A.K. Goswami, J.:-- Heard Ms B. Sarma, learned Amicus Curiae for the appellant. Also heard Mr. D. Das, learned Additional Public Prosecutor, Assam. 2. This is an appeal against the judgment and order dated 22.9.2008 passed by the learned Additional Sessions Judge, FTC, Biswanath Chariali in Sessions Case No.216/2006 convicting the appellant under Section 395 IPC and sentencing him to undergo rigorous imprisonment for five years and to pay fine of Rs. 1,000/-, in default, simple imprisonment for another period of sixty days. 3. By an order dated 6.2.2009 in Crl. MC No.24/2009, the appellant was allowed to go on bail and pending disposal of the appeal, sentence and fine imposed upon the appellant were suspended. 4. As the counsel who were engaged by the appellant did not appear when the case was called up on 1.12.2015, Ms B. Sarma, learned counsel was appointed as Amicus Curiae. 5. An ejahar was lodged by one Jitu Saikia stating that around 2.30 P.M. of the previous night, a gang of dacoits numbering about 8/9 armed with spear, dagger, etc. broke open the door of the house of Padum Saikia (PW 6) and assaulted him and his wife and tied them up and then looted golden ornaments, cash, utensils etc. It was also indicated that Padum Saikia (PW 6) was hospitalized and the gang of dacoit's had threatened the inmates not to inform the police as they claimed that they belong to MALTA organization. 6. Based on the aforesaid ejahar, Behali Police Station Case No.143/1997 under Section 397 IPC was registered. Number of arrests were made during the course of investigation and seizure of some ornaments were also effected from the appellant and after completion of investigation, police submitted charge sheet against six persons including the present appellant under Section 395/397 IPC. 7. The case being exclusively triable by the Court of Sessions, the learned Judicial Magistrate committed the case to the Court of the learned Sessions Judge, Sonitpur wherein Sessions Case No.216/2006 was registered. Charge under Section 395/397 IPC was framed. The charges being read over and explained, the accused persons pleaded not guilty and claimed to be tried. 8. During trial, prosecution examined nine witnesses. Defence did not adduce any evidence. The statements of the accused persons were recorded under Section 313 Cr.P.C. wherein they had taken plea of total denial. 9. Charge under Section 395/397 IPC was framed. The charges being read over and explained, the accused persons pleaded not guilty and claimed to be tried. 8. During trial, prosecution examined nine witnesses. Defence did not adduce any evidence. The statements of the accused persons were recorded under Section 313 Cr.P.C. wherein they had taken plea of total denial. 9. The appellant was found not guilty under Section 397 IPC but was found to be guilty under Section 395 IPC and was accordingly convicted. All other accused persons were found not guilty under Section 395/397 IPC. Though no test identification parade was conducted, the appellant was identified in court by PW 3 and PW 6. Golden ornaments, seized by the police from the possession of the present appellant vide Ext. 2, were identified to be ornaments which were looted from the house of PW 6. As the other accused persons were not identified, they were acquitted. 10. PW 1 is the informant who happens to be the brother-in-law of PW 6 in whose house the dacoity was committed. In his evidence he stated that he did not know whether any of the dacoits were identified by the members of the victim's family. He had gone to the police station and had identified some of the looted ornaments and the appellant was there at that time in the police station being detained. He stated that the appellant had disclosed the names of other accused persons and accordingly, they were arrested by the police. 11. PW 2 is the wife of PW 6 who deposed with regard to the dacoity committed and the assault made. She categorically stated that same was committed around 2 A.M. and she could not identify any of the miscreants. She was called to the police station to identify some looted ornaments and accordingly, she had gone to the police station where she identified the ornaments - one necklace, two numbers of ear rings, six pairs of bangles, one chain and one ring to be her ornaments. 12. PW 3 is the sister of PW 2 who used to reside in the house of PW 2. She also took part in identification of the ornaments in the police station and had seen the appellant at the police station. 12. PW 3 is the sister of PW 2 who used to reside in the house of PW 2. She also took part in identification of the ornaments in the police station and had seen the appellant at the police station. Though she stated that she could identify him as the one who assaulted at the time of committing dacoity, she had not stated before police that she could identify the dacoit who had assaulted them. 13. PW 4 does not contribute much to the development of the prosecution case as he merely deposed that after hearing the news of dacoity he had gone to the house of PW 6. 14. PW 5 deposed that some golden ornaments were recovered from the possession of the appellant vide seizure list Ext. 2 where Ext. 2(1) is the signature. 15. PW 6 had stated about the events that had taken place during the night when the dacoity was committed and how he was assaulted. In his examination-in-chief, he had stated that except the appellant he could not identify the other accused persons. In his cross-examination, he admitted that he had stated before the Investigating Officer that he could not recognise any of the miscreants. He stated that one lamp was there at the time when the miscreants had entered into the house. 16. PW 7 is the doctor who had treated PW 6 and PW 8 is a seizure witness. PW 8 has stated that he did not know from whom the seizure was effected and he would not be able to identify the person. PW 9 is the Investigating Officer of the case. 17. A close perusal of the evidence of PW 3 and PW 6 would go to show that they had never disclosed before the police that they could identify any of the miscreants. PW 2, as noted earlier, had reiterated in court that she could not recognise any of the miscreants. As none of the inmates of the house had stated before the police that they could identify the miscreants explains why no test identification parade was conducted even though the appellant was in the police station. 18. In the aforesaid factual matrix, it appears to the Court that merely because some ornaments were recovered from the possession of the appellant, he is implicated to be one of the dacoits who participated in the dacoity. 18. In the aforesaid factual matrix, it appears to the Court that merely because some ornaments were recovered from the possession of the appellant, he is implicated to be one of the dacoits who participated in the dacoity. On the basis of the evidence of PW 3 and PW 6, it is clear that they had not identified the appellant after the occurrence and therefore, the subsequent so called identification by them or naming the appellant as one of the dacoits cannot be acted upon. 19. Ms Sarma has submitted that even otherwise when all other accused persons were acquitted, the conviction of the appellant under Section 395 IPC is not sustainable. She has referred to the case of Ram Lakhan v. State of Uttar Pradesh reported in (1983) 2 SCC 65 . The Apex Court in the aforesaid judgment had observed as follows: "The trial court had acquitted five persons and convicted four. But on appeal the High Court acquitted the remaining three persons and convicted Ram Lakhan the present appellant. The position now is that out of nine persons named in the FIR who are alleged to have participated in the dacoity Ram Lakhan is alone left. Before an offence under Section 395 can be made out there must be an assembly of five 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." 20. On due consideration of the evidence on record, I am of the considered opinion that prosecution has failed to prove the charge under Section 395 IPC against the appellant beyond reasonable doubt and therefore, he is entitled to be acquitted of that charge. 21. Mr. Das has submitted that some ornaments belonging to the family of PW 2 and PW 6 were recovered from the possession of the appellant had remained un-impeached and that being the position on record, even if the appellant is not held to be guilty under Section 395 IPC, the appellant ought to be convicted under Section 412 IPC as he was found to be in possession of property stolen in the commission of a dacoity. 22. 22. In response, Ms Sarma has submitted that no charge under Section 412 IPC was framed against the appellant and therefore, in the facts and circumstances of the case, the appellant cannot be convicted under Section 412 IPC. It is submitted by her that there is no material on record to suggest that the appellant had dishonestly received the property assuming the same to be stolen property in the commission of dacoity in the house of PW 6. In this connection, she relies on a judgment in the case of Shabad Pulla Reddy and ors. v. State of Andhra Pradesh, reported in (1997) 8 SCC 495 . 23. I find substance in the argument of Ms Sarma. 24. In the aforesaid case, the identification of accused 17 to accused 22 was not accepted by the Apex Court. The other evidence on which the prosecution relied and both the learned courts accepted to convict the accused 17 to accused 22 was recovery of some items from them at the time of their arrest. In the aforesaid context, the Apex Court had stated as follows: "The most favourable conclusion that can be drawn for the prosecution from such recovery is that they dishonestly retained the stolen properties knowing then to be stolen but in absence of any charge framed under Section 411 IPC and on their acquittal of the charge under Section 396 IPC, no order of conviction can be recorded against them." 25. As no charge was framed against the appellant either under Section 411 IPC or Section 412 IPC, once the appellant is acquitted under Section 395 IPC, no order of conviction can be passed either under Section 411 or Section 412 IPC. 26. In view of the above discussions, this appeal succeeds. The impugned judgment of the learned Additional Sessions Judge is set aside. The appellant is set at liberty. The bail bond stands discharged. 27. Before parting with the records, the Court records its appreciation for the assistance rendered by Ms B. Sarma. Ms B. Sarma will be paid fee of Rs. 7,500/- by the Assam State Legal Services Authority. 28. Registry will send down the records. --------------