JUDGMENT : G.B. Patnaik, J. - Petitioner Padmanava has filed this revision against his conviction and sentence u/s 395 Indian Penal Code, passed by the Assistant Sessions Judge, Puri in Sessions Trial No. 14/73 of 1979 and confirmed by the Sessions Judge. Puri, in Criminal Appeal No. 51 of 1980. The learned Sessions Judge however, had modified the sentence, inasmuch as while the Assistant Sessions Judge had awarded a sentence of rigorous imprisonment, for five years, the Sessions Judge reduced it to rigorous imprisonment for three years. 2. Five accused persons, namely, accused Arjun Das, Padmanava Mohapatra, Suresh Kumar Sadangi. Deben Kumar Mohanty and 'Mahabir Das along with one Somanath Bihari were charged and tried for an offence u/s 395, Indian Penal Code on the allegation that they committed dacoity on 20th of January, 1978 at 2 a.m. in the house of Damayanti Dei, wife of Sagar Parida of village Buali, P.S. Delang in the district of Puri by removmg cash and gold ornaments worth about Rs. 20,000/-. According to the prosecution case while Damayanti (P.W. 1) was sleeping with her five daughters and younger son inside her bed room and her husband was sleeping in another room the culprits broke open the door of the bed room at about 2 a.m. Damayanti got up and tried to resist their entry, but her attempts were in vain. The miscreants exploded crackers and after effecting their entry into the bed room removed a gold 'Khasumala' from the neck of Damayanti and also removed cash and gold ornaments from the house. While committing dacoity, the accused persons are said to have used criminal force against the inmates of the house. P.W. 1 lodged F.I.R. (Ext. 6). A case u/s 395, Indian Penal Code was thereafter registered and investigation was taken up. It may be stated that the F.I.R. did not contain the name of any accused penon. P.W. 16, the Junior Sub-Inspector of Police attacbed to Delang Police Station on the relevant date, immediately rushed to the spot and seized some articles including a glass tumbler as it contained some finger print. On 8-2-1978, he received a message from the officer-in-charge, Jatni Police Station, that some dacoits have been detained by him. He therefore proceeded to Jatni and learnt from those dacoits that they were involved in the dacoity in question. On 8-2-1978, he received a message from the officer-in-charge, Jatni Police Station, that some dacoits have been detained by him. He therefore proceeded to Jatni and learnt from those dacoits that they were involved in the dacoity in question. Thereafter he proceeded with the investigation and ultimately charge sheet was filed against those accused persons. During the course of investigation, the seized articles containing the finger prints of some of the culprits were sent to the State Finger Print Bureau along with the specimen finger prints of the accused persons and opinion of the finger print expert had been obtained. 3. The plea of the accused persons was one of denial. 4. The prosecution examined as many as 18 witnesses of whom P.W. 1 is the informant, P.Ws. 2 and 4 are her daughters, P.W. 3 is her husband, P.W. 13 is the magistrate who had conducted a T.I. parade, P.W. 16 and P.W. 18 are the Investigating Officers. P.W. 17 is the finger print expert and the other witnesses are either seizure witnesses or witnesses who have proved that a dacoity was committed on the date of occurrence. The learned Trial Judge on discussion of the evidence on record disbelieved the identification of the accused persons since he found that the T.I. parade that was conducted was highly illegal and irregular creating doubts in the mind as to identification. On analysis of the evidence 'adduced by the prosecution, the learned Trial Judge held that accused Suresh and Deben could not be found to have taken part in the dacoity and therefore, he acquitted them. The learned Trial Judge, however, took into consideration the fact that the other three accused persons while in custody led the Police and gave discovery of M.Os. VII and VIII and the evidence of P.W. 17 to the effect that finger prints of accused Padmanav and Arjun tallied with the finger prints which were found on M.Os. II and IV and on the basis of these incriminating circumstances convicted these three accused persons u/s 395, Indian Penal Code and sentenced them to undergo rigorous imprisonment for five years. 5. II and IV and on the basis of these incriminating circumstances convicted these three accused persons u/s 395, Indian Penal Code and sentenced them to undergo rigorous imprisonment for five years. 5. On appeal one by accused Arjun and Mahabir (Criminal Appeal No. 50 of 1980 and the other by accused Padmanav (Criminal Appeal No. 51 of 1980 the learned Sessions Judge rightly held that the evidence utilised by the trial court with regard to leading to discovery by the accused persons while in custody could not have been so utilised in view of the statement of the Investigating Officer that all the accused persons made a joint statement. On analysis of the evidence, he further held that the incriminating material, namely accused Mahabir gave discovery of the brass 'diba' (M.O. VII) while in custody also could not have been utilised since the so-called statement had not been proved by any of the prosecution witnesses. Having rejected this piece of evidence against all the three accused persons, the learned Sessions Judge considered the evidence against accused Arjun and Padmanav to the effect that their finger prints tallied with the finger prints found on the glass tumbler and the aluminium tumbler and held accused Padmanav (Appellant in Criminal Appeal No. 51 of 1980) and accused Arjun (one of the Appellants in Criminal Appeal No. 50 of 1980) guilty u/s 395, Indian Penal Code. Accused Mahabir, the other Appellant in Criminal Appeal No. 50 of 1980, was acquitted by the learned Sessions Judge. The present Petitioner has challenged his conviction passed by the Assistant Sessions Judge and confirmed by the Sessions Judge. There is no information as to whether the other accused, namely, accused Arjun has preferred any revision or not. 6. Mr. P.K. Misra, the learned Counsel for the Petitioner, contends that the conviction solely on the evidence of the expert (P.W. 17) is not sustainable in law since there is no other corroboration. According to him the evidence of an expert is an opinion-evidence and therefore, rule of prudence requires some corroboration before the said opinion-evidence can be acted upon. Mr. R.K. Patra, the learned Additional Government Advocate, however, combats the aforesaid submission and contends that there is no rule of law nor even rule of prudence that opinion-evidence of an expert can never be acted upon unless substantially corroborated. Mr. R.K. Patra, the learned Additional Government Advocate, however, combats the aforesaid submission and contends that there is no rule of law nor even rule of prudence that opinion-evidence of an expert can never be acted upon unless substantially corroborated. He further submits that the science of identifying thumb impressions has developed to such an extent that today it is an exact science and does not admit of any mistake or doubt and therefore, the evidence of P.W. 17 can be acted upon without any corroboration. In my opinion, the submission of learned Additional Government Advocate is unassailable. 7. In the case of Jaspal Singh Vs. State of Punjab, while considering the admissibility of the evidence of an expert, the Supreme Court has observed: The thumb impression of Tej Kaur on the alleged statement was sent to the expert who was of the opinion that this could not be the thumb impression of Tej Kaul. The science of identifying thumb impression is an exact science and does not admit of any mistake or doubt. The report of Dr. K.S. Puri clearly demonstrates that the thumb impression on the statement Exhibit P-B was not that of Tej Kaur but was of some other woman who appears to have falsely represented to the Doctor that she was the mother of the deceased. The law on the subject has been laid down in a later decision by the Supreme court in the case of Murari Lal v. State of Madhya Pradesh AIR 1980 S.C. 531 . In paragraph 6 of the judgment, their lordships held thus: Expert testimony is made relevant by Section 45 of the Evidence Act and where the court has to form an opinion upon a point as to identity of handwriting, the opinion of a person 'specially skilled' in questions as to identify of hand writing is expressly made a relevant fact. There is nothing in the Evidence Act, as for example like illustration (b) to Section 114 which entitles the court to presume that an accomplice is unworthy of credit, unless he is corroborated in material particulars, which justifies the court in assuming that a handwriting expert's opinion is unworthy of credit unless corroborated. There is nothing in the Evidence Act, as for example like illustration (b) to Section 114 which entitles the court to presume that an accomplice is unworthy of credit, unless he is corroborated in material particulars, which justifies the court in assuming that a handwriting expert's opinion is unworthy of credit unless corroborated. The Evidence Act itself (Section 3) tells us that a fact is said to be proved when after considering the matters before it, the court either believes it to exist or considers its existence so probable that a prudent man ought under the circumstances of the particular case, to act upon the supposition that it, exists. It is necessary to occasionally remind ourselves of this interpretation clause in the Evidence Act lest we act on artificial standard of proof not warranted by the provisions of the Act. Further, u/s 114 of the Evidence Act, the Court may presume the existence of any fact which it thinks likely to have happened, regard being shad to the common course of natural events, human conduct, and public and private business, in their relation to facts of the particular case. It is also to be noticed that Section 46 of the Evidence Act makes facts, not otherwise relevant, relevant if they support or are inconsistent with the opinions of experts, when such opinions are relevant. So, corroboration may not invariably be insisted upon before acting on the opinion of an handwriting expert and there need be no initial suspicion. But, on the facts of a particular case, a court may require corroboration of a varying degree. There can be no hard and fast rule, but nothing will justify the rejection of the opinion of an expert supported by unchallenged reasons on the sole ground that it is not corroborated. The approach of a court while dealing with the opinion of a handwriting expert should be to proceed cautiously probe the reasons for the opinion consider all other relevant evidence and decide finally to accept or reject it. After referring to several earlier decision of the Court in paragraph 21, it was held: We are firmly of the opinion that there is no rule of law, nor any rule of prudence which has crystallized into a rule of law, that opinion evidence of a handwriting expert must never be acted upon, unless substantially corroborated. After referring to several earlier decision of the Court in paragraph 21, it was held: We are firmly of the opinion that there is no rule of law, nor any rule of prudence which has crystallized into a rule of law, that opinion evidence of a handwriting expert must never be acted upon, unless substantially corroborated. But, having due regard to the imperfect nature of the science of identification of handwriting, the approach, as we indicated earlier, should be one of caution. Reasons for the opinion must be carefully probed and examined. All other relevant evidence must be considered. In appropriate cases, corroboration may be sought. In cases where the reasons for the opinion are convincing and there is no reliable evidence throwing a doubt, the uncorroborated testimony of an handwriting expert may be accepted. There cannot be any inflexible rule on a matter which, in the ultimate analysis, is no more than a question of testimonial weight. While considering the arguments of the learned Counsel the court also in paragraph 4 of the judgment had observed; But the hazard in accepting the opinion of any expert, handwriting expert or any other kind of expert, is not because experts, in general are unreliable witnesses the quality of credibility or incredibility being one which an expert shares with all other witnesses, but because all human judgment is fallible and an expert may go wrong because of some defect of observation, some error of premises or honest mistake of conclusion. The more developed and the more perfect a science, the less the chance of an incorrect opinion and the converse if the science is less developed and imperfect. The science of identification of finger prints has attained near perfection and the risk of an incorrect opinion is practically non-existent. In view of the aforesaid enunciation of the law and by examining the evidence of P.W. 17, I have no hesitation to hold that his evidence can be fully acted upon. 8. But even accepting his evidence, it is now to be considered whether the Petitioner at all be convicted either u/s 395 or under any other section of the Indian Penal Code. In this particular case, the charge was against six named persons out of whom five were being tried. Three of them by now have been acquitted, two by the trial court and one by the appellate court. In this particular case, the charge was against six named persons out of whom five were being tried. Three of them by now have been acquitted, two by the trial court and one by the appellate court. The essential pre-requisite for an offence u/s 395, Indian Penal Code, is that five or more persons must conjointly have participated in the commission of the offence. Since out of six persons alleged to have been involved in the offence, three have been acquitted by the courts below, the conviction of the Petitioner u/s 395 is I wholly unwarranted and the Petitioner is entitled to an acquittal of the charge u/s 395. The learned Additional Government Advocate fairly concedes to this position, but he contends that since Petitioner's presence at the place of occurrence is proved, as the expert opined. That the thumb impression of M.O. II was that of the Petitioner, he can be convicted u/s 392 for the offence of robbery. Theft is 'robbery' if, in order to the committing of the theft, or in committing 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 to any person death or hurt or wrongful restraint, or fear of instant death or of instant hurt, or of instant wrongful restraint. So, in order to convict the Petitioner for robbery, the prosecution must prove that he caused theft and also injury on the person in committing theft. Section 392 contemplates only the case of a person who has actually committed both theft and injury or threat. There is no evidence in this case from which these two ingredients can be found out so far as the Petitioner is concerned. I would, therefore, reject the submission of the learned Additional Government Advocate that the Petitioner can be convicted u/s 392, Indian Penal Code for robbery. In the ultimate analysis therefore, the conviction and sentence of the Petitioner u/s 395, Indian Penal Code, cannot be sustained. I accordingly allow the revision, set aside the conviction and sentence of the Petitioner u/s 395, Indian Penal Code, and direct that he be set at liberty forthwith if not already released from jail. The Petitioner was granted bail under order No. 22 dated 25-2-1981. It does not transpire from the records whether he has been released on bail. I accordingly allow the revision, set aside the conviction and sentence of the Petitioner u/s 395, Indian Penal Code, and direct that he be set at liberty forthwith if not already released from jail. The Petitioner was granted bail under order No. 22 dated 25-2-1981. It does not transpire from the records whether he has been released on bail. In case he is on bail, the bail' bond executed by him is to be cancelled.