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34. It is significant to point out that Section 397, I.P.C. only provides that if the offender while committing robbery or dacoity is armed or uses a deadly weapon etc. he shall not be awarded a sentence of less than seven years' R.I. It deals with robbery/dacoity of a more serious nature than that referred to in Sections 394 and 395, I.P.C. respectively.

35. Mrs. Revati Dere learned Counsel for respondent Vinayak urged that since no charge was framed for an offence under Section 394, I.P.C. we would not be justified in convicting the said respondent under the said count. We regret that we cannot accede to her contention. It is significant to point out that all the elements of an offence u/S. 394, I.P.C. are included in the offence u/S. 397, I.P.C. Both of them contemplate of robberies with hurt. In our view, the offence u/S. 394, I.P.C. is a minor offence in relation to that under Section 397, I.P.C.

36. It is well-settled that where the court frames a charge on a major count the law does not provide that it should also frame a charge under the minor count.

37. Further there has been no failure of justice or prejudice to the respondent on account of the circumstance that no charge u/S. 394, I.P.C. has been framed and that being so the absence of a charge under Section 394, I.P.C. would not vitiate his conviction under Section 394 r/w. 397, I.P.C. In this connection it would be pertinent to refer to the provisions contained in Sections 215 and 464(1), Cr.P.C. They read thus :-

38. A perusal of the said sections would show that only where there has been a failure of justice on account of framing of a charge would a omission to frame a charge vitiate the conviction of the accused.

This is not the position here. It is significant to point out that a perusal of the cross-examination of both the eye-witness shows that they were cross-examined with respect to the offence of robbery as contemplated by Section 394, I.P.C.

A perusal of the statement of respondent Vinayak recorded u/S. 313 of Cr.P.C. also shows that ingredients of robbery as contemplated by Section 394, I.P.C. were put to him therein.

Hence neither has there been a failure of justice nor prejudice has been caused to respondent Vinayak on account of the circumstance that no charge under Section 394, I.P.C. has been framed by us.

39. In our judgment, since a charge under Section 397, I.P.C. was framed against the respondent Vinayak he can be convicted under Section 394 r/w. 397, I.P.C. in spite of the fact that he has not been charged under Section 394, I.P.C.

40. This brings us to the question of sentence. Mr. Borulkar urged that looking to the circumstance that on a railway platform at the dead of night in the heart of Thane Town, the respondent Vinayak committed robbery of gold buttons and while trying to run away with them assaulted the informant with a knife calls for a very deterrent sentence.