dacoity. The decision of the Calcutta High Court in this case was cited with approval by the Nagpur High Court in the case of Narain Dinua v. Emperor AIR 1947 Nag 57 in which it was laid down that the mere fact that the evidence was not sufficient to convict four of the accused persons actually charged could not in any way affect the question of the number of persons engaged. In a case before the Orissa High Court, Sukha Misra v. State a similar question arose. Twelve persons were put on trial, to answer a charge of dacoitv. Nine of them were, ultimately, acquitted and three convicted under Section 395 I.P.C. The case was heard by a Division Bench of the High Court constituted of Jagannadhadas and Panigrahi. JJ. Panigrahi, J., who delivered the leading judgment had no hesitation in holding that the conviction of the three of the appellants on the charge of dacoity was quite correct, Jagannadhadas, J., however, came to the same conclusion with some amount of apparent hesitation, Ultimately, he agreed with Panigarhi, J. The correct position is that, in spite of the acquittal of a number of persons, if it is found as a fact that along with the persons convicted there were other unidentified persons who participated in the offence, bringing the total number of participants to five or more, the conviction of the identified persons, though less than five, is perfectly correct. In the present case, as I have pointed out above, there is the consistent testimony of the prosecution witnesses that there were six dacoits including the four appellants. This is also specifically the case stated in the first information report. If, therefore, two of the dacoits could not be traced and identified, there is no reason why the remaining four cannot be convicted of the offence of dacoity under Section 395 I.P.C.”
