P. K. Bahri, J. ( 1 ) VIDE judgment dated 4/09/1989, an Additionalsessions Judge, Delhi, had convicted Satish, Nand Kishore, Gopal, Mohindersingh and Mohan Singh for offences punishable under Sections 307, 365, 395 and397 read with Section 34 of the Indian Penal Code (for short ipc ) and hadalso convicted Nand Kishore for an offence punishable under Sections 27/54/59of the Arms Act and had convicted Dhanpal for an offence punishable undersection 412 Indian Penal Code although in some places in the judgment he is shown to beconvicted for an offence punishable under Section 411 IPC, and vide subsequentorder dated 7/09/1989, accused Satish, Nand kishore, Mohan Singh,mahinder Singh and Gopal were sentenced to undergo rigorous imprisonmentfor five years and to pay a fine of Rs. 1,000. 00 each under Section 307 read withsection 34 Indian Penal Code with the direction that 50% of the fine if realised shall be paidto the complainant and in default of payment of fine, to undergo rigorousimprisonment for 15 days each and imposed sentence of five years rigorousimprisonment and a fine of Rs. 200. 00 each and in default of payment of fine, toundergo rigorous imprisonment for 10 days for the offence punishable undersection 365 read with Section 34 Indian Penal Code and to undergo rigorous imprisonmentfor four years and to pay a fine of Rs. 200. 00 each and in default of payment offine, to undergo rigorous imprisonment for 10 days for offences punishableunder Sections 395, 397 read with Section 34 Indian Penal Code and Nand Kishore was awarded additional sentence of simple imprisonment for two years and to pay a fineof Rs. 1,000. 00 and in default of payment of fine, to undergo simple imprisonment for 15 days for an offence punishable under Sections 27/54/59 of the Armsact while accused Dhanpal was awarded rigorous imprisonment for two yearsand to pay a fine of Rs. 1,000. 00 and in default of payment of fine, to undergorigorous imprisonment for 15 days for an offence punishable under Section412 IPC. 1,000. 00 and in default of payment of fine, to undergorigorous imprisonment for 15 days for an offence punishable under Section412 IPC. ( 2 ) IT appears that convict Gopal remained in custody since his arrestand throughout the trial and had undergone the sentences imposed and thuspreferred TO not to file any appeal, Mohinder Singh and Dhanpal in Criminalappeal No. 114/89 through a Counsel and Mohinder Singh in appeal throughjail being Criminal Appeal No. 91/91, Mohan Singh in Criminal Appeal No. 161/89 through Jail and Nand Kishore in Criminal Appeal No. 162/89 throughjail and Satish Kumar in Criminal Appeal No. 123/90 have challenged theirconvictions and sentences. All these appeals are being disposed of by thisjudgment. ( 3 ) THE facts of the prosecution case, in brief, are that PW2 Harinderparshad Shani, an electrician by profession and resident of Village Chainpur (Bihar) but residing in House No. 105, Village Teh Khand, New Delhi, duringthe intervening night of March 15-16, 1984, alongwith his wife Sudha PW3and a child aged about one and a half years were coming on a bicycle afterseeing a movie and had just crossed P-26, Okhla Phase-1 factory, that a carcame from behind and someone from the car asked him to stop but on his notstopping the cycle the car was struck against the bicycle and they fell down andout of the persons present in Car four came out and out of whom two had openknives in their hands and they forcibly lifted Sudha and put her at the backseat and had driven the car away. The number of the car was DHB 6514 andlie pursued the car on his bicycle raising an alarm and in the meanwhile policepatrolling on a motorcycle managed to stop the car near A-1, Okhia Phase-1and three of the culprits, namely, Satish, Nand Kishore and Gopal whosenames and addresses were found out after they were apprehended and had gotout of the car in order to run away but they were nabbed and Nand Kishorewas found armed with a knife and the other culprits managed to run awayafter robbing his wife of a pair of silver pajeb and one golden chain. Thesketch of the knife was prepared which Ex. P4 which was taken in possessionafter converting into a sealed parcel vide Memo Ex. PW2/c. On the statementof Harinder Parshad Shani Ex. PW2/a, the case was registered. Thesketch of the knife was prepared which Ex. P4 which was taken in possessionafter converting into a sealed parcel vide Memo Ex. PW2/c. On the statementof Harinder Parshad Shani Ex. PW2/a, the case was registered. ( 4 ) AS far as Satish, Gopal and Nand Kishore are concerned, it is quiteclear that there has come about sufficient evidence on record for bringing homethe offences to them. Harinder Parshad PW2 and his wife Smt. Sudha PW3,who have no reason to falsely implicate these accused for the said offences haveunflinchingly deposed in Court that as to how the occurrence has taken placeand how these three accused were apprehended at the spot. Even the car inwhich the culprits had come was taken into possession. ( 5 ) FROM the cross-examination, nothing has come out to show howthese two public witnesses who were victims of this dacoity would have deposedfalsely to implicate these three accused who were nabbed at the spot. Thesewitnesses are supported by the police officials who had come on the spot onhearing the alarm, namely, PW6 Constable Kanwarjit Singh, PW7 Constablelal Singh, PW8 ASI Ram Chander, PW10 Head Constable Mohmad Usmanand PW14 SHO A. K. Saxena. Minor discrepancies which do not go to theroot of the matter had appeared in the statements of the two public witnessesas to whether the silver pajeb and the golden chain were removed from theperson of Sudha while she was in the car or while she was being forced into thecar by the culprits. Harinder Parshad, however, has stated that she was robbedof those ornaments at the point of knife and thereafter she was pushed into thecar. Sudha also in her examination-in-chief stated the same facts but in crossexamination she prevaricated and deposed that she could not remember whethershe has stated to the police or not that the chain and pajeb were removed bythe accused person inside the car and she could not identify the particular culprit who had, in fact, removed those ornaments. It is to be emphasized thatsmt. Sudha is a household lady and is also illiterate and was aged about 22years at the time of occurrence. Her statement was recorded in Court afterabout three years of the occurrence. So, such like discrepancies are bound tooccur in the statement of any witness. It is to be emphasized thatsmt. Sudha is a household lady and is also illiterate and was aged about 22years at the time of occurrence. Her statement was recorded in Court afterabout three years of the occurrence. So, such like discrepancies are bound tooccur in the statement of any witness. It is also not disputed that it was darknight and it was not possible for her to have seen the faces of the culprits whohad escaped from the spot but as far as the culprits who had been nabbed atthe spot when they came out of the car there cannot be any dispute about theiridentity. Sudha also mentioned about one of the culprits, namely, Nandkishore being armed with knife although in her police statement which shewas confronted she had mentioned about two accused being armed with knives. It appears that out of the three culprits who were nabbed at the spot only Nandkishore was armed with knife and while giving statement in Court REFERRED TO tothat accused. One of the culprits, namely, Rajpal who had also escaped fromthe spot alongwith other accused had died during the investigation and was notarrested in the case. It has come out in the statement of the SHO that therewere certain allegations made against him that Rajpal died due to beatingbeing given to him while in custody and some inquiry was also ordered in thatconnection, Be that as it may, as far as the charges against three accused,namely, Gopal, Nand Kishore and Satish, are concerned, they stand establishedbeyond reasonable doubt in view of the convincing statements of PW2 and PW3duly corroborated with the statements of the police officials who managed tonab them at the spot. I will come to the point as to whether they have beenrightly convicted for particular offences or not a bit later after discussing thecase of Mohinder Singh and Mohan Singh, who were not nabbed at thespot. ( 6 ) IT is quite clear from the perusal of the FIR that no physicalfeatures of any nature of the three culprits who escaped from the spot werementioned. It is admitted by Harinder Parshad that it was a dark nightalthough in the second breath he deposed that it was full moon night. At thestage of arguments. Counsel for the State could not controvert the contentionof Counsel for the appellants that in fact, it was a dark night. It is admitted by Harinder Parshad that it was a dark nightalthough in the second breath he deposed that it was full moon night. At thestage of arguments. Counsel for the State could not controvert the contentionof Counsel for the appellants that in fact, it was a dark night. Even Sudhahad deposed clearly that due to darkness she could not see the faces of theculprits in the car. It is not understood how could these two witnesses positively identify Mohan Singh and Mohinder Singh as the culprits who had escapped from the spot. Mohinder Singh came to be arrested based on some secretinformationprovided to Public Witness 15 SI Rai Singh who took over the investigation on 23/03/1984. He arrested Mohinder Singh on 2/04/1984 and is statedto have arrested Mohan Singh on pointing out by Mohinder Singh. No pointing. out memo in that respect has been proved in the case. It is alleged thatmohinder Singh while in custody made a voluntary disclosure statement Ex. PWIO/a in which he disclosed that he could get recovered the case propertyand could also point out Mohan. It is the case set up that on the pointing outof Mohinder Singh a pair of silver pajeb were got recovered from Dhanpal,father-in-law of Mohinder Singh. ( 7 ) THE first question which arises in this connection is whether thedisclosure statement Ex. PWIO/a made by Mohinder Singh is admissible inevidence ? If we peruse the statement, we find that there is no informationbeing given by Mohinder Singh regarding the said pajeb being given by him toany particular person or being concealed by him at any particular place fromwhere he could get the same revovered. It is settled law that under Section 27of the Evidence Act only that disclosure statement made to the police is admissible which gives information regarding a particular fact and which leads torecovery of the said fact. So, the disclosure statement must disclose the information which could lead to discovery. ( 8 ) THE Supreme Court in Ramkishan Mithanlal Sharma and Others v. State of Bombay, AIR 1955 SC 140, clearly held that under Section 27 of theevidence Act, what is allowed to be proved is the information or such partthereof as relates distinctly to the fact thereby discovered. ( 8 ) THE Supreme Court in Ramkishan Mithanlal Sharma and Others v. State of Bombay, AIR 1955 SC 140, clearly held that under Section 27 of theevidence Act, what is allowed to be proved is the information or such partthereof as relates distinctly to the fact thereby discovered. The informationwould consist of a statement made by the accused to the police officer andcourt would have to consider whether it relates distinctly to the fact therebydiscovered and then allow the proof thereof only if that condition wassatisfied. ( 9 ) SAME principle was reiterated by the Supreme Court in Earabhadrappa v. State of Karnataka, AIR 1983 SC. 446 . It was held that for theapplicability of Section 27, two conditions are pre-requisite, namely, (1) theinformation must be such as has caused discovery of the fact; and (2) theinformation must relate distinctly to the fact discovered and under Section 27only so much of the information as distinctly relates to the facts really therebydiscovered is admissible and the word fact means some concrete or materialfact to which the information directly relates. ( 10 ) UNFORTUNATELY in the present case, the disclosure statement doesnot disclose any information which may relate distinctly to the fact discoveredi. e. possession of the pajeb by Dhanpal. It is really surprising that no discussion With regard to admissibility of this particular disclosure statement reliedupon by the prosecution is found present in the impugned judgment. ( 11 ) IN view of the above discussion, I hold that this particulardisclosure statement made by Mohinder Singh is not admissible in evidence. So,it cannot be said that the robbed pajeb of Sudha was got recovered fromdhanpal at the instance of Mohinder Singh. ( 12 ) THE only evidence against Mohinder Singh and Mohan Singh istheir identification made by PW2 and PW3 in Court for the first time. It isthe case of the prosecution that after arrest these accused were producedbefore Shri M. K. Gupta, Metropolitan Magistrate, (PW9) for holding testidentification parade on 3/04/1984 and they refused to participate in theparade. Surprisingly neither the application by which such a request had beenmade nor the order made by the Magistrate in this connection have been produced. It is not understood how the learned Magistrate could give an oralstatement in respect of the judicial acts performed by him about more thanthree years back. Surprisingly neither the application by which such a request had beenmade nor the order made by the Magistrate in this connection have been produced. It is not understood how the learned Magistrate could give an oralstatement in respect of the judicial acts performed by him about more thanthree years back. It is not also stated anywhere by the police officials in theirstatements who produced the accused before the Magistrate that the said twoaccused were kept under muffled faces all along after their arrest. ( 13 ) IT is to be also noticed that PW2 Harinder Parshad admitted incross-examination that he was called to the Police Station after about 10 daysof the occurrence and he had identified these two culprits at the Police Station,whereas according to the prosecution version, these two culprits were arrestedafter about 18 or 19 days of the occurrence. Mohinder Singh, has, however,produced on record a copy of the telegram Ex. DA issued on 31/03/1984,mentioning that Mohinder Singh had been lifted by police of the Police Postokhla Phase- 1/03/1984 and has not been produced before anymagistrate. There is no reason to doubt the statement of PW2 that he hadseen these two accused in the Police Station before they were produced in thecourt for getting a date fixed for test identification parade. So, even if theaccused had refused to participate in test identification parade, they had goodreason for doing so. ( 14 ) IN Wakil Singh and Others v. State of Bihar, AIR 1981 SC 1392 ,it was found that the witnesses in their earlier statements to the police hadnot given any description of the dacoits nor had given any identification marksviz, stature of the accused or whether they were fat or thin or of fair colour orof black colour. The Supreme Court held that in absence of thedescription, the conviction cannot be brought home to the accused on thebasis of the single identification in which case the reasonable possibility ofmistake in identification cannot be excluded. ( 15 ) SO, in view of the above reasons it would not be safe to bringhome the offence to these two accused on the ground that they had beenidentified by PW2 and PW3 for the first time in Court. So, they deserve to beacquitted. ( 16 ) AS far as Dhanpal is concerned, a pair of pajeb which was robbedfrom Sudha in the said occurrence was recovered from Dhanpal on 2/04/1984. So, they deserve to beacquitted. ( 16 ) AS far as Dhanpal is concerned, a pair of pajeb which was robbedfrom Sudha in the said occurrence was recovered from Dhanpal on 2/04/1984. SI Rai Singh accompanied by a Constable and accused Mohinder Singhhad gone to the house of Dhanpal and Dhanpal is stated to have producedthe said pair of pajeb which was taken into possession after converting thesame into sealed parcel vide recovery memo Ex. PWIO/b. The said pajeb wasidentified in test identification held by Shri V. K. Shali, Metropolitan Magistrate, (PW 4/04/1984 and the test identification proceedings in thatrespect is Ex. PW4/b. No cross-examination was done in respect of thisidentification proceedings. PW2 and PW3 have identified the said siver pajeb asbelonging to Sudha which was robbed from Sudha s person in the said dacoity. However, Dhanpal could not have been convicted for an offence under Section412 Indian Penal Code because there is no evidence that Dhanpal had any information thatthe said pajeb had been robbed in any dacoity. Under Section 114 of theevidence Act as the robbed pajeb had. been recovered from him after a fewdays of the occurrence it could be presumed that he was aware that the samewas stolen property and thus, he could have been convicted for an offencepunishable under Section 411 IPC. ( 17 ) IN Sheo Nath v. The State of Uttar Pradesh, AIR 1970 SC 535 ,the facts were that the person from whom the robbed property was recoveredwas not shown to have any knowledge that any dacoity had taken place. Thesupreme Court held that only legitimate presumption to be drawn on suchfacts is that the person knew that the goods were stolen but he did not knowthat they were stolen in a dacoity and thus, he was convicted for an offencepunishable under Section 411 Indian Penal Code and not under Section 412 IPC. So, following this judgment, I hold that Dhanpal ought to have been convicted for anoffence punishable under Section 411 IPC. ( 18 ) NOW coming to the main three accused, namely, Nand Kishore,satish and Gopal, it is proved beyond shadow of doubt that they had committed this dacoity in complicity with three more culprits whose identities remainedunproved They had not only committed dacoity but had also kidnappedforcibly Sudha by lifting her and putting her in a car and driving the car away. So, they have been rightly convicted for offences punishable under Sections365, 395, both read with Section 34 IPC. ( 19 ) IT is surprising that resort should have been made to Section 34ipc for bringing home the offence under Section 397 to all the accused. Section397 only provides for enhanced punishment and minimum sentence of sevenyears rigorous imprisonment in respect of the culprit who at the time of committing the robbery or dacoity is armed with a deadly weapon. (See Phoolkumar v. Delhi Administration, AIR 1975 SC 905 ). Only Nand Kishore wasfound to have an open knife while committing the said dacoity and only hecould have been convicted for offence punishable under Section 397 IPC. ( 20 ) ANOTHER illegality which appears in the judgment is that insteadof awarding minimum sentence prescribed under Section 397, the learnedadditional Sessions Judge thought it fit to award only lesser punishment forfive years. The provisions of Section 397 are very clear on this aspect and ithas been so held also by the Supreme Court in Ram Shankar v. The State ofmadhya Pradesh, AIR 1981 SC 644 . However, no application has beenmoved by the State for enhancement of punishment to Nand Kishore in thisconnection. ( 21 ) AS far as Section 307 Indian Penal Code is concerned, I am of the view that theadditional Sessions Judge was not right in bringing home the said offence tothe accused inasmuch as there is no evidence that car was being driven at anyfast speed which could have resulted in any fatal injuries. Only evidence isthat car was struck aginst the cycle and PW2 and PW3 alongwith the childhad fallen but not even a scratch was shown to have been found on theirpersons by such fall and they were not medically examined and eyen cycle wasnot taken into possession to show that any damage had been caused to thecycle by the car striking against the cycle. Even a mild impact of the car withthe cycle would have made PW2 and PW3 to fall but it would be preposterousto say that any attempt was made to murder or to cause fatal injuries to saidpersons. . . ( 22 ) HENCE, in view of the above discussion, I allow the appeals ofmohinder Singh and Mohan Singh and set aside their convictions and sentencesand acquit them. . . ( 22 ) HENCE, in view of the above discussion, I allow the appeals ofmohinder Singh and Mohan Singh and set aside their convictions and sentencesand acquit them. I partly allow the appeals of Satish and Nand Kishore andset aside their convictions and sentences for offence under Section 307 readwith Section 34 IPC. I maintain their convictions and sentences for offencespunishable under Sections 365 and 395 read with Section 34 Indian Penal Code while Nandkishore alone is convicted for an offence punishable under Section 397 IPCand also for offence punishable under Section 27 of the Arms Act and maintaintheir sentences. Allowing the appeal of Dhanpal partly, I convert his conviction from Section 412 to Section 411 Indian Penal Code and sentence him to the periodalready undergone in addition to the fine.