A conviction under Section 395 of the IPC requires proof of the participation of five or more persons in the commission of dacoity; without such evidence, the conviction cannot stand.

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:-

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. 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 st