Banerji, J.:— The appellant has been convicted under S. 395, Penal Code, and sentenced to undergo rigorous imprisonment for ten years. Four other persons were tried in this analogous trial but they were given the benefit of doubt and acquitted.
2. Shortly, the prosecution case was that a dacoity was committed in the house of one Meghlal. Yadav on the night of 22 and 23-6-1952. In that dacoity, the prosecution witnesses claimed to have identified the appellant and also others. The learned Sessions Judge discussed the evidence and found the same discrepant and on that finding he refused to act on it. He, however, was convinced that the appellant had taken part in the dacoity, because when he was examined under Section 342 of the Cr PC the committing Magistrate, he admitted his guilt and also named other persons who were concerned in that dacoity. Along with this statement made under Section 342 of the Cr PC, before the committing Magistrate, another fact was taken into consideration by the learned Additional Sessions Judge which was that from the house of this appellant four rent receipts (Exts. 1/10 to 1/13) were recovered by the Sub-Inspector of police (P.W 14) who had visited the village on the next day and carried out the house-searches not only of this appellant but also of some other persons who were suspected along with him.
3. The four assessors who assisted the learned Additional Sessions Judge in the trial of this appellant were unanimously of the opinion that he was guilty under S. 395, Penal Code.
4. Mr. Anirudh Prasad Sinha, appearing as ‘amicus curiae’ on behalf of the appellant, has urged that the learned Additional Sessions Judge should have discarded the story of recovery of the four rent receipts from the house of the appellant as there were materials to show that someone else had planted them. I may state here that the factum of dacoity has not been challenged in this Court. Indeed, the evidence is overwhelming to prove that there was a dacoity in the house of Maghlal Yadav (P.W 1) as stated by him.
5. It is also not disputed that in the course of the dacoity cash, amendments and a bundle containing rent receipts and other papers were removed by the miscreants. Mr. Sinha has drawn our attention to the deposition of P.W 7 where the witness has stated to this effect that one Ratheku Dafadar was also present during the house-search of the accused and he was entering the house of this accused and other accused persons every now and then.
6. On a suggestion being thrown, the witness said that he could not say if Ratheku planted all these receipts. There is no evidence to indicate that Ratheku Dafadar had any enmity with the appellant for which he was trying to implicate the accused falsely by foisting some incriminating article in his house. The evidence of the investigating officer shows that these four rent receipts were, recovered from a house which was occupied by the appellant and his nephew, Baswa, who figured as a co-accused, but has since then been acquitted.
7. From the evidence of P.W 7 and P.W 14 and the evidence of other witnesses I am convinced that these four rent receipts (Exts. 1/10 to 1/13) were recovered from the house of P.W 1 in the course of the dacoity and they were subsequently found in a house which was occupied jointly by this appellant and his nephew, Baswa.
8. If this was the only evidence against the appellant, then, certainly, he was entitled to an acquittal as the prosecution has not been able to prove that the house was in occupation of the appellant, alone. But, there is some other material on the record to show that this appellant was concerned in the dacoity. When he was examined under Section 342 of the Cr PC, by the learned Committing Magistrate, he said:
“All those who committed the dacoity have not been arrested. I have committed the dacoity in the house of Megh Lal Yadava. Sk. Majwa, Sk. Shakar, Sk. Ajru, Maula Khan, Rafik Laheri and others were with me in committing the dacoity.”
9. Mr. Singh argues that the learned Additional Sessions Judge was not justified in using the statement as evidence to base his conviction thereon. He has relied upon a decision of the Supreme Court, — ‘Vijendrajit Ayodhya Prasad Goel v. State Of Bombay’. AIR 1953 SC 247 (A). In that case the principal question raised was to this effect that, in absence of any evidence on the basis of which the appellant could be said to be in possession of certain articles, whether the Magistrate was justified in making use of the statement of the accused made under Section 342 of the Cr PC, for the purpose of finding that fact.
10. It was observed by his Lordship Mahajan, J. (as he then was), as follows:
“This contention might have had force if the conviction of the accused was based merely on his statement recorded under Section 342 of the Cr PC, which could not be regarded as evidence, but this is not so.”
11. What happened in that case was that certain articles which required a permit were found in a godown. The prosecution witnesses led evidence that the go down was in possession of the appellant. When examined under Section 342 of the Cr PC, the appellant stated that the godown was in his charge and on this the learned Presidency Magistrate held that, as, admittedly, the appellant was in charge of the godown, the inference was that he was in control and possession of the articles found therein. His Lordship finally observed that in that situation the Magistrate was justified in referring to the statement of the accused under Section 342 of the Cr PC, as supporting the prosecution case concerning the possession of the godown.
12. When he said that it could not be regarded as evidence, he merely expressed his view with reference to the provisions under Section 342 of the Cr PC, and not with reference to Section 287 of the Cr PC Section 342, sub-s. (3) is in the following terms:
“The answers given by the accused may be taken into consideration in such inquiry or trial, and put in evidence for or against him in any other inquiry into, or trial for, any other offence which such answers may tend to show he has committed.”
13. The sub-section, of course, does not speak of I such statement to be evidence in that trial or enquiry, but, nevertheless, directs that it has to be considered in relation to the offences charged. Section 287, on the other hand, reads thus:
“The examination of the accused duly recorded by or before the committing Magistrate shall be tendered by the prosecutor and read as evidence.”
14. It is apparent that the wordings in S. 342, sub-s. (3) and in S. 287 are different. This section directs such statement to be read as evidence; which is something more than what one understands by the expression, “may be taken into consideration”. In both cases, the Court has to consider the statement made by an accused, but, whereas the provisions in S. 342, give some latitude to the Court to use or not to use such statement, the same immunity is not afforded in Sessions trials which deal with grave offences. The Court is then bound to consider the effect of such statements in order to give its finding.
15. As their Lordships in the Supreme Court were not dealing with statements made under S. 342, which had been tendered under Section 287 of the Cr PC. This decision cited by the learned advocate for the appellant can be of no assistance to him. On the other hand, there is a single Judge decision of this Court in the case of — ‘Mosaheb Dome… v. Emperor’, AIR 1940 Pat 14 (B), where it was held that an admission by the accused in the committing Magistrate's Court, that he entered another's house on one night with intent to commit theft is evidence under Section 287 of the Cr PC.
16. There is hardly any necessity to refer to any other decision when the terms of Section 287 of the Cr PC, are so clear and when it is specifically stated therein that such examination of the accused duly recorded by or before the committing Magistrate shall be read as evidence. There is a decision of the Nagpur High Court in the case of — ‘Holia Budhoo v. Emperor’, AIR 1949 Nag 163 (C), in which their Lordships, while referring to S. 342, sub-s. (3) and S. 287, together, observed as follows:
“These provisions do not however make the mere statements of the accused an affirmative evidence in the case. What they mean is that the Court should not shut out the statements of the accused from its view when considering the effect of the evidence adduced on behalf of the prosecution but such statements must be taken into consideration along with the evidence of the prosecution to see if in conjunction with them there can be any reasonable explanation of the prosecution evidence which may be consistent with the innocence of the accused.”
17. Section 287 does not impose any qualification with regard to the word ‘evidence’, and I feel it difficult to interpret the section to mean that such statement should only be weighed to find if it is consistent with the innocence of the accused. There appears to be no scope for putting a restricted meaning to this word and it is open to the Court to make use of such statements as it does with any other evidence either for or against the accused. I find further from the record that the accused pleaded guilty when the charge under S. 395, Penal Code, framed against him by the committing Magistrate was read and explained to him. There was another charge against him under S. 412, Penal Code, and when this charge was drawn up and read and explained to him, he said that he was not present at the time when the police searched his house and that the rent receipts were in his house. His attention was drawn by the learned Additional Sessions Judge to his statement made under Section 342 of the Cr PC, before the learned committing Magistrate, and he said:
“I have not made any statement. It is wrong.” When he was asked if he confessed that some receipts of Meghlal were at his house, he replied that he did not confess anything; that he could not hear and that the police had severely assaulted him. There is nothing to indicate that the police ever took recourse, to any violent means for the purpose of extorting any confession. There is also no material to hold that the appellant was suffering from any defect of hearing.
18. I am satisfied fully that the appellant did take part in the dacoity in the house of P.W 1 as stated by the prosecution. In the course of the dacoity, females of the house were assaulted and the complainant, it appears further was given a sound beating. For this reason and for those other reasons given by the learned Additional Sessions Judge, I think that the sentence was quite appropriate. There is no merit in the appeal which is, accordingly, dismissed.
Chaudhary, J.:— I agree.
D.H.Z
19. Appeal dismissed.