B. Panigrahi, J.
1. In this appeal the order of acquittal of the respondents of the charges under Section 302 of the Indian Penal Code (for short 'IPC') and Section 27 of the Arms Act passed by the learned Second Additional Sessions Judge. Puri in Sessions Trial No. 20/35 of 1986 has been assailed by the State.
2. The brevity of the prosecution story, as narrated in the trial Court's judgment as follows :
In the night of 28/29.10. 1 986 the respondents along with two others unknown culprits broke open the door of the dwelling house of the deceased Sudarshan Sahu and entered into the said house. The inmates of the house were then under the impression that the miscreants had trespassed into the house for commission of dacoity. However, when the household belongings were offered to them, they refused to receive the same and insisted the inmates to make way. They fired a gun from a point-blank range resulting in the death of the deceased Sudarsan Sahu. Incidentally, all the inmates at that time were female folk, namely, the widow, a married daughter and an unmarried daughter of the deceased. After committing the crime, the culprits fled away.
3. To prove the culpability of the respondents. eleven witnesses were examined by the prosecution. P.W.2 was the widow of the deceased. P.Ws. 1 and 5 were the married daughter and unmarried daughter respectively. P.W.3 was a co-villager through whom the prosecution has tried to establish that respondent Yudhistir Mandal was possessing a gun, which had once been mortgaged with him for Rs. 100/-. P.W.4 was the doctor who conducted autopsy over the dead body. P.W.6 was the younger brother of the deceased who spoke about the previous enmity between him and the respondent, which was the resultant cause of the death of his brother. P.Ws. 7 and 8 were seizure witnesses, of whom P.W.8 was declared hostile. P.Ws. 9 and 10 have corroborated P.W.6 as regards the quarrel which had been place between P.W.6 and the respondents P.W. l1 was the investigating officer.
4. From the evidence of P.W.4 read with the post mortem report (Ext. 1), it has been firmly established that the deceased Sudarsan Sahu met a homicidal death. P.W.5, the unmarried daughter of the deceased, had lodged the report before P.W.I 1. On plain reading of the F.I.R. it is seen that neither P.W.5 nor any other inmates had claimed to have identified the respondents and their associates after seeing them. The facts narrated in the F.I.R. go to show that P.W.5 could identify the respondents from their voice. P.Ws. 1 and 2 deposed for the first time in Court that they had seen the respondents in their house in the night of occurrence and they tried to present a vivid picture about the respondents' implication in the crime. It is strange to note that in the F.I.R. which was lodged none other one of the inmates, it has not been stated that P.Ws. 1 and 2 and 5 had seen the respondents arid their associates and that they could recognise the culprits. Although the F.I.R. version is that P.W.5 as well as the other inmates could recognise the respondents from their voice P.W.I 1 had not made by attempt to arrange a T.I. parade of voice recording out of which it would have been established that it was the respondents who committed the offence in the night of occurrence and from their voice P.Ws.l, 2 and 5 could recognise them to be the culprits.
5. P.Ws. l, 2 and 5 have given a detailed narration of the incident implicating the respondents. But, since at the earliest opportunity they had not claimed to have identified the respondents by seeing them, their evidence in Court to the effect that they had seen the respondents appears to be unrealistic and exaggerated. It seems, they have deliberately and purposefully embroidered their statement to make believe the prosecution story, which the learned Sessions Judge has rightly discarded, Further, it has been brought out from P.W. 11 that the statement of P.Ws. 1, 2 and 5 relating to the identity of the respondents by seeing them was introduced in course of evidence. Therefore, we are not in a position to disagree with the observations of the learned' Sessions Judge that such story was introduced in course of trial.
6. The trial Court has taken note of the fact of non-seizure of the Dibiri. According to us, such non-seizure does not affect the credibility of the prosecution story if it is proved by other evidence of unimpeachable character. That has, however, not been done in this case. The gun alleged to have been used for commission of the murder has not been seized. Nor has any empty cartridge been seized from the place of incident. The I.O. in his evidence has clearly admitted that there was no mark of violence on the door of the house in question, though it has been consistently claimed by P.Ws. 1, 2 and 5 that the respondents broke open the door leaves. Therefore, this part of the prosecution story has been rightly disbelieved.
7. It has been stated that P.Ws. 1, 2 and 5 could identify the respondents from their voice as they were working as labourers under the deceased. Except a bald statement, nothing has been produced to establish this aspect of the case.
8. Considering the case from any angle and going deep into the evidence led by the prosecution, we find no factual or legal infirmity to have been committed by the trial Court so as to warrant interference by this Court. Therefore, the Government Appeal fails and the same is dismissed. The order of acquittal of the respondents passed by the trial Court is hereby affirmed.