( 1 ) THIS Criminal Appeal is filed by the appellants-accused nos. 1 to 6 challenging the judgment dated 31 -7-2003 passed by the principal Sessions Judge Hassan in S. C. No. 211/2002, convicting the appellants-accused for an offence punishable u/s 395 of IPC and sentencing them to undergo imprisonment for life and to pay fine of rs. 5,000/- each and in default of payment of fine, to undergo simple imprisonment for a period of six months for an offence punishable u/s. 395 of IPC. ( 2 ) THE case of the prosecution in brief is that: the complainant namely, K. M. Adaveeshappa (PW. 1) who is residing in a farm house situated at Kellangere village, Arasikere taluk lodged complaint as per Ex. P. 1 stating that he is staying in the said house along with his family members since 40 years and adjacent to his house, his elder brother Rudrappa (PW. 3) was residing and towards right side of his house at a distance of about 100 feet, there is a house of one K. P. Murthy (PW. 8 ). On 06-04-2002 around 11. 00 p. m. , after having meals, the complainant and his family members slept in theirs house. At about 1. 30 a. m. , of 7-4-2002 complainant heard shouting from the side of house of his neighbour and in the meanwhile, his neighbour namely Murthy telephoned and informed the complainant that somef thieves have come and they are pelting stones towards his house and requested the complainant to come over there, as his family members prevented him from going outside the house stating that father-in-law of his wife's sister had been murdered near K. B. cross in a similar situation earlier, and if he goes there, they would be in trouble, so he kept quite. Within a short span, adaveeshappa and his family members heard the sound of knocking the door of his brother Rudrappa and in the meanwhile, Rudrappa (PW. 3) called his servent Sannaiah (P W. 6) who was sleeping outside. At that time, 4 accused assaulted Sannaiah and brought him near the house of complainant and asked the complainant to open the door or else they would finish off Sannaiah (P W. 6 ). 3) called his servent Sannaiah (P W. 6) who was sleeping outside. At that time, 4 accused assaulted Sannaiah and brought him near the house of complainant and asked the complainant to open the door or else they would finish off Sannaiah (P W. 6 ). While saying so, those 4 accused started breaking open the door, the compalinant asked them not to break the door and he would open the door, even then the said accused broke open the door and 4 accused gained entry into the house and another 4 accused were standing outside the house. Amongst the 4 accused who entered into the house, one accused was holding a sickle and other 3 accused were holding clubs. Out of the accused who had entered into the house, two accused had smeared some black and white lines on their faces. One among them assaulted the complainant Adaveeshappa on his left shoulder and as such, he sustained severe pain. The other 3 accused smashed the telephone with clubs and they gained entry into the bedroom and threatened the compalainant to open the Almirah and after opening the Almirah, complainantd handed over cash of Rs. 5000/ -. They also demanded the complainant to reveal as to where he had kept the money realised from the sale of toddy. Then thereafter, amongst them one accused forcibly opened the locker by using sickle and took Rs. 75,000/-cash, gold chain weighing about 30 grams, two gold bangles weighing 24 grams, one HMTd ladies watch and also snatched Titan watch which was in the hand of the complainant and also Rs. 500/- cash which kept on the TV stand. Out of the accused who had gained entry into the house, one was trying to talk in Tamil, another was trying to talk in Telugu and another was trying to talk in Hindi but they were unable to talk in these languages properly but they were talking kannada and fluently. After committing dacoidy, the accused foraibly confined complainant (PW. 1) Adaveeshappa, his wife (PW. After committing dacoidy, the accused foraibly confined complainant (PW. 1) Adaveeshappa, his wife (PW. 2) Prema and his son Harsha in the cattle shed and one accused was guarding them and the other 3 accused went out of the house and the accused who was guarding them got redmoved a pair of gold ear stude from the wife of complainant and when the wife of complainant tried to remove her Mangalasuthra, the said accused told her not to remove mangalasuthra. The accused who had gained entry into the house did not touch the silver articles, which were kept in Almirah. In the meanwhile, some people from Bovi colony came there and on coming to know about their arrival, the decoits ran away in the darkness. Later, the complainant and his family members went and saw that deceits had assulted their servant Sannaiah (PW. 6) and even (PW. 8)K. P. Murthy and his wife had also sustained injuries due to pelting of stones by the decoits. That the accused who had committed dacoity were in the age group of 25 to 40 years and out of them, one accused had worn Lungi and other 3 accused had worn pants. The complainant has stated in his evidence that he could identity them if he sees the accused. It is further case of the prosecution that the dacoits had robbed cash amount of Rs. 80,000/- and gold articles worth about rs. 30,000/- and two watches. After the dacoits went away the complainant and his family members came out of the house and found PW. 6 Sannegowda had sustained severe bleeding injuries. Thereafter, the injured (PW. 6)Sannegowda was shifted to the hospital. On receipt of the complaint Ex. P. 1, PW. 5 Police inspector registered a case in crime No. 50/2002 for an offence punishable u/w. 395 IPC, prepared FIR Ex. P. 6 and forwarded the same to the jurisdictional Magistrate. The further investigation was taken over by the Police Inspector (PW. 9) who visited the spot, drew the spot mahazar, seized the broken wooden piece of the doors and the stones and bricks pelted by the dacoits. The dog squad was pressed into action and the dog after going about half K. M. Stopped near the lake bed of Thirupathihalli wherein one pair leather chappal was found and they were seized. Again, the further investigation was taken over by pw. 10. The dog squad was pressed into action and the dog after going about half K. M. Stopped near the lake bed of Thirupathihalli wherein one pair leather chappal was found and they were seized. Again, the further investigation was taken over by pw. 10. It is further case of the prosecution that on 27-7-2002, the investigation officer (PW. 10), on getting credible information that accused Nos. 1 to 5 are making preparation to commit dacoity, arrested them and registered a case in crime No. 140/2002 for the offences punishable U/s. 399, 400 IPC. On 28-7-2002 at about 3. 00 a. m. Accused No. 6 was also apprehended and on the basis of the voluntary statements of the accused, the gold articles, watches which were robbed from the house of complainant were recovered at the instance of accused. After recovery of the said articles, the investigation officer summoned the comoplainant Adaveeshappa (PW. 1) who identified the articles as the articles which were robbed from their house and after recording the further statement of the complainant and after completing the investigation, PW. 10 filed charge sheet against the accused for the offence punishable U/s. 395 of IPC. ( 3 ) IN order to establish the guilt of the accused-appellants, the prosecution has examined as many as 14 witnesses and got marked ex. P. l to P16 and Mos. 1 to MO. 12. No evidence was let in on behalf of the accused-appellants. The defence of the accused is one of total denial of the prosecution case. The statements of the accused was recorded U/s. 313 of Cr. P. C. ( 4 ) PW. 1 Adveeshappa who is the complainant in the case has stated in his evidence that he is staying in his farm house along with his wife and son and the house of his brother Rudrappa (3) is attached to his house and the house of Murthy (PW. 8) is situated about 300 feet from his house and there was electricity connection to his house. One year two and half months prior to his deposition (witness is examined in the Court on 30-6-2003) on the night intervening 6th and 7th April 2002 at about 1. 3 0 a. m. he received telephone call from his neighbour murthy (PW. 8) who informed him that dacoits had come near his house and the inmates of the house of Murthy were crying. 3 0 a. m. he received telephone call from his neighbour murthy (PW. 8) who informed him that dacoits had come near his house and the inmates of the house of Murthy were crying. Immediately he switched on the lights of his house. His servant Sannaiah (PW. 6)was residing in the outhouse. On the date of incident, the dacoits assulted him (PW. 6) and brought him near his house and asked (PW. 1)the complainant to open the door and stated that if he failed to open the door they will finish PW. 6 Sannegowda. Before he could open the door, the thieves broke open the door of his house and four accused gained entry into his house. One amongst those 4 accused, pushed him into the hall and assulted with club on his shoulder and the other 3 accused were holding sickles in their hands and they threatened him stating that they would do away with their life if money is not given he gave Rs. 5,000/- from his Almirah. The accused said that since the comoplainant (PW. 1) was carrying on business in sale of liquor, he would be having more money and the same should be given to them. PW. 1 requested his wife to hand over key of the locker to them. By the time his wife handed over locker key, the dacoits broke open the lock of the locker and took away one pair gold bangles, one gold chain and cash of Rs. 75,000/-, one ladies HMT watch and they snatched one Titan watch from his hand. Then thereafter, they forcibly took him, his wife and son to the cattle shed and locked them. One accused who was guarding them in the cattle shed took away the ear stud of his wife. He has identified the 4 accused in the Court who had gained entry into his house on the date of incident. He has further stated in his evidence that by mistake he has stated that Accused no. 7 had gained entry into his house but it is accused Nos. 1,2,5 and 6 who had gained entry into his house to commit dacoity. He has further stated in his evidence that at the time of committing dacoity. He has further stated in his evidence that by mistake he has stated that Accused no. 7 had gained entry into his house but it is accused Nos. 1,2,5 and 6 who had gained entry into his house to commit dacoity. He has further stated in his evidence that at the time of committing dacoity. 3 accused persons were holding clubs in their hand and one was holding sickle and it is Accused No. 5 who assaulted him with club on his shoulder and accused No. 6 forcibly broke open the locker and took gold ornaments. He has further deposed that on seeing the people of bovi colony rushing towards his house, the dacoits ran away from the scene along with stolen articles. Then thereafter he came out of his cattle shed and saw his servant Sannaiah PW. 6 and his nieghbour murthy (PW. 5) who had sustained injuries, Sannaiah-PW. 6 was shifted to the hospital for treatment and on the next day morning at about 5. 00 a. m. he lodged complaint to the police as per Ex. P. 1. He has further deposed that police arrived at the spot at 10. 00 a. m. and draw panchanama and seized the broken wooden pieces of the door (Mos. 1 and 2) and seized the stones and bricks (Mos 3 to 6) pelted by the dacoits at the house of PW. 8- Murthy under mahazar. Four months thereafter, he was summoned to the police station and was asked to identify the recovered articles i. e. , one Titan Watch (MO. 7), one ladies hmt watch (MO. 8), two gold bangles (Mos. 9), one gold chain (MO. 10) and one pair ear-studs (MO. 11) he identified those articles which were robbed by the accused from his house. He has further stated that he also identified the chain MO. 10 as he had purchased the same from Ambika Jewelers and there was a marking on the same as (AJ ). ( 5 ) PW. 2 Smt. Prema is the wife of the complainant (PW. 1)and she is an eyewitness to the incident. She has corroborated the evidence of PW. l in all material particulars. According to her, on the date of incident, the accused persons gained entry into their house at about 1. 30 a. m. and that accused No. 5 was holding club, Accused nos. 1)and she is an eyewitness to the incident. She has corroborated the evidence of PW. l in all material particulars. According to her, on the date of incident, the accused persons gained entry into their house at about 1. 30 a. m. and that accused No. 5 was holding club, Accused nos. 1 and 2 were also holding clubs and after gaining entry, they assaulted her husband PW. 1 and they took Rs. 5,000/- from the almiraha and thereafter, they broke open the locker and took rs. 75,000/- cash and gold ornaments. Then thereafter, they forcibly took PW. 1, PW. 2 and their son and confined them in the cattle shed wherein Accused No. 5 forcibly took one pair of gold ear studs worn by her. When the people from Bovi Colony came towards their house, the accused persons ran away from the scene of offence along with the stolen articles. She also identified the stolen articles from her house i. e. , Mos. 7 to 11. She has further stated that on the date of incident, 4 accused persons gained entry into their house and 2 were standing outside the house. ( 6 ) PW. 3 Rudrappa is the brother of PW. 1 who is staying adjacent to the house of PW. 1 he has stated in his evidence that one year two months prior to his deposition (witness examined in the Court on 1-7-2003) at about 1. 30 a. m. he heard galata from the house of murthy (PW. 8) and immediately he switched on the lights of his house and tried to open the doors and before he could open the doors of his house, the dacoits started pelting stones. He saw from his house that the dacoits had assulted PW 6 Sannaiah and thereafter they forcibly broke opened the door of the house of his brother and gained entry into the house and some accused were standing outside the house. Thereafter, he removed some roof tiles from his house and informed the same to the villagers. After noticing the arrival of the villagers, dacoits ran away from the spot. As Sannaiah-PW. 6 had sustained injuries, he was shifted to hospital that his brother (PW. 1) also had sustained injuries. Thereafter, he removed some roof tiles from his house and informed the same to the villagers. After noticing the arrival of the villagers, dacoits ran away from the spot. As Sannaiah-PW. 6 had sustained injuries, he was shifted to hospital that his brother (PW. 1) also had sustained injuries. He has further stated in his evidence due to pelting of stones by the dacoits, the door of his house was also broken and those broken pieces were seized by the police as Mos. 1 and 2. ( 7 ) PW. 4 who is the Pawnbroker and panch witness for recovery of stolen articles has stated in his evidence that 11 months prior to his deposition (witness examined in Court on 1 -7-2003) police called him to the police station and asked him to be a pancha. He saw accused Nos. 1 to 5 in the police station, the accused persons took the Police and panchas to Doddahatti near Kadur wherein Accused no. 5 got down form the Jeep and took them to the house and asked a person in the house to return the Titan watch and on production of the same, the police seized the same under Ex. P. 3 and said watch is marked as MO. 7. In the afternoon, Accused No. 5 took them to his house and produced two gold bangles from his trunk and the same were seized under mahazar Ex. P. 4 and marked as MO. 9. Two days thereafter, the police inspector called him and another Pancha to the police station and at that time Accused Nos. 2 and 5 were present. It is recorded in his deposition that this witness after going near the accused in the Court has stated that accused Nos. 1,2 and 5 were present in the police station on that day. He has further stated that accused No. 1 took the police and panchas to his father-in-law's house at chikkapattanagers village and produced one gold chain weighing 30 grams and two ear studs and the same were seized by the police under Ex. P. 5 and those articles were marked as Mos. 10 and 11. ( 8 ) PW. 5 K. P. Deepak who was the Police sub inspector at the relevant point of time has stated in his evidence that on 7-4-2002 at about 5. 00 a. m. he received complaint from PW. 1 as per Ex. P. 5 and those articles were marked as Mos. 10 and 11. ( 8 ) PW. 5 K. P. Deepak who was the Police sub inspector at the relevant point of time has stated in his evidence that on 7-4-2002 at about 5. 00 a. m. he received complaint from PW. 1 as per Ex. P. 1 and registered a case in crime No. 50/2002 and prepared FIR. Ex. P. 6 and forwarded the same to the Jurisdictional Magistrate. ( 9 ) PW. 6 Sannegowda who is a servant of PW. 1 he has given evidence to the effect that 3 years 1 month prior to his deposition (witness examined in Court on 11 -7-2003) at about 1. 00 a. m. in the mid night he heard sound from the house of Murthy (PW. 8) and he asked who is making galata. At that point of time, 4 accused who were holding clubs and sickle assaulted him on his cheek. Immediately thereafter, Adaveeshappa (PW. 1) switched on the lights. The 4 accused asked PW. 1 to open the door and if failed to open the door, they would kill PW. 6. All the 4 accused forcibly broke open the door of the house of PW. l and gained entry into the house of PW. 1. At that time accused No. 5 was guarding him, Accused No. 6 was holding club in his hand. He has stated that he saw all the 4 accused in the electic light. As the accused accusesd aseaulted him, he sustained bleeding injury on his ear. He also heard breaking open of the locker by 4 accused who had gained entry in to the house. He learnt that the accused had snatched away the watch from P W. 1 and on seeing the people from Bovi Colony coming towards the house of PW. 1 the accused ran away from the scene along with stolen gold articles and cash and thereafter as PW. 6 was injured he was admitted to the hospital. ( 10 ) PW. 7 Swaminayaka has given evidence to the effect that he knows accused No. 3 as he was frequently visiting Doddahatti village and as he belongs to his caste. As requested by accused No. 3, he gave a sum of Rs. 300/- to accused No. 3 by keeping one ladies watch. ( 10 ) PW. 7 Swaminayaka has given evidence to the effect that he knows accused No. 3 as he was frequently visiting Doddahatti village and as he belongs to his caste. As requested by accused No. 3, he gave a sum of Rs. 300/- to accused No. 3 by keeping one ladies watch. Later, accused No. 3 came with police and requested him to return the watch and on returning the said ladies HMT watch (MO. 8), the police seized the same under mahazar Ex. P. 7. ( 11 ) PW. 8 K. P. Murthy who is the neighbour of the house of pw. 1 has given evidence to the effect that on the date of incident, at about 2. 30 a. m. The dacoits pelted stones towards his dog and his dog started barking and he came out of the house and some one slashed battery light towards him and thereafter, 6-7 accused started pelting stones and bricks towards the windows of his house. He and his wife sustainedf injuries. As they did not open the door of their house, they had gone towards the house of Adaveeshappa (PW. 1 ). In the meantime, he telephoned to PW. 1 Adaveeshappa and informed him that Decoits are making galata. The telephone wire of his house was cut by the accused. He also found that the accused persons forcibly opening the door of the house of PW. 1 and robbing the household articles form the house of PW. 1 and asaulted PW. 1 while stealing the articles. When the people from the vilage started coming towards the scene, all the accused ran away from the scene. ( 12 ) PW. 9 K. M. Chinnaswamy who was the circle police inspector of Arasikere police station at relevant point of time has given evidence to the effect that on 7-4-2002 he took further investigation from PW. 5 and immediately he pressed thd dog squad into service to trace the accused. The dog, after moving half K. M. towards west, stopped at the lakebed of Thirupathihally wherein a pair of leather slippers were found and the same were seized under mahazar Ex. P. 3 and the slippers are marked as MO. 12. Thereafter, he visited the spot and prepared spot mahazar Ex. P. 8 and saw that the front door of the house of PW. P. 3 and the slippers are marked as MO. 12. Thereafter, he visited the spot and prepared spot mahazar Ex. P. 8 and saw that the front door of the house of PW. 1 was damaged and he seized the broken door pieces and other articles in the house of PW. 1 which were also damaged. Thereafter he visited the house of K. P. Murthy (PW. 8)which was situated just 100 feet away from the house of PW. 1 and seized the stones and bricks under Ex. P. 1 those articles are marked as Mos. 1, 2 and 3 to 6. He got prepared the spot sketch as per ex. P. 9 recorded the statements of witness and handed over further investigation to PW. 10 CPI Nagappa, as he was transferred to Hassan. ( 13 ) PW. 10 Nagappa who was the police inspector has stated in his evidence that on 27-7-2002, on the basis of the credible information he arrested accused Nos. 1 to 5 and registered a case in crime No. 140/2002 for the offences punishable U/s. 399 and 400 IPC. And on enquiry, the accused Nos. 1,2,3 and 5 gave their voluntary statements as per Ex. P. 10, P. 11,12 and 13. On 28-7-2002 at about 3. 00 a. m. he caused arrest of accused No. 6. He has further stated that on 28-7-2002, accused No. 5 suresh Naika S/o Ganganaika volunteered a statement and took him and panchas to the house of one Madhukarnaik of Doddahatti villge, wherein he produced one Titan Watch (Mo. 7) and the same was seized under Ex. P. 3. Thereafter, Accused No. 5 Sureshnaika took the investigation officer and panchas to his house wherein he produced one pair of gold bangle (Mo. 9) weighing about 24 grams from his trunk and the same were seized under mahazar Ex. P. 4. Voluntary statement of accused No. 5 is marked as Ex. P. 13. Thereafter, he instructed the P W. 12 Sub-Inspector Devaiah to interrogate and recover the articles from accused No. 3 Sureshanaika s/o Ramanaika. Accordingly, PSI, Devaiah recovered one Ladies hmt watch (Mo. 8) from accused No. 3. On 30-7-2002, accused No. 1 Chandranaika volunteered a statement and took the investigation officer and panchas to his house situated at Chikkapatanagere and produced one two row gold chain (Mo. 10) weighing about 30 grams and one pair gold ear studs (MO. Accordingly, PSI, Devaiah recovered one Ladies hmt watch (Mo. 8) from accused No. 3. On 30-7-2002, accused No. 1 Chandranaika volunteered a statement and took the investigation officer and panchas to his house situated at Chikkapatanagere and produced one two row gold chain (Mo. 10) weighing about 30 grams and one pair gold ear studs (MO. 11)and the same were seized under seizure mahazar Ex. P. 5. voluntary statement of accused No. 1 is marked as Ex. P. 10. Thereafter, he summoned the complainant Adaveeshappa (PW. 1) who identified the seized articles as that stolen/robbed by the accused from his house on the date of incident. He prepared separate mahazar and subjected them into crime No. 50/2002 and after obtaining permission from the Magistrate, he handed over those gold articles to PW. 1. After completing the investigation, he filed charge sheet against the accused for the offence punishable U/s. 395 of IPC. ( 14 ) PW. 11 Shaysundar who is a panch witness for recovery of the stolen articles under seizure mahazar Ex. P. 7 has given evidence to the effect that one year prior to his deposition (witness examined in the Court on 14-7-2003) the police called him and others to be a panch for seisure of the articles. Accordingly, he agreed for the same and went to the police station and saw the accused No. 3 in the police station, who volunteered a statement and took the police and panchas to the house of one Swamynaika (PW. 7) and requested him to return the ladies watch which was given to him. On production of the same, the police seized it (MO. 8) under seizure mahazar Ex. P. 7. ( 15 ) PW. 12 H. D. Devaiahis the Police Sub-Inspector. He has stated in his evidence that accused No. 3 volunteered a statement and took him and panchas to the house of one Swaminayaka who produced ladies watch (MO. 8) which was given to him by accused No. 3 and he seized the same under seizure Ex. P. 7. Though there is some inconsistency in the recovery of stolen articles, there is consistency in the evidence of PW. 1 and PW. 2 regards the entry of accused No. 1, 2,5 and A-6 into their house to commit dacoity. 8) which was given to him by accused No. 3 and he seized the same under seizure Ex. P. 7. Though there is some inconsistency in the recovery of stolen articles, there is consistency in the evidence of PW. 1 and PW. 2 regards the entry of accused No. 1, 2,5 and A-6 into their house to commit dacoity. Accused No. 3 and accused No. 4 are alleged to be outside the house and their presence is not conclusively proved even in the evidence of PWs. 1 and 2. ( 16 ) PWS. 13 Dr. Ashok, P. and PW. 14 Dr. Chakrapani are the medical Officer who have treated the injured Renuka (not examined in the Court), Sannegowda (PW. 6), Adiveeshappa (PW. 1) and issued would certificates as per Ex. P. 14, P. 15 and P. 16 respectively. The doctor who treated the injured have stated in their evidence that those injuries are simple in nature. ( 17 ) THE trial Court, after considering the contentions of the learned Public Prosecutor and the learned counsel appearing for the accused and on appreciation the oral and documentary evidence adduced by the prosecution, held that the prosecution has proved beyond reasonable doubt the charges levelled against the accused-appellants and thereby held that all the accused guilty of having committed offence punishable U/s. 395 IPC and after hearing the learned public prosecutor and learned counsel appearing for the accused, sentenced them as herein before stated. Being aggrieved by the said judgment of conviction and sentence, the accused are before this Court in this appeal. ( 18 ) AS the appeal was presented through Jail Superintendent, sri H. R. Sreedhar, Advocate has been appointed as Amicus Curie to assist the Court. We have heard the learned Amicus Curie and sri Bhavani Singh learned Additional State Public Prosecutor appearing for the respondent-State. Having regard to the contentions urged by the respective counsel, the points that arise for our consideration i) Whether the findings of the trial Court that the prosecution has proved beyond reasonable doubt that on the intervening night of 6/7-4/ 2002 around 1. 30 a. m. accused Nos. 1 to 6 having armed with deadly weapons like clubs and sickles gained entry in to the garden house of PW. 30 a. m. accused Nos. 1 to 6 having armed with deadly weapons like clubs and sickles gained entry in to the garden house of PW. 1 K. M. Adaveeshappa situated at kellangere village by breaking open the door of the house and assaulted the inmates of the house of the complainant and committed dacoity of HMT wrist watch, gold articles worth over Rs. 30,500/- and also cash of Rs. 80,000/- and thereby committed the offence punishable under section 395 IPC is justified or calls for interference in this appeal? ii) Whether the sentence imposed by the trial court calls interference in this appeal? ( 19 ) WE answer the point No. (i) partly in the affidamative by holding that the prosecution has proved beyond reasonable doubt that the accused Nos. 1, 2, 5 and 6 have committed the offence punishable U/s. 392 of I. P. C. , and not U/s. 395 of IPC. , and point no. (ii) in the affirmative as per the final order for the following reasons: reasons ( 20 ) ON re-appreciation of the material on record we find that the evidence of PWs. 1, 2, 3 and 6 is consistent with regard to the involvement of accused Nos. 1,2, 5 and 6 in the commission of the offence. PW. 1 Adaveeshappa has categorically stated that it was the accused Nos. 1,2,5 and 6 who had forcibly broke open the door and gained entry into his house and out of them, accused No. 5 assaulted him with club on his shoulders and accused No. 6 who possessed sickle in his hand snatched Rs. 5,000/- from him and thereafter he (A-6) broke open the locker and took away the gold ornaments and cash of Rs. 75,000/ -. This part of the evidence has not been shaken in the cross-examination of PW. 1, though he has been extensively cross-examination by the defence. The evidence of PW. 1 is further corroborated by PW. 2 who has stated that 4 accused persons (accused Nos. 1,2,5 and 6) had gained entry into their houses, accused nos. 1, 2 and 5 were holding clubs and accused No. 6 was holding sickle in his hand. She has stated that it is accused No. 5 who assulted her husband and thereafter, when he was (accused No. 5) guarding pw. 1, PW. 1,2,5 and 6) had gained entry into their houses, accused nos. 1, 2 and 5 were holding clubs and accused No. 6 was holding sickle in his hand. She has stated that it is accused No. 5 who assulted her husband and thereafter, when he was (accused No. 5) guarding pw. 1, PW. 2 and their son near cattle shed he took away the gold ear studs from her. She has further deposed that accused No. 6 threatened her stating that if she were to make galats, he would commit rape on her. Both these witnesses PWs. 1 and 2 had an occasion to see the accused Nos. 1,2, 5 and 6 who had gained entry into their house in close proximity in the electricity light burning in their house and they are the victims of midnight incident of dacoity and both of them have identified the accused Nos. 1, 2, 5 and 6 as the persons who have committed dacoity in their house. The evidence of PWs. 1 and 2 is further corroborated by PW. 6 who is an injured eyewitness and servant of PW. 1 who was staying in the out-house of PW. 1. PW. 6 has clearly stated in his deposition that accused Nos. 1 to 4 went inside the house of PW. 1, accused No. 5 and 6 were standing outside and they were guarding. In all probabilities, he might have mistaken the identity of accused No. 5 to the accused, who had been guarding him, since he had sustained injuries on his ear. His evidence clearly establishes that accused Nos. 1 and 2 were the accused who had gained entry into the house, though there is little bit of inconsistency with regard to identity of accused Nos. 5 and 6. In all probability, because of lapse of long time between the date of incident and he giving evidence in the Court and also because of he had sustained injuries at the time of incident outside the house of PW. 1 at the hands of accused, there might have been mistake with regard to the identity of accused Nos. 5 and 6 by pw. 6. However, the evidence of PWs. 1 and 2 clearly establishes that it was accused Nos. 1,2,5 and 6 who had gained entry into the house of PW. 1 for committing dacoity. 1 at the hands of accused, there might have been mistake with regard to the identity of accused Nos. 5 and 6 by pw. 6. However, the evidence of PWs. 1 and 2 clearly establishes that it was accused Nos. 1,2,5 and 6 who had gained entry into the house of PW. 1 for committing dacoity. ( 21 ) FURTHER, on perusal of evidence of P W. 10 investigation officer we find that Mos. 10 and 11 (one two row gold chain and one pair ear stude) were recovered at the instance of accused No. 1 under seizure mahazar Ex. P. 5. Mos. 8 (Ladies HMT watch) was recovered at the instance of accused No. 3 under seizure mahazar Ex. P. 7. Mos. 7 and 9 (Titan Watch and two gold bangles) were recovered at the instance of accused No. 5 under seisure mahazar Ex. P. 3 and P. 4. Therefore, teh ocular testimony of eyewitness to the incident (PWs. 1,2,3 and6 coupled with other materials particularly, the recoveries of the stolen articles at the instance of the accused in the presence of panchas and identification of those articles by PWs. 1 and 2 also unerringly establishes the guilt of the accused Nos. 1, 2, 5 and 6 of having committed the offence punishable U/s. 392 of IPC and not the offence punishable U/s. 395 of IPC. , as held by the trial Court. The trial Court, while appreciating the material on record has committed an error in arriving at a conclusion that the evidence on record as regards the other accused namely, accused No. 3 (Sureshanaika @ Suresha S/o. Ramanaika) and accused No. 4 (Ganganaika @ Ganga S/o Ramanaika), is sufficient to hold them guilty of having committed an offence punishable U/s. 395 of IPC. ( 22 ) THE material on record clearly establishes that accused Nos. 1,2,5 and 6 have committed an offence punishable U/s. 392 of IPC, as they have committed robbery and not dacoity. This aspect of the matter has not been considered by the trial court. Hence, the finding of the trial court that accused are guilty of the offence punishable under section 395 IPC. , is liable to be set aside. Accordingly, we answer point No. 1 in the affirmative holding that the appellants-accused Nos. 1,2,5 and 6 are guilty of having committed offences punishable U/s. 392 of IPC, and accused Nos. Hence, the finding of the trial court that accused are guilty of the offence punishable under section 395 IPC. , is liable to be set aside. Accordingly, we answer point No. 1 in the affirmative holding that the appellants-accused Nos. 1,2,5 and 6 are guilty of having committed offences punishable U/s. 392 of IPC, and accused Nos. 3 and 4 are liable to be acquitted of the charges levelled against them. ( 23 ) IN view of our finding on point No. 1, point No. 2 is answered partly in the affirmative and we pass the following order: order the appeal is allowed in part. In modification of the Judgment of conviction and sentence dated 31. 7. 2003 passed by the learned principal Sessions Judge Hassan, S. C. No. 211/2002 we hold that accused No. 1 (Chandranaika @ Marvadi), accused No. 2 Puttanaika, accused No. 5 Sureshanaika @ Suresha S/o Ganganaika @ Danthalu)and accused No. 6 Manjunaika @ Manja are guilty of having committed an offence punishable U/s. 392 of IPC and we sentence them (accused nos. 1, 2, 5 and 6) to undergo rigorous imprisonment for 10 (ten)years and to pay fine of Rs. 5,000/- each. In default of payment of fine, they shall suffer R. I. for further period of one year. The judgment of conviction and order of sentence dated 31 -7-2003 passed by the Principal Sessions Judge Hassan in S. C. No. 211/2002 holding the accused No. 3 (Sureshanaika @ Suresha s/o Ramanaika) and accused No. 4 (Ganganaika @ Ganga S/o. Ramanaika) as guilty of offence punishable U/s. 395 IPC is set aside and both appellants-accused Nos. 3 and 4 are acquitted of the said charges and they shall be set at liberty forthwith unless they are required to be detained in any other case. The fine amount if any paid by accused Nos. 3 and 4 is directed to be refund to them. The assistance rendered by Sri H. R. Sreedhar, learned advocate appointed as Amicus Curie is placed on record. His fee is fixed in a sum of Rs. 5,000/- (Rupees Five Thousand only ).