N. K. MEHROTRA, J. This is an appeal against the judgment and order dated 20. 7. 1987 passed by the IX Assistant Sessions Judge, Lucknow in Sessions Trial No. 534 of 1984, State v. Ram Khelawan and others, convicting the accused-persons under section 395/397 IPC and sentencing them to undergo five years R. I. under section 395 I. P. C. and a fine of Rs. 500 each appellant and seven years R. I. under section 397 I. P. C. 2. The case of the prosecution is that on the night in between 29/30. 11. 1983 the complainant Ram Khelawan was sleeping in his house and his daughter Nand Rani and wife were sleeping under the chhapper and there was lantern light. His son Fakir Chandra and his wife were sleeping inside the room. It was at about 1. 00 a. m. few dacoits jumped into the courtyard after crossing the wall and started committing robbery of house-hold goods from the kothari and they also started taking the jewelry from the person of his daughter. On his cry, the villagers came there with lathi, gun and torches and exhorted the dacoits. The dacoits made fires and caused injuries to the wife of the complainant, Nand Rani, the daughter of the complainant, Ram Charan, Raja Ram, Deota Deen. and Bhawani. The dacoits were identified in the light of the torches and lantern. The complainant has given the details of the jewelry and cloths, which were taken away by the dacoits from his house. The F. I. R. was lodged at the police station on the next day in the morning at 6. 30 a. m. The investigation was entrusted to Vinod Kumar Sharma, S. I. who after completing the investigation, submitted the charge-sheet. 3. The accused Ram Khelawan, Ram Phali, Ghisa Ram, Rain Das and Chandra Pal were charged under section 395/397 I. P. C. 4. The prosecution examined Ram Khelawan as P. W. 1, the complainant. Shed Singh as P. W. 2, Jangali as P. W. 3, Maiku as P. W. 4, Lallo as P. W. 5, Ram Charan as P. W. 6, Bhawani Din as P. W. 7, Raja Ram as P. W. 8, Fakir Chandra as P. W. 9. Dr. Ambrik Singh, as P. W. 10, Sri Ram Mohan Gupta, Executive Magistrate as P. W. 11, Dr. Dr. Ambrik Singh, as P. W. 10, Sri Ram Mohan Gupta, Executive Magistrate as P. W. 11, Dr. M. N. Siddiq as P. W. 12 and Vinod Kumar Sharma, the Investigating Officer as P. W. 13 and Head Constable Ram Gopal Tiwari as P. W. 14. 5. The learned trial court after considering the evidence on record held that accused Ram Khelawan and Ram Phali have been correctly identified by P. W. I Ram Khelawan. P. W. 2, Shiv Singh had identified only accused Ram Phali. The prosecution witnesses Jangali, P. W. 3 had identified accused Ram Khelawan, Ghisa Ram and Ram Das. The prosecution witness Fakir Chandra identified Ram Khelawan and Ghisa Ram but he has committed two mistakes, therefore, his statement is of no evidentiary value. He has also held that accused Ram Khelawan has been correctly identified by witness Jangali and Lalloo. He has held that accused Ram Khelawan has been identified by witness Ram Khelawan but because of two mistakes in his identification parade, his statement is of no evidentiary value against Ram Phali. Ram Phali has been identified by witness Sheo Singh but Sheo Singh has become hostile in the court. He has further held that the witness Jangali had correctly identified Ram Phali and there are two witnesses Maiku and Jangali who have identified accused Ram Phali. The learned trial court has further held that the evidence of identification against the other accused is not worth reliable. After recording this finding on the evidence of identification, the learned trial court has held two accused Ram Khelawan and Ram Phali guilty under section 395/397 I PC and has sentenced them to five years R. I. and a fine of Rs. 500/- each under section 395 IPC and seven years R. I. under section 397 IPC. The learned trial court has acquitted the other accused of the charges levelled against them. 6. It is against this judgment and order, the present appeal has been filed by accused Ram Khelawan and Ram Phali. Accused Ram Phali has expired during the pendency of the appeal. Therefore, the appeal filed against him stands abated. 7. Sufficient opportunity was given to accused Ram Khelawan and his counsel, nobody appeared from the side of the accused-appellant Ram Khelawan to argue the appeal. Accused Ram Phali has expired during the pendency of the appeal. Therefore, the appeal filed against him stands abated. 7. Sufficient opportunity was given to accused Ram Khelawan and his counsel, nobody appeared from the side of the accused-appellant Ram Khelawan to argue the appeal. Since the appeal is of the year 1987,1 decided to proceed on merit after hearing the arguments of the learned Addl. Government Advocate in view of the judgment of the Supreme Court in Ban/singh v. State of U. P. Al R 1996 (SC) page 2439. 8. A perusal of the impugned judgment of the trial court goes to show that there is no finding of the trial court, that any dacoity was committed at the alleged time and place. A person can be convicted under section 395 IPC if a charge of dacoity is proved against him. The prosecution must have proved- (i) that robbery was committed or attempted; (ii) that five or more persons committed or attempted to commit robbery; or that the whole number of persons committing or attempting to commit robbery was five or more; (iii) that such persons were acting conjointly. The dacoity is defined under section 391 IPC which provides that 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". So far proving the charge of dacoity, the prosecution has to prove the commission of robbery. 9. For the purpose of proving the robbery, the prosecution has to prove that there was either theft or extortion and the prosecution, has also to prove that in order to commit theft or extortion or in carrying away or attempting to carry away of the property obtained by such theft or extortion, the offender voluntarily cause death, hurt or wrongful restraint or fear of instant death, or of instant hurt, or of instant wrongful restraint. 10. In my opinion, in the absence of the evidence in a finding by the trial court that the appellant alongwith four or more persons participated in the incident and conjointly committed dacoity only then convicted under section 395 IPC cannot be sustained. 10. In my opinion, in the absence of the evidence in a finding by the trial court that the appellant alongwith four or more persons participated in the incident and conjointly committed dacoity only then convicted under section 395 IPC cannot be sustained. Since there is no finding about the commission of dacoity in the impugned judgment, I examined the evidence on record. Out of the prosecution witnesses examined in this case, P. W. 2 Sheo Singh, P. W. 6 Ram Charan, P. W. 7 Bhawani Din, P. W. 8 Raja Ram have not supported the prosecution story. 11. Jangali has stated that he saw only the persons at the roof of the house of Ram Khelawan and he had seen the accused at the time of running away. P. W. 4 Maiku has not stated about the date, time and place of dacoity. He has developed the prosecution story by saying that a fire was caused in the Chhappar and in the light of the fire, he saw only two persons running away. He has also not proved the commission of dacoity at the alleged date, time and place. P. W. 5 Lalloo has. also developed the prosecution story showing light on the spot by making statement that the fire was caused and in the light of the fire, he saw the incident. He had stated that there were ten miscreants and he could identify only one out of them. So his statement is also not worth reliable. P. W. 9 Fakir Chandra has stated that he saw the accused in their torch light and the light of the lantern. It is not possible to identify the accused in the light of the torches of the accused. The trial court has not relied on the identification evidence of this witness. 12. There remains only one witness the complainant Ram Khelawan. His statement is not corroborated by the other family members of his house. There was no sufficient light at the alleged time of the dacoity. There is no spot arrest. There is no recovery. The alleged commission of the dacoity at the alleged place of the incident is not proved beyond all sort of doubt and it is also not proved that the accused Ram Khelawan alongwith other accused conjointly participated in committing the dacoity. There is no spot arrest. There is no recovery. The alleged commission of the dacoity at the alleged place of the incident is not proved beyond all sort of doubt and it is also not proved that the accused Ram Khelawan alongwith other accused conjointly participated in committing the dacoity. Unless there is a specific finding about the commission of the dacoity and participation of the accused-appellant in that dacoity, the finding of conviction and sentence cannot be upheld. 13. In view of the above discussions, the appeal is liable to be allowed. 14. In result, the appeal filed by appellant no. 1 Ram Khelawan is allowed. The judgment and order dated 20. 7. 1987 passed by the IXth Assistant Sessions Judge, Lucknow convicting and sentencing the accused appellant Ram Khelawan for the offence under section 395/397 IPC is hereby set aside. Appellant Ram Khelawan is acquitted of the charges levelled against him. The appellant No. 1 Ram Khelawan is on bail. He need not surrender. His bail bonds are cancelled and sureties stand discharged. 15. The appeal filed by appellant no. 2 Ram Phali stands abated. Appeal Allowed. .