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9. I see no reason to disbelieve the testimony of the complainant as regards the incident that took place with him and the identity of the persons involved in commission of robbery. He had no enmity or ill-will against the appellants and, therefore, had no reason to implicate them in a false case of robbery.

10. Though the appellant Lal Singh claims that he was shown to the complainant and the witnesses at the police station, there is no material on record to substantiate the plea taken by him. In fact during cross-examination of complainant, Kamal Kishore, no suggestion was given to him that the appellant Lal Singh was shown to him in the police station. The complainant specifically stated that he had not seen the accused persons prior to giving the statement to the police and even before coming to the court. Thus, the appellant Lal Singh had no justified reason to refuse to join the test identification parade. The reason given by the appellant Rajesh to the Trial Court for refusing to join test- identification-parade is just meaningless. A perusal of the proceedings conducted by PW-4, Sh. Narender Kumar, Metropolitan Magistrate shows that a specific warning was given to him that an adverse inference may be drawn against him on account of his refusal to join it. Despite the warning he persisted in refusing to join the test-identification-parade. There is no material on record which may give rise to the inference that the appellant had refused to join T.I.P. at the instance of some police officer. The reason given by the appellants to the learned Metropolitan Magistrate for refusing to join T.I.P. was that the police was in possession of their photographs. There is no material on record to show that the photographs of the appellants were taken by the police before they were produced in the court on 2nd December, 2000, when they refused to join test-identification-parade. In any case, even if the police had photographs of the appellants in its custody that has no consequence unless the photographs were shown to the witness, before the appellants refused to join T.I.P. This is not the case of the appellants that their photographs were shown to the complainant prior to 2nd December, 2000. No such suggestion was given to the complainant, when he came in the witness box.

15. However, as far as the appellant Lal Singh is concerned, admittedly neither he was carrying any weapon nor did he use the weapon in commission of the offence. Therefore Section 397 of IPC does not apply in his case. The testimony of the complainant, however, shows that the appellant Lal Singh who was sitting on the front seat alongwith the driver had pressed his mouth with a muffler and thereafter all of them including Lal Singh had asked the complainant to hand over whatever he had with him and then removed cash and other articles which the complainant was carrying with him in the auto-rickshaw. Therefore, it is evident that the appellant Lal Singh is guilty of commission of robbery, which is punishable u/s 392 of Indian Penal Code. It would be pertinent to note here that Section 397 of the Indian Penal Code by itself does not create any offence. It only makes the robbery punishable with imprisonment for a term which shall not be less than seven years in case a deadly weapon is used or grievous hurt is caused or an attempt to cause death or grievous hurt is made. The substantive offence for which Section 397 provides minimum punishment is robbery or dacoity, as the case may be. Therefore, it is not necessary to award sentence of minimum 7 years to the appellant Lal Singh.