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16. Thus, the learned Additional Sessions Judge vide impugned judgment dated 25.02.2002 convicted the appellants under Section 391 IPC read with Section 395 and 412 IPC and vide order on sentence dated 26.02.2002, they were sentenced to undergone rigorous imprisonment for five years under Sections 395/412 I PC and to pay a fine of Rs.500/-. In default, the appellants were sentenced to undergo rigorous imprisonment for 15 days.

17. Being aggrieved, the appellants have preferred the instant appeal.

18. Learned counsel appearing on behalf of the appellants vehemently argued that the learned Trial Court committed an error in convicting the appellants for an offence punishable under Section 395 IPC. It was submitted that charge was framed for the offences punishable under Sections 391/395/412 IPC against the appellants along with other two accused named above. When the learned Trial Court acquitted one of them and another one is absconding, then conviction ought not to have been recorded of the remaining three accused for an offence punishable under Section 395 IPC. It was submitted that for conviction of appellants under Section 395 IPC, there must be five or more persons and in view of acquittal of one out of five accused persons and one having been absconded during trial, the learned Trial Court was wrong in invoking and applying Section 395 IPC. On that ground alone, the order of conviction and sentence deserves to be set aside.

35. Section 395 IPC provides punishment for dacoity. The same reads as under:-

"395. Whoever commits dacoity shall be punished with [imprisonment for life], or with rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine."

36. In the case of The State of Maharashtra Vs. Joseph Mingel Koli & Ors., 1997 (1) BomCR 362, after perusing Section 395 IPC, the Bombay High Court held as under:-

"29............ When robbery is either committed or an attempt to commit it is made by five or more persons then all such persons, who are present or aiding in its commission or in an attempt to commit it, would commit the offence of dacoity."

43. Thus, interpretation of Section 391 IPC is simple that there must be at least five persons in a dacoity; the Section nowhere says that minimum five persons must be convicted of it. It can easily be seen, thus, that the principle underlying Sections 34, 149, 120-A IPC punishable under Sections 120-B and Section 391 IPC punishable under Section 395 IPC are same with respect to the liability of lesser number of persons than mentioned in the above- named Sections of the Indian Penal Code.

44. So far as the plea of false implication being taken by the appellants in their statements under Section 313 Cr.P.C. is concerned, in the case of Chheddu Vs. State of Uttar Pradesh, 2000 Cr.L.J.78 (All), it was held that where the presence of informant and other witnesses at the time and place of incident was established and their positive evidence regarding the way in which the dacoity was committed found reliable having no p revious enmity with accused, no case of false implication established, therefore, conviction of accused under Section 395 IPC was just and proper.