JUDGMENT Joytosh Banerjee, J.: These two appeals have been directed against the same judgement dt. 15.5.91 delivered by Sri. H. K. Roy Basunia, Additional Sessions Judge, 5th Court, Alipore in Sessions Trial No. 4(11)/1990, through which the learned Additional Sessions Judge found both the appellants guilty of the charges framed against them under sections 395/397 I. P. C. and convicted them under the same. Subsequently, on the same day both the appellants, on their conviction under section 395 I.P.C. were sentenced to suffer R I. for 8 years and also to pay fine of Rs. 2,000/- each in default to suffer RI. for a further period of 6 months. They were further sentenced to suffer RI. for 7 years on their conviction under section 397 I.P.C. and the learned Judge indicated in the judgement impugned that both the sentences would run concurrently. Being aggrieved by the aforesaid conviction and the sentence awarded, the appellants preferred two separate appeals, which have been taken up together for hearing and the present judgement will dispose of both such appeals. 2. Briefly stated the case of the prosecution is that the informant Biswadeb Baidya came to Falta P.S. on 31.7.84 in the morning at about 7.05. A.M. accompanied by his son Badal Baidya and co-villager Narayan Mondal and lodged the information that last night at about 11 P.M. he along with his wife and daughter went to sleep after taking meal. They woke up when flashes from 4/5 torch light had reached the room through the window where they were sleeping. His wife wanted to know who were they and in reply one of the miscreants who were flashing the torch asked her to open the door. The informant could understand that the dacoits had came. So he started shouting from inside the room for help. In the meantime, the miscreants manage to break open the door and thereafter 7/8 persons entered inside the room with torch, lathi, pipe gun, axe etc. One of the miscreants hit him on his forehead with the axe, as a result of which he sustained injury, 2/3 miscreants hit him with lathi, shovel. On being hit thus, the informant fell down on the ground. One of the miscreants hit him on his forehead with the axe, as a result of which he sustained injury, 2/3 miscreants hit him with lathi, shovel. On being hit thus, the informant fell down on the ground. Thereafter, the dacoits snatched away one pair gold ear ring, one gold nose ring, 4 pieces of gold plated bronze churi, silver chain from the person of his daughter and also snatched away one gold tub fixed with red stone, 6 pieces of gold plated bronze chury and other ornaments from the person of his wife. The dacoits broke the lock of the next room and looted articles kept there by breaking the trunk and drawer. 3. The police Oil the basis of the aforesaid information started a case, arrested number of persons in connection with the case and ultimately submitted charge-sheet under sections 395/397/412 I. P. C. against the 2 appellants of the 2 appeals. The learned Additional Sessions Judge on consideration of the papers referred to under section 173 Cr.P.C. raised charges under section 395 read with section 397 of the 1.P.C. against both the appellants and the trial proceeded when both the appellants pleaded not guilty to such charge. 4. The only point for our consideration in the present appeals, whether the order of conviction and sentence passed by the learned Sessions Judge should be sustained or not. 5. The learned Advocate for the appellants on the very beginning of his argument has submitted that the charge is defective. In this connection, the learned Advocate has drawn our attention to the fact that in the instant case charge under section 395 read with section 397 I.P.C. was raised against only two appellants and there was also no indication in such a charge that there were also others involved in the offence complained of. It is submitted that the proof of commissions of offence punishable under section 395 should be a robbery or attempt to rob by five or more persons who are either to rob by five or more persons who are either joint actors or some of whom, actually commit the robbery, while the others are abettors, being present but not actually participating in the commission of robbery or attempt to rob. But in the instant case, charge being framed only against the two appellants such a charge is defective as no charge under section 395 I. P. C. should be raised against only two persons. In this connection, the learned Advocate for the appellant has placed his reliance in the case of Ram Sankar Singh & Ors. vs. State of Uttar Pradesh, reported in 1956 SC 441 (S) AIR V 43 C 77 (June). In that case, the High Court came to the conclusion that out of the 6 persons convicted under section 395 I.P.C., three who belonged to concerned village and it was not probable that they would commit dacoity in their own village without taking the least precaution to conceal their identity, and in this way acquitted 3 accused from the charge under section 395 of the I. P. C. The Apex Court observed that in that background the High Court should have considered the question whether there was satisfactory evidence to show that the 3 remaining accused could be convicted under section 395 of the I. P. C. on the basis of the charge as framed. In any event the three remaining accused could be convicted of lessor offence of robbery under section 392 I. P. C. if there was evidence to show that they had committed theft and used violence for committing theft. But in our considered opinion, the facts and circumstances of that reported case are clearly distinguishable from the present case. In that case, out of the 6 accused who are prosecuted for an offence under section 395 I. P.C., the High Court clearly held that the three could not commit the decoity in that way as alleged by the prosecution that is to say without concealing their identity etc. So with such a finding, the High Court was clearly of the opinion that the offence was committed not by 6 but by the 3 remaining accused. But in the instant case more than five persons had entered into the house of the informant (P.W. 1) in the night of incident to commit dacoity and this would be evident from the evidence of P.W. 9 Mina Baidya, the daughter of the informant who clearly stated in her evidence, that at the time of incident 5/6 dacoits entered into their room and they snatched away her ornaments. 6. 6. We should also add that under section 215 of Cr. P. C., no error in stating either the offence or the particulars required to be stated in the charge should be regarded as material unless, the accused was in fact misled by such error and it occasioned a failure of justice. Here the main grievance of the learned Advocate for the appellant is that only two appellants were charged under section 395 and such charge did not give any indication that besides those two appellants there were other who also committed the offence. It is true that in the charge there is no indication that besides the two appellants there were others who also committed the offence. But from the evidence we have already seen that as per the allegation, which the prosecution wanted to establish, there were five or more persons who has entered into the house of the informant on the night of incident. The accused had the occasion to cross-examine the prosecution witnesses and there is no indication that due to the alleged wrong charge, the appellants were in any way misled which had occasioned a failure of justice. Actually if the alleged offence was committed by the two appellants, only it would have been robbery punishable under section 392 I. P. C. and offence punishable under section 395 I.P.C. is an aggravated form of robbery committed by five or more persons. It follows that if the occasion so demanded the learned trial court could have convicted the appellants under section 392 I.P.C. without framing a formal charge under that provision, taking recourse to the provisions of section 222 of Cr. P. C. But in this case, evidence has been led to establish that actually five or more persons had committed the offence. The prosecution from time to time placed some other persons in the T.I. Parade, but the witnesses could not identify those persons and in that way prosecution could not submit charge-sheet against more than two appellants. The learned Additional Sessions Judge ought to have indicated that apart from the appellants there were atleast three other unknown persons who committed the offence. But due to failure on his part to do so, as per the clear provision of 215 of Cr.P.C. such error would not be fatal in the facts and circumstances of the case. The learned Additional Sessions Judge ought to have indicated that apart from the appellants there were atleast three other unknown persons who committed the offence. But due to failure on his part to do so, as per the clear provision of 215 of Cr.P.C. such error would not be fatal in the facts and circumstances of the case. But at the same time, we should point out here that the learned Additional Sessions Judge convicted the appellants under sections 395/397 I.P.C. After convicting the appellants in that way he awarded a separate sentence, namely, R.I. for 7 years to each of the two appellants under section 397 I.P.C. This section does not create an offence but regulates the punishment. To speak it more elaborately section 397 does not contain the definition of a substantive offence and no person can therefore be charged or convicted under the section separately, though it may be read with section 395. As the section does not also provide for joint liability as section 149 Indian Penal Code does, it only applies to the person who himself uses a deadly weapon or causes grievous hurt. It follows that when there is no evidence that the accused personally used any deadly weapon or caused any grievous hurt he cannot be convicted under that section. On going through the judgment impugned we do not find any thing in such judgement to indicate that the appellants or any of them used any deadly weapon or caused any grievous hurt to any of the victims. At least there is no such finding recorded by the trial court. That being so a conviction under section 397 I.P.C. should be set aside on the face of the record. 7. Now, the main question centers round, the conviction under section 395 I.P.C. recorded by the learned Additional Sessions Judge in the judgement impugned. In a case of dacoity, the prosecution is required to establish firstly that there was a dacoity committed in the way as alleged. Secondly that the accused persons are connected with such dacoity and to speak it more specifically that they participated in the dacoity, in any way or there is evidence to connect the accused, with the offence of dacoity. 8. Regarding the first point, we find that P.W.1, the informant, Biswadeb Baidya clearly described what happened in his house in the night of the incident. 8. Regarding the first point, we find that P.W.1, the informant, Biswadeb Baidya clearly described what happened in his house in the night of the incident. According to him in the night of 30/31st July, 1984 he along with his wife (P. W. 10) and daughter (P.W.9) were sleeping in the same room at about mid night flashes of several torch light fell of the bed where all the three were sleeping and other inmates of the room woke from their sleep. The informant cried out, the miscreants who were flashing the torches asked him to keep quiet. Thereafter they entered inside the room by breaking open the door. Entering inside they assaulted the informant and snatched away gold ornaments from the persons of the wife and daughter of the informant. The miscreants also looted cloths, shawl, garments, utensils and cash money from that house. The evidence of P.W.1 to this effect gets substantial corroboration from the evidence of his daughter (P.W.9) Mina Baidya and his wife (P.W.10) Mayarani Baidya. That apart, their evidence on the point of dacoity gets corroboration from the evidence of a co-villager P.W.8, Haradhan Mithia who had a sweetmeat shop in front of the house of P.W.1. It transpires from the cross-examination of the witnesses who have come here to establish the allegation of dacotiy that the witnesses were cross-examined at length. But such cross-examination was done, as it transpires to challenge their evidence where they have wanted to connect the appellants with the offence complained of. We propose to consider that question later on, but it transpires from the entire cross-examination of the relevant witnesses that the very allegation that there was a dacoity in the house of P.W.1 in the night of 30/31st July, 1984 has not been challenged in a proper way as per definition of robbery under section 390 I.P.C. 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 attempt to cause to any person death or hurt or wrongful restraint or fear of instant death. In the instant case, we have seen from the evidence on record, that the articles were taken away by the miscreants after causing hurt to the inmates of the house. In the instant case, we have seen from the evidence on record, that the articles were taken away by the miscreants after causing hurt to the inmates of the house. Now, under section 391 I.P.C. when five or more persons conjointly commit or attempt to commit a robbery, every person so committing, is said to commit dacoity. In the instant case, from the evidence of the daughter (P.W.9), we have seen that the miscreants were five or more in number and that particular evidence of P.W. 9 could not be disturbed through the cross-examination. In the result we can safely come to a conclusion that there was a dacoity committed in the house of P.W.1 in the night of3 0/31stJuly, 1984. 9. Next comes to the question whether the prosecution connected the appellants with the offence complained of, through cogent evidence or not. Here we must consider the case of two appellants separately because the evidence led from the side of the prosecution is different on this point. So far, the Criminal Appeal No. 206/91 is concerned we find that appellant in that appeal is Kamal Haldar. The relevant evidence to connect this particular appellant with the offence of dacoity is mainly through the deposition of P.W.13 Manindra Nath Roy, a retired Inspector of Police who at the relevant point of time was attached to Diamond Harbour P.S. as S.L of Police. According to him on 31.7.84 after mid night he left the P.S. accompanied by S. I.N.C. Roy and police force after making G. D. Entry No. 1362 dt. 31.7.84 to apprehend copper wair thieves and they had been to different villages like Masat, Kuleswa, Mushat and while returning after the raid, proceeding along the Diamond Harbour Road they reached a place named village Jhinge. They found 12/13 persons proceeding towards the same direction ahead of their vehicle carrying some articles on their heads and hands. Those persons were seen in the head light of the vehicle as well as in the head light of the other vehicle which was also moving in the same direction. The witness got suspicious that those persons might be criminals. He instructed the driver of the vehicle to stop the vehicle in such a way so that he could apprehend at least one of the persons. The witness got suspicious that those persons might be criminals. He instructed the driver of the vehicle to stop the vehicle in such a way so that he could apprehend at least one of the persons. When the vehicle was stopped he caught hold of one person from inside the vehicle and since then the other persons jumped in the road side canal full of water. The man who had been caught in that way offered some kind of resistance and managed to free himself and he too jumped inside the canal water and tried to escape but he was again apprehended. Hearing the shouts some of the inmates of the houses of that locality also came out and for that the person could not flee away. The witness identified the accused Kamal Haldar as the man whom they apprehended from the road side canal. From the person of Kamal Haldar one pipe gun and two 12 bore live catridges were recovered. He also was seen carrying some utensils and a table fan, those articles too were seized by the witness. In the cross-examination, it was only suggested that the seized articles were not found in possession of the accused Kamal. In this way there was no cross-examination on the point of apprehension of the accused Kamal by the witness in the circumstances as stated by him. Moreover, the evidence of P.W. 13 on this point gets sufficient corroboration from the P.W.4 Sridam Sardar. P.W.14 Mahadeb Ch. Roy another police officer who accompanied P.W.13 in the raid. From their evidence we further find that the appellant was seen carrying utensils on his head and a table fan in his hand, those utensils were kept in a polithin bag. From the evidence ofP.W.1 we further get that 2/3 days after the dacoity, the informant was called to Diamond Harbour P.S. to recover stolen articles which were lying there. In this way, the witness had the occasion to identify one table fan and some utensils as the articles belonging to him which were looted away by the dacoits. From the cross-examination of P.W.1 we do not find anything to suggest even remotely that the articles which the witness identified as his own at Diamond Harbour P.S. were not recovered from the appellant. From the cross-examination of P.W.1 we do not find anything to suggest even remotely that the articles which the witness identified as his own at Diamond Harbour P.S. were not recovered from the appellant. On the other hand, there was elaborate cross-examination to point out that the witness had no paper to show that the articles specially the fan which was recovered in connection with this case belonged to him. Coupled with this evidence we find that the accused was identified by both the informant and his wife as one of the miscreants who committed the dacoity in their house. In this way, we find that there is sufficient evidence to connect the accused/appellant with the offence complained of. Next comes the question whether the prosecution is in a position to sufficiently connect the other accused/ appellant in Criminal Appeal No. 202/91, namely, Maleque @ Alauddin Daftari or not. Here we find that the only evidence to connect the appellant with the offence complained of is that the informant and his wife identified the appellant as one of the dacoits. There is no other evidence or circumstances to connect the appellant with the offence complained of. Now, it further transpires that the T.I. Parade in which the appellant was identified was held on 29.8.84 that is to say almost a month after the incident complained of. So as the matter stands now, there is no other evidence or circumstances to connect the accused/appellant with the offence complained of except the fact that the accused/appellant was identified by two inmates of the house where the dacoity was committed, as one of the dacoits in belated T. I. Parade. Coupled with this we must also point out that all the three relevant witnesses, namely, P.W. 1, P.W. 9 and P.W. 10 did not state anything in their respective oral testimonies how they could identify the miscreants in the darkness of the night. There was no evidence that any light was burning in the room where all the three were sleeping. No doubt all the three witnesses deposed that the dacoits had torch light with them which they flashed at the time of commission of dacoity. But none of such witnesses claimed in the evidence that they could see the appellant in such light. No doubt all the three witnesses deposed that the dacoits had torch light with them which they flashed at the time of commission of dacoity. But none of such witnesses claimed in the evidence that they could see the appellant in such light. In this background, we are of the opinion that it is unsafe to convict the appellant Maleque @ Alauddin Daftari on the basis of such identification in the T. I. Parade. In our considered opinion, in the facts and circumstances of the case, the accused/appellant is entitled to get benefit of doubt. 10. In the result, Crl. Appeal No. 206/91 is partly allowed and conviction and sentence awarded to the accused/appellant Kamal Haldar under section 397 I.P.C. is set aside. But we do not find any reason to disturb the conviction and the sentence awarded to the appellant under section 395 I.P.C. The Crl. Appeal No. 202/91 on the other hand is allowed. The conviction and the sentence awarded to the accused/appellant Maleque @ Alauddin is hereby set aside. He is on bail therefore the bail bond stands cancelled. Nure Alam Chowdhury, J.: I agree. Crl. Appeal No. 206/91 partly allowed. Crl. Appeal No. 202/91 allowed. Bail bond cancelled.