RAJEEV GUPTA, J.

(1.) The judgment of the Court was delivered by Rajeev Gupta, J.- This judgment shall govern the disposal of Criminal Appeal No. 973/1989 also.

(2.) Appellants Ashok Kumar and Hariom stand convicted under Ss. 302/34 and 397/34 of the Indian Penal Code, with sentences of im-prisonment for life and 10 years R.I. each respectively, vide judgment dated 29-6-1989, passed by Ist Additional Sessions Judge, Durg in S.T. No. 110/1988.

(3.) The short facts of the case, essential for deciding these appeals, are that Mst. Manjia Bai (since deceased) was married to prosecution witness Balkishan Gupta, who is real brother of Satairam, father of accused Ashok Kumar. Balkishan Gupta used to reside on the first floor of Qtr. No. 12, at Street No. 2 of Sector No. 6, in the town of Durg. In the night of 12-8-1987, Balkishan Gupta, after handing over an amount of Rs. 1,500/- to his wife, received by him as commission in the transaction of sale of land, had gone with his friend Mota Bhai Mansukhlal, on motor cycle. When he was coming back, his brother Satairam invited him for taking dinner with him. After taking his dinner, he came back to his house at about 9.15 p.m. and after parking his motor cycle in the garage, when he was going upstairs he saw his nephew Ashok Kumar coming downstairs with his companion. Balkishan Gupta did not take a serious note of their presence, as he felt that his nephew Ashok Kumar might have come to meet his aunt. As soon as he reached in the veranda, he saw blood-stains. On opening the doors, he found his wife lying dead, on the ground, in a pool of blood with several external injuries on her body. He came out shouting that his wife was murdered and at this juncture, his nephew Ashok Kumar and his companion fled away on their Hero Majestic moped. Balkishan Gupta tried to chase them on his motor cycle, but as in the meantime the gate at the railway crossing got closed, he came back and informed his brother Satairam and his friend Mota Bhai, about the unfortunate incident and lodged the First Information Report, at P.S. Bhilai. During the course of investigation, finger prints from the articles, lying on the place of occurrence, were gathered. Hair, found in the fist of the deceased was also seized. Accused Ashok Kumar was arrested on 15-8-1987, and his pant and shirt were seized. On his information, one hawai chappal was seized. Accused Hariom was arrested on 17-8-1986 (1987), and his pant and shirt were also seized. On his information, given under S. 27 of the Evidence Act, silver and gold ornaments were seized. On post-mortem examination, 22 external injuries were found on the body of deceased Mst. Manjia Bai. The Autopsy Surgeon has opined that Manjia Bai had died due to shock and haemorrhage, resulting from the injuries. After completing the investigation, Police, Bhilai Nagar filed charge-sheet against the accused persons for the commission of the offences under Ss. 302/34 and 397 of the Indian Penal Code (for short the IPC).

(4.) The accused persons abjured their guilt and pleaded false implication to the charges, framed by the trial Court, under Ss. 302/34 and 397/34 of the Indian Penal Code, against them.

(5.) At the trial, prosecution examined as many as 11 witnesses. The accused persons chose not to examine any witness in their defence. The trial Court, on the evidence led by the prosecution, found it proved that deceased Manjia Bai had sustained 22 external injuries in the night of 12-8-1987, and had died a homicidal death. Relying upon the evidence, led by the prosecution for establishing the incriminating circumstances against the accused persons, the trial Court held them guilty of having committed murder of Mst. Manjia Bai, and of having robbed her of her ornaments, and therefore, convicted and sentenced them, as mentioned above.

(6.) We have heard Shri P. S. Das, for appellant-Ashok Kumar in Cr.A. No. No. 839/89, and Smt. Savita Tiwari, for appellant-Hariom in Cr.A. No. No. 973/89, and Shri A. K. Khaskalam, the learned Dy. Advocate-General for the State. The learned counsel for the appellants contended that the trial Court has erred in convicting the appellants, as there is no eye-witness of the alleged incident of robbery and of murder of Smt. Manjia Bai, and the evidence led by the prosecution, for establishing the alleged incriminating circumstances, is not of conclusive nature. The learned Dy. Advocate-General, on the other hand, submitted that the incriminating circumstances found proved by the trial Court are sufficient for upholding the appellants conviction under Ss. 302/34 and 397/34 of the Indian Penal Code.

(7.) The fact that deceased Manjia Bai sustained 22 external injuries, in the night of 12-8-1987, and had died a homicidal death was neither in dispute at the trial, nor is under challenge in this appeal, and otherwise also, in view of the overwhelming evidence on record, we uphold the finding, recorded by the trial Court, in that behalf.

(8.) First, few words about an apparent illegality in the trial Courts judgment. On a bare perusal of the judgment, we find that the trial Court had framed charges against the appellants and had convicted them under Ss. 397/34 of the I.P.C. Section 397 of the Indian Penal Code, reads as follows :-

"397. 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 7years."

On a plain reading of S. 397, it becomes apparent that this section does not create any substantive offence, but merely regulates the punishment already provided for robbery and dacoity under Ss. 392, 394 and 395 of the I.P.C. It makes it incumbent to award a minimum sentence of 7 years R.I. when the commission of robbery and dacoity has been attended with certain aggravating circumstances enumerated in the section. It is, therefore, apparent that neither the charge can be framed against the accused nor can he be convicted under S. 397 of the I.P.C., simpliciter. The trial Court, therefore, should always frame charge under S. 392 or 394 or 395 (as the case may be) read with S. 397 of the I.P.C. Further, only that offender who uses deadly weapon, or causes grievous hurt, or attempts to cause death, or grievous hurt to any person, while committing robbery or dacoity, would be liable to be punished to the minimum sentence of 7 years. No other offender, participating in the commission of such robbery or dacoity, can be punished u/S. 397 with the aid of S. 34 of the I.P.C., as S. 34 has no application to the construction of this section. It does not create any vicarious liability. Therefore, the framing of charges under Ss. 397/34, I.P.C. against the appellants and their conviction under Ss. 397/34 of the I.P.C., are ex facie illegal. However, as in the present case the essential facts, constituting the offence of robbery were distinctly mentioned in the charge itself, in our opinion, no prejudice was caused to the appellants.

(9.) There is no eye-witness account available in the present case. The entire prosecution case against the appellants rests on circumstantial evidence alone. The trial Court found the following incriminating circumstances proved against the appellants :-

(a) An amount of Rs. 1,500/- was kept by Balkishan Gupta with his wife Manjia Bai, on the fateful day;

(b) Balkishan Gupta saw the accused persons coming down from his house immediately after the incident of murder and robbery;

(c) Accused Ashok Kumar was seen on the Hero Majestic moped shortly before and immediately after the incident of murder and robbery;

(d) At about 11.00 in the night, after the incident of murder and robbery, Vinod Kumar had seen a bleeding injury on the hand of accused Ashok Kumar;

(e) Dr. D. C. Jain found injuries on the person of accused Ashok Kumar immediately after his arrest;

(f) Seizure of one hawai chappal, on the information of accused Ashok Kumar from a drain;

(g) Seizure of gold and silver ornaments of the deceased, on the information of accused Hariom;

(h) Hair of accused Ashok Kumar were found similar to those seized from the fist of deceased-Manjia Bai;

(i) Finger Prints gathered from the articles found on the place of occurrence, on examination, were found to be that of accused Hariom;

(j) The clothes of the accused persons were found stained with human blood; and

(k) Absence of any enmity between Balkishan and the accused persons.

(10.) Now, we shall examine the evidence led by the prosecution for establishing the above incriminating circumstances, found proved by the trial Court against the appellants.

(11.) Balkishan Gupta (P.W. 4), in his deposition in the Court, categorically stated that in the fateful night when he was going upstairs, after parking his motor cycle in the garage, he noticed accused Ashok Kumar coming downstairs with his companion. He further stated that on entering his house, he found his wife lying dead in a pool of blood. He immediately came out and raised an alarm, shouting that his wife has been murdered. Though he was cross-examined at length, but we do not find any material in his cross-examination, indicating that he had any animus against the accused persons, which could have motivated him in implicating the accused persons falsely and particularly when one of them happens to be his real nephew. The above fact has distinctly been mentioned by him in his first information report, which was promptly lodged within less than 2 hours of the incident of murder and robbery. On a close scrutiny of his evidence, we find that his evidence is sufficient for establishing the above circumstances against the appellants.

(12.) M. S. Gill (P.W. 9), the Investigating Officer of the case, had arrested appellant-Ashok Kumar on 15-8-1987. His pant and shirt were seized vide seizure memo Ex. P/12. Similarly, appellant-Hariom was arrested on 17-8-1987, and his pant and shirt were also seized vide seizure memo Ex. P/17. The evidence of Naseer Ahmed (P.W. 8) and M. S. Gill (P.W. 9) fully establishes the fact of seizure of the pants and shirts of the appellants, which they were wearing at the time of their arrest. During the course of investigation, these pants and shirts were sent for Chemical Examination. On Chemical Examination, the pants and shirts of the appellants were found blood-stained, vide Chemical Examiners report Ex. P/27. The Serologist, vide his report Ex. P/28, further found that the blood-stains found on these two pants, of the appellants, were of human origin. The appellants have not given any explanation as to how and in what circumstances their clothes got stained with human blood. On due consideration, we are satisfied that the evidence led by the prosecution is sufficient for establishing this incriminating circumstance against the appellants and, therefore, we uphold the finding, recorded by the trial Court, in that behalf.

(13.) M. S. Gill (P.W. 9) stated in para 16, that accused-Hariom after his arrest, gave information under S. 27 of the Evidence Act, and the same was recorded vide Ex. P/3. In pursuance to the above information, one silver chain one pair silver pair-patti, and one pair of gold ear tops were seized at the instance of appellants-Hariom, vide seizure memo Ex. P/4. On the evidence of Ramji (P.W. 3) and M. S. Gill (P.W. 9), we find the above fact of seizure of the above-mentioned ornaments in pursuance to the information given by appellant-Hariom, under S. 27 of the Evidence Act, proved. Balkishan Gupta (P.W. 4), husband of deceased-Manjia Bai, has identified these articles as that of his wife, in the Court. Therefore, the finding, recorded by the trial Court holding the above circumstance proved against appellant-Hariom, is upheld.

(14.) The Investigating Officer of the case, vide seizure Ex. P/1, seized some hair which were found in the right fist of the deceased on 13-8-1987. During the course of investigation, after the arrest of appellant-Ashok Kumar, some of his hair was cut and seized on 15-8-1987, vide Ex. P/16. The evidence of Ashok Kumar (P.W. 1), Naseer Ahmed (P.W. 8) and M. S. Gill (P.W. 9) establishes the fact of the above seizure. The hair seized from the fist of the deceased, and the hair of accused-Ashok Kumar were sent for Chemical Examination. The Chemical Examiner, vide his report Ex. P/28-A, had opined that the hair, seized from the fist of the deceased, and the hair of accused-Ashok Kumar were similar in morphological and microscopic character. On considering the evidence of the above-mentioned prosecution witnesses and the Chemical Examiners report, we affirm the finding, recorded by the trial Court, in that behalf and hold that this is an incriminating circumstance against appellant-Ashok Kumar.

(15.) Investigating the case on scientific lines, the Investigating Officer had seized one glass and plate from the place of occurrence, as some finger prints were found on these articles. After the arrest of the accused persons, their finger prints were also obtained. The photograph of the finger print found on the glass and plate, and the finger prints of the accused persons were sent for examination to the Finger Print Expert. On examination, the finger prints, found on the glass and plate, tallied with the finger prints of appellant-Hariom. The Experts report Ex. P/7, was proved by the Finger Print Expert, Shri S. R. Mishra (P.W. 7). For the reasons best known to the learned counsel for the accused, appearing in the trial Court, S. R. Mishra (P.W. 7) was not cross-examined at all and, therefore, his evidence remained unchallenged. This incriminating circumstance was specifically put to appellant-Hariom, in Question No. 48, of his examination under S. 313 of the Cr. P.C. He, instead of giving an explanation, preferred a bare denial. On going through the report, Ex. P/7, and the evidence of S. R. Mishra (P.W. 7), we are satisfied that the finding, recorded by the trial Court, on the above evidence does not suffer from any perversity and is, therefore, upheld.

(16.) The sum and substance of the above discussion of the evidence is that the accused persons were seen by Balkishan Gupta (PW/4), coming down from the house of the deceased and immediately thereafter the deceased was found lying dead, in a pool of blood with 22 external injuries on her body; the hair of appellant-Ashok Kumar, on chemical examination, were found similar to those found in the fist of the deceased; the finger prints, found on the glass and plate, lying on the place of occurrence tallied with the finger prints of appellant-Hariom; silver and gold ornaments of the deceased were seized on the information of appellant-Hariom, within five days of the murder and robbery; and, the clothes of the appellants, seized at the time of their arrest, were, on examination, found to be stained with human blood. We do not find any material indicating any animus between Balkishan Gupta (PW/4) and the appellants, which may furnish a motive for him to implicate the appellants falsely.

(17.) As the incriminating circumstances, mentioned hereinabove, are, in our opinion, sufficient for holding the appellants guilty of the commission of the offence of robbery and murder of Manjia Bai, we do not deem it necessary to evaluate the evidence, led by the prosecution, for proving the other circumstances against the appellants.

(18.) On a close scrutiny of the evidence, led by the prosecution for establishing the above-mentioned incriminating circumstances, we are satisfied that these incriminating circumstances stand fully proved. We unhesitatingly hold that these circumstances are of a conclusive nature and they form a complete chain against the appellants. On the above evidence, we hold that the acts of robbery and murder of deceased-Manjia Bai were committed by the appellants, and the appellants alone, and by none else.

(19.) From the proved facts, it is apparent that deceased-Manjia Bai resisted the act of the accused persons, of committing robbery of her ornaments and cash amount, and the accused persons in perpetrating their design, gave her repeated blows resulting in 22 external injuries on her body. The above act of the appellants, in causing as many as 22 external injuries on the deceased, in our opinion, would not amount to anything short of murder and would make them liable under Section 302 of the Indian Penal Code.

(20.) The trial Court has convicted the appellants under Section 397/34 of the IPC. The prosecution has failed in establishing that both the appellants were armed with deadly weapon, or both of them had caused grievous hurt, or had attempted to cause death, or grievous hurt. The injuries, found on the body of deceased-Manjia Bai, undoubtedly establish that at least one of the two appellants was armed with a deadly weapon, like knife. However, as there is not even an iota of evidence to establish as to which of the two appellant was armed with deadly weapon, and had caused grievous injuries to deceased-Manjia Bai, in our opinion none of them can be convicted with the aid of Section 397 of the IPC. Nevertheless, on the proved fact, the appellants cannot escape their liability under Section 394 of the Indian Penal Code.

(21.) For the foregoing reasons, the appeals, filed by appellants Ashok Kumar and Hariom, fail and are hereby dismissed in toto. Their conviction under Section 302 read with Section 34 of the Indian Penal Code, and sentence of imprisonment for life are hereby maintained. However, their conviction under Section 397/34 of the Indian Penal Code, for the reasons men-tioned above, is converted to one under Sec. 394 of the Indian Penal Code, and they are sentenced to 10 years rigorous imprisonment each.Order accordingly.