Deka, J.

[1] This appeal is on behalf of three persons, Akan Chutia, Dom Chutia and Boga Sheikh, all of whom were convicted under Section 395 I.P.C. and sentenced to five years rigorous imprisonment each. The trial was with the help of a Jury and the verdict was unanimous. The Judge accepted the unanimous verdict and convicted the accused persons on the charge of dacoity under Section 395 I.P.C.

[2] The main ground of attack against the conviction was that ten persons were tried together charged with the offence of dacoity out of whom, only three have been found guilty and the rest were acquitted. Section 391 I.P.C. requires that when five or more persons conjointly commit or attempt to commit a robbery ... every person so committing, attempting or aiding is said to commit dacoity and where the number of persons taking part in the transaction is less than five, there can be no dacoity and as such, the conviction of these persons under Section 395 I.P.C. has been bad in law. In support of this contention, the learned Advocate for the appellants has relied on three decisions, they being - Emperor v. Ikramuddin, 1917 AIR(All) 173; - Girdhar v. Emperor,1927 AIR(Lah) 519 and -Pidda Enumudugaru v. Emperor, 1910 11 CrLJ 249. Of these three decisions, - AIR 18S7 Lah 519 (B), is the latest though decided in 1927 and the other two cases were also discussed in that judgment. In all these cases, it was held that when five or more persons are jointly tried of an offence of dacoity and if the number of persons convicted are found to be less than five, the wiser course is to convict the accused under Section 392 I.P.C. and not under Section 395 I.P.C.

We need not go into these decisions except to say that the viewpoint is quite understandable. The proper course is for the judge to explain to the Jury while trying a case of dacoity that robbery becomes dacoity only when it is committed by five or more persons and that if the jury finds only three or four persons to be involved in the offence, they should convict them of robbery and not of dacoity, but if they are satisfied that there were other unknown persons not charged in the case who must have joined in the act so as to make up the required number of five, then of course, a verdict of guilty under Section 395 I.P.C. would be justified.

In this case, the learned Additional Assistant Sessions Judge gave no such direction. The whole of the explanation of law was found to be confined to the few lines as given below:

Before you can convict any of the accused persons on the charge, you will have to be satisfied on the following points:

(1) That a robbery was committed at the shop-house of Tetera at Saflul on the night of 5-7-50.

(2) That five more persons committed the robbery;

(3) That they conjointly acted and committed the crime.

There would be no dacoity unless you are satisfied that five or more persons conjointly acted and committed the robbery.

[3] In my opinion, this was a very meagre explanation of the law. The Judge should take sufficient pains to explain to the jury what the implications of the law are and should not be satisfied with merely stating the legal principles or propositions but should explain them with reference to the facts in each case. Here, the learned Additional Assistant Sessions Judge has not done that. In this view also, the charge is defective.

[4] There is another aspect of the case which though not seriously pressed by the learned Advocate for the appellants, strikes me as of grave consequence. It is an established principle of law that in a case of joint trial, it is an imperative necessity to keep clearly separated the evidence against each of the accused - Joseph Connel v. Emperor, 1947 AIR(PC) 186 and it is desirable, if not obligatory that the Judge in summing up should marshal the evidence as it affects each individual accused and say what can be said in favour of the accused. Where, however, all the evidence was such that it affected all the accused perso