JUDGMENT : Pradeep Kumar Srivastava, J. Heard learned counsel for appellants Mr. Gautam Kumar as well as learned Special Public Prosecutor appearing for the State Mr. Vineet Kumar Vashishta. 2. Present appeal is directed against the judgment and order of conviction and sentence dated 31.08.2006 and 01.09.2006 of the appellants for the offence under Section 395 of the I.P.C. passed by Additional Sessions Judge-Ist Class, Rajmahal in S.T. Case No. 38 of 1993 whereby and where under the appellants have been sentenced to undergo R.I. for five years along with fine of Rs.2,000/- each with default stipulation. FACTUAL MATRIX 3. Factual matrix giving rise to this appeal is that on 05.01.1982 in the night while informant (Nirajan Kumar Rai P.W.6) was sleeping in his house and the door was not locked from inside. He heard some sound meanwhile two miscreants entered into his house having pistol in their hands and pointed towards the informant and started demanding money and other valuable articles. It is further alleged that the miscreants also broken the box after tying the hands of the informant. Thereafter, two more miscreants entered into the house and assaulted the informant. Subsequently, about 10-12 miscreants started plundering the jewelleries and cash. The informant has claimed to identify five accused persons namely Kantesh Rai, Rajen Ghosh, Habla Rai, Noren Rai and Lakhan Rai. On the basis of above information, F.I.R. registered against five known accused persons and other unknown persons for the offences under Section 395 of the I.P.C. During investigation, some stolen articles were also recovered, hence, charge-sheet was submitted for the offence under Sections 395/412 against altogether 11 accused persons including the above named three appellants. 4. In the course of trial, altogether 11 witnesses were examined by the prosecution and following documentary evidence were adduced:- Exhibit Number Description Exhibit:-1 Fardbeyan Exhibit:-1/A Signature of Niranjan Kumar Rai Exhibit:-2 Seizure List Exhibit:-2/A Signature of Jagdish Chandra Rai on seizure list Exhibit:-3 Formal F.I.R. 5. On the other hand the case of defence is denial from occurrence and false implication due to land dispute between the informant and the present appellants. Some unknown miscreants might have plundered in the house of the informant, but no complecity of the named accused persons has been established. 6. On the other hand the case of defence is denial from occurrence and false implication due to land dispute between the informant and the present appellants. Some unknown miscreants might have plundered in the house of the informant, but no complecity of the named accused persons has been established. 6. The learned trial court after appraisal of evidence available on record, out of 11 accused persons facing trial has held the appellants guilty for the offence under Section 395 of the I.P.C. and the rest of the accused persons were acquitted extending the benefit of doubt. The learned trial court has not whispered in the judgment about the possibility of any other persons in the participation of the alleged offence of dacoity along with the present appellants. 7. Learned counsel for the appellants has vehemently argued that the dacoity is aggravated form of robbery as per the definition itself if five or more persons must conjointly commit the robbery, then it comes under category of dacoity. Otherwise, the case falls under Section 392 of the I.P.C. alone. In the instant case, the learned trial court has miserably failed to appreciate that only three miscreants cannot commit dacoity. The present appellants are previously acquainted with informant party and under enimical terms due to land dispute, therefore, the claim of the informant that he identified the present appellants during the course of commission of offence has no legal value. It is further submitted that the investigating officer of this case has not been examined by the prosecution and seizure list witnesses have also not supported the prosecution story. The most important thing is that except the informant, none of the witnesses have corroborated the prosecution story. The prosecution has miserably failed to prove the availability of source of light, manner of occurrence and number of accused persons involved in the commission of dacoity in the house of the informant. It is not claimed by the informant that the accused persons were muffling their faces, therefore, miscreants who are in litigating terms with the informant will go to commit dacoity with open face cannot be relied upon. It is further submitted that the examination-in-chief itself of the informant was not completed, therefore, his evidence cannot be taken into consideration. The alleged recovery of stolen article is also false and fabricated one which was never proved and established by the prosecution. It is further submitted that the examination-in-chief itself of the informant was not completed, therefore, his evidence cannot be taken into consideration. The alleged recovery of stolen article is also false and fabricated one which was never proved and established by the prosecution. Neither the Magistrate conducting the T.I.P. of the case nor the Investigating Officer of the case was examined. In view of the above facts and circumstances of the case, the conviction and sentence of the appellants is absolutely illegal and not justified under law which is fit to set aside by allowing this appeal. 8. On the other hand, learned A.P.P. appearing for the State has defended the impugned judgment and order of conviction and sentence of the appellants and has submitted that the learned trial court has very wisely and aptly considered all aspects and materials available on record. The impugned judgment and order is well reasoned and based upon evidence available on record. There is no illegality or infirmity in the impugned judgment and order of conviction and sentence calling for any interference by way of this appeal which is fit to be dismissed. 9. I have gone through the record of the case along with impugned judgment and order of conviction and sentence in the light of contentions raised on behalf of both side. 10. It appears that out of 11 witnesses examined by the prosecution, P.W.1 (Jagdish Chandra Rai) is witness of seizure list. According to him, material exhibit (i) Silver Bichiya, Exhibit (ii) Lota, Exhibit (iii) Bowl, Exhibit (iv) Saree, Exhibit (v) Blouse, Exhibit (vi) Peticoat and Exhibit (vii) Khurpi were seized by police from the house of accused Lakhan Rai (appellant) in his presence. In his cross-examination, this witness has given serious jolt to the aforesaid evidence and submitted that police had recovered above articles from the box of the wife of Bikhan who happens to be the brother of appellant Lakhan Rai. P.W.2 Jag Rajan Das has been tendered by the prosecution. P.W.3 Binod Kumar Rai is a hearsay witness who heard hulla and approached to the house of informant and opened the chain of the door from outside, but thereafter he has been turned hostile. P.W.4 Subodh Kumar Rai is also a hearsay witness and came to know about the occurrence from the informant. P.W.5 Dhipen Kumar Singh has also came to know about the occurrence from the informant. P.W.4 Subodh Kumar Rai is also a hearsay witness and came to know about the occurrence from the informant. P.W.5 Dhipen Kumar Singh has also came to know about the occurrence from the informant. P.W. 7 Ajit Kumar Das is a formal witness who has proved the formal F.I.R marked as Exhibit-III. P.W. 8 Sudan Hazari has also been declared hostile by the prosecution. P.W.9 Narayan Hazari has been tendered by the prosecution. P.W.10 Jagdish Sah has also not supported the prosecution story. P.W.11 Asad Ali is a formal witness who has proved the Fardbeyan (Exhibit 1) again which was previously marked as Exhibit-1. 12. The sole eye witness of the occurrence is the informant who has been examined as P.W.6. According to his evidence, on 05.01.1982 in the night while he was sleeping in his house along with his younger daughter without bolting the door from inside, he heard some sound and woke up. In the meantime, two dacoits entered in his house having pistol in their hands. They started demanding cash and valuable articles. Thereafter, some other miscreants started broking up the box by tying his hands. Thereafter, two miscreants also entered and assaulted the informant with leg and fist on chest. One miscreant was also having Hasua along with pistol. He has identified all the accused persons committing dacoity in his house and fled away with valuable articles like golden chain, golden ring, nose ring, golden Nathi and other silver ornaments along with saree and other clothes. The total articles were more than worth Rs.36,000/- including cash of Rs.7,000/- to 8,000/-. This witness has further identified the accused persons namely Kantesh Rai, Lakhan Rai and Rajen Ghosh, Harendra Rai and Habol Rai in the light of lantern and torch light belonging to the accused persons. He has also claimed that the dacoits closed the room and bolted it from outside while they were fleeing away and the door was opened by his cousin when dacoits managed to effect their retreat. He has further submitted that some looted articles were recovered from the house of Lakhan Rai which were identified in the test identification parade. In his cross-examination, this witness denies that any criminal case under Arms Act was instituted against the witness Jagdish Rai. He has also admitted that there was no identification mark on the material exhibits which were recovered and seized in this case. In his cross-examination, this witness denies that any criminal case under Arms Act was instituted against the witness Jagdish Rai. He has also admitted that there was no identification mark on the material exhibits which were recovered and seized in this case. In his further cross- examination, this witness has admitted prior acquaintance with the accused persons and previous land dispute and previous litigation also with Rajen Ghosh who has lodged a criminal case against the informant of this case wherein Lakhan Rai, Norain Rai and Kantesh Rai were the witnesses. He has also admitted that he has not disclosed the names of the accused persons to the villagers. He also did not go to the house of the accused persons after the occurrence. He also admits that the articles recovered from the house of Lakhan Rai are usually used by every person. Even he has no purchase receipt of the seized article and denied the suggestion of the defence that none of the seized articles belongs to him and he has falsely implicated the accused persons due to old land dispute. 13. No oral witness has been examined by defence rather following documentary evidence has been adduced. Exhibit Description Exhibit A Notice dated 18.11.1982 issued by Circle Officer, Rajmahal to Kunnu Ghosh in connection with Revenue Case No. 5/80-81. Exhibit A/1 Notice to Kunnu Ghosh dated 11.06.1980 of Circle Officer, Rajmahal. Exhibit A/2 Notice of Circle Officer, Rajmahal in the case of Faudiprasad Rai versus Kunnu Ghosh. Exhibit B Certified copy of the order dated 21.08.1981 passed by Sub-Divisional Officer, Sahebganj in Revenue Case No.5/80-81. 14. From the aforesaid discussion of evidence adduced by the prosecution during the trial of the case, it is crystal clear that except the informant of the case none of the witnesses have supported the prosecution story. Even the seizure list is doubtful in nature as regard the appellant Lakhan Rai is concerned. Admittedly, the alleged material exhibits were recovered from the house of brother of Lakhan Rai from a box belonging to his wife. The informant himself has not disclosed the name of any miscreants just after the occurrence. Admittedly, several witnesses arrived at the place of occurrence after hearing hulla and also one of the witness has opened the chain of the door from outside. The informant himself has not disclosed the name of any miscreants just after the occurrence. Admittedly, several witnesses arrived at the place of occurrence after hearing hulla and also one of the witness has opened the chain of the door from outside. Land dispute and previous enmity as well as previous acquaintance between the informant and the accused persons is an admitted fact. The F.I.R. was lodged against 11 miscreants, but there is conviction of only to three appellants for the offence under Section 395 of the I.P.C. without any observation of the court that some other unknown persons were also involved in the commission of robbery in the house of the informant. On this score also, the conviction of only three miscreants for the offence under Section 395 of the I.P.C. cannot be susutained. Section 391 defines Dacoity as follows :- “When five or more persons conjointly commit or attempt to commit robbery, or where the whole number of persons conjointly committing or attempting to commit robbery and persons present and abating such commission or attempt amounts to five or more, every person so committing, attempting, or abating is said to commit dacoity.” 15. From bare reading of the aforesaid provision, it is crystal clear that there must be presence and participation of five or more persons conjointly for the commission of the offence of dacoity. The presence and participation may also be through aiding in commission of offence of robbery. Therefore, conviction for dacoity of less than five persons is not sustainable in absence of finding that five or more persons were involved and participated in the commission in one way or the another. The Hon’ble Apex Court in Raj Kumar versus State of Uttarakhand (2008) 11 SCC 709 has held that “conviction for an offence of dacoity, there must be five or more persons. In absence of such finding an accused cannot be convicted for the offence of dacoity.” “In a given case, however, it may happen that there may be five persons or more persons and the factum of five persons is either not disputed or is clearly established, but the court may not be able to record a finding as to the identity of all the persons said to have committed dacoity and may not be able to convict them and order their acquittal observing that there identity is not established. In such case, conviction of less than five persons or even one can stand. But in absence of such finding, less than five persons cannot be convicted for an offence of dacoity. In view of above decision, it is crystal clear that in case there is conviction of less five persons under Section 395 of the I.P.C, trail court must arrive at a finding that there was the involvement of five or more persons. In absence of above stated finding, no conviction could be made under the aforesaid section. In the instant case, out of 11 persons conjointly tried for the offence under Section 395/412 of the I.P.C. and only present appellants have been held guilty and sentenced with specific observation that the rest of the accused persons were not involved or participated in the commission of aforesaid offence. Therefore, the conviction and sentence of the appellants are hereby set aside and this appeal is allowed. 16. The appellants are on bail and they are also discharged from the bail liability of their respective bail bonds and sureties are also discharged. 17. Pending I.As, if any stand disposed of. 18. Let the copy of this judgment along with record of trial court be sent back to concerned trial court for information and needful.