed robbery in respect of cash belonging to Nandalal Bagudia (P. W. 1) being carried by Bhagwan Jee Pawari (P. W. 2) after nightfall on September 14, 1982, at Bhadrak and he stood separately charged under Section 397 of the Code for having used a deadly weapon, such as, a knife and for having caused grievous hurt to P. W. 2 during the commission of the offence of robbery. The appellant had denied the charges. On a consideration of the prosecution evidence, the appellant has been found to be guilty of the charge of robbery and convicted under Section 397 of the Code. He has been sentenced thereunder to undergo rigorous imprisonment for a period of seven years.
2. Mr. S. C. Sahu, appearing for the appellant, has not challenged the finding recorded by the trial Court that the appellant had committed robbery in view of the evidence adduced by the prosecution at the trial against him. He has urged that in the absence of acceptable evidence that the appellant had used a knife or had caused grievous hurt to P. W. 2, he could not be convicted by the application of Section 397 of the Code.
3. P. W. 2 was the only person whose evidence of identification of the appellant as his assailant had been accepted by the trial Court. The occurrence had taken place in September, 1982. P. W. 2 had deposed in the Court after a period of one year and three months in December, 1983. P. W. 2 had not known the appellant from before and had stated in his cross-examination that he had seen the appellant for the first time at the time of the occurrence and for the second time while deposing in the Court. He had admitted that he had stated in the course of investigation that he could not recollect the identifying features of the culprits. As would appear from the evidence of P. W. 2 and that of the Investigating Officer (P. W. 9), steps were not taken by the latter for a test identification parade for the identification of the appellant by P. W. 2 as P. W. 2 did not state to him that he could identify the culprits. In view of these features in the evidence, the sole evidence of identification of the appellant by P. W. 2 in the Court as the person who had been armed with a knife who had caused grievous hurt to him could not safely be accepted. The learned Additional Standing Counsel has been very fair in his submission that the evidence of P. W. 2 in this regard ought not to have bean accepted by the trial Court.
4. There were more than one culprits. If the evidence of P. W. 2 with regard to the identification of the appellant is discarded, as has been done by this Court, it cannot be said on the basis of the other evidence that the appellant, at the time of committing robbery, had used any deadly weapon or had caused grievous hurt to P. W. 2. To attract Section 397 of the Code, it is necessary to establish that at the time of committing robbery or dacoity, the offender has used any deadly weapon or has caused grievous hurt to any person or has attempted to cause death or grievous hurt to any person. For the foregoing reasons, it would be reasonable to hold that the evidence did not warrant the application of Section 397 of the Code. The result would be that the order of conviction of this appellant by the application of Section 397 of the Code is to be set aside while upholding his conviction for the commission of robbery.
5. Coming to the question of sentence to be imposed on the appellant, it has been submitted at the Bar that the appellant has served the sentence of imprisonment for a period of more than two and a half years and Mr. Sahu has submitted that the period of imprisonment already undergone would meet the ends of justice. Mr. Das, the learned Additional Standing Counsel, has left the question of sentence to the discretion of this Court. In my view, the sentence already undergone by the appellant would serve the purpose.
6. In the result, the appeal is allowed in part. The order of conviction passed against the appellant for commission of robbery by the application of Section 397 of the Indian Penal Code, and the sentence passed against him thereunder are set aside and in lieu thereof, the appellant is convicted under Section 392 of the Indian Penal Code and sentenced to undergo imprisonment for the period already undergone by him. The appellant be set at liberty forthwith.
7. No specific order has been passed by the trial Court regarding the release of the seized cash. As has been submitted by the learned counsel for both the sides, the seized cash is to be released in favour of P. W. 1.
8. Before I part with this appeal, I would like to keep on record a disquieting feature in the charge and in the order of conviction. Section 397 of the Code does not postulate a substantive offence. It prescribes the minimum sentence to be imposed on a culprit for commission of robbery or dacoity coming within the purview of this section. It is, therefore, legal and appropriate that the offender should be charged for an offence of robbery or dacoity under Secs. 392, 394 or 395, as the case may be, read With Section 397 of the Code and if found guilty, should be so convicted. In the instant case, however, this was not noticed by the trial Court and a separate charge under Section 397 of the Code had been framed against the appellant as if this section postulated a substantive offence and he was even convicted under Section 397 of the Code instead of properly mentioning that the conviction was under Section 392 read with Section 397 of the Code. While framing charges by applying Section 397 of the Code, this aspect should be kept in mini by the trial Courts.