The main legal point established in the judgment is the necessity of producing seized weapons in court to establish their identity and possession by the accused, and the distinction between attempt to commit robbery and robbery with the use of deadly weapons.

JUDGMENT :

Since both the aforesaid appeals arise out of one and the same judgment, they are being decided and disposed of by this common judgment.

2. The appellants named above have challenged their conviction under section 393 read with section 397 of the Indian Penal Code and section 25(1-B)A read with section 3 and section 25(1-B)B read with section 4 of the Arms Act and sentence of R.I. for seven years with fine of Rs. 500/- each, in default of payment of fine to suffer additional S.I. for six months each and R.I. for one year and fine of Rs. 200/- each, in default of payment of fine to suffer additional S. I. for two months each respectively, passed by the learned Fourth Additional Sessions Judge, Indore in S.T. No. 30/2005 by judgment dated 29-11-2005.

3. In short, the prosecution case as placed before the trial Court is that on 26-11-2004 in the noon at 1.00 PM near Rajeev Gandhi Square, Ring Road, Piplyarao, Indore, the complainant PW-1 Guruvej Singh was standing near his truck bearing Registration No. MP-09-KD-3028. At that juncture, acquitted co-accused Faim Khan alias Dhanna Tyrewala and the appellants reached there and surrounded the complainant Guruvej Singh. Appellant Vikram took out a revolver from his pocket and put its barrel at the neck of the complainant whereas appellant Sukhraj Singh and co-accused Dhanna Tyrewala put CHHOORA at his abdomen and asked him to give money. The complainant got scared and shouted attracting Head Constable PW-6 Yudhishthir and PW-8 Rajkumar as well as truck-owner Risal Singh. All the three accused persons were caught with weapons on the spot. The driver Jernailsingh and some bi-passers also reached over on the spot. Accused persons were then taken to the Police Station where PW-1 Guruvej Singh lodged the report Ex.P/1 for commission of offences under sections 393 and 398 of the Indian Penal Code. From appellant Vikram, a country-made pistol and six live cartridges and from Sukhraj Singh and Faim CHHOORAS were seized. The Investigation Officer also prepared spot map Ex.P/2. The seized revolver was sent for examination and opinion to PW-2 Irfan Ali who gave his opinion Ex.P/3. After obtaining sanction for prosecution under the provisions of Arms Act from Sub-Divisional Magistrate Shri Rameshwar Gupta, charge-sheet was filed against the accused persons for the above mentioned offences and section 25(1-B)A read with section 3 and section 25(1-B)B read with section 4 of the Arms Act.

4. The accused persons refuted the charges and pleaded their false implication. According to appellant Sukhraj Singh, he was plying Tanker bearing Registration No. MP-09-KA-5184 through the transport of complainant Guruvej and he owed big amount from the complainant who has implicated him falsely with the help of the police so that he may not be required to make the payment. They have not examined any witness in their defence. The learned trial Court, after examining the prosecution witnesses and hearing both the parties, while acquitting co-accused Faim Khan alias Dhanna convicted the appellants as mentioned hereinabove.

5. Learned counsel for the appellants have submitted that the offence under section 397 of the Indian Penal Code would not be made out against the appellants, because they had not committed any dacoity or robbery and for attempt to commit robbery, if deadly weapon was used, there is specific section for making out the offence i.e. 398 of the Indian Penal Code. It is also submitted that the conviction of the appellants under the Arms Act is not sustainable, because the seized weapons were not produced before the Court and their identity with the seizure memo and other reports has not been established by the prosecution. Finally, learned counsel have submitted that for offence under section 393 of the Indian Penal Code, there is no minimum jail sentence prescribed in the statute. Therefore, the appellants may be sentenced to the period already undergone.

6. On the other hand, learned State coun