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 -Pid