JUDGMENT : A.K. Mishra, J. This appeal is preferred against the judgment dated 5.04.2019 passed by learned 1st Additional Sessions Judge, Khurda in S.T. Case No. 147 of 2013. Both the appellants were convicted under Sections 454/395/397/307/427 of the Indian Penal Code (hereinafter referred to as ‘I.P.C.’ in brevity) and Sections 25 & 27 of the Arms Act and sentenced as follows:- Offence Sentence U/s.454 of the IPC Both the convicts are sentenced to undergo R.I. for five years and to pay a fine of Rs.5000/-(five thousand) in default to undergo R.I. four months. U/s.395 of the IPC Both the convicts are sentenced to undergo R.I. for seven years and to pay a fine of Rs.3000/- (three thousand) in default to undergo R.I. four months. U/s.397 of the IPC Both the convicts are sentenced to undergo R.I. for seven years. U/s.307 of the IPC Both the convicts are sentenced to undergo R.I. for seven years and to pay a fine of Rs.3000/-(three thousand) in default to undergo R.I. four months. U/s.427 of the IPC Both the convicts are sentenced to undergo R.I. for one year. U/s.25 of the Arms Act Both the convicts are sentenced to undergo R.I. for one year and to pay a fine of Rs.1000/-(one thousand) in default to undergo R.I. two months. U/s.27 of the Arms Act Both the convicts are sentenced to undergo R.I. for seven years and to pay a fine of Rs.3000/-(three thousand) in default to undergo R.I. four months. The sentences on each count were ordered to run concurrently with set off privilege under Section 428 Cr.P.C. 2. Prosecution case, in short, is that on 3.07.2013 at 11.30 A.M. five members of dacoit on being armed with weapon entered into Odisha Gramya Bank, Naranagada Branch under Jankia P.S. and committed dacoity of cash and gold ornaments terrorizing the bank staff and public. They fired gunshot as a result the cashier sustained injury. While they were fleeing away in a motor cycle, a boy had sustained injury. I.I.C., Jankia P.S. on getting information chased the culprits but it was in vain. The Branch Manager lodged F.I.R. resulting Jankia P.S. Case No. 159 of 2013 under Section 454/395/397/307/427 I.P.C. and Sections 25 & 27 Arms Act and Sections 3 & 4 of Explosive Substance Act. I.I.C., Jankia P.S. on getting information chased the culprits but it was in vain. The Branch Manager lodged F.I.R. resulting Jankia P.S. Case No. 159 of 2013 under Section 454/395/397/307/427 I.P.C. and Sections 25 & 27 Arms Act and Sections 3 & 4 of Explosive Substance Act. In course of investigation with the help of Scientific Team and dog squad at Dadhimachhagadia the motor cycle and stolen properties were recovered. On 8.07.2013 the I.O. arrested accused Badal Nayak and basing upon the statement of Benu dhar Barik recovered the motor cycle. Getting clue from that statement under Section 27 of the Evidence Act by Benudhar Barik, the other accused persons were arrested. In the T.I. parade accused Muna @ Arjuna Kar and Bhagaban Sahu (present appellants) along with one Benudhar Barik were identified by the informant and other two witnesses. After completion of investigation charge-sheet was submitted. The learned S.D.J.M, Khurda took cognizance. The case was committed to the Court of Session. Accused persons faced trial for offence under Sections 454/395/397/307/212/120-B/427 I.P.C. and under Sections 25 & 27 Arms Act and under Sections 3 & 4 of Explosive Substance Act. Seven accused persons faced trial. As one Badal Nayak expired the case against him was abated on 9.09.2015.The case against accused Benudhar Barik was slip-up vide order dated 12.10.2017 for his absconding. 2-A. The plea of defence was denial simlicitor. 2-B. Prosecution has examined 33 witnesses. P.W.2 Laxmikanta Das is the informant, P.W.7 Chitaranjan Jena, P.W.8 Pprafulla Kumar Bhanja, P.W.9 Bijaya Kumar Pattnaik are the injured. P.W.1 Benudhar Ray, P.W.16 Niranjana Kishore Badajena, P.W.17 Sarat Kumar Paikray, P.W.18 Ananda Chandra Paikray, P.W.20 Mamata Sahoo, P.W.30 Niranjana Mohapatra, P.W.32 Bikram Keshari Jena are the police personnel.P.W.3 Satyanaraya Sahu, P.W.4 Asit Ranjan Nayak, P.W.6 Hemanta Kumar Nanda, P.W.10 Arjuna Bidhar, P.W.11 Rashmi Ranjan Bidhar, P.W.12 Trilochan Mohapatra, P.W.13 Sashibhusan Sahu, P.W.15 Pradipta Kumar Mohapatra, P.W.21 Sudarsana Biswal, P.W.22 Sasikala Das, P.W.23 Susmit Kumar Baliaarsingh, P.W.25 Rashmi Ranjan Nayak and P.W.31 Bidyadhar Parida are independent witnesses. P.W.5 Ratnakar Sethi is the bank staff. P.W.14 Charan Jena and P.W.19 Madhaba Chandra Pradhan are the witnesses to the confessional statement of accused persons namely, Arjun Kar, Bhagaban Sahoo and Benudhar Barik. P.W.24 Bauribandhu Podar is the goldsmith of the above bank. P.W.5 Ratnakar Sethi is the bank staff. P.W.14 Charan Jena and P.W.19 Madhaba Chandra Pradhan are the witnesses to the confessional statement of accused persons namely, Arjun Kar, Bhagaban Sahoo and Benudhar Barik. P.W.24 Bauribandhu Podar is the goldsmith of the above bank. P.W.26 Ramakanta Panda is the Surgery specialist of Capital Hospital, who examined the injured Bijay Kumar Pattnaik and recovered bullet from the abdomen of the said injured. P.W.27 Sankutala Nayak and P.W.28 Kedarnath Sahoo are to seizure witness of bullet recovered from the injured Bijay Kumar Pattnaik.P.W.29 Sanju Das is the medical officer, who examined the other injured. P.W.33 Rama Chandra Sahoo is the Investigating Officer (in shot ‘I.O.’). Defence examined none. 3. P.Ws. 4,7,10,12,13,14,19,15,18,21,22 and 25 denied to have any knowledge about the accused persons. P.W.9 injured narrated the prosecution case. Learned trial court found that dacoity is proved. Basing upon the evidence of P.W. 2 and 33, i.e. informant and I.O. respectively, learned trial court held the present two appellants guilty while acquitted three accused persons, namely, Jiten Kumar Mohanty, Binayak Pradhan and Siba Brata Pattnaik. As stated above both these appellants are convicted and sentenced in the judgment passed on 5.04.2019. 4. Mr. M.Chand, learned counsel for the appellants vehemently urged that when more than seven persons are alleged to have committed dacoit and only two persons are convicted on the basis of identification, it cannot be said that both those persons had used deadly weapons to commit dacoit and for that charge under Section 397 I.P.C. cannot be said to have proved beyond doubt. A legal infirmity is urged in framing charge under Section 397 I.P.C. for which failure of justice has been occasioned. On his second plank, learned counsel for the appellants submits that both the appellants are in jail custody since July, 2013 as against sentence of seven years for which the appeal should be approached to give set off on reduction of sentence awarded. 4-B. Learned Additional Standing Counsel fairly submits that evidence of P.W.2 and P.W.33 are not clinching to establish offence under Section 397 I.P.C. and for granting reduction of sentence, custody period may be taken into consideration. She further submits that the State has not come up with any appeal either against acquittal or for enhancing the sentence. 5. I carefully perused the evidence of P.Ws. 2 (informant) and P.W.33 (I.O.). She further submits that the State has not come up with any appeal either against acquittal or for enhancing the sentence. 5. I carefully perused the evidence of P.Ws. 2 (informant) and P.W.33 (I.O.). The evidence adduced by the prosecution is also anatomically surveyed. The substratum of the prosecution case, i.e., dacoity in the bank by five and more persons is established beyond reasonable doubt. The evidence of P.W.2 who is the informant does not disclose that both the appellants used deadly weapons in course of that. Regards being had to the above fact, both the convicts – appellants are required to be given benefit of doubt for offence under Section 397 I.P.C. 6. Record reveals that exclusive charge has been framed U/s.397 I.P.C. Such error is potential to cause failure of justice. To apprise that point it is apt to quote the following view of this Court in the decision reported in 1985 II OLR 171: Kailash Mahanta Vs. The State, which runs thus :- “8. Before I part with this appeal, I would like to keep on record a disquieting feature in the charge and in the order of conviction. Section 397 of the Code does not postulate a substantive offence. It prescribes the minimum sentence to be imposed on a culprit for commission of robbery or dacoity coming within the purview of this section. It is, therefore, legal and appropriate that the offender should be charged for an offence of robbery or dacoity under Sections 392,394 or 395, as the case may be, read with Section 397 of the Code and if found guilty, should be so convicted. In the instant case, however, this was not noticed by trial Court and a separate charge under Section 397 of the Code had been framed against the appellant as if this section postulated a substantive offence and he was even convicted under section 397 of the Code instead of properly mentioning that the conviction was under Section 392 read with Section 397 of the Code. While framing charges by applying Section 397 of the Code, this aspect should be kept in mind by the trial court.” On analysis of evidence on record and for the aforesaid law, both the appellants are acquitted of the charge of offence U/s.397 I.P.C. 7. While framing charges by applying Section 397 of the Code, this aspect should be kept in mind by the trial court.” On analysis of evidence on record and for the aforesaid law, both the appellants are acquitted of the charge of offence U/s.397 I.P.C. 7. There being no dispute with regard to conviction of the accused persons on the other offences, the conviction of the appellants under Sections 454, 395, 307, 427 I.P.C. and under Section 25 & 27 of the Arms Act are hereby upheld. Considering their pre-trial punishment and the nature of offence, it is felt for the interest of justice to reduce the sentence of seven years imprisonment to ‘six years five months’ which would be just, proper, adequate and proportionate. In the result, both the appellants are acquitted of the offences under Section 397 I.P.C. The conviction of both the appellants under Sections 457, 395, 307,427 of the I.P.C. and Sections 25 & 27 of the Arms Act are hereby confirmed. Each of the appellants is sentenced as follows:- Each of the convicts is sentenced to under R.I. for 5(five) years to pay fine of Rs.5000/- (five thousand) in default to under R.I. for 4 (four) months for the offence punishable under Sec.454 of I.P.C. R.I. for 6 years 5 months and to pay a fine of Rs. 3000/- (three thousand) in default to undergo R.I. for 4(four) months for the offence punishable under Sec.395 of I.P.C. R.I. for 6 years 5 months and to pay a fine of Rs.3000/-(three thousand) in default to undergo R.I. 4 (four) months for the offence punishable under Sec.307 of I.P.C. R.I. for 1(one) year for the offence punishable under Sec.427 of I.P.C, R.I. for 1(one) year and to pay a fine of Rs.1000/-(one thousand) in default to under R.I. for 2(two) months for the offence punishable under Sec.25 of Arms Act; and R.I. of 6 years 5 months and to pay a fine of Rs.3000/-(three thousand) in default to undergo R.I. for 4(four) months for the offence punishable under Sec.27 of Arms Act. All the offences are to run concurrently and the period undergone is to be set off under Section 428 of the Cr.P.C. Accordingly the CRLA is allowed partly. The LCR be returned immediately to the lower court.