P.K. Misra, J.
1. The appellant has been convicted under Section 395 and 457, Indian Penal Code, and sentenced to undergo R. I. for 7 years and to pay a fine of Rs. 1,000/-, in default, to undergo R. I. for 6 months under Section 395 and R. I. for 2 years and fine of Rs. 1,000/-, in default, to undergo R. I. for 1 year under Section 457, Indian Penal Code. Both the sentences have been directed to run concurrently.
2. The appellant along with five others were tried. All the accused except accused Managovinda Swain were charged under Section 335 and 457, whereas accused Managovinda Swain was charged under Section 412. Indian Penal Code. Except the appellant all other accused persons have been acquitted by the trial Court.
3. As per the prosecution case, as revealed from the FIR. there was a dacoity by unknown miscreants in the house of PW 2 in the night of 25/23-7-1988 and thereafter in the houses of some others of the village. After arrest of the culprits, a T. I. parade was held on 14-3-1989 whereafter charge sheet was submitted.
4. The plea of the present appellant was one of denial.
5. Relying upon the evidence of PWs 1,2, 3 and 6, in Court as corroborated by the report in the T. I. parade held on 14-3-1989 and some other circumstances, the trial Court convicted the present appellant. However, since other accused persons charged under Section 395 and 457, Indian Penal Code, were not identified by the witnesses in Court they were acquitted.
6. In this appeal, it is contended on behalf of the appellant that since five persons were charged under Section 385 and the trial Court has acquitted four out of those five, the conviction under Section 395 is not sustainable and in that case only an order of conviction under Section 392, Indian Penal Code, could have been passed. It is further contended that since the T. I. parade was held after long delay, the report regarding the T. I. parade should not have been believed.
The learned Public Prosecutor appearing on behalf of the State while supporting the judgment has also contended that the accused led the Investigating Officer to the house of PW 4 and on the basis of the statement of the accused melted gold and silver had been recovered.
7. The contention of the learned counsel for the appellant that T. I. parade having been held after three and half months should not be accepted, though attractive on the face of it, cannot be accepted in the present case. The culprits had been lodged in Dhenkanal jail after their arrest. They were being produced Before the Magistrate at Dhenkanal, whereas identifying witnesses belonged to Cuttack district. There is no material on record to show that, in fact, these witnesses had any chance to see the suspects before the identification parade was held.
Relying upon the decision of the Supreme 'Court reported in AIR 1981, SC 1392 (Wakil Singh and Ors. v. State of Bihar), it is submitted that the very fact that T. I. parade was held three and half months after the occurrence, itself is a ground to discard the T. I. parade, as there must have been loss of memory on the part of the witnesses. In the reported decision of the Supreme Court, identification was by a single witness and there was no other corroborating factor and there had been a delay in holding the T, I. parade. In such circumstances, the Supreme Court held that the possibility of wrong identification due to loss of memory cannot be discounted and as such the benefit of doubt was given to the accused persons. In the present case, the appellant has been identified in Court as well as in the T. I. parade by four witnesses. Nothing has been elicited in their cross-examination to discard their sworn testimony regarding the complicity of the present appellant.
8. The next question arises as to whether the appellant can be convicted under Section 395, Indian Penal Code. Five accused persons including the present appellant were charged under Section 395. However, four of the five named accused persons have been acquitted. For sustaining a conviction under Section 395, Indian Penal Code, it is required to find that five or more persons were involved in the commission of offence of robbery. In spite of acquittal of four persons charged under Section 395, if there would have been clear evidence that, in fact, five persons including the appellant were involved in the commission of offence of robbery, the order of conviction under Section 395 could have been sustained. However, a perusal of the FIR and the evidence of the various eye-witnesses gives rise to certain amount of doubt regarding the actual number of culprits involved in the commission of the offence. In the FIR lodged by PW 2. it was indic3tsd that three culprits had entered inside the house. PW 2 does not state that apart from the three culprits were there outside the house. Similarly, a perusal of the evidence of PWs 1, 3 and 6, does not clearly establish that, in fact, five or more culprits were involved in the commission of the offence. From their evidence it appears that possibly four culprits had committed the crime. Since a doubt arises as to the actual number of culprits involved in the crime, it would not be proper to uphold the conviction under Section 395. On the other hand, it becomes clear that an offence under Section 392 was definitely committed by some culprits including the present appellant. Accordingly, the conviction under Section 395 is set aside and instead, the appellant is convicted under Section 392 Indian Penal Code, and sentenced thereunder to undergo R. I. for five years and to pay a fine of Rs. 500/-, in default, to undergo R. I. for 3 months.
9. So far as the offence under Section 457. Indian Penal Code, is concerned, there is no conclusive material on record to prove that the appellant had committed lurking house trespass or house breaking after preparation for causing hurt to any person. As such conviction thereunder cannot be sustained.
10. In the result, the appeal is allowed in part. The order of conviction under Section 395 and 457, Indian Penal Code, is set aside and instead, the appellant is convicted under Section 392, Indian Penal Code, and sentenced thereunder to undergo R. I. for 5 years and to pay a fine of Rs. 500/-, in default, to undergo R. I. for 3 months.