JUDGMENT : Arvind Kumar Tripathi, J. 1. Mr. K.M. Tripathi, learned Advocate appearing on behalf of appellant no. 1 Ram Ratan Singh, Mr. Ravindra Balakrishna Kanhe, learned Advocate appeared on behalf of appellant nos. 3 and 4 namely Bhoop Singh, Laxman and Mr. Chandrajeet Yadav learned A.G.A. appeared on behalf of the State. 2. During pendency of the present appeal the appellant no. 2 Naubat Singh died hence appeal in respect of him stands abated vide order dated 25.07.2016. The present appeal now has to be decided on behalf of appellant no. 1 Ram Ratan Singh, appellant no. 3 Bhoop Singh and appellant no. 4 Laxman. 3. We have heard learned counsel for the parties and judgment was reserved on 25.10.2016. The instant criminal appeal has been preferred challenging the impugned judgment and order of conviction dated 11.09.1984 passed by IInd Additional Session Judge, Aligarh in S.T. No. 23 of 1984 arising out of Case Crime No. 86 of 1983, P.S. Hathras Junction, District Aligarh, awarding the sentence under Section 396 I.P.C., for life imprisonment. 4. The occurrence took place on 15.07.1983 at 11:30 p.m. in the house of deceased Ram Niwas, Village Shahpur Kalan, P.S. Hathras Junction, District Aligarh. The F.I.R. was lodged by Virendra Pal Sharma s/o Basudev Sahai, uncle of deceased Ram Niwas which was registered on 16.07.1983 at 2:45 a.m. at Police Station Hathras Junction and registered as Case Crime No. 86 of 1983, under Section 396 I.P.C. 5. According to the F.I.R. the prosecution story is that on 15.07.1985 when Ram Niwas (nephew of the informant), his son Yogesh and Shukhram (brother of the informant) were sleeping at the roof of the house of deceased Ram Niwas at about 11:30 p.m. 9–10 miscreants armed with guns, pistols, gandasa etc. came to the house of Ram Niwas and 4 of them ascended to the roof where Ram Niwas was sleeping, remaining dacoits entered inside the house of Ram Niwas. After hearing the sound Ram Niwas awoke and flash the torch light at them; one assailant assaulted by gandasa. His nephew Ram Niwas recognizing to all dacoits and otturred that you Laxman and Bhoop Singh had come to his house and he would teach lesson, to them, tomorrow. In the meantime, Yogesh and Sukhram also got awoke. After hearing the sound Ram Niwas awoke and flash the torch light at them; one assailant assaulted by gandasa. His nephew Ram Niwas recognizing to all dacoits and otturred that you Laxman and Bhoop Singh had come to his house and he would teach lesson, to them, tomorrow. In the meantime, Yogesh and Sukhram also got awoke. The 2 dacoits out of 4 who were present on the roof fired 3-4 shots fired by their guns and pistols at Ram Niwas causing gun shot injuries. Ram Niwas Succumbed to those fire arm injuries on the spot. Informant and witnesses Ramveer s/o Chandrapal, Sachendra s/o Sakal Sundar, Satyadev s/o Baasdev Sahai, Surendrapal s/o Babulal, Nathu s/o Dhannalal Dhovi, r/o Shahpur Kalan reached at the scene of incident. The witnesses Ramveer, Sachendra and Satyadev flashed torch towards dacoits. The informant Virendra Pal Sharma set a fire to heap of fuel and phoos (thatch) kept in the yard of deceased Ram Niwas which started burning and giving sufficient light. In that light informant saw and identified dacoits Laxman s/o Kunwar Pal, Boop Singh s/o Manik Chand, both resident of Village Rudrapur, Ram Ratan Singh s/o Kishan Lal and Naubat s/o Ram Prasad, both r/o of Village Shahpur. He saw the faces of other dacoits in the light, referred above, he identified, seeing them. While leaving the house of deceased Ram Niwas the dacoits taken away the looted household articles of deceased Ram Niwas comprising of utensils, jewelry, etc. The dacoits also shot fire while going with looted articles. On the basis of report scribed by one Bhagwati Charan s/o Jayanti Prasad, resident of the same Village Shahpur Kalan, signed by informant Virendra Pal Sharma s/o Basudev Sahai, uncle of deceased, Ram Niwas F.I.R. was registered at Police Station Hathras Junction on 16.07.1983 at 2:45 a.m. The distance of Police Station was about 9 k.m. from the place of incident. 6. Sub-Inspector Netra Pal Singh who was posted as S.S.I. at Police Station Hathras Junction took investigation in whose presence the F.I.R. was lodged, he was examined as PW4. He proved the chik F.I.R. and G.D. Entry prepared by Head Moharrir Mohan Singh, as Exhibit Ka.2 and G.D. No. 4 dated 16.07.1983 as Exhibit Ka.3 respectively. He went to the place of incident, the dead body was found on cot at Chabutra (scaffold) of house of Ram Niwas. He proved the chik F.I.R. and G.D. Entry prepared by Head Moharrir Mohan Singh, as Exhibit Ka.2 and G.D. No. 4 dated 16.07.1983 as Exhibit Ka.3 respectively. He went to the place of incident, the dead body was found on cot at Chabutra (scaffold) of house of Ram Niwas. He directed for preparation of the panchayatnama. Panchayatnama was proved and exhibited as exhibit ka.4. After completing the formalities his dead body was sealed. Photo Nash and Chalan Nash was proved as exhibit Ka.5 and exhibit ka.6 respectively along with letter written to Chief Medical Officer as exhibit ka.7. The dead body was send through constable for conducting postmortem report. 7. The Investigating Officer PW4 inspected the place of occurrence prepared the site plan as exhibit ka.9, took the blood stained dari (carpet), piece of blood stained 'badh of cot' prepared recovery memo as exhibit ka.10. From the roof of house where deceased Ram Niwas was sleeping, he found and collected empty cartridges, Tikali and pellets and recovery memo was prepared in his direction by S.I. R.N. Dixit. The recovery memo was proved as exhibit ka.10. The burnt ash was also taken from spot, recovery memo of the same as exhibit ka.12 was prepared. The piece of the blood stained cement concrete and plain cement concrete were also collected from the place of occurrence, where deceased Ram Niwas was sleeping, and the same was kept in two different containers, recovery memo was prepared by S.I. R.N. Dixit and also signed by Investigating Officer that is exhibit ka.13. 8. The Investigating Officer saw the torches of witnesses Ramveer s/o Chandrapal, Sachendra s/o Sakal Sundar which were in good working condition. The same were handed over in custody of the owners, recovery memo was exhibited as exhibit ka.14. The Investigating Officer also searched the house of miscreants, they were not available at their residences. The attachment proceeding in respect of accused Naubat was initiated by S.I. Atar Singh on 31.07.1983 and on the same date attachment proceeding was initiated regarding Bhoop Singh and Laxman also. After completing the formalities the chargesheet was submitted against only 4 named accused-appellants, as no proof was available with regard to the unknown dacoits. 9. The attachment proceeding in respect of accused Naubat was initiated by S.I. Atar Singh on 31.07.1983 and on the same date attachment proceeding was initiated regarding Bhoop Singh and Laxman also. After completing the formalities the chargesheet was submitted against only 4 named accused-appellants, as no proof was available with regard to the unknown dacoits. 9. After submission of charge sheet the case was committed to Court of Session, the charge was framed on 08.03.1984 by IVth Additional Session Judge, against the 4 named accused-appellants under Section 396 I.P.C. because they were accompanied by the 5-6 other unknown dacoits and during commission of dacoity committed murder of Ram Niwas. Reference of 4-6 dacoits has not been mentioned in the charge. The appellants pleaded not guilty and claimed for the trial. 10. The prosecution to prove its case examined as many as five witnesses PW1 Virendra Pal Sharma (informant), who is uncle of Ram Niwas (deceased), PW2 Yogesh Kumar s/o Ram Niwas (deceased), who is sleeping near the father Ram Niwas (deceased) and grandfather Karan Singh. PW3 Surendra Pal who saw the incident after hearing sound of fire, PW4 Netra Pal S.S.I., PW5 Constable Suresh Kumar who carried the dead body of Ram Niwas along with Constable Shankar Pal Singh to Aligarh for postmortem examination. The dead body remain in his custody and supervision nobody was allowed to touch the same till it was handed over to the doctor. 11. Since the genuineness of postmortem report exhibit ka.24 was admitted by the defence counsel, hence, no formal prove was required and postmortem report was exhibited as exhibit ka.24. 12. After the prosecution closed its evidence, the accused-appellants were examined under Section 313 Cr.P.C. They denied the allegation and pleaded that they were falsely implicated. However, no evidence was produced from the side of defence. 13. Learned counsels for the appellants challenged the judgment on the ground that no identification took place of unknown dacoits, they were not chargesheeted and tried. 14. However, no evidence was produced from the side of defence. 13. Learned counsels for the appellants challenged the judgment on the ground that no identification took place of unknown dacoits, they were not chargesheeted and tried. 14. Learned counsels for the appellants also challenged the impugned order of conviction on the ground that since only 4 accused-appellants were named in the F.I.R. and only they were charge sheeted and convicted, hence being less than 5 persons, no offence is made out under Section 396 I.P.C. hence, conviction and sentence is illegal and liable to be set aside; that there was no recovery either of the looted articles or weapons from their possession which also shows that they were falsely implicated and not involved in the incident; that informant is not eye witness, he was sleeping on roof of his another house/gher and in between the place where informant was sleeping and place where deceased was sleeping on roof there was common passage then house of Satyadev, hence, it appears that he reached in the house of deceased Ram Niwas after the incident and after the assailant left the place of incident. There is contradiction in the statement of witnesses. According to PW1, his brother Karan Singh, father of deceased Ram Niwas was sleeping at Chabutra (scaffold), however, according to PW2 Yogesh Kumar s/o deceased Ram Niwas, he and his grandfather Karan Singh were also sleeping near the place of deceased Ram Niwas on roof of the house, hence, it shows that informant reached subsequently at the place of occurrence, and he has no opportunity to see the incident. The statement did not corroborate the site plan with regard to the place where informant was sleeping because he has two house and he was sleeping, at that time, at gher/house, which was situated towards east and not towards south from the house of deceased Ram Niwas. 15. Learned counsel for the appellants further submitted that no specific role of firing was assigned to any of the appellants though they were named and identified. According to prosecution case they were identified by the witnesses which shows that even if they saw the incident, the firing was made by unknown assailants/dacoits. It appears that murder was committed by some unknown persons and giving colour of dacoity, the appellants were falsely implicated. According to prosecution case they were identified by the witnesses which shows that even if they saw the incident, the firing was made by unknown assailants/dacoits. It appears that murder was committed by some unknown persons and giving colour of dacoity, the appellants were falsely implicated. It was also submitted that since appellants were of the same village they were well known, hence, it is unnatural that they would commit dacoity without hiding their faces, since there was enmity with regard to the connection of purchase of property and as such they were falsely implicated. In support of their arguments counsels for the appellants relied the judgment of the Hon'ble Apex Court reported in (1989) 3 SCC 166 State of West Bengal & Another Vs. Laisal Haque & Others. Counsels for the appellants submitted that in view of the facts the conviction and sentence of the appellants is liable to be set aside and the appeal is liable to be allowed. 16. Learned A.G.A. vehemently opposed the prayer and submitted that though the only 4 persons were named in the F.I.R. and only 4 appellants were chargesheeted because during investigating no evidence could be collected against 4-6 unknown dacoits, hence, charge was also framed against only who were charge sheeted. He also contended that though in the charge reference of 4-5 persons were not mentioned but in the evidence it has been mentioned in the judgment it was referred and when questioned was put to the appellants while recording their statement under Section 313 Cr.P.C. this was clearly mentioned that 4 appellants committed dacoity along with 4-6 other persons. Hence, case is clearly made out under Section 396 I.P.C. and they were rightly convicted and sentenced by learned Trial Judge under Section 396 I.P.C. He submitted that there is no contradiction in the statement of witnesses after hearing the alarm and sound of fire, informant PW1 Virendra Pal Sharma reached at the place of incident initially he saw the incident from his house/gher and in between his house and house of deceased Ram Niwas there was one passage and house of Satyadev, he saw in the light of torch and identified only 2 dacoits out of 4 dacoits who were on roof, and two persons were identified and named who were present Aangan and were involved in the looted articles. He also contended that apart from that PW2 Yogesh Kumar who was sleeping near his father Ram Niwas (deceased), who is a natural witness, his presence is not doubtful in his house specially during at about 11:30 p.m. in the night. He has supported the prosecution case and he also identified all 4 appellants named. There was no false implication of the appellants otherwise some other persons and family members might have been implicated apart from 4 accused-appellants. He also contended that merely on the ground that there was no recovery from the appellants, the prosecution story will not be disbelieved which was supported by the eye witnesses account and there is no such contradiction in their statement expect minor and natural contradiction to disbelieve the prosecution story. There is no contradiction in the site plan and the statement of witnesses. The presence of PW1 or any other witness have not stated that PW1 Virendra Pal Sharma was present in his house which was situated towards south. The other witnesses also reached near the house of Ram Niwas and saw the assailants. Learned A.G.A. further submitted that even if no role of specific firing was assigned to any of the appellants or unknown dacoits, this argument is not acceptable that under Section 396 I.P.C. offence will not be made out, because if murder is committed during course of robbery in which 5 or more persons are involved, then the offence is made out under Section 396 I.P.C. Hence they were rightly convicted and sentenced by the Trial Court. In view of the fact it is clear that prosecution proved the case beyond reasonable doubt and they were rightly convicted and sentenced. 17. Learned counsel for the appellants and learned A.G.A. relied certain judgements of Hon'ble Apex Court in support of their arguments. 18. We considered the submissions of learned counsel for the parties and perused the record. In the present case PW1 Virendra Pal Sharma is informant, who is uncle of deceased Ram Niwas. Karan Singh is son of Devi Ram brother of Basudev and informant Virendra Pal Sharma is son of Basudev, deceased Ram Niwas is son of Karan Singh and Yogesh Kumar is son of deceased Ram Niwas. 19. In the present case PW1 Virendra Pal Sharma is informant, who is uncle of deceased Ram Niwas. Karan Singh is son of Devi Ram brother of Basudev and informant Virendra Pal Sharma is son of Basudev, deceased Ram Niwas is son of Karan Singh and Yogesh Kumar is son of deceased Ram Niwas. 19. After hearing the sound and conversation of the deceased Ram Niwas with accused-dacoits, informant/PW1 awoke, saw the incident and being cousin of Karan Singh, he loged the F.I.R. PW2 Yogesh Kumar is son of deceased Ram Niwas, who was also sleeping near his father on the roof and at the time of incident, he was aged about 15 years, who supported the F.I.R. version. 20. According to defence case, independent witnesses of other community were not examined but admittedly the house of other community of independent persons are not adjacent to the house of deceased. Virendra Pal Sharma is uncle of the deceased who is informant and examined as PW1 and PW2 Yogesh Kumar is the son of deceased Ram Niwas, he was sleeping near deceased Ram Niwas on the roof of house, their presence is natural on the roof of their house and their statement has not to be discarded merely on the ground that there are family members or interested person because this is not case of the party that house and roof of any person of any other community and other family members of the village were adjacent to the house of the deceased Ram Niwas. While considering the statement of witnesses only their statement has to be considered and examined cautiously. The appeal is continuation of the trial and appellate Court has to consider the evidence including statement of related witnesses independently a fresh. Further their statement has not to be ignored merely on the basis of some minor and natural discrepancies and contradiction unless it goes to root of the case. Another witness Surendra Pal who was examined as PW3 after hearing the cry, he reached the place of occurrence and identified the appellants. The murder of Ram Niwas was committed on the roof of the house where he was sleeping and near deceased Ram Niwas, his son Yogesh Kumar (PW2) and his father Karan Singh were sleeping and looting incident took place in the house on the ground flour. The murder of Ram Niwas was committed on the roof of the house where he was sleeping and near deceased Ram Niwas, his son Yogesh Kumar (PW2) and his father Karan Singh were sleeping and looting incident took place in the house on the ground flour. The source of light was torch held by the deceased and witness and on the ground flour PW1 put on fire to the heap of wood and straw collected and kept in the aangan (courtyard) of Ram Niwas (deceased). According to PW1 he was at the roof of his house, situation in his Gher and after the noise and conversation he flashed his torch, saw the incident in which he saw 4 miscreants on the roof where deceased Ram Niwas was sleeping and out of 4 miscreants he identified 2 dacoits, appellants namely Bhoop Singh and Laxman who were also identified by the deceased. According to PW1 Virendra Pal Sharma, when Ram Niwas said that he had identified Bhoop Singh and Laxman then dacoits fired 3-4 shots from their guns and pistols upon Ram Niwas. Laxman was having katta in his hand and Bhoop Singh was armed with gun, other two dacoits were armed with katta and danda. Thereafter he rushed to the house of Ram Niwas reached to the aangan (courtyard), thereafter he put the fire. Further according to him, the dacoits could not identified by him because he was behind the wood and straw, lying to the east of aangan (courtyard) of the deceased so that the dacoits could not see him. Since there was more than sufficient light, he saw the incident and commission of dacoity. He further identified two other appellants who were involved in looting incident on the ground flour namely Naubat and Ram Ratan. After that dacoits left the place of incident with looted articles. He went on the roof and saw Ram Niwas in injured condition, any how, he was brought down and kept on chabutra (scaffold). Since the dacoits' armed with fire arms and lathi, hence, PW1 and PW2 and other family members could not stop and apprehend the dacoits. PW2 Yogesh Kumar was aged about 14 years at the time of occurrence. As the family members were weeping, hence, Karan Singh, father of the deceased Ram Niwas asked him to lodge the report to Police Station. PW2 Yogesh Kumar was aged about 14 years at the time of occurrence. As the family members were weeping, hence, Karan Singh, father of the deceased Ram Niwas asked him to lodge the report to Police Station. PW2 Yogesh Kumar has also supported the version of the F.I.R. and identified the appellants Laxman and Bhoop Singh who were on the roof and thereafter two other appellants who were on the ground flour. The presence of PWs'1 and 2 are natural. There was no reason of false implication of the appellants in place of real culprit. Any other villagers including other family members of appellants were not implicated though there were other 5-6 dacoits. 21. On the roof, blood was found and blood stained concrete was taken by the Investigating Officer after breaking the flour of the roof. In the cross-examination there are nothing in the statement of PW1 and PW2 to show such contradictions which goes to the root of case, to disbelieve the prosecution story. 22. Merely, because all the persons, who were present near the place of incident, have not been examined, on this ground alone, the prosecution story has not to be disbelieved. Due to certain circumstances neither produced and examined all the witnesses nor practically it was possible and apart from that it is choice of the prosecution to examine the eye witnesses. If defence wanted to examine other witnesses then they might have examined or request for recall of certain witnesses but this cannot to be a ground to disbelieve those witnesses who were examined by the prosecution if otherwise they are reliable and trustworthy. 23. No such enemity was shown on which ground the appellants could be falsely implicated by PWs' 1, 2 and 3. As far as PW3 is concerned, he was neither the family member nor has any enemity because there is no material adduced to show such enmity with the appellants due to which they might have been falsely implicated by the PW3 who after hearing the noise and fire arm reached near the place of incident. 24. According to the statement of PW1 Virendra Pal Sharma, Karan Singh (father of the deceased) was sleeping on chabutra (scaffold) where body of Ram Niwas was kept but he has not stated whether he was sleeping on the roof or on subsequently, scaffold at the time of incident. 24. According to the statement of PW1 Virendra Pal Sharma, Karan Singh (father of the deceased) was sleeping on chabutra (scaffold) where body of Ram Niwas was kept but he has not stated whether he was sleeping on the roof or on subsequently, scaffold at the time of incident. After incident when he came down he might have slept at chabutra (scaffold) because the incident took place at 11:30 p.m. and F.I.R. was lodged at about 02:45 a.m. in the night of 15/16.07.1983, distance of Police Station was about 9 k.m. According to PW2 his grandfather Karan Singh (father of deceased Ram Niwas) was also sleeping on the roof where he was sleeping near his father Ram Niwas (deceased) so there is no reason to disbelieve the statement of PW2 Yogesh Kumar s/o deceased Ram Niwas and prosecution would not be benefited by changing the place of Karan Singh because when he was not examined as witness. The incident is not disputed. According to defence case, they were unknown persons, place of incident has also been proved i.e. roof of house of deceased Ram Niwas. 25. Though as per allegation four persons were identified who were involved in the dacoity with 5-6 unknown persons but since those unknown persons could not be identified even during investigation hence, charge sheet was submitted against only four appellants. Further merely because, there was no recovery from them the prosecution story has not to be disbelieved, though might be relevant to prove the involvement in the incident because in the present incident, presence of PW1 and PW2 who are uncle and son of deceased respectively are natural and not doubtful at the roof of their house. There are no major contradictions in the statements of PW1 and PW2 with the site plan except some minor contradiction regarding the direction of roofs, kitchen etc. As far as the situation of house of PW1 is concerned his house was towards south as well as towards east from the house of deceased Ram Niwas and at the time of incident he was present on the roof of his house situated in gher towards east of the house of deceased Ram Niwas and there is one narrow passage whose house is adjacent to the house of deceased Ram Niwas. 26. 26. This was also contended by learned counsel for the appellants, that the murder of Ram Niwas was done by unknown persons and appellants were falsely implicated, no identification of unknown dacoits took place and further no specific role was assigned to any of the appellants. As far as identification of the unknown dacoits and charge sheet against them are concerned, since unknown persons could not be named and traced out during investigating so there was no question of filing chargesheet against them. Charge was framed only against the appellants because they were charge sheeted and brought before the Court. As far as role of firing is concerned, according to provision if during commission of robbery and dacoity, any of the dacoit committing murder then the case is covered under Section 396 I.P.C. for punishment. No role of firing is required to be assigned to all or any person separately, causing injury to decease. It is clear that one person Ram Niwas was killed in the looting incident. 27. Further main argument on behalf of appellants was that no offence under Section 396 I.P.C. Was made out and the same was not applicable because only four appellants were charge sheeted and tried, which is less than the five and also submitted that they were not covered their faces though they were of the same village namely, Bhoop Singh and Laxman and there was enmity for purchasing of property. 28. It was also argued on behalf of appellants that charge was framed only under Section 396 I.P.C. and not even under Section 302 I.P.C. 29. In case of Rafiq Ahmed @ Rafi Vs. State of Uttar Pradesh reported in AIR 2011 SC 3114 it was held by the Hon'ble Supreme Court that “the charge was framed under Section 396 I.P.C. alone whether the accused could have been convicted for the offence under Section 302 I.P.C. without alteration of charge is the short question involved in the case. State of Uttar Pradesh reported in AIR 2011 SC 3114 it was held by the Hon'ble Supreme Court that “the charge was framed under Section 396 I.P.C. alone whether the accused could have been convicted for the offence under Section 302 I.P.C. without alteration of charge is the short question involved in the case. It was held that on the conjoint reading of Sections 396 and 302 I.P.C., it is clear that the offence of murder has been lifted and incorporated in the provisions of Section 396 I.P.C. In other words, the offence of murder punishable under Section 302 I.P.C. and as defined under Section 300 I.P.C. will have to be read into the provisions of offences stated under Section 396 I.P.C. In other words, where a provision is physically lifted and made part of an other provision, it shall fall within the ambit and scope of principle akin to 'legislation by incorporation' which normally is applied between an existing statute and a newly enacted law. The expression 'murder' appearing in Section 396 I.P.C would have to take necessarily in its ambit and scope the ingredients of Section 300 of the I.P.C." According to Apex Court there is no scope for any ambiguity. The provisions are clear and admit no scope for application of any other principle of interpretation except the 'golden rule of construction', i.e. to read the statutory language grammatically and terminologically in the ordinary and primary sense which it appears in its context without omission or addition. These provisions read collectively, put the matter beyond ambiguity that the offence of murder, is by specific language, included in the offences under Section 396 I.P.C. It will have the same connotation, meaning and ingredients as are contemplated under the provisions of Section 302 I.P.C. Further it was held that the circumstances which constituted the offence under Section 302 I.P.C. were literally put to him which is an integral for offence punishable under Section 396 I.P.C. and it cannot be demonstrated that any prejudice was caused. And if any prejudice is caused the conviction and sentence awarded under Section 302 I.P.C. which cannot be set aside merely for want of framing a specific and alteration charge under Section 302 I.P.C.” 30. And if any prejudice is caused the conviction and sentence awarded under Section 302 I.P.C. which cannot be set aside merely for want of framing a specific and alteration charge under Section 302 I.P.C.” 30. In the present case the charge was framed under Section 396 I.P.C. by learned Trial Court but involvement apart from 4 named accused-appellants the involvement of 5-6 unknown persons was not mentioned but specifically this fact was mentioned not only in the statement but the same was put to the appellants when their statements were recorded under Section 313 Cr.P.C. Hence, it cannot be said that any prejudice was caused to him. According to Section 464 Cr.P.C., no finding, sentence or order by a Court of competent jurisdiction shall be taken invalid merely on the ground that no charge was framed or on the ground of error, omission or irregularity in the charge including any misjoinder of charges, unless, in the opinion of the court of appeal, confirmation or revision, failure of justice, has, in fact, been occasioned thereby, as per judgment of the Apex court reported in 1989 (3) SCC 166 State of West Bengal And Another Vs. Laisal Haque And Others. The paragraphs 7, 8 and 9 are quoted herein below:- “7. There are serious infirmities in the impugned order rendered by the High Court. Section 215 of the Code provides that no error in stating either the offence or the particulars required to be stated in the charge, and no omission to state the offence or those particulars, shall be regarded at any stage of the case as material, unless the accused was in fact misled by such error or omission, and it has occasioned a failure of justice. There is no material on record on which the High Court could have reached to such a conclusion. There is no material on record on which the High Court could have reached to such a conclusion. We may next refer to Section 221 of the Code which provides by Sub-section (1) that if a single act or series of acts is of such a nature that it is doubtful which of several offences the facts which can be proved will constitute, the accused may be charged with having committed all or any of such offences, and any number of such charges may be tried at once; or he may be charged in the alternative with having committed all or any of such offence, and any number of such charges may be tried at once; or he may be charged in the alternative with having committed some one of the said offences. Sub-section (2) thereof provides that if in such a case the accused is charged with one offence, and it appears in evidence that he committed a different offence for which he might have been charged under the provisions of Sub-section (1), he may be convicted of the offence which he is shown to have committed, although he was not charged with it. 8. Next, Section 464 of the Code provides that no finding, sentence or order by a court of competent jurisdiction shall be deemed invalid merely on the ground that no charge was framed or on the ground of any error, omission or irregularity in the charge including any misjoinder of charges, unless, in the opinion of the court of appeal, confirmation or revision, a failure of justice has, in fact, been occasioned thereby. 9. In the celebrated case of Willie (William) Slaney Vs. State of Madhya Pradesh, Vivian Bose, J. speaking for the court after an elaborate discussion observed that in judging a question of prejudice, as of guilt, the courts must act with a broad vision and look to the substance and not to the technicalities, and their main concern should be to see whether the accused had a fair trial, whether he knew what he was being tried for, whether the main facts sought to be established against him were explained to him fairly and clearly, and whether he was given a full and fair chance to defend himself. That test is clearly fulfilled in the facts and circumstances of the present case. That test is clearly fulfilled in the facts and circumstances of the present case. The principles laid down by that very eminent Judge in Slaney case have throughout been followed by this Court.” 31. Para 18 of the judgment of Apex Court reported in (2014) 3 SCC (Cri) 418 Ramesh Vithal Patil Vs. State of Karnataka And Others is quoted herein below;- “It is true that the appellant was not charged under Section 306 I.P.C. The charge was under Section 304-B I.P.C. It was, however, perfectly legal for the High Court to convict him for offence punishable under Section 306 I.P.C. In this connection, we may usefully refer to Narwinder Singh. In that case the accused was charged under Section 304-B I.P.C. The death had occurred within seven years of the marriage. The trial court convicted the accused for an offence punishable under Section 304-B I.P.C. Upon reconsideration of the entire evidence, the High Court came to the conclusion that the deceased had not committed suicide on account of demand of dowry, but, due to harassment caused by the husband in particular. The High Court acquitted the parents of the accused and converted the conviction of the accused from one under Section 304-B I.P.C. to Section 306 I.P.C. This Court dismissed the appeal filed by the accused. It was observed that it is a settled proposition of law that mere omission or defect in framing charge would not disable the court from convicting the accused for the offence which has been found to be proved on the basis of the evidence on record. In such circumstances, the matter would fall within the purview of Sections 221(1) and (2) of the Code of Criminal Procedure.” 32. In view of the above noticed discussion, since adequate opportunity was given to the appellant to defend them hence such defence plea is misconceived and no prejudice was caused to them in not mentioning while framing of the charge involvement of 5-6 unknown dacoits because subsequently it was mentioned in the statement as well as question was put to the appellants. So no prejudice was caused, and there is no failure of justice. Hence, merely on this ground since no prejudice is caused and not mentioning of 5-6 persons, the order of conviction, sentence is not liable to be set aside. So no prejudice was caused, and there is no failure of justice. Hence, merely on this ground since no prejudice is caused and not mentioning of 5-6 persons, the order of conviction, sentence is not liable to be set aside. Para 14 and 27 of judgment reported in (2011) 3 SCC (Cri) 689 Mohan Singh Vs. State of Bihar are quoted herein below:- 14. In a case where points relating to errors in framing of charge or even misjoinder of charge are raised before this Court for the first time, such grievances are not normally considered by this Court. Reference in this connection may be made to the decision of a three-Judge Bench of this Court in Mangal Singh Vs. State of Madhya Bharat. Imam, J. delivering a unanimous opinion of the Court, held in para 5 at p.201 of the Report as follows:- "5. It was, however, urged that there had been misjoinder of charges. This point does not seem to have been urged in the High Court because there is no reference to it in the judgment of that Court and does not seem to have been taken in the petition for special leave. The appellants cannot, therefore, be permitted to raise this question at this stage.” 27. In view of such consistent opinion of this Court, we are of the view that no prejudice has been caused to the appellant for non-mentioning of Section 302 I.P.C. in the charge since all the ingredients of the offence were disclosed. The appellant had full notice and had ample opportunity to defence himself against the same and at no earlier stage of the proceedings, the appellant had raised any grievance. Apart from that, on overall consideration of the facts and circumstances of this case we do not find that the appellant suffered any prejudice nor has there been any failure of justice. 33. Since in the criminal trial it is presumed that accused is innocent unless there is a statuary presumption or the prosecution succeeds to prove the guilt of the accused without reasonable doubt. 33. Since in the criminal trial it is presumed that accused is innocent unless there is a statuary presumption or the prosecution succeeds to prove the guilt of the accused without reasonable doubt. While framing all the charges as per provision Section 211(1) Cr.P.C. every charge under this Section shall state the offence with which the accused was charged so the accused could get opportunity to defend him and if it is found that the charge was not properly framed under this Section in which any ingredients in that section are not mentioned under which he was convicted and prejudice is caused them, the conviction would become invalid. If the ingredients are mentioned and it is clear from the evidence and question put to the appellants, what kind of offence was committed then it is well settled that the offence which are not major, in nature, the accused can be convicted, even without framing alternative charge. Hence, if charge was not properly framed and prejudice is caused then conviction be invalid in view of the judgment of the Hon'ble Apex Court in case of Willie (William) Slaney Vs. State of Madhya Pradesh AIR (SC) 1956 116. 34. In case of Dal Chand Dalia Vs. State of Delhi reported in 1982 CrLJ 1477 , it was observed by the Hon'ble Apex Court in Para 12 "It is crystal clear that no hard and fast rule of guidelines can be laid in this respect and every case must depend on its own merit, the problem being essentially one of prejudice to the accused resulting from omission to frame a specific charge." 35. In case of Manoj Giri Vs. State of Chattisgarh reported in 2013 (9) JT 65 equivalent to 2013(5) AD (SC) 515, it was held by the Hon'ble Apex Court "the contention on behalf of accused was that conviction under Section 396 I.P.C. would not be legal and proper, since other four accused were acquitted the offence of the dacoity." It was held by the Apex Court that the contention on behalf of the accused has no merit. 36. In view of the observation made by the Apex Court in Case of Raj Kumar @ Raju Vs. State of Uttaranchal (Now Uttrakhand) reported in 2008 11 SCC 709 para 14 and 15 of the judgment of Apex Court in case of Manoj Giri Vs. 36. In view of the observation made by the Apex Court in Case of Raj Kumar @ Raju Vs. State of Uttaranchal (Now Uttrakhand) reported in 2008 11 SCC 709 para 14 and 15 of the judgment of Apex Court in case of Manoj Giri Vs. State of Chattisgarh are quoted herein below:- "[14] With regard to the appellant's conviction under Section 396 of the I.P.C. for the murder of Damara Sahu in the case of dacoity, it was contended by the learned counsel for the appellant that since the other four accused who have been similarly charge were acquitted of the offence of dacoity, it would not be legal and proper to convict the appellant of the said charge. The argument is based on the presupposition that a conviction of dacoity with murder can be maintained only when five or more persons are convicted. Section 396 of the I.P.C. reads as follows: Section 396 -Dacoity with Murder: If any one of five or more persons, who are conjointly committing dacoity, commits murder in so committing dacoity, every one of those persons shall be punished with death, or [imprisonment for life] or rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine. [15] This contention cannot be upheld in view of the observations made by this Court in Raj Kumar @ Raju Versus State of Uttranchal (Now Uttrakhand), 2008 11 SCC 709 , which read as follows: "It is thus clear that for recording conviction of any offence of robbery, there must be five or more persons. In absence of such finding, an accused cannot be convicted for and offence of dacoity. In a given case, however, it may happen that there may be five or more persons and the factum of five or more persons is either not disputed or is clearly established, but the Court may not be able to record a finding as to identity of all the persons said to have committed dacoity and may not be able to convict them and order their acquittal observing that their identity is not established. In such case, conviction of less than five persons -or even one -can stand. But in absence of such finding, less than five persons cannot be convicted for an offence of dacoity." 37. In such case, conviction of less than five persons -or even one -can stand. But in absence of such finding, less than five persons cannot be convicted for an offence of dacoity." 37. In the present case charge was framed under Section 396 I.P.C. and from the evidence as well as from the question put to the appellants, it is clear that appellants who were named are four in numbers and they were involved along with 5-6 unknown persons in robbery/dacoity and murder of one Ram Niwas, hence, merely because other unknown accused could not be charge sheeted and convicted, the impugned judgment of conviction and sentence would not be invalid and illegal. Since the prosecution succeeded to prove the case beyond reasonable doubt and as such the present appeal being divide of merit is liable to be dismissed. 38. In the present case, this was also challenged that appellants have not concealed their face and two co-villagers, who were named accused, were not expected to commit the crime without concealing their identity. Merely on this ground prosecution story, if otherwise reliable cannot be disbelieved because in the present case from the evidence it appears that the intention was to commit dacoity as well as during course of dacoity, committed murder of Ram Niwas also and presence of his son PW2 Yogesh Kumar who was aged about 14 years at the time of incident, apart from other two witnesses who were examined, is natural and not doubtful. There is no reason to disbelieve their statements. Hence the impugned judgment of conviction passed by the trial court is hereby affirmed. 39. However, as far period of sentence is concerned the incident is of July, 1983, the appeal is of the year 1984, one appellant Naubat Singh died and appeal against him stood abated vide order dated 25.07.2016, the other three appellants are on bail hence, the period of sentence is reduced to the period of 10 years rigorous imprisonment with fine for a sum of Rs. 15,000/-each. 40. The bail bond and sureties of the appellants are hereby cancelled, they shall be taken into custody forthwith to serve out the remaining period of sentence. 41. Accordingly the present appeal is partly allowed. 42. Let this order be communicated to the Court concerned to ensure the compliance of the order and to communicate to this Court to keep the same on record.