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7. Mr. Huzefa Ahmadi, the learned senior counsel for the appellant has emphatically argued that having regard to the charges framed and the evidence adduced by the prosecution, conviction of the appellant in no way is permissible under Section 396 of the IPC and thus he is entitled to be acquitted. According to the learned senior counsel, in the face of the essential ingredients of an offence under section 396, IPC, in absence of any evidence or finding that the alleged offence had been committed on the basis of a conspiracy and perpetrated by five or more persons as charged, the appellant could not have been convicted of the said offence in the teeth of the acquittal of the four co-accused persons. Mr. Ahmadi has urged that not only the prosecution has failed to identify the perpetrators of the alleged offence through an identification test parade or otherwise, it having failed to adduce any direct and convincing evidence to establish that the appellant was the assailant, his conviction, if allowed to stand, would result in travesty of justice. The learned senior counsel maintained that it being apparent from the findings recorded by the learned trial court that the prosecution had failed to connect the other four co-accused persons with the crime involved, it was impermissible in law to convict the appellant under section 396, IPC as no independent charge under section 302 had been framed against him. Having regard to the state of evidence on record, the learned trial court has grossly erred in law and on facts in convicting the appellant under the said provision of the Code, he urged. Without prejudice to these, the learned counsel insisted as well that the prosecution had failed to adduce any cogent or reliable evidence to prove any of the charges against the persons on trial and thus the impugned conviction of the appellant and the sentence awarded ought to be interfered with in the interest of justice. Reliance has been placed on the decisions of this Court in endorsement of the above on Ram Bilas Singh & Ors. Vs. The State of Bihar 1964 (1) SCR 775 and Raj Kumar vs. State of Uttaranchal 2008(11) SCC

19. A plain perusal of the charges framed would demonstrate that whereas all the accused persons had been indicted for the offence of conspiracy under section 120-B, IPC and of murder under Section 302,IPC read with section 149 of the Code, accused Malkiat Singh was exclusively charged for murder under section 302 IPC. All of them, additionally were arraigned for having committed the offence punishable under section 396 as well.

20. It is thus patent that the accused persons including the appellant, in terms of the charge so framed could be convicted, if proved, for the offences under section 120B, 302, 396 IPC.

27 A. The above pronouncements do acknowledge the extension of the concept of collective culpability enshrined in section 149, IPC in section 396, IPC contemplating murder with dacoity. An assembly of five or more persons participating in the offence is thus the sine qua non for an offence under section 396, IPC permitting conviction of any one or more members thereof even if others are acquitted for lack of their identity. In absence of such an assembly of five or more persons imbued with the common object of committing dacoity with murder, any member thereof cannot be convicted for the said offence irrespective of his/her individual act of murder unless independently and categorically charged for that offence.
28. As adverted to hereinbefore above, the prosecution has completely failed in the instant case to either prove the participation of five or more persons in the commission of the offence or establish their identity. In that view of the matter having regard to the above principle of law as authoritatively laid down by this Court and in absence of a singular charge under section 302, IPC against the appellant sans the assembly, we are of the unhesitant opinion that his conviction for dacoity with murder punishable under section 396, IPC, in the facts and circumstances of the case, cannot be sustained in law. The attention of the courts below we understand had not been drawn to this vital and determinative facet of the case.