Mohammad Rafiq, J.

This appeal is directed against the judgment and order dated 4th November, 2011 passed by the learned Addl. Sessions Judge, Jhalawar (for short ‘the trial court’) in Sessions Case No. 14/2010 whereby the accused appellant has been convicted and sentenced for the offence under Section 396 IPC to undergo life imprisonment with a fine of Rs.2,000/- and in default whereof, to further undergo one year simple imprisonment.

2. Facts of the case are that a written report (Ex.P17) was submitted at 3.15 AM on 17/9/2005 by one Trilochan Singh (PW7) to the Station House Officer, Police Station, Jhalarapatan to the effect that at 2:00 A.M., driver of the truck No. RJ-20G-3278 came to his Dhaba and informed that one person in injured condition was lying at Raipur Road. He then made a telephonic call to control room and reached the place of occurrence where he saw one person lying along side the road. At that time, police party also reached there. He immediately took that person to Jhalawar Hospital in a truck No.RJ 20 G 4276. The injured was heard saying that he gave lift to four about 100 yards, before the place of incident, who were in acquaintance to his Khallasi. The Khallashi and other four persons threw chilli powder in his eyes, gave beating to him and snatched money from his pocket. They were also saying that he would not be left alive otherwise he might be a witness of the case. He requested them with folded hands that they should take money but should not kill him. These four persons then threw him on the road and thereafter the Khallasi ran the truck over his body. When the police reached the hospital, he was unconscious. Thereafter, he succumbed to the injuries and died.

3. Police on receipt of the written report (Ex.P17) chalked out FIR No. 300/2005 (Ex.P26) for the offences under Sections 147 and 302 IPC. After completion of the investigation, police submitted challan against the accused appellant. The learned trial court framed charges for the offence under sections 302/149 and 395 & 396 IPC against the accused appellant. Accused appellant pleaded not guilty and claimed trial. Prosecution examined as many as 13 witnesses and exhibited 26 documents. Defence produced only one witness Birmal (DW1) and exhibited two documents. After conclusion of the trial, the trial court convicted and sentenced the accused appellant as stated above.

4. Mr. Santosh Kumar Jain, learned counsel for the appellant argued that conviction of the appellant has been recorded without there being any iota of evidence against him. Conviction of appellant was not legal one as there was no justification for convicting him alone for offence under Section 396 IPC. The law requires that minimum five persons should be there for committing such an offence. There is no evidence to show as to whether there were actually five persons who committed the crime. Other four persons were not identified. It is argued that Trilochan Singh (PW7) and Sukhdev Singh (PW10) deposed that deceased in his oral dying declaration named Khallasi but did not mention the name of four persons, who were acquaintance of khallasi, whom he gave lift and also did not give name of the Khallasi. As per the case of the prosecution, Khallasi was not engaged by the truck owner but by the driver and even if that be so, there is no evidence whatsoever that accused appellant was hired as Khallasi by the deceased driver. He argued that only if it was proved that there were actually five persons involved in the dacoity or murder, even then the appellant’s conviction for offence under Section 396 IPC cannot be sustained, particularly when the trial court acquitted the accused appellant for offence under Section 302/149 IPC. Learned counsel has referred to the statement of the owner of the truck Dusandh Singh (PW3). Even this witness was not aware of the name of Khallasi. When he was asked to clarify as to on what basis, he mentioned the name of Prakash in response to the notice