JUDGMENT : 1. Heard argument from the parties, hearing is concluded and the Judgment is as follows. 2. Appellants are six in number. They faced the trial in S.T. Case No. 28/277 of 1994 in the Court of First Additional Sessions Judge, Puri on the charges for the offence under Sections 396, IPC read with Section 9-B of the Indian Explosives Act, 1984. Rabi Panda is the deceased and hereinafter to as such. Sumitra Dei, P.W.8 is his widow. Jagannath Panda, P.W.9 is his father, Niranjan Panda, P.W.9 is his brother and Chaanda Panda, P.W.3 is his aunt (paternal uncle's wife). 3. According to the case of the prosecution, there was dispute and litigations between the family members of the deceased and the accused persons, and in view of that accused Swapneswar Panda had taken a vow to extinct the family of the deceased. According to the further case of the prosecution, in the night between 17th/18th September, 1993 the occurrence took place during the mid-night. The accused persons being variously armed, attacked the house of the deceased. Then accused Bijaya Panda was holding a 'Bhujali' and accused Swapneswar Panda was holding a 'Farsa' and also carrying a bag containing bombs. The other accused persons were also variously armed. On hearing sound of explosion of bomb, P.W.3 woke up and saw by the help of torch light focused by someone that accused Bijaya and Sapani @ Swapneswar being armed in the above manner were close to her bed. She shouted for help and accused Bijaya gave a farsa blow which injured her elbow. Accused Bijaya and Sapani robbed her ornaments 'Goda Khadu' and 'Naka Fula'. On hearing the shout of P.W.3 when P.W.8 opened the door of her room wherein a lantern was burning, by then the deceased and P.W.9 had also arrived at the spot. Accused Bijaya and Sapani inflicted injuries to the deceased by means of 'Bhujali' and threw bomb. Thus, accused Niranjan left the spot to escape from injuries. Similarly, P.W.5 also arrived at the spot but he was dissuaded by throwing bombs. Later on he came and found his son lying dead. Accused Bijaya and Sapani inflicted injuries to the deceased by means of 'Bhujali' and threw bomb. Thus, accused Niranjan left the spot to escape from injuries. Similarly, P.W.5 also arrived at the spot but he was dissuaded by throwing bombs. Later on he came and found his son lying dead. On hearing the sound Of explosion of bomb, the neighbours like Brajabandhu Das, P.W.1, Dayanidhi Panda, P.W.2, and Ananda Chandra Panda, P.W.4 came out from their houses and focused their torch light and found accused Bijaya and Sapani being armed in the above indicated manner were present in the occurrence house, i.e., house of the deceased. They could not venture to intervene, because someone amongst the culprits threw brick-bats which hit P.W.1 and the other witnesses got terrified because of explosion of bomb. Accused persons also robbed P.W.8 and removed her gold necklace and 'Kana Fasia' and also injured her in that process. Because of the aforesaid incident each of P.Ws. 1, 3, 4 and 9 received some injuries. On police requisition they were examined by Dr. Dhaneswar Pradhan (P.W.7), who granted Injury Certificates marked Exts. 2, 5, 4 and 3 respectively. 4. The occurrence village, as per the formal F.I.R. (Ext. 6/4), situates at a distance of 14 kilometers. P.W.9 got the F.I.R. scribed by his brother-in-law Nityananda and lodged the report at Fategarh Police Station at 6.00 a.m. Ext. 6 is that F.I.R. with relevant entries of the O.I.C. and signature of the scribe as well as the informant, P.W.9. Registering the P.S. Case, the Investigating Officer, P.W.11 immediately took up the investigation. He visited the spot, held inquest over the dead body and despatched the dead body for post mortem examination together with the requisition for examination of the injured persons by the doctor. He prepared the spot map, made spot verification and searched the house of the accused persons but neither found the accused nor any of the incriminating materials. According to the prosecution, accused persons, who had absconded, were arrested on different dates and one of them ultimately surrendered in the Court directly. On completion of the investigation, charge-sheet was submitted and on being committed to the Court of sessions, charge was framed against the accused persons in the above indicated manner. To substantiate the charge, prosecution examined eleven witnesses and relied on the documents marked Exts. 1 to 17. On completion of the investigation, charge-sheet was submitted and on being committed to the Court of sessions, charge was framed against the accused persons in the above indicated manner. To substantiate the charge, prosecution examined eleven witnesses and relied on the documents marked Exts. 1 to 17. The wearing apparels of the deceased were marked as M.Os. I to IV. 5. Accused persons took the plea of innocence and denied to the charges but did not adduce any defence evidence. 6. On assessment of evidence on record, learned Addl. Sessions Judge rejected the argument of the defence that the real F.I.R. was suppressed and the witnesses examined on behalf of the prosecution are not trustworthy. On analysis of the evidence and particularly evidence of Dr. Gopal Chandra Pattnaik, P.W.6 he recorded the finding that deceased suffered homicidal death because of the injury which he received from sharp-cutting weapon as well as by explosion of bomb. He also recorded the finding that P.Ws. 1, 3, 4 and 9 suffered the injuries as per the respective Injury Certificates marked Exts. 2, 5, 4 and 3. Learned Addl. Sessions Judge did not take exception to the conduct of the Investigating Officer in not making seizure of the torch light or the lantern by the help of which the witnesses could identify the accused persons, and ultimately recorded the finding that the evidence on record proves the charge u/s 396, I.P.C. against all the accused persons. Learned Addl. Sessions Judge, however, recorded the finding that accused Sapani is alone liable for conviction u/s 3-B of the Indian Explosives Act, because there is no evidence against any other accused in that respect. Learned Addl. Sessions Judge considered the whole facts and circumstances and imposed the sentence of imprisonment for life against accused Bijaya and Sapani for the offend u/s 396, I.P.C. but imposed a lesser punishment, i.e. rigorous imprisonment for seven years as against the remaining accused persons on the ground that though they were members of the dacoit party, but there is no evidence on record that any of them did any overt act for murder of the deceased. 7. Though various grounds have been taken in the appeal memo, but at the time of argument learned Counsel addressing the Court on behalf of the Appellants argues that none of the P.Ws. 7. Though various grounds have been taken in the appeal memo, but at the time of argument learned Counsel addressing the Court on behalf of the Appellants argues that none of the P.Ws. 1, 2, and 4 had seen the occurrence of assault and looting and even P.W.3 did not see the occurrence of assault on the deceased and P.W.8 did not see the occurrence of looting. P.W.3. He argues that, similarly P.Ws. 4 and 9 did not see any part of such occurrence including assault on the deceased and, therefore, evidence of all those witnesses if considered one after the other, then such evidence does not prove the charge u/s 396, I.P.C. against any of the accused persons. He further argues that identification of accused by use of torch light and lantern is a subsequently developed story at the time of trial because of existing contradiction in that respect in the evidence of P.Ws. 3 and 8 relating to availability of a lantern and further because of non-seizure of the lantern and torch light in course of the investigation. Learned Counsel for the Appellant argues that evidence of P.Ws. 3 and 8 appears to be improbable when they allege about snatching of their ornaments from the nose and ear, but the doctor did not find any injury in such place of their body. He also argues that Ext. 6 is not the real F.I.R. and in that respect the explanation available from the prosecution evidence is unsatisfactory and that the real F.I.R. does not disclose the name of any of the accused and that is evident from the evidence of P.W.11 in the cross-examination. He also argues that the looted articles were neither recovered not there was any attempt for recovery of the same, and under such circumstance fabrication of such a case against the accused cannot be ruled out because of admitted enmity between the parties. Accordingly he argues to set aside the impugned order of conviction and to acquit the accused persons by granting them benefit of doubt. 8. In reply to the notice of enhancement of sentence issued by This Court on the date of admission of the Criminal Appeal, learned Counsel for the Appellants argues that all the accused persons have remained in custody during the pendency of the criminal appeal and admittedly no overt act was alleged against them. 8. In reply to the notice of enhancement of sentence issued by This Court on the date of admission of the Criminal Appeal, learned Counsel for the Appellants argues that all the accused persons have remained in custody during the pendency of the criminal appeal and admittedly no overt act was alleged against them. None of the stolen articles were recovered and no attempt was made by the investigating agency to trace out the same and also the scriber of the F.I.R. was not examined as witness. Therefore, if the conviction is not set aside, then taking those circumstances into consideration, order may not be passed for enhancement of sentence. 9. Replying to the aforesaid argument of the Appellants, on each aspect Mr. A.K. Mishra, learned Standing Counsel argues that the contradictions which have been pointed out by the defence relating to availability of the lantern and torch light is not acceptable because of cogent evidence available in that respect. He argues that non-seizure of the lantern or torch light does not in any way shake the veracity or the credibility of the victims and the witnesses to the occurrence, and in that respect he relies on the case of Umar Mohammad and Ors. v. State of Rajasthan 2008 (1) Crimes 92 (SC) 136. He argues that except Ext. 6 there could not have been any other F.I.R. and that can be well appreciated on a conjoint reading of the evidence of P.Ws. 5, 9 and 11. In any event if any undue importance is attached to the evidence of P.W.5 regarding preparation of F.I.R. at 10 a.m., then such F.I.R. being not available, that does not affect the merit of the prosecution case. He also argues that since the accused persons were absconded after the occurrence, it could not have been possible for the Investigating Officer to trace out the weapon of offence or the stolen articles and, under such circumstance no adverse inference should be drawn against the prosecution. 10. Section 396, I.P.C. provides punishment for dacoity with murder and the offence of murder has been defined in Section 300. Therefore, a culpable homicide is murder unless it is covered by the exception as provided in Section 304, I.P.C. In this case homicidal death of the deceased is not in dispute. 10. Section 396, I.P.C. provides punishment for dacoity with murder and the offence of murder has been defined in Section 300. Therefore, a culpable homicide is murder unless it is covered by the exception as provided in Section 304, I.P.C. In this case homicidal death of the deceased is not in dispute. Be that as it may, it reveals from the evidence of P.W.6 that on examining the dead body he found a deep incised wound in the right axilla from anterior axillary fold to upper edge of fifth rib causing fracture of fourth rib and deep enough to puncture the right pleura, right lungs and great vessels of right lungs. He also found small incised wounds of skin depth scattered all over the body and black impression in similar scattered manner besides a bruise over the anterior chest wall on the sternum. P.W.6 explained that while the first injury is possible by a sharp cutting weapon, the other injuries are possible because of the explosion of bomb and the splinters thereof injuring the body. At the same time P.W.6 opined that the deceased died due to the first injury and therefore he suffered a homicidal death. The aforesaid evidence, thus, clearly proves homicidal death of the deceased. The person who has caused this injury may be guilty of the offence u/s 302, I.P.C. if the allegation of dacoity is not proved. Therefore, it is necessary to assess the evidence of the inmates of the house and the neighbours who have deposed as eye-witnesses to the occurrence. 11. P.Ws. 1, 2, 3, 5, 8 and 9, all of them have stated/in their evidence that at the scene of occurrence, i.e. in the house premises of the deceased each of them have seen accused Bijaya and Sapani. But P.Ws. 1, 2, and 4 have stated that because of the threat and aggressive act of the accused persons by throwing bombs that they had to remain away for sometimes. Even, as in inmate of the house P.W.3 has only stated that she saw accused Bijaya and Sapani and could not identify the other group of persons who had come with them. On the other hand P.Ws. Even, as in inmate of the house P.W.3 has only stated that she saw accused Bijaya and Sapani and could not identify the other group of persons who had come with them. On the other hand P.Ws. 5 and 9 have said about seeing all the accused persons at or around the occurrence premises though they did not allege any overt act by some of the accused namely Dhanesar Pradhan, Aditya Panda and Sarbeswar Panda. Only P.Ws. 5, 8 and 9 have seen accused Nira @ Niranjan Panda at the occurrence premises doing overt acts. The criticism of the Appellants that P.Ws. 1, 2 and 4 did not see the occurrence of snatching of ornaments from P.Ws. 3 and 8 does not make any difference so as to not to accept their status as eye-witness to the occurrence, in as much as that part of occurrence was not seen by them though they found the accused persons being present in the occurrence premises and doing overt acts being armed with weapons. Therefore, such evidence of P.Ws. 1 and 2 lends sufficient corroboration to the evidence of P.Ws. 3, 5, 8 and 9 regarding the accused persons being the culprits. Similarly, P.W.3 did not allege anything against the rest of the accused persons except accused Bijaya and Sapani, because he did not see the overt acts made by other accused persons. In the similar fashion evidence of each of the witnesses to the occurrence has to be appreciated, and in that event the criticism made by the Appellant on the credibility of these witnesses as eye-witnesses to the occurrence becomes unacceptable. The trial Court has taken care to analyse threadbare on the credibility of these witnesses and reliability of their version not only by considering the criticism of the defence but also by taking into consideration a series of citations relied on by both the parties. We do find any illegality or perversity committed thereof by the trial Court. On perusal of the evidence on record, we also find no reason to dispute to his conclusion that the witnesses were reliable and credible. 12. Learned Counsel for the Appellants argues on improbability of evidence of P.Ws. 3 and 8 because no injury was found in the nose of P.W.3 and ear of P.W.8 though they alleged that their ornaments from such respective places were removed by the accused. 12. Learned Counsel for the Appellants argues on improbability of evidence of P.Ws. 3 and 8 because no injury was found in the nose of P.W.3 and ear of P.W.8 though they alleged that their ornaments from such respective places were removed by the accused. In their evidence itself P.Ws. 3 and 8 have explained that when the accused persons snatched away the ornaments, there was no bleeding injury from the nose of P.W.3 or the ear of P.W.8 and that is why when being examined by P.W.7 no such injury was found by him. Learned Counsel for the Appellant put much stress on the word 'snatched' so as to give the meaning that it was pulled away. Even by removing the ornaments without pulling it but without the consent of the person but by application of force is also expressed by saying that it was snatched away. Variation in the language is taken care of because of the explanation given by P.Ws, 3 and 8 when they say that they did not sustain any bleeding injury because of snatching away of the ornaments from the nose or ear. Therefore, This Court finds no improbability in the evidence of P.Ws. 3 and 8 nor takes any exception on absence of injury in the nose of P.W.3 or ear of P.W.8. 13. Learned Counsel for the Appellants argues that when P.W.8 says that there was a lantern and from the light thereof he could identify accused Bijaya, Sapani and Niranjan, P.W.3 says that it was a dark night and no light was burning. For a moment we were also carried away by that argument, but learned Standing Counsel again read-with evidence of P.Ws. 3 and 8. P.W.3 in her evidence has stated that when he woke up, by the help of the light focused from the torch she could identify the accused Bijaya and Sapani and there was no light burning at the spot (where she was sleeping). On the other hand, admittedly P.W.8 along with her daughter and son were sleeping in a room (door closed from inside) and a lantern was burning there. On hearing the shout of RW.3 when she opened the door, then by the help of the lantern light she identified the accused persons. On the other hand, admittedly P.W.8 along with her daughter and son were sleeping in a room (door closed from inside) and a lantern was burning there. On hearing the shout of RW.3 when she opened the door, then by the help of the lantern light she identified the accused persons. Therefore, this evidence does not give room for any contradiction or confusion so as to draw any adverse inference against the prosecution case. 14. On the substitution of the F.I.R. a lot was argued in the trial Court and learned Counsel for the Appellants reiterates that submission. The reply which the learned Standing Counsel has given is already noted and therefrom we find that a case of substitution of F.I.R. is not made out. Non-examination of the scribe of the F.I.R. has not been shown to be prejudicial to the accused in any manner and in the absence of such a circumstance non-examination of the scribe of the F.I.R. is not fatal to the prosecution. Similarly, non-recovery of the looted articles or the weapon of offence is not fatal to the prosecution case, in as much as after the occurrence the accused persons were absconding and therefore they were not found in course of the house search and even spies were deployed to trace out their whereabouts. That part of circumstance is available from the evidence of P.W.11 as well as the Case Diary. Under such circumstance, no adverse inference should be drawn against the prosecution for non-seizure of the looted articles and the weapon of offence. As held by the Apex Court in the case of Umar Mohammad (supra), We do not find any force in the submission of the learned Counsel that the weapons of offences were not recovered. In any event, non-recovery of incriminating material from the accused cannot be a ground to exonerate them of the charges when the eye-witnesses examined by the prosecution are found to be trustworthy. (Paragraph - 34 of the cited Judgment) Thus, all the criticisms on non-seizure of the articles by the Investigating Officer is found not fatal to the prosecution in this case. 15. In the trial Court a contention was raised and here also learned Counsel for the Appellants, in course of submission, submits that in a different manner that the accused persons are innocent and they have been roped in a false case because of the enmity. 15. In the trial Court a contention was raised and here also learned Counsel for the Appellants, in course of submission, submits that in a different manner that the accused persons are innocent and they have been roped in a false case because of the enmity. Such a stand can be successfully perused by an accused if he finds favour from the lacuna in the prosecution evidence or if he provides rebuttal evidence which is credible and trustworthy. In this case, neither is available in favour of the accused persons. P.Ws. 3, 5, 8 and 9 being victim of the dacoity, cannot have the option to search for innocent persons to be roped in by allowing the real culprits to go scot free and more so when deceased, who is the husband of P.W.8, son of P.W.5 and brother of P.W.9, has suffered a homicidal death. Therefore, we also do not find any merit in that criticism. The spot map (Ext. 11) clearly indicates the location of the occurrence house, the houses of the accused persons in the same village so also the houses of P.Ws. 1, 2 and 4, who are the neighbours. Therefore, when an occurrence took place in the dead of night in which bombs were exploded producing sound and commotion, naturally they were all the witnesses to the occurrence to find the reason as to what was happening. Therefore, credibility of P.W.4 also cannot be doubted in this case for having come to the spot of occurrence and witnessing part of the occurrence. 16. For the reasons stated above, we do not find any reason to interfere with the order of conviction and accordingly we maintain the order of conviction against each of the accused. 17. Learned Standing Counsel vehemently argues that without participation of accused Niranjan, Dhaneswar, Aditya and Sarbeswar the offence of dacoity could not have been committed and, therefore, when they participated in the crime by going to the spot, therefore they are also to be punished like accused Bijaya and Sapani. 17. Learned Standing Counsel vehemently argues that without participation of accused Niranjan, Dhaneswar, Aditya and Sarbeswar the offence of dacoity could not have been committed and, therefore, when they participated in the crime by going to the spot, therefore they are also to be punished like accused Bijaya and Sapani. On the other hand, as noted above, learned Counsel arguing for the Appellants submits that no allegation of overt act by the said accused persons gives them a separate status for sentence even if they have been convicted for the offence u/s 395, I.P.C. In that respect the trial Court has adopted dual standard (which has been argued by learned Counsel for the Appellants). The occurrence took place in the year 1993 and after their respective arrest, the accused persons have been detained in jail custody, and learned Counsel for the Appellants states that four accused persons namely Nira @ Niranjan Panda, Dhaneswar Pradhan, Aditya Panda @ Kumar and Sarbeswar Panda have been released from jail custody after serving the sentence of seven years. Under such circumstance, we do not feel it proper to enhance the sentence after lapse of a period of one and half decade. Accordingly, the notice on enhancement of sentence is discharged. In other words, we maintain the order of conviction and sentence imposed by the trial Court. The Criminal Appeal is accordingly dismissed. Final Result : Dismissed