JUDGMENT : Rao, J. - The two Appellants Nityananda alias Natu Sahu and Haraprasad alias Baina Patra were convicted along with two others for an offence punishable u/s 395 of the Indian Penal Cone and were each sentenced to undergo rigorous imprisonment for three years and a half. The two Appellants, the two convicted accused who have not appealed and another were charged by the learned Additional Session Judge of having committed the offence of dacoity on the night of 2 6 1957 in the house of Banamali Giri. Though according to the First Information Report the accused before the sessions court and some others are stated to have taken part in the dacoity, the police submitted a charge sheet only against five persons, the committing (Magistrate framed a charge of dacoity only against five persons and the learned Additional Sessions Judge also framed a charge of dacoity against five persons, without adding the words "and some others" . 2. The prosecution case Is that the five accused persons along with 10 or 12 others arrived at the house of P.W. 1, Banamali Giri, on the mid night of 24-6-1957 when Banamali, his son Puma Chandra, his son-in-law and his farm servant were sleeping outside the house. One Jhompi Bewa a beggar woman was also sleeping on the verandah. At about mid-night this Jhumpi, who was not examined as she died, came up and woke up P.W. 1 who was sleeping. P.W. 1 got up and found some persons standing near his fence. So he focussed his torch light and called out as to who they were. It is stated that the accused also focused torch light on him saying "Sala, khade raho". Then P.W. 1 woke up his son-in-law. Some of the accused caught hold of P.W. 1, one caught hold of his neck and two others assaulted him with sticks. When the son and son-in-law came to his rescue, they left him and caught hold of them. P.W. 1 ran away into the village to call the villagers. His son was assaulted. P.Ws. the daughter of P.W. 1 and her mother who were sleeping inside the house came out hearing the hulla. The wife of P.W. 1 opened the front door and then the accused entered into the house. Some persons remained outside guarding the approach and some of the witnesses were assaulted. His son was assaulted. P.Ws. the daughter of P.W. 1 and her mother who were sleeping inside the house came out hearing the hulla. The wife of P.W. 1 opened the front door and then the accused entered into the house. Some persons remained outside guarding the approach and some of the witnesses were assaulted. Accused Haraprasad and Anand Bhanj caught hold of the daughter of P.W. 1 and removed tram her person two silver Chudis and one silver necklace-M. Os. IX and X respectively. It is stated that three of the accused entered into the Thakurghar broke the almirah containing the cash and some gold ornaments and all of them ran away carrying the booty by opening the back door. It appears, afterwards the villagers gathered. One Niranjan Pradhan and other villagers chased the dacoits and Niranjan assaulted accused Gangadhar Chakravarty. In the morning the First Information Report was lodged and the Investigation was made. 3. The Appellants as also the other accused pleaded not guilty. 4. Form the house of Appellant Nityananda, M. Os, IX and X were seized. The learned Additional Sessions Judge, after a discussion of the evidence Came to the conclusion that one of the five accused, namely, the second accused Bhima alias Bhanu Jena was not shown to have been implicated In the dacoity by any evidence beyond reasonable- doubt. He did not accept the evidence of P.W. 10 as to- his identification and acquitted him. But curiously enough he convicted the four other persons of dacoity punishable u/s 395, I.P.C. though according to the charge framed against the accused in the sessions court it is only the five persons that are charged as having committed dacoity. 5. Mr. M.S. Rao, the learned Counsel appearing for the Appellants Nityananda and Haraprasad (accused Nos. 3 and 5 before the trial court) took me through the evidence of P.Ws. 1, 3 and 4, and contended that on the evidence of these three witnesses, no case is made out against the two Appellants beyond all possibility of reasonable doubt. He also contended that the learned Additional Sessions Judge having acquitted one of the accused could not convict the four others at dacoity and consequently the conviction is contrary to law. 6. He also contended that the learned Additional Sessions Judge having acquitted one of the accused could not convict the four others at dacoity and consequently the conviction is contrary to law. 6. It is settled law that when a charge says that the five accused persons committed dacoity and one of them is acquitted, then the conviction of the remaining tour persons is contrary to law and the conviction for dacoity should be set aside. It is unfortunate that the learned Additional Sessions Judge was not alive to this settled principle of law and convicted the four persons of dacoity. So the conviction of the four persons u/s 395, I.P.C. must be set aside 7. The learned Government Advocate submits that if the conviction for dacoity is not according to law, the two Appellants as well as the other two accused who were convicted of dacoity can be convicted u/s 392, I.P.C. for robbery. Section 392 of the Indian Penal Code punishes a person who commits robbery and u/s 390, I.P.C., theft is robbery if, in order to the committing of the theft, or in carrying away or attempting to carry away property obtained by the theft, the offender, for that end, voluntarily causes or attempts to cause. So it is necessary to convict the four persons for robbery that they must have caused the theft as also the injury. Section 392, I.P.C. contemplates only the case of a person who has committed both theft and injury or threat required u/s 392, I.P.C., So I can not pass a judgment of conviction against the four persons u/s 392 I.P.C. Then the learned Government Advocate contended that this case will be governed by Section 394, I.P.C. which says that if any person, in committing or in attempting to commit robbery, voluntarily causes hurt, such person, and any other person jointly concerned in committing or attempting to commit such robbery, shall be punished. So if the evidence against the four persons is accepted, then I think, the learned Government Advocate is correct in saying that the case would be governed u/s 394, I.P.C., house though the person who causes the injuries is different from the person from whose house the stolen properties are recovered and who can be presumed to be the thief, yet by virtue of Section 394, I.P.C. they can be said to be persons jointly concerned in committing or attempting to commit robbery. 8. With regard to the next contention of Mr. Rao that there is no sufficient evidence to prove beyond all possibility of reasonable doubt the offence of robbery against the two Appellants, there are certain discrepancies in the evidence of P.Ws. 1, 3 and 4 in material particulars. P.W. 1 who stated that he knew Appellant No. 2 for 10 or 12 years could not identify him either at the time of the commission of the offence or in the test identification parade. P.W. S is the daughter who was beaten and from whose person M. Os. IX and X were removed. M.O. IX is a pair or chudi and M.O. X is a Champakadi Mala. Both of them are silver ornaments. They are seized from the house of Appellant No. 1 according to the seizure list. The Investigating Officer who seized them stated in evidence that after seizing he got them weighed and their total weight was 133/4 tolas. But in the First Information Report P.W. 1 stated the weight of these two material objects as about 24 tolas. Mr. Rao submitted that Appellant No. 1 explained the possession of these two silver ornaments by stating that they belonged to his females and that they were articles of common use by females. These are the only two articles alleged to have been seized. Though according to the first information Report some gold ornaments as also some money were alleged to have been stolen, no other item or property is recovered. On these discrepancies Mr. Rao contends that the two Appellants are entitled to benefit of doubt. These are the only two articles alleged to have been seized. Though according to the first information Report some gold ornaments as also some money were alleged to have been stolen, no other item or property is recovered. On these discrepancies Mr. Rao contends that the two Appellants are entitled to benefit of doubt. After a careful consideration of the evidence of these three witnesses, I am of opinion that the articles seized from Appellant No. 1 are articles of common use by females and in view of the large difference between their actual weight and the weight as given in the First Information Report it cannot be said that these two silver articles belonged to P.W. 3. The explanation given by Appellant Nityananda is a reasonable explanation. Consequently, I am of opinion that the prosecution failed to prove the case against these two persons beyond all possibility of doubt. I give them the benefit of doubt and acquit them. 9. The learned Government Advocate rightly drew my attention that I should, in view of the illegality of the conviction for dacoity, set aside the conviction for dacoity also of the other two persons who have not appealed in exercise of revisional powers. They are Gangadhar Chakarvarty and Ananda Bhanj. Their convicted u/s 395, I.P.C., in exercise of my revisional power, is also set aside. 10. But the learned Government Advocate submits that there is sufficient evidence against those two persons for an offence punishable u/s 394, I.P.C. He also submits that as they are not before me, though In exercise of my revisional powers their conviction can be set aside, I cannot convict them under another section unless they have an opportunity to be heard. I think, the learned Government Advocate is correct only to the extent that the conviction and sentence cannot be altered so as to prejudice the non-appealing accused, but they can be convicted, if there is evidence for a lesser offence u/s 394, I.P.C. 11. Now taking the case of the two non-appearing accused Gangadhar Chakravary and Ananda Bhanj, the learned Government Advocate submitted that there is evidence against these two persons for an offence u/s 394, I.P.C. I have already held that the only stolen articles recovered from Nityananda might belong to him as they are articles of every day use by the females. Now taking the case of the two non-appearing accused Gangadhar Chakravary and Ananda Bhanj, the learned Government Advocate submitted that there is evidence against these two persons for an offence u/s 394, I.P.C. I have already held that the only stolen articles recovered from Nityananda might belong to him as they are articles of every day use by the females. Consequently, I cannot,' in view of there being no proof of theft, convict Gangadhar and Ananda u/s 394, I.P.C. According to the evidence of P.W. 3, accused Haraprasad removed the ornaments from her person when the other accused person, namely, Ananda was focusing a torch light on her. It is strange that the wife of P.W. 1 who at once opened the door was not examined. In the absence of her evidence of P.W. 3 to the effect that Ananda Bhanja accused a torch light on her cannot be relied upon. I therefore hold that it is doubtful if he was present on the day of occurrence with the accused. I give him the benefit of doubt and acquit him. 12. With regard to Gangadhar, P.W. 5 Niranjan stated that he along with two others started towards the complainant's house and found the dacoits going out of the house and running towards the fields and that they chased them. P.W. 5 identified Gangadhar to be the person who remained behind when other accused persons ran away. He dealt a blow on the head of Gangadhar and P.W.4 dealt another blow on his back. He identified accused Gangadhar before the Court to be that person. His evidence was corroborated by the evidence of P.W. 10. Gangadhar was medically examined by P.W. 8 and according to the medical evidence Gangadhar had a lacerated wound 2" X 1/3" x l/8" over frontal bone 2' above the left eye brow and another lacerated wound over the right side of the back and in the opinion of the Medical Officer these injuries were simple in nature and must have been caused by blunt weapons such as lath is and clubs. The witness also staled that one of the injuries could have been caused by M.O. XII. This accused also made a confession before the Magistrate which was retracted by him in the sessions court. The witness also staled that one of the injuries could have been caused by M.O. XII. This accused also made a confession before the Magistrate which was retracted by him in the sessions court. The learned Sessions Judge left aside this confession saying that it could not be taken as a material part of the evidence as it had been retracted. I think, he is wrong in coming to this conclusion. A retracted confession or'an accused could be acted upon if there is corroboration in material particulars. In this case there is the corroboration of P.Ws. 5 and 10. Taking all this evidence into consideration it can only be said that he was present on the day of occurrence along with the dacoits. More than that there is no evidence of any positive act done by him either towards committing theft or towards causing hurt to the victims. Under these circumstances, he cannot be convicted for the lesser offence u/s 394 I.P.C. or for hurt only. 13. It is unfortunate that the charge is framed only against five persons without mentioning the words "and others". I have looked into the charge framed and the learned additional Sessions Judge merely read over the charge framed by the committing Magistrate. I had occasion to observe in some Judgments which I think are reported that it is better in the administration of criminal Justice that the Sessions Judges should frame a charge after reading the committal order and bring their mind to bear upon the charge framed against the accused for which he is called upon to defend himself. Inspite of that decision of this Court it is lamentable that the learned additional Sessions Judge went on in the same old style. Had he read the committal order and framed a charge, he would certainly have seen that the case was not strong against one .of the accused and would have framed a charge using the words "and others" in view of the fact that the prosecution case itself was that the persons who entered the house of P.W. 1 were about 10 in number. I was obliged to set aside the conviction for dacoity also on account of the illegality of the conviction. Had the charge been properly framed, as directed by the previous judgments, of this Court, by the additional Sessions Judge this difficulty would not have arisen, 14. I was obliged to set aside the conviction for dacoity also on account of the illegality of the conviction. Had the charge been properly framed, as directed by the previous judgments, of this Court, by the additional Sessions Judge this difficulty would not have arisen, 14. In the result, the appeal of Nityananda alias Natu Sahu and the appeal of Haraprasad alias Baina Patra is allowed, their convictions and sentences u/s 395, I.P.C. are set aside and they are acquitted and are directed to be set at liberty forthwith. In exercise of my revisional powers and for the reasons already stated I also set aside the convictions and sentences passed upon Gangadhar Chakravarty and Ananda Bhanj, acquit them of the offence u/s 395, I.P.C. and direct that they should also be set at liberty forthwith. Appeal allowed. Final Result : Allowed