R. K. DASH, J. ( 1 ) THE petitioner and three others were put on trial under section 395, I. P. C. before the Assistant Sessions Judge, Ganjam, Berhampur in Sessions Case No. 2 of 1989. Upon hearing the learned Assistant Sessions Judge while acquitting three of the accused persons, convicted the present petitioner for the said offence and sentenced him to suffer rigorous imprisonment for two years and to pay a fine of Rs. 2,000/- in default to suffer simple imprisonment for a period of three months. ( 2 ) AGGRIEVED by the said order of conviction and sentence the petitioner carried appeal to the Sessions Judge, Ganjam in Criminal Appeal No. 85 of 1993. The learned First Additional Sessions Judge on evaluation of the evidence agreed with the findings of the trial court and dismissed the appeal. It is against this judgment of the appellate court the petitioner has preferred the present Revision. ( 3 ) SHORTLY stated the prosecution case is that on 5-5-1987 at about 11. 00 p. m. the petitioner along with two of his associates armed with axe and sword forced entry to the house of his father in-law Udayanath Bramha (since dead) and committed decoity of gold ornaments and cash etc. It is further alleged that while the crime was being committed three to four others culprits were loitering in the verandah. Having ransacked the house the petitioner and his associates decamped with the booties. A written report of the incident was lodged in Sadar Police Station, Berhampur where upon a case was registered, investigation taken up and on completion thereof, the petitioner and five others were charge sheeted to stand their trial under section 395, I. P. C. of the six accused persons the case abated against accused Gopalkrushna Patnaik since he died before fronting of charge. So far as accused Bijaya Naik alias Kaji is concerned, the case against him was split up. So there remained four accused including the petitioner who ultimately faced trial. ( 4 ) ADMITTEDLY there was no recovery of any stolen ornament from the possessions of the petitioner. The only evidence that was sought to be proved against him through P. Ws. So there remained four accused including the petitioner who ultimately faced trial. ( 4 ) ADMITTEDLY there was no recovery of any stolen ornament from the possessions of the petitioner. The only evidence that was sought to be proved against him through P. Ws. 1 to 5 was evidence of identification of person, in as much as these witnesses in their sworn statement stated to have seen and identified him as one of the culprits to have committed the crime. Relying upon this evidence alone both the courts below accepted the prosecution version regarding the petitionerts involvement in the decoity and consequently convicted him of the offence with which he stood charged. ( 5 ) LEARNED counsel Mr. S. Misra appearing for the petitioner has strenuously urged that it being the prosecution case that total number of accused persons involved in the crime was six and of them three had been acquitted, the petitioner could not have been convicted under section 395, I. P. C. since to bring the case within the ambit of the offence of decoity the number of persons involved must be five or more. Nextly he contended that since there is admitted strained relationship between the petitioner and his father-in-law's family, both trial court as well as the appellate court should have been slow to rely upon the evidence of P. Ws. 1 to 4 who are not other than mother-in-law, brother-in-law and sister-in-law of the petitioner. Mr. Jairaj Behera, learned Additional Government Advocate fairly submits that on the evidence and the circumstances, petitioners conviction under section 395 I. P. C. is unsustainable. He however, urges that evidence of P. Ws. 1 to 5 being cogent and consistent regarding the very presence of the petitioner inside the house of his in-laws in the night of occurrence, an offence under section 448 I. P. C. has been clearly established and, therefore; petitionerts conviction should be altered from section 395 to one of section 448 I. P. C. ( 6 ) FOR better appreciation of the submissions of the counsel appearing for the parties, I have gone through the evidence of P. Ws. 1 to 5 in detail and for the reasons to follow, I hold that both the courts below have failed to appreciate the basic principles of law while holding the petitioner guilty of the offence of decoity. It is in the evidence of P. Ws. 1 to 5 in detail and for the reasons to follow, I hold that both the courts below have failed to appreciate the basic principles of law while holding the petitioner guilty of the offence of decoity. It is in the evidence of P. Ws. 1 to 3 that the total number of culprits involved in the decoity were five to six. Of them they could identify the present petitioner alone and others were unknown. However, in course of investigation it could be ascertained that the petitioner and five others had taken part in the crime and charge sheet was laid against them. It may be reiterated that four accused persons were put on trial and the learned trial court disbelieved the prosecution case regarding involvement of three of the accused persons and consequently acquitted them. In that view of the matter it was obligatory for the trial court as well as the appellant court to firstly decide whether on the available evidence, a case under section 395 or 392 or 394 I. P. C. had been made out against the petitioner. ( 7 ) OFFENCE of decoity is graver than the offence of robbery. When the former prescribes punishment for life the latter prescribed punishment of rigorous imprisonment for a term up to ten years. Section 391 I. P. C. which defines decoity reads as under: When five or more persons conjointly commit or attempt to commit a robbery, or where the whole number of persons conjointly committing or attempting to commit a robbery, and persons present and aiding such commission or attempt, amount to five or more, every person so committing, attempting or aiding, is said to commit decoity. The basic difference between decoity and robbery is that in the case of decoity the number of persons involved in the crime must be five or more and so far latter offence is concerned, the number should be less than live. In the case in hand according to prosecution six robbers in all had committed decoity and of them three having been acquitted, the trial court even though accepted the prosecution case as to the petitioners taking part in the crime, it ought to have convicted him under section 394 and not under section 395 I. P. C. ( 8 ) CORNING to the factual aspect of the case the prosecution mainly relied upon the evidence of P. Ws. 1 to 4 who have stated to have identified the petitioner during the night of occurrence. The petitioner is the son-in-law of the informant Udaynath Bramha. Admittedly the relationship between him and his in-laws family was strained. The dispute arose when the in-laws of the petitioner having brought his wife to their house got her admitted in a Nursing School without his knowledge. In view of such strained relationship between the parties, the trial court should have been slow to put implicit reliance on the evidence of P. Ws. 1 to 4 without there being any independent corroboration. Moreover, as the evidence goes the petitioner belongs to a well to do family having vast landed properties. In that view of the matter, it is hard to believe that he procured the criminals and with their help committed dacoity in the house of his father-in-law. Besides, another circumstance which militates against the prosecution case is that when the petitioner had been named in the F. I. R as one of the culprits and the police was approached within a few hours the Investigating Officer with all promptitude should have searched his house to recover the alleged stolen ornaments. On the contrary, his house was searched two days after the incident and his wearing apparels and some currency notes were seized as is evident from the seizure-list (Ext. 2 ). ( 9 ) KEEPING in view the sum total of the evidence of the prosecution as narrated above coupled with the strained relationship between the parties, I am unable to affix my seal of approval to the findings and conclusion arrived at by both the courts below with regard to the petitioner's involvement in the dacoity. ( 10 ) IN the result, the Revision is allowed and conviction and sentence recorded against the petitioner and confirmed by the appellate court are set aside. The articles including the currency notes seized from the petitioner be returned to him. Revision allowed.