Point of Law : Conviction for an offence of dacoity less than five persons is not sustainable. It was also held that before an offence under Section 395 of the IPC can be made out, there must be an assembly of five or more persons.

JUDGMENT :

MALASRI NANDI, J.

1. Heard Mr. U.K. Das, learned counsel appearing on behalf of the appellant. Also heard Ms. S. Jahan, learned Addl. P.P., Assam appearing for the State.

2. This appeal is directed against the Judgment and order dated 05/05/2018 passed by learned Sessions Judge, Karbi Anglong, Diphu in Sessions Case no 19/1997, whereby the appellant Dimbeswar Nath has been convicted u/s 396 IPC and sentenced to undergo rigorous imprisonment for life and to pay a fine of Rs. 5000/- in default rigorous imprisonment for six months.

3. The facts of the case as unfolded by the prosecution are that one Kishori Chauhan lodged an Ejahar before the IC Mailoo Petrol Post under Kheroni Police Station stating inter alia that on 17/07/1994 at about 12:30 A.M. (at night) about 14/15 persons armed with guns, bhujalis (dagger like weapon), spears and ropes entered into his house. They first tied him up with a rope and also tied the other persons who were sleeping outside. Thereafter, they started assaulting his wife Tejia Devi, asking her as to where the money was kept. They also asked her to open the door. When the door was opened, they entered into the house and started to assault his sons. Then his wife requested them with folded hands not to assault his sons. The dacoits looted the articles i.e. three silver necklace worth Rs. 9000/- and golden nose ring/lockets amounting to Rs. 1400/-. He could recognize some of the dacoits namely Dimbeswar Nath and Sote Lal Chauhan since they were called by their names. They shot Ramanand Chauhan and Suresh Chauhan resulting into their death.

4. On the basis of the said compliant, a case was registered vide Kheroni PS case no 68/1994 u/s 396 IPC on 18/07/1994. During investigation, both the deceased were taken to the hospital, inquest was done and thereafter, both the dead bodies were sent for post mortem examination. The site plan was prepared and statements of the witnesses were recorded. During investigation, the investigating officer arrested accused Dimbeswar Nath and seized some articles from his house. The other accused Sote Lal Chauhan was absconding since the date of incident. It also appears from the record of Sessions Case no 19/1997 that in course of investigation, some other persons namely Sudama Rajbhar, Bishnu Gour, Sukra Manki @ Mura, Sambhu Thakur, Buddhi Kant Pandey, Dharma Chauhan and Baralal Chauhan were arrested but due to insufficient materials they were not sent up for trial. On completion of investigation charge sheet was submitted against the present accused/appellant Dimbeswar Nath and Sote Lal Chauhan, showing him as an absconder, u/s 395/397 IPC. Subsequently, as the offence was exclusively triable by the court of Sessions, the case was committed to the Trial Court. On appearance of the accused/ appellant Dimbeswar Nath before the Trial Court, charge was framed u/s 396 IPC on 04/04/1998.

5. To bring home the guilt of the accused/appellant, the prosecution examined as many as five witnesses and marked 7 (seven) exhibits and two material objects. On the other hand, the defence also examined two witnesses in support of their case.

6. On completion of the prosecution evidence, statement of the accused/ appellant Dimbeswar Nath was recorded u/s 313 Cr.P.C. and incriminating evidence was put to him to which he denied.

7. After hearing the arguments of both the sides and after considering evidence on record, the learned Trial Court had found the appellant guilty u/s 396 IPC and sentenced him, vide Judgment and order dated 05/05/2018, as aforesaid.

8. Being highly aggrieved and dissatisfied with the impugned Judgment and order dated 05/05/2018, the appellant has preferred the present appeal.

9. Assailing the Judgment of the Learned Trial Court, Mr. U.K Das, learned counsel for the appellant, contended that the offence of dacoity was not made out in as much as the basic ingredients of five persons conjointly committing the offence of robbery and murder was not established by the pros