P.G.. Agarwal, J.

(1) This appeal u/s 374, Cr. PC, is directed against the judgment and order dated 10.3.95 passed by the Sessions Judge, Morigaon in Sessions Case No. 85 (M)/92, whereby the accused appellant Sri Siraj Ali @ Seru was convicted u/s 395, IPC, and he was sentenced to Rigorous Imprisonment for eight years and to pay a fine of Rs. 400/- in default further R.I. for one month.

(2) The prosecution allegation in brief is that on the night of 27.4.85 at Murarbori village under P.S. Mayong, about 10 numbers of dacoits entered into the dwelling house of Shri Ram Prasad Sharma and looted silver and gold ornaments and cash worth Rs.55,000/-. The inmates recognised and identified three persons including the appellant Siraj Ali and an FIR naming them was filed. During investigation, a test identification parade was also held. The charge sheet was submitted against three accused persons u/s 395/397, IPC. During trial, the prosecution examined as many as six witnesses and on conclusion of the trial, the learned trial court acquitted the other two accused persons and convicted the present accused appellant. Hence the present appeal.

(3) PW- 3 Ram Prasad Sarma, PW-1 Balo Ram Sarma and PW-2 Krishna Sarma, PW-4 Smti. Sita Devi are the four eye witnesses to the occurrence and they have deposed that on the night of the incident, about 10 dacoits entered into the dwelling house and fired gun shots. The dacoits were armed with dao, lathi, spare etc. They assaulted Krishna Sarma and Sita Devi and forcibly took away ornaments wors by her and cash etc. from the house. The investigating police officer also found signs of dacoity in the house and in view of the overwhelming evidence on record, the incident of dacoity on the fateful night in the house of Ram Prasad Sarma has been well established and the same has not been disputed by the learned counsel for the appellant.

(4) PWs 1,3 and 4 have all deposed that they could recognise the accused appellant Siraj Ali @ Seru who is known to them from (B) Penal Code(45 of 1860) - Ss.391, 395 - Dacoity - Presence of more than five persons proved in the commission of the offence - PW1, 2 and 4 identifying the appellant in the test identification parade - Appellant also subsequently recognized by the prosecution witnesses in the Court as one in a group of persons who was involved in the offence of dacoity - No suggestion of any prior enemity of the prosecution witnesses with the appellant - Conviction of the appellant under Section 395 upheld for commission of offence under Section 391.

(5) In this case, we find that a test identification parade was held and it was conducted by PW-5 Judicial Magistrate, 1st Class, S.M. Irfan. Ext.2 is the TIP Report and all the three witnesses, PWs. 1,2 and 4 have indentified the appellant in the said TIP. The accused appellant was also indentified in the court subsequently. Hence the identification of the appellant also stands well established.

(6) The learned counsel for the appellant has, however, submitted that as the other accused persons were acquitted by the trial court, the conviction of the present sole appellant was unwarranted under the law. In support of the above submission, the learned counsel has placed reliance on a decision of the Apex Court in the case of Ram Lakhan Vs. State of U.R, reported in AIR 1983 SC 352 [LQ/SC/1983/39] . In the above judgment, we find that the facts in detail are not given. However, it is stated as follows:-

"Before an offence under Section 395 can be made out there must be an assembly of 5 or more persons. On the findings of the Courts below it is manifest that only one person is now left. In these circumstances therefore the appellant cannot be convicted for an offence under Section 395."

The learned counsel for the appellant further submitted that the above decision was followed by this court in the case of Shri Dilip Dhar and others Vs. State of Assam, reported in (1990) 1 GLR 145. [LQ/GujHC/1989/147] On perusal of the above referred decision, we find that the cases were decided on the facts of those particular cases and no law was laid down to the fact that if the other accused persons are acquitted, there can not be conviction of any single person. On the other hand in para-6 in the case of Shri Dilip Dhar (supra) this High Court held as follows :-

"Section 391 IPC defines dacoity. The first ingredient under this section is that the offence has to be committed by 5 or more persons conjointly. If prosecution cannot prove presence of 5 or more persons in the commission of the offence, Section 391 IPC is not attracted and consequently Section 395 IPC."

(7) Thus, the basic requirement u/s 391, IPC as quoted above is that five or more persons must participate in the incident of robbery and in that case it will amount to dacoity. Thus, the requirement is participation of five or more persons and not conviction of five or more persons in a given case. The law on the point was settled by the Apex Court in the case of Chottan Mahton and others Vs. the State of Bihar reported in 1969 (3) SCC 727 [LQ/SC/1969/187] wherein the Apex Court held :-

"10. The learned counsel contends that on the facts as found by the High Court conviction under Section 396, I.P.C. is not sustainable as 12 persons out of 16 committed to Sessions have been acquitted. This point does not seem to have been argued before the High Court. The learned Additional Sessions Judge had however found that accused Chottan, Karoo Mahto and .Shoraj Mahto of Brown along with others numbering more than sixteen committed dacoity in the house of Budhan. If this finding is accepted, conviction under Section 396 was not wrong. But as there is no such finding by the High School, we convert the conviction to one under Section 304, I.P.C. but maintain the sentences awarded by the learned Additional Sessions Judge and maintained by the High Court. In the result the appeal fails except for the modification indicated above."

In the case of Ram Lakhan (supra) the Apex Court did not take a contrary view, further, the decision in Chottan Mahton was given by three Judge Bench and Ram Lakhan (supra) was decided by the two Judge Bench. Further, as stated above, Ram Lakhan (supra) was decided on the facts of that particular case.

(8) In view of what has been stated above, the moot point for consideration is whether five or more persons had participated in the robbery or not.

(9) The charge in this case, shows that three accused persons alongwith six others had committed dacoity. The witnesses had also stated that there are as many as 10 dacoits who entered into the house and committed dacoity. The other inmates could recognise or identify only one accused person and failed to recognise the other dacoits. Admittedly, persons who could not be indentified or recognised, are entitled to benefit of doubt, but that does not mean that the person who has been indentified or recognised properly is also entitled to acuittal in view of the acuittal of the co-accused. There is no bar for the court that if the court finds that five or more persons conjointly committed robbery, one of them can be convicted for the offence u/s 395, IPC.

(10) In view of the above, the conviction of the accused appellant u/s 395, IPC is maintained. As regards the sentance, we find that the incident had taken place in the year 1985 and hence, considering the above, the sentence is reduced to Rigorous Imprisonment for three years and to pay a fine of Rs.500/- in default further R.I. for one month. The period of imprisonment undergone by the accused appellant as UTP shall be set off u/s 428, Cr. PC. The accused appellant is directed to surrender forthwith to serve out the sentence.

(11) With the above modification in sentence, the appeal stands disposed of. Send down the records alongwith a copy of this judgment.