P. G. Agarwal, J. — This criminal appeal is directed against the judgment and order dated 30.4.1998 passed by the Addl Sessions Judge at Nagaon in Sessions Case No.46(N-H)/92 whereby the appellant was convicted under section 396 IPC and sentenced to undergo imprisonment for life with a fine of Rs.2,000, in default, another six months simple imprisonment. 2. On 17.7.1982, Aklisur Rahman filed a written FIR Ext 1, before the OC, Murajhar PS to the effect that on the night of 16.7.1982, about 10 persons under the leadership of Tasarup Ali and Ismail Ali armed with guns and deadly weapons entered into the house of Md Faizur Rahman and after breaking open the door, forcibly assaulted the inmates and decamped with gold ornaments and other valuables. Faizur Rahman who sustained injuries in the abpve incident, later on succumbed to the injuries at the hospital. Police registered a case and after usual investigation submitted charge sheets. On a case being committed to the Court of Sessions, the learned Sessions judge framed charge against as many as, six accused persons under section 396 IPC. They pleaded not guilty. During trial, the prosecution examined 8 witnesses. On conclusion of the trial the learned Sessions Judge acquitted five accused persons and convicted the present accused appellant, Tasraf Ali under section 396 IPC and sentenced him to undergo imprisonment for life and to pay a fine of Rs.2,000, in default to further imprisonment for six month. Hence the present appeal. 3. We have heard Mr. AK Phukan, learned counsel for the appellant and the learned Public Prosecutor and considered the case records. 4. The present appeal can be disposed of on the short point that in the impugned judgment the learned Additional Sessions Judge did not come to any finding about the commission of dacoity in the house of the Faizur Rahman. As a matter of fact, it is very strange to note that there was no charge even against the accused persons under section 395IPC. Offence under section 396 IPC comes into play only when the offence under section 395 IPC is established. As a matter of fact, it is very strange to note that there was no charge even against the accused persons under section 395IPC. Offence under section 396 IPC comes into play only when the offence under section 395 IPC is established. When there was no charge even there was scope for entering into a finding on that count, The law is well settled in the ca&e of Chhoten Mahato vs. State of Bihar, (1969) 3 SCC 728, where the Apex Court held : “Where there was no finding that the appellant committed dacoity with others, the appellant can not be convicted nunder section 396 IPC.” 5. In the instant case, the learned trial Judge has convicted the accused appellant under section 396 IPC on the basis of indentification of a sole witness, namely, Mustt Khudeja Begum, PW 5. This witness, have deposed in her examination-in-chief that 3/4 persons entered into her house and assaulted her husband with lathis and roller. She further stated that she could recognise Tasraf Ali, Kutai Mia, Ismail Ali and Abdul Jalil. The learned Sessions Judge disbelieved the statement of this witness so far as the other three accused persons are concerned but relied on her evidence to convict the present accused appellant. As a matter of fact all the five prosecution witnesses had deposed about recognising or identifying a number of persons. The learned Sessions Judge did not believe the testimony of the witnesses as the witnesses gave different means or source of recognition and they contradicted each other on to how the dacoits were recognised or identified by them. They also developed their story during trial, thereby contradicting their earlier testimony. According to some witnesses it was a moon light night and they recognised the dacoits in that light. But another presecution witness has categorically stated that it was a dark night as it happended to be the 25th day of the holy month of 'Ramzan'. In view of that some other witnesses claimed that they recognised the accused by way of 'haricane lamp', whereas some witnesses claimed that they recognised them with the help of torch lights or the burning deem light in the room. The learned counsel for the appellant has drawn our attention to the observation of the learned Sessions Judge, which reads as follows: “Learned defence counsel Mr. The learned counsel for the appellant has drawn our attention to the observation of the learned Sessions Judge, which reads as follows: “Learned defence counsel Mr. Rafiq very fairly submitted that if PW 5 Khudeza is believed then accused Tasraf is the one against whom the accusing finger is pointed.” 6. The learned defence counsel Mr. Rafiq had no business to extend the above contention as he did not represent the accused appellant Tasraf during trial. Moreover, in a criminal trial a person cannot be convicted on the basis of such concession. When the evidence of the prosecution witnesses were not believed in respect of all the co-accuseds, we find no reason on the part of the learned Sessions Judge to convict the persent accused appellant on the basis of testimony of the same witnesses, 7. Learned counsel for the accused has further referred to a decision of the Apex Court in the case of Ram Lakhan vs. State of UP, AIR 1983 SC 352 : “Before an offence under section 395 can be made out there must be an assembly of 5 or more persons. On the findings of the Courts below it is manifest that only one person is now left. In these circumstances, therefore, the appellant cannot be convicted for an offence under section 395. The High Court has not found that Ram Lakhan was guilty of any overt act so as to bring his case within any other minor offence.” 8. In the instant case also five other persons faced trial along with the accused for the offence under section 397 IPC. All those five persons were acquitted and only the accused appellant-has left. There is also no evidence imputing any overt or covert act on the part of this accused appellant. 9. Hence for the reasons stated above, the conviction and sentence entered against the accused appellant is set aside, and he is acquitted of the offence under section 397 IPC and is set at liberty forthwith. The appeal is accordingly allowed.