IMPORTANT POINT
The actual user of a deadly weapon during a robbery is solely liable under Section 397 IPC, while others involved may face lesser charges if not directly implicated.

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. 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