Judgment :- 1. In this appeal filed from jail Gopalan, 22, and Krishnan Chettiar, 47, who are respectively accused 1 and 3 before the trial court, challenge their convictions and sentences passed by the Asst. Sessions Judge, Kottayam. There were altogether 6 accused including the appellants before the trial court and of them, the 6th accused was absconding, the remaining five accused were tried for offences punishable under S.47, 395 and 402 of the Indian Penal Code and on conclusion of the trial accused 2, 4 and 5 were acquitted of all the charges, but accused I and 3 were convicted under Ss.457, 395 and 402 IPC. The first accused was sentenced to suffer rigorous imprisonment for 4 years under S.395 IPC. and rigorous imprisonment for one year under S.457 IPC.; while the third accused against whom a previous conviction also had been proved, was sentenced to undergo rigorous imprisonment for 7 years under S 396 and rigorous imprisonment for 2 years under S.457 IPC. Both the accused, although convicted under S 402 IPC., were not given any separate sentence. The sentences passed against them were directed to run consecutively. 2. The occurrence in this case took place in a hilly area in High Ranges within the limits of Kattappana Police Station and was at about 2 O' Clock in the night of February 20, 1975. (2 A M. on 212 1975). Thomas (Pw. 1) and his wife Claramma (Pw. 2) were residing at Cherukunnel house along with the mother of Pw. 2 in Kalkoonthal Village. On the night of occurrence, on hearing a sound of somebody knocking at the door, the mother of Pw. 2 woke up and called out pws.1 and 2 who were sleeping in the neighbouring room. Pw.1 then lighted up the kerosene lamp and opened the front door of the room where he was sleeping with bis wife Pw 2. The first accused was then seen on the verandah of the house and he on the pretext that he wanted to know the location of the bouse of one Kunjattan, a relation of Pw. 1, made enquires about the location of that house. When Pw.l gave details of the location of the house the first accused instead of leaving the house, came towards the door flashing his electric torch. 1, made enquires about the location of that house. When Pw.l gave details of the location of the house the first accused instead of leaving the house, came towards the door flashing his electric torch. This aroused suspicion in the mind of Pw.1 and he suddenly withdrew into the room and attempted to close the door from inside helped by Pw. 2. But the first accused forcibly pushed open the door and got into the room One of the accused was having a chopper and another a Malappuram knife. One of the accused (2nd accused) showed a knife against Pw.l and intimidated him that if he made any noise he would be done away with. Another accused (1st accused) with a similar knife pointing at the neck of P W. 2 similarly threatened her. The third accused who was a stout black figure caught hold of P. W.1 by hand and brought him to the verandah where he was wrongfully restrained by him. Another accused (4th accused) intimidated the mother of P. W. 2 when she cried aloud. In the meanwhile the first accused forcibly snatched away a gold chain which P. W. 2 was wearing on her neck. At this time on seeing a light coming towards the house, one of the accused who was in the courtyard gave a signal that somebody was approaching and thereupon all the accused ran away from the house. Four of the accused were having black masks over their faces. The next day morning P. W.1 laid the first information statement (Ext. P1) before the Sub Inspector of Police, Idikki, who registered a case on that basis and the same was transferred to Kattappana Police Station within the limits of which the incident took place. P. W. 5, Sub Inspector of Police, Kattappana, registered a case and investigated into the case. The Circle Inspector of Police (P, W. 6) verified the investigation. P. W. 4 arrested the accused except the 6th accused, who was absconding, from near the H. C. C. Colony. This, in brief, is the prosecution case. 3. The plea of the accused was one of denial and they had no evidence to be adduced on their side. 4. P. Ws.1 and 2 are the only eye-witnesses to the occurrence. P. W. 4 arrested the accused except the 6th accused, who was absconding, from near the H. C. C. Colony. This, in brief, is the prosecution case. 3. The plea of the accused was one of denial and they had no evidence to be adduced on their side. 4. P. Ws.1 and 2 are the only eye-witnesses to the occurrence. P. W. 3 was present while accused 1 to 5 were arrested and also at the time of recovery of certain articles. P. Ws. 4, 5 and 6 are Police officers. 5. The learned Asst Sessions Judge, on a consideration of the evidence of P. Ws.1 and 2 did not accept their evidence regarding identification and participation of accused 2,4 and 5 and acquitted them But relying on their evidence convicted and sentenced the appellants in the manner stated above. 6. Mr. Siby Mathew, learned advocate appearing for the appellants assailed the convictions and sentences passed against the appellants on several grounds. The counsel mainly contended that on the finding of the learned Sessions Judge and on the basis of the acquittal of the other accused the convictions of the appellants under S.395 I. P. C cannot in any way be sustained. He also submitted that the conviction under S.402 I. P. C. was also unwarranted on the facts of the case and that the prosecution has no case that other than the accused who are named and charge-sheeted anybody also participated in the commission of the offence in the manner alleged. Even on the evidence of P. Ws.1 and 2, the counsel pointed out that overt acts have been attributed only to four persons namely (accused I to 4) and the remaining two were only innocently present. 7. In support of his contentions in this regard, he relied on the decisions of the Supreme Court in Musakhan v. State of Maharashtra (AIR. 1976 S. C. 2566) and Ram Shankar Singh v. State of Uttar Pradesh AIR. 1956 S. C. 441). The counsel also relied on decisions of the Andhra Pradesh High Court in In re K. Appalaswamy AIR. 1957 Andhra Pradesh 954) and In re Chinchoo Linnayya (AIR. 1958 Andhra Pradesh 510). The learned Asst. 1976 S. C. 2566) and Ram Shankar Singh v. State of Uttar Pradesh AIR. 1956 S. C. 441). The counsel also relied on decisions of the Andhra Pradesh High Court in In re K. Appalaswamy AIR. 1957 Andhra Pradesh 954) and In re Chinchoo Linnayya (AIR. 1958 Andhra Pradesh 510). The learned Asst. Sessions Judge on the evidence, although found that an incident did happen on that night in the house of pws.1 and 2, finally came to the conclusion that only accused 1 and 3 participated in the incident. The witnesses have not identified any one of the other accused. It is not a case where the trial court was able to find that in spite of the failure of the witnesses to identity all the accused, really 5 or more persons did participate in the incident. In Musakhan v State of Maharashtra (AIR 1976 SC. 2566) the Supreme Court while discussing the scope and applicability of S.149 and 395 IPC. held: "It is well settled that a mere innocent presence in the assembly of persons, as for example a bystander, does not make the accused a member of an unlawful assembly, unless it is shown by direct or circumstantial evidence that the accused shared the common object of the assembly. - In other words, it must be proved in each case that the person concerned was not only a member of the unlawful assembly at some stage, but at all the crucial stages and shared the common object of the assembly at all these stages." This was a case where the appellants were convicted under S.395 IPC. The Supreme Court also held that an offence under S.395 IPC. comes into operation only when an act of dacoity is committed by five or more persons jointly, and, therefore, the question of applying S.-149 IPC. is a mere surplusage, and that since the number of persons who have been proved to have stolen the cash box is less than five, the charge under S.395 IPC. as also that under S.149 IPC. must necessarily fail. In Ram Shanker Singh v. State of Uttar Pradesh (AIR. 1956 SC. 441) the charge framed was that six persons mentioned therein had committed dacoity and there was nothing in the charge to show or indicate that these six persons along with other unknown persons had committed dacoity. The trial court convicted all of them. must necessarily fail. In Ram Shanker Singh v. State of Uttar Pradesh (AIR. 1956 SC. 441) the charge framed was that six persons mentioned therein had committed dacoity and there was nothing in the charge to show or indicate that these six persons along with other unknown persons had committed dacoity. The trial court convicted all of them. When the case came up in appeal before the High Court, the High Court acquitted three giving them benefit of doubt, but maintained conviction and sentence of the remaining three under S.395 I. P. C. The Supreme Court held that on the facts and in the circumstances of the case, the three remaining accused persons could be convicted of the lesser offence of robbery under S.392 IPC.; if there was evidence to show that they had committed acts of theft and used violence while committing the theft, and that in such a situation their individual acts in connection with the alleged occurrence had to be considered. In In re Chinchoo Linnayya (AIR. 1958 Andhra Pradesh 510) which followed a decision of the same High Court in Appalaswamy v The State (AIR. 1957 Andhra Pradesh 954) while dealing with a case of this nature, it was held. "Where five persons were charged under S 395, and it was not the prosecution case that there were any more persons who took part in the dacoity, and one of the accused was acquitted, the remaining four accused cannot be convicted under S.395". 8. Let us now examine the evidence of pws. I and 2, the only eyewitnesses to the commission of the offence, in the light, of the principles stated in the aforesaid decisions and the contentions raised by the counsel appearing for the appellants. In the absence of evidence and a finding by the trial court that the appellants along with three or more persons participated in the incident and conjointly committed the offence, the convictions of the appellants under S.395 I.P.C. cannot be sustained. The counsel took me through the evidence of these witnesses On a careful scrutiny, I find no proper or adequate reason or ground to disbelieve or suspect the evidence of pws.1 and 2 implicating the first and third accused. Their evidence on the point is consistent and cogent. The counsel took me through the evidence of these witnesses On a careful scrutiny, I find no proper or adequate reason or ground to disbelieve or suspect the evidence of pws.1 and 2 implicating the first and third accused. Their evidence on the point is consistent and cogent. The evidence of pw 2 shows that the first accused brandished a knife at her neck, intimidated her that she would be done away with if she cried aloud and snatched away the gold chain which she was wearing on her neck. A broken piece of the gold chain (M.O. 8) found at the scene of offence was recovered during investigation. The offence committed by the first accused is no doubt, therefore, one punishable under S.392 IPC. The evidence against the third accused is that he pulled out pw.1 from inside to the verandah and wrongfully restrained him In the circumstances of the case, it is clear that it was in order to commit theft that the third accused restrained pw.1 and the offence committed by him also squarely falls under S.392 I.P.C. The convictions of both the appellants under S.457 I. P. C. have only to be confirmed in the light of the satisfactory evidence in that regard. But their convictions under S.395 and 402 I. P. C. have to be quashed. In the result this appeal is partly allowed, the convictions and sentences passed against the appellants under S.395 are set aside and instead each of them is convicted under S.392 I. P. C. Their convictions under S.402 I. P. C. are set aside but their convictions under S.457 I. P. C. are confirmed. Considering all the facts and circumstances of this case, and also taking into consideration that a previous conviction has been proved against the third accused, the first accused is sentenced to suffer rigorous imprisonment for 2 years under S.392 I. P. C., while the third accused is sentenced to suffer rigorous imprisonment for 5 years for the same offence. While confirming the sentences passed against the appellants under S.457 I. P. C. it is directed that all the sentences passed against them shall run concurrently. Partly allowed.