1. Heard learned counsel for the parties. Leave granted.

2. The appellant challenges the order of conviction as recorded by the trial Court and upheld by the High Court and also the order of sentence, by which, initially he was awarded a sentence of seven years by the trial Court, which was reduced to five years by the High Court under Section 397 of the Indian Penal Code, 1860 (for short the IPC).

3. Learned counsel for the appellant contended that as per the prosecution story the complainant was robbed of Rs.500/- and the two labourers of their mobile phones at knife point. However, no Test Identification Parade (TIP) was conducted, but before the Court the two labourers could not identify the appellant as the person who had robbed them. It was contended that even with regard to the seizure/recovery of two mobile phones and one knife from the appellant, the witness, who is said to be a seizure witness (PW-1), has categorically stated before the Court that the appellant was brought by the police to the Police Station where that witness was also present and in front of the said witness, it was the appellant who had produced the two mobile phones and the knife. It was further contended that the appellant could not be identified by the two labourers/ eye witneses and only by the complainant himself, that too, in the Court as no TIP was conducted, whereas the Investigating Officer (PW-8) in his testimony has stated before the Court that when the appellant was arrested by the Constables sent to arrest, the recovery of mobile phones and knife were made at that point of time. It was submitted that this material contradiction between the two versions itself was enough to give benefit of doubt to the appellant and acquit him.

4. Learned counsel for the appellant submitted that as of now the sentence awarded is five years, out of which, almost for four years the appellant has been behind bars. Learned counsel submits that the Court may modify the sentence and release the appellant by reducing the sentence to the period already undergone. It was further contended that the appellant is a poor labourer and no other incriminating material has been recovered from him and his antecedents are also clean. Learned counsel for the appellant summed up her arguments by saying that the story of recovery of the knife from the appellant is absolutely unbelievable for the reason that the Investigating Officer (PW-8) has stated in his testimony that he had sent two constables to arrest the appellant and bring him to the Police Station, and according to their version when they had caught the appellant, he was in possession of two mobile phones and a knife, but then they only bring him to the Police Station without seizing the same and thereafter the appellant is said to have surrendered the mobiles as well as the knife at the Police Station, which is totally improbable for no constable or any other police officer or any other person would leave a weapon which can cause damage on the person by the accused while bringing that person from the place of arrest to the Police Station.

5. Per contra, learned counsel for the State submitted that the complainant has identified the appellant in Court. However, with regard to the material contradictions in the statement of witnesses, as indicated by learned counsel for the appellant and noted above, could not be controverted.

6. Having considered the matter in its entirety and taking into consideration the facts and circumstances of the case, we are persuaded to interfere to the extent as rightly has been submitted by the learned counsel for the appellant, for recording the conviction under Section 397 of the IPC, the chain was not complete and this would entitle the appellant to benefit of doubt. Accordingly, we are inclined to substitute the conviction against the appellant for an offence under Section 378 of the IPC being proved, and the conviction and sentence shall be under Section 379 of the IPC. We are also inclined to interfere in the sentence and reduce it to the period already undergone.

7. Accordingly, the appeal stands partly allowed in the aforementioned terms. The appellant is directed to be released from custody, if not required in any other case, forthwith. He stands discharged of the liability of his bail bonds.

8. Pending application(s), if any, shall stand disposed.