JUDGMENT : P.K. Tripathy, J. - Petitioner has challenged the order of conviction u/s 395 of the Indian Penal Code (for short, the 'I.P.C.') passed by learned Chief Judicial Magistrate cum-Assistant Sessions Judge, Khurda at Bhubaneswar in S.T. Case No. 1 08/378 of 1994 and the confirming judgment of learned Sessions Judge, Khurda at Bhubaneswar in Criminal Appeal No. 54/34 of 1997/96 vide the impugned judgment dated 4.8.1997. Petitioner was sentenced to undergo rigorous imprisonment for a period of six years and to pay a fine of Rs. 100/-, in default, to under go rigorous imprisonment for one month more. Learned Sessions Judge did not interfere with that sentence while dismissing the appeal. 2. It is alleged that in he night of 11th/12th October, 1 991 dacoity was committed in the dwelling house of P.W. 1 by some unknown culprits and five of them by use of force, removed that valuables and money and in that process caused hurt to the inmates. When the villagers wanted to come to rescue, bombs were exploded to terrorise them. On receipt of that F.I.R. the Officer-in-Charge of Balipatna Police Station took up the investigation, apprehended some of the culprits, put them to T.I. parade, got the articles recovered at their instance and ultimately charge-sheeted twelve accused persons, inter alia, for the offences punishable under Sections 457 and 395, I.P.C. and Section 9(b) of the Indian Explosives Act. 3. Petitioner along with accused Prafulla Maharana, Khirod Nath, Kalia Mukhi, Pravat Kumar Sahu and Gopi Bhoi were committed to the Court of Session, charge u/s 216-A, I.P.C. was framed against accused Gopi Bhoi alone. On the other hand, charge was framed against the above named rest of the five accused persons (including the Petitioner) for the offences under Sections 457 and 395, I.P.C. and Section 9-B (l) (b) of the Explosive Act, At the conclusion of the trial, Petitioners Prafulla Moharana and Khirod Nath were convicted for the offence u/s 395, I.P.C. only and each of them was sentenced to undergo rigorous imprisonment for six years and to pay a fine of Rs. 100/-. Accused Pravat Kumar Sahu was granted benefit of doubt and acquitted from the charge u/s 395, I.P.C. and the other offences (for whom charge had been frame against five persons). 100/-. Accused Pravat Kumar Sahu was granted benefit of doubt and acquitted from the charge u/s 395, I.P.C. and the other offences (for whom charge had been frame against five persons). Accused Gopi Bhoi was also acquitted of the charge for the offence u/s 216-A.I.P.C. Accused Kalia Mukhi was not tried in that trial because of his absconding. As stated by learned Counsel for the Petitioner, in the meantime one more charge-sheeted accused, namely, Nityananda Mohapatra faced the trial and was acquitted as per the judgment dated 12.7.1996 in S.T. Case No. 19/190 of 1995 of the Court of C.J.M.-Cum-Asst. Sessions Judge, Khurda at Bhubaneswar. Out of the above convicted accused persons Petitioner's appeal was heard and disposed of by learned District & Sessions Judge vide the impugned judgment dated 4.8.1997. It is stated at the Bar that there is no material to show or suggest that the other convicted accused persons either preferred appeal or challenged the order of conviction in any manner. 4. To substantiate the charge, prosecution examined ten witnesses and relied upon a series of, documents, viz. F.I.R. Injury Certificates, Seizure Lit and the T.I. Parade Report of the persons and the properties vide Exts. 8 and 9 respectively. Prosecution heavily relied upon the evidence of the informant-P.W. 1, his wife-P.W.2 and another Co-villager-P.W. 8, all of whom identified the Petitioner and the other two co-accused who faced the trial under reference and stated that they along with two others participated in the commission of the dacoity. As per the findings recorded by the trial Court and confirmed by the appellate Court, such evidence was found to be reliable, Thus, on the basis of other supporting evidence besides the T.I. Parade Report, the Courts below found the Petitioner and the convicted co-accused persons (Prafulla Maharana and Khirod Nath) to be guilty of the offence u/s 395, I.P.C. 5. Learned Counsel for the Petitioner advanced argument challenging order of conviction on the grounds that: (i) The T.I. Parade Report and the evidence of P. Ws. Learned Counsel for the Petitioner advanced argument challenging order of conviction on the grounds that: (i) The T.I. Parade Report and the evidence of P. Ws. 1,2 and 8 in that report being far short from the legal requirements, Petitioner could not have been convicted on the basis of such inadmissable and uncredible evidence; (ii) The Investigating officer being not examined, courts below should have held that prejudiced caused to the accused was irreparable and on that score alone Petitioner should have been acquitted; and (iii) The findings of the courts below regarding participation of the Petitioner and the co-accused if shall be regarded as unshakable, then such evidence only sows participation of three persons in the commission of the dacoity and, therefore, keeping in view the provision in Section 391, read with Section 395, I.P.C., charge u/s 395, I.P.C. is not made out in the absence of proof of five persons conjointly committing robbery and, therefore, Petitioner is entitled to acquittal from the order of conviction u/s 395, I.P.C. 6. Learned Counsel appearing for the State advanced argument repelling each of the above arguments and contended that the conviction order being supported by proper assessment of sufficient evidence on record, this Court exercising the revisional jurisdiction, should not undertake the job of re-assessment of evidence in the absence of any illegality or perversity. He argued that non-examination of the Investigating Officer was on account of his death and besides that no prejudice has been raised or proved by the defence. He further argued that the evidence relating to the T.I. Parade is not only reliable and acceptable but also such evidence clearly indicates participation of five persons conjointly in committing the dacoity and, therefore, Petitioner is not entitled to any relief whatsoever. 7. After perusal of the evidence on record and the impugned judgment this Court finds that evidence was properly read and appreciated for recording the order of conviction and in the absence of any illegality in appreciating the same or perverse approach in assessing or appreciating such evidence, this Court declines to re-assess the oral evidence again. 8. It is not disputed at the Bar that a dacoity was committed in the dwelling house of P. Ws. 8. It is not disputed at the Bar that a dacoity was committed in the dwelling house of P. Ws. 1 and 2 in the night of 11th/12th October, 1991 and properties were looted by use of force causing injuries to inmates and by exploding bombs to terrorise people of the locality. However, there being no specific evidence implicating any of the persons facing the trial for exploding the bombs, the trial Court has already granted the benefit of doubt in favour of the accused persons by acquitting them of the charge for the offence u/s 9-B (1) (b) of the Explosive Act. That order of acquittal being not at controversy, this Court does not propose to examine that aspect. The charge sheet shows involvement of a dozen of persons for committing dacoity in the house of the P. Ws. 1 and 2 and according to the allegation in the F.I.R., the persons who forcibly entered inside the premises, i.e., inside the dwelling house by breaking the doors, were five in numbers. In the F.I.R., P.W. 1 has described those five culprits by giving their features and bodily descriptions etc. During the T.L parade there was identification of only three accused out of five persons against whom charge was framed for the offence u/s 395, I.P.C. As noted above, one of them absconded in the midst, therefore, the trial was splitted up and the other accused, namely, Pravat Kumar Sahu was not identified in the T.I. parade and, therefore, he was also granted the benefit of doubt, The evidence with respect to the T.I. parade has been challenged by the Petitioner on the grounds of delay in conducting the T.I. parade and the possibility of they being seen by the identifying witnesses because of no evidence from,the side of the prosecution that precaution was taken to conceal their presence when they were produced in the Court of S.D.J.M. In that connection, Petitioner has relied upon the cases of Satrughana alias Satrughana Parida and Ors. v. State of Orissa (1993) 6 OCR (SC) 115, and Sri Bunda Minz v. State (1993) 6 OCR 271. 9. v. State of Orissa (1993) 6 OCR (SC) 115, and Sri Bunda Minz v. State (1993) 6 OCR 271. 9. In the case of Satrughana (supra) the Apex Court did not accept the evidenciary value of the T.I. Parade to be credible on the ground that the T.I. parade was conducted one and half month after the occurrence and much after arrest of the accused resulting in their production in the Court at the interval of 15 days and absence of evidence that precaution was taken by prosecution for preventing the accused persons to be seen by the prosecution witnesses on the dates of remand. On a similar ground also this Court in the case of Bunda Minz (supra) did not place reliance on the T.I. parade report. It ay be indicated here that the Courts below and particularly the appellate Court has considered this aspect and thereafter has taken note of the fact that Petitioner was arrested on 14.11.1991, produced before the S.D.J.M. on 15.11.1991 and remanded till 29.11.91 and in the mean-time on 22.11.9.1 the T.I. parede was conducted. Under such circumstances, there was no delay at all in conducting the T.I. parade and there could not have been any possible chance of allowing the prosecution witnesses to see the Petitioner between 14.11.1991 and 22.11.1991. Apart from that, at the stage of cross-examination of P. Ws. 1,2 and 8, the defence, after making an attempt to bring on to record the chance of the said three witnesses seeing the Petitioner before the T.I. parade, could not succeed inasmuch as the said three witnesses refused to such suggestion given by the defence. Under such circumstance, this Court finds that appreciation of the evidence relating to the T.I. parade by the Court below was not only done properly but also the citations made by the Petitioner were duly and properly considered and distinguished so far as the present case is concerned. After perusal of the evidence or record and the aforesaid actions this Court finds no reason to interfere with the findings of the Courts below regarding validity and correctness of the report u/s 9 of the Evidence Act i.e., relating to the T.I. parade. The argument of the Petitioner in that respect is found not acceptable. 10. Learned Counsel for the Petitioner further argued that non-examination of the Investigating Officer (in short 'I.O.') has resulted in miscarriage of justice. The argument of the Petitioner in that respect is found not acceptable. 10. Learned Counsel for the Petitioner further argued that non-examination of the Investigating Officer (in short 'I.O.') has resulted in miscarriage of justice. In that respect he relied on he cases of Sk. Maqubl Khan v. State 1990 (I) OLR 279 and Dusashan Bhoi v. State of Orissa, Learned Counsel appearing for the State, on the other hand, relies on the case of Babulal Sahu v. State of orissa 77 (1994) C.L.T. 949 in support of the contention that in the absence of any prejudice non-examination of the I.O. does not render the order of conviction illegal or invalid. In the above cited authorities this Court has held that non-examination of the I.O. if results in miscarriage of justice or causes prejudice to the defence then keeping in view the facts and circumstances of the case either the accused be granted the benefit for the failure of the prosecution in the examining the I.O. or else to remand the case directing the trial Court to examine the I.O. Thus, this Court is to find out if either of the aforesaid courses is required to be adopted under the facts and circumstances involved in the present case and in that respect this Court is also to find out if any prejudice has been caused to the accused because of non-examination of the I.O. 11. This point was also raised in the court of sessions Judge and the appellate Court after going through the materials on record held that the Appellant (petitioner herein) could not show of any prejudice being caused due to non-examination of the I.O. Fact remains undisputed that I.O. was dead by the date the trial was taken up and evidence was recorded. Except in the evidence of P.W. 8 regarding the contradiction in the statement u/s 161, Cr. P.C. relating to identification of a person without hands there was not evidence for confronting any contradiction u/s 162 Cr. P.C. Similarly, no contradiction or ambiguous or doubtful circumstance was brought to record relating to search and seizure which could have necessitated the ground of prejudice for non-examination of the I.O. on the other hand it appears from the trial Court's record that all the documents were marked exhibits either without objection or on admission. P.C. Similarly, no contradiction or ambiguous or doubtful circumstance was brought to record relating to search and seizure which could have necessitated the ground of prejudice for non-examination of the I.O. on the other hand it appears from the trial Court's record that all the documents were marked exhibits either without objection or on admission. Even during the course of argument except advancing the argument of prejudice Petitioner did not state how he was prejudiced because of non-examination of the I.O. Under such circumstance, so far as the present case is concerned, this Court does not find a case of prejudice is made out or non-examination of the.I.O. After going through the evidence on record, this Court also does not find a case of failure of justice due to non-examination of the I.O. It would be borne in mind and may be stated at the risk of the Petitioner that non-examination of the I.O. was because of death of the said Officer, as noted by the appellate Court. Thus, keeping in view all the aforesaid facts and circumstances and absence of any reason in favour of the Petitioner, this Court does not find the reason of non-examination of the I.O. in this case, to be a ground to set aside the impugned order of conviction or to remand the matter for examination of the I.O. Accordingly, the second contention of the Petitioner also is found to be devoid of merit. 12. Petitioner has also challenged the order of conviction, as noted above, on the ground that out of five persons charged for the dacoity one having been acquitted and one absconded the remaining three could not have been convicted u/s 395, Indian Penal Code, In that connection, he placed reliance on the case of Banamali Swain v. State of Orissa (1997) 12 OCR 584. In that case referring to the case of Ram Laxman v. State of V.P. 1983 SC 552 a single Judge bench of this Court held that charge for the offence u/s 395, Indian Penal Code cannot be said to have been made out when only three persons were convicted. It is not clear from the facts narrated in the case of Banamali if there was allegation of dacoity being committed by the five persons who were charge sheeted or anybody else besides those five persons and whether they were named dacoits in the F.I.R. 13. It is not clear from the facts narrated in the case of Banamali if there was allegation of dacoity being committed by the five persons who were charge sheeted or anybody else besides those five persons and whether they were named dacoits in the F.I.R. 13. Sections 391 and 395, Indian Penal Code respectively defines the term of dacoity and provides for the punishment. Offence of dacoity is defined in Section 391 in the following manner: 391. Dacoity-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 "dacoity". When a robbery is being committed or attempted to be committed by five or more persons conjointly then the offence is dacoity. For counting the number of persons involved in the offence the number of person(s) aiding the committing or attempting to commit robbery are also liable to be counted. If total number of such persons comes up to five or more person then the offence of robbery becomes 'dacoity' and is made punishable u/s 395, Indian Penal Code. Therefore, requirement of law is regarding participation of five persons or more conjointly for the purpose of committing robbery and, therefore, whether an offence u/s 395, Indian Penal Code is made out because of acquittal of the co-accused by reducing the number to less than five from out of the persons who faced the trial is a pure question of fact to be properly assessed to consider whether an offence u/s 395, Indian Penal Code Indian Penal Code is made out to substantiate the charge for that offence. In other words, if evidence on record is clear, unambiguous and cogent that five persons committed the looting i.e. the robbery then mere acquittal of a few out of the unknown culprits does not make it to be a case of no dacoity. However, that aspect shall have a different appreciation if the accused are known and named and the persons acquitted reducing the total number of culprits i.e. the convicted accused to less than five. However, that aspect shall have a different appreciation if the accused are known and named and the persons acquitted reducing the total number of culprits i.e. the convicted accused to less than five. In the later type of case when the evidence on record does not prove robbery being committed/attempted to be committed conjointly by five or more number of persons and even if any other person(s), if any, aiding committing that offence does not make the total number of person to be five or more then such culprits (being less than five in number) cannot be convicted for the offence u/s 39,5, Indian Penal Code. The analogy thus leads to the principle that the Court is to assess the facts and evidence to find out if the allegation of robbery being committed by five or more persons still holds good notwithstanding acquittal of a few accused persons when it is a case involving unknown culprits and if the Court finds that in spite of acquittal of some persons due to lack of evidence the evidence of prosecution witnesses regarding participation of five or more persons in robbery is acceptable then notwithstanding the number of persons facing the trial (even if they are less than five) they can be conveniently convicted for the offence u/s 395, Indian Penal Code if there shall be clinching evidence against them relating to the alleged occurrence. Such is the view expressed by this Court in a Division Bench in State of Orissa Vs. Susanta Kumar Dey and Another, and Saktu and Another Vs. State of U.P.. Thus applying the aforesaid test if the facts in the present case are analysed then it is seen that though accused Pravat Kumar Sahu has been acquitted reducing the number of persons facing the trial to be four out of whom the trial was splitted up against one accused (Kalia Mukhi) yet the conviction u/s 395, Indian Penal Code is sustainable inasmuch as during the course of investigation as many as 14 persons were charge-sheeted for the crime and according to P. Ws. 1 and 2 five persons (out of them) had entered and committed dacoity. Hence, it cannot be said that the order of conviction u/s 395, Indian Penal Code is not sustainable because of conviction of three accused persons. For that reason, this Court does not find any merit in the aforesaid argument of the Petitioner. 1 and 2 five persons (out of them) had entered and committed dacoity. Hence, it cannot be said that the order of conviction u/s 395, Indian Penal Code is not sustainable because of conviction of three accused persons. For that reason, this Court does not find any merit in the aforesaid argument of the Petitioner. 14. No other point was raised or canvassed at the time of argument. All the aforesaid three points after due deliberations have been found to be not in favour of the Petitioner to grant him any benefit. Under such circumstance, this Court declines to interfere with he impugned judgment of conviction and order of sentence inasmuch as the substantive sentence which has been given for the conviction u/s 395, Indian Penal Code is already liberally imposed and no further literacy in respect of the sentence should be made when the offence complained of is that of dacoity. Accordingly, the revision stands dismissed being devoid of merit. Final Result : Dismissed