The main legal point established in the judgment is the requirement for the accused to meet the essential ingredients of Section 397 of the IPC, and the distinction between 'uses' as used in Section 397 and Section 398 of the IPC.

VINOD KUMAR SINHA, J.

1. In spite of repeated calls, none has appeared on behalf of appellant in Criminal Appeal (SJ) No. 108 of 2004 and it appears that the case is of the year 2004, as such, I deem it appropriate to appoint Mr. Ranbir Singh, learned Advocate as Amicus Curiae to assist the court in Cr. Appeal (SJ) No. 108 of 2014.

2. As both the above appeals arise out of same judgment, they are clubbed together and are being decided by this common judgment, for the sake of convenience.

3. These appeals are directed against the judgment of conviction dated 31.01.2004 and order of sentence dated 05.02.2004, passed by Sri Prakash Chandra Jaiswal, the then Additional Sessions Judge, 5th Gaya in Sessions Trial No. 53/2000, 377/2000, by which the appellant Indrasekhar Devedi stood convicted under Section 397 of the Indian Penal Code (hereinafter referred to as the “IPC”) and was sentenced to undergo R.I. for ten years with a fine of Rs. 10,000/- having default clause and appellant Rajesh Kumar Yadav alias Rahis Yadav stood convicted under Section 412 of the IPC and was sentenced to undergo R.I. for seven years with a fine of Rs. 10,000/- having default clause.

4. Prosecution case as per the fardbeyan of Nand Kishore Prasad Gupta in short is that on 09.01.2000 at 7.35 P.M., the informant along with his mother, namely, Shayam Devi, elder daughter, namely, Ruby Kumari, his son, namely, Shani and servant, namely, Mukesh Yadav and other family members were watching television, in the meantime 8 -10 persons, some of them had covered their faces armed with pistol and gun entered into his room through main gate, two of them pointed their fire arms on his head and demanded for his gun and took him to his another room and took the double barrel license gun from the said room. Thereafter, they took the informant to courtyard and demanded Rs. 2,00,000/- and assaulted on his left side of face by means of butt of the pistol causing injury to the informant. They took out cash of Rs. 6,600/- from his pocket and also snatched his wrist watch and golden ring. Other miscreants entered into the kitchen, where wife of informant was engaged in cooking food and snatched her ear tops, golden chain and golden nose pin. Besides, this, the miscreants took away black colour leather bag printed with the letter FABCO containing bundle of currency notes of denomination of Rs. 500/- and 20,000/- of denominations of Rs. 100 and Rs. 50, total Rs. 70,000/-. They also took away pass book, cheque book and 5-6 pair of anklet of the women members of the house. They also snatched silver payal from the leg of his daughter Ruby Kumari. The informant claimed to have identified the miscreants in the light of generator. Thereafter, the miscreants escaped and in course of escaping they also made two rounds of firing in the Verandah of the house, which entered into the wall of the room breaking the window pan. Thus the miscreants looted away the cash and other belongings worth Rs. 1,00,000/-.

5. On the basis of the aforesaid fardbeyan of informant Barachaty P.S. Case No. 6/2000 was registered against 8-10 unknown miscreants.

6. Police after investigation submitted charge-sheet. Cognizance of the offence was taken and the case was committed to the court of Sessions, which ultimately came to the file of Sri Uma Kant Srivastava, the then VIIth Additional Sessions Judge, Saran at Chapra, for trial and disposal.

7. Charges were framed under Section 397/34 and 412 of the IPC against the appellants.

8. In order to substantiate the charges, prosecution examined altogether nine witnesses, they are; P.W. 1–Nand Kishore Gupta (informant), P.W. 2–Ram Lakhan Prasad Gupta, P.W. 3 –Kusum Devi, P.W. 4–Nitu Kumari, P.W. 5–Ruby Kumari, P.W. 6–Guddu Kumar, P.W. 7–Pramod Kumar, Circle Officer, P.W. 8–Shyamdeo Yadav, P.W. 9–Awadhesh Kumar Sinha (I.O.).

9. Apart from that, following documents have been brought on record and marked as Ext. 1–signature of informant Nand Kishor Prasad Gupta on fardby