ORDER (ORAL) Ashok Agarwal, J. - Appellants are original accused Nos. 1,8 and 10. Initially 11 accused were prosecuted. The charge against them, as originally framed on the 12th of August, 1986 vide Exhibit 9 was under Section 395 and Section 395 read with Section 397 of the Indian Penal Code. Plea of all the accused for the aforesaid charge was recorded. All pleaded not guilty. Evidence for the prosecution was recorded. Statements of the accused under Section 313 Criminal Procedure Code was thereafter recorded. Witnesses were examined in defence. Two witnesses were examined by accused No. 8 and one witness was examined by accused No. 10. Arguments on behalf of the prosecution commenced. While the arguments were in progress an application (Exhibit 98) was filed on behalf of the prosecution for amendment of the charge. The prosecution prayed for adding a charge of conspiracy, which is punishable under Section 120-B of the Indian Penal Code. The say of the accused was taken. The accused strongly objected to the amendment both on the ground that it was sought at a belated stage and on the ground that there was no material on record to justify the framing of the additional charge. By an order passed, the learned Judge of the trial Court over-ruled the objections and granted the application for amending the charge. Thereafter, an amended charge (Exhibit 99) was framed. A charge under Section 120- B was added to the original charge. The arguments, thereafter, proceeded and the same was followed by the passing of the impugned ORDER and order. The learned Judge of the trial Court, however, has omitted to record the plea of the accused to the amended charge and has proceeded to decide the case against the accused both under the original charge as also the amended charge. When this position was brought to my notice I have proceeded with the hearing of the appeal by ignoring the amended charge as, in my view, the learned Judge of the trial Court could not have considered the additional charge without recording the plea of the accused in that behalf. By the impugned ORDER and order of the trial Court all the accused, except accused Nos. 1,8 and 10, have been acquitted. As far as accused Nos. By the impugned ORDER and order of the trial Court all the accused, except accused Nos. 1,8 and 10, have been acquitted. As far as accused Nos. 1, 8 and 10 are concerned, they are convicted for an offence under Section 392, 394 and 120-B of the Indian Penal Code and each of them has been sentenced to suffer rigorous imprisonment for five years and to pay a fine of Rs. 1,000/-, in default to suffer simple imprisonment for three months on each count The substantive sentences are directed to run concurrently. In view of my preliminary finding that the accused have not been properly charged and prosecuted for the offence under Section 120-B of the Indian Penal Code, the appellants original accused Nos. 1, 8 and 10 are entitled to an order of acquittal on that count The case is now heard and is being disposed of on the basis of the original charge framed at Exhibit-9. Under the said charge, the eleven accused before the Court, along with an absconding accused Balram Patil, are charged under Section 395 and Section 395 read with Section 397 of the Indian Penal Code for having, on the 20th of February, 1986, at about 10.45 a.m., in a local train of the Central Railway, between Dombiwali and Diwa Railway Stations in a IInd Class Railway Compartment, committed dacoity in respect of a briefcase containing Rs. 1,01,0001- belonging to the complainant - Shaikh Ahmed Qureshi by making use of deadly weapons such as knives. The case of the prosecution can be summarised as under: 2. The complainant Shaikh Ahmed is a resident of Shahad and is engaged in the business of purchase and sale of she-goats. He used to purchase she-goats on credit at Indore and dispose them of at the Kalyan market and, thereafter, make payment for the she-goats purchased on credit It was the practice of the complainant that whenever he used to go to Indore to make payment he used to start from Shahad Railway Station at about 10.30 a.m. and proceed to Ghatkopar. From there he used to proceed to the Airport and take a flight to Indore. Accordingly, on the 20th of February, 1986 at about 10.30 a.m. he started from his house with a brief case containing cash amount of Rs. 1,01,000/-. The said amount was in the denomination of Rs. 1001- and Rs. 501- currency notes. From there he used to proceed to the Airport and take a flight to Indore. Accordingly, on the 20th of February, 1986 at about 10.30 a.m. he started from his house with a brief case containing cash amount of Rs. 1,01,000/-. The said amount was in the denomination of Rs. 1001- and Rs. 501- currency notes. He was accompanied by his employee P.W. 2 Jagtarsing Adwan. Jagtarsing has declined to support the prosecution. He has, therefore, been declared hostile and has been cross-examined both by the prosecution as also by the defence. 3. Both the complainant and Jagtarsing, as per the usual practice, went to the railway station and boarded a local train, which was proceeding towards Ghatkopar. While the local train was proceeding between Dombiwali and Diwaratlway stations, accused No. 1 Momin @ Salim Mohammed Shaikh and accused No. 10 Anwar Shaikh Madar who are residents of Shahad and known to the complainant, along with six or seven others, went near the complainant Shaikh Ahmed. Accused No. 1 removed specs of the complainant and threw chilly powder in his eyes. Accused No. 10 also threw Khaskuri on his body. At that time accused No. 1 touched an open knife on his stomach. The accused then snatched the briefcase in which complainant had kept the amount of Rs. 1,01,000/-. The complainant cried (my bag, my bag). However, the accused pulled the chain. As soon as the train halted they made good their escape. 4. Complainant proceeded towards Ghatkopar Railway Station and, thereafter, went to Indore as scheduled. He did not lodge any complaint as he was afraid of his life. After returning from Indore he sought to lodge a complaint but the police did not believe him. Complainant started searching for accused Nos. 1 and 10 who were known to him. However, they were not found. Ultimately on the 5th of March, 1986 complainant saw accused No. 1 near Jawahar talkies in Ulhasnagar. He, therefore, immediately rushed to the police station and informed P.W. 15 Tukaram Chinchankar, a P.S.I. attached to the Ulhasnagar Police Station. The latter gave two constables with the complainant. All of them went to Jawahar talkies and apprehended accused No. 1 and brought him to the Police Station. P.S.I. Chinchankar interrogated accused No. 1. He, thereafter, recorded the First Information Report of the complainant, which is at Exhibit 29. An offence was registered at CR. The latter gave two constables with the complainant. All of them went to Jawahar talkies and apprehended accused No. 1 and brought him to the Police Station. P.S.I. Chinchankar interrogated accused No. 1. He, thereafter, recorded the First Information Report of the complainant, which is at Exhibit 29. An offence was registered at CR. No. 0/86. As the offence in question had taken place within the jurisdiction of the Kalyan Railway Police Station, P.S.I. Chinchankar arrested accused No. 1 and then sent the complaint along with accused No. 1 to the Kalyan Railway Police Station. P.W. 11 Gorakh Shinde was the P.S.I. attached to the Kalyan Railway Police Station. He received the complaint and registered the offence at CR. No. 64/1986. P.S.I. Shinde also secured the presence of accused No. 1 at his police station. P.W. 16 Nandkumar Gaud, the Police Inspector attached to the Kalyan Railway Police Station, took over investigation. On 6th of March, 1986 P.W. 1 Gorakh Shinde, a P.S.I. attached to the Kalyan Railway Police Station, went to the house of the accused No. 8 and arrested accused Nos. 6, 7, 8 and 9 and also attached several cash amounts which was found with accused Nos. 6 to 8. As far as accused No. 8 is concerned, an amount of Rs. 4,000/- was recovered from his person under Panchanama (Exhibit 53). The panchanama is scribed by P.W. 13 Narayan Kanadi. He has, however, turned hostile. The Panchanama has been proved in the evidence of P.W. 11, P.S.I. Gorakh Shinde. During further investigation accused No. 8 volunteered to make a confession. On 21.3.1986 at about 3.30 p.m. he was, produced before P.W. 6 Arvind Purandare, a Judicial Magistrate, First Class at Ulhasnagar. The learned Magistrate questioned the accused whether he was prepared to make the voluntary disclosure. On being satisfied he gave him time for reflection. On 24th of March, 1986 at about 3.30 p.m. accused No. 8 was again produced before him. At that time the confession of accused' No. 8 was recorded. The same is at Exhibit-36. In the meanwhile, it transpired that accused No. 10 Shaikh Anwar was also concerned with the offence in question. Accused No. 10 had gone to Maccha Reddi Hence, on the 8th of March, 1986, P.W. 12 P.S.I. Satav went there and brought accused No. 10 to the Kalyan Railway Police Station. The same is at Exhibit-36. In the meanwhile, it transpired that accused No. 10 Shaikh Anwar was also concerned with the offence in question. Accused No. 10 had gone to Maccha Reddi Hence, on the 8th of March, 1986, P.W. 12 P.S.I. Satav went there and brought accused No. 10 to the Kalyan Railway Police Station. While in custody accused No. 1 made a statement (Exhibit 58) leading to the discovery and seizure of a sum of Rs. 5,000/- from his house vide Exhibit-59. The panchanama is scribed by P.W. 14 Vinayak Bhoir. The seizure was made in the presence of P.W. 12, P.S.I. Satav. 5. On the 10th of March, 1986 accused No. 1 made a statement (Exhibit 50) leading to the discovery of a sum of Rs. 10,000/- and a revolver which were seized under Panchanama (Exhibit 51). The panchanama was made in the presence of the Panch Witnesses P.W. 14 Vinayak Bhoir and P.W. 10 Subhash Punjabi. The panchanama is also scribed by P.W. 16, P.I. Nandkumar Gaud. 6. During investigation one Hariram Chaurasiya produced an amount of Rs. 2,000/- by stating that the same had been given to him by accused No. 1. The amount was seized under Panchanama (Exhibit 42) dated the 12th of May, 1986 in the presence of the Panch witness P.W. 8 Hanumanta Koli. After completing the investigation, P.I. Gaud submitted a charge-sheet against all the eleven accused. By the impugned order, passed by the learned Judge of the trial Court, accused Nos. 2 to 7,9 and 11 are acquitted. Accused Nos. l, 8 and 10 are the only accused who have been convicted for the offences which I have already mentioned. Since we are concerned with an appeal filed only by Accused Nos. 1,8 and 10 I have reproduced the prosecution case only so far as the same concerns them. Similarly, I do not propose to deal with the evidence which concerns to the accused who are acquitted at the trial. It would be enough to deal with the evidence in so far as it concerns the convicted accused being accused Nos. 1, 8 and 10. Thursday, 8th July, 1993 7. Shri S.R. Chitnis, who appears for accused Nos. Similarly, I do not propose to deal with the evidence which concerns to the accused who are acquitted at the trial. It would be enough to deal with the evidence in so far as it concerns the convicted accused being accused Nos. 1, 8 and 10. Thursday, 8th July, 1993 7. Shri S.R. Chitnis, who appears for accused Nos. 1 and 10 and Shri S.G. Samant, who appears for accused No. 8, have advanced a formidable argument which at first flush, is difficult to resist They have submitted that the complainant is a businessman. He claims to know accused Nos. 1 and 8 since prior to the date of the incident. He claims to know them by name. The incident involved a loss of a large amount of Rs. 1,01,000/-. If the incident did take place, as the complainant wants us to believe, it is hardly likely that he would not have lodged a complaint and would have continued his journey to Indore. Even if allowance is given to the importance of his mission at Indore, it is unconceivable that even after he returned he did not lodge a complaint. The explanation offered by the complainant that he went to the police station to lodge the complaint but the police did not believe him, is difficult to swallow: The complaint (Exhibit 29) is lodged as late as on 5th of March, 1986 i.e. after an inordinate delay of 13 days. The entire case set up by the prosecution is therefore, according to the learned counsel impossible to believe and deserves to be rejected. 8. The argument is, no doubt, attractive. If the complainant knew accused Nos. 1 and 8 it is hardly conceivable that he would not report the incident to the police. The amount involved was not at all a meagre amount. It cannot be stated that the complainant is so well of that the amount of Rs. 1,01,000/- was inconsequential to him. The inaction on the part of the complainant in lodging a complaint at the earliest opportunity, therefore, cast a shadow of doubt on the case of-the prosecution. However, mere delayed filing of a complaint cannot throw over board the entire case. Different persons are apt to act differently in different circumstances. At times, persons are prone to act even stupidly or irrationally in certain circumstances. However, mere delayed filing of a complaint cannot throw over board the entire case. Different persons are apt to act differently in different circumstances. At times, persons are prone to act even stupidly or irrationally in certain circumstances. It, therefore, becomes imperative to examine the evidence of the prosecution more scrupulously and critically in order to find out whether the case is true or false and this is what I propose to do. 9. As far as accused No. 1 is concerned, we have the evidence of complainant. He has deposed in terms of the prosecution story which I have already reproduced. His version is consistent with his complaint (Exhibit 29). Based on the complaint, accused No. 1 was apprehended on the very day i.e. on the 5th of March, 1986. He was arrested by P.W. 15 Tukaram Chirichankar, a P.S.I. attached to the Ulhasnagar Police Station. At the time of arrest a panchanama (Exhibit 64) was drawn up. Since the offence was committed within the jurisdiction of the Kalyan Railway Police Station, P.S.I. Chinchankar sent the complaint (Exhibit 29) along with a report to the Kalyan Railway Police Station. P.W. 16 Nandkumar Gaud, Police Inspector, Incharge of the Kalyan Railway Police Station, received the complaint and the report and registered the of fence and took over investigation of the case. He deputed P.W. 1, P.S.I. Gorakh Shinde, to get the accused from Ulhasnagar Police Station. The accused was accordingly produced before Police Inspector Gaud. While in custody, accused No-1 made a statement (Exhibit 50) volunteering to produce certain amount and a revolver from a place near his house where he had kept them concealed, in a plastic bag. He, there after led to the police party alongwith Panch witness P.W. 14 Vinayak Bhoir and P.W. 10 Subhash Punjabi to his house. He went to the back side of his house where sere was a temporary bath room which was constructed out side the out one plastic bag which was placed between the wall of the house and the mat of the temporary bath room and produced one country made revolver which was tied in an hand kerchief and a bundle of notes of Rs. 10,000/- consisting of 100 notes of the denomination of Rs. 100/-. A panchanama in regard to the discovery was drawn up, the same is atExhibit-51. 10,000/- consisting of 100 notes of the denomination of Rs. 100/-. A panchanama in regard to the discovery was drawn up, the same is atExhibit-51. Apart from the evidence of the Panch witness Vinayak Bhoir, we have on record the evidence of P.W. 6 P.I. Nandkumar Gaud who has also deposed to his having been present at the time of the said recovery. After the seizure was made a station diary entry was made at the police station. An extract of the station diary entry, which appears at serial No. 39, is to be found at Exhibit 73. I have carefully examined the above evidence and I find the same trustworthy. I do not find any lacuna so as to cast a doubt of its veracity. 10. Shri Chitnis has sought to contend that the above discovery is no discovery as contemplated under Section 27 of the Evidence Act. According to him the statement of the accused (Exhibit 50) is not admissible under Section 27 of the Evidence Act as it does not disclose the exact place where the articles in question are alleged to have been concealed. It further does not specify the authorship of concealment. It does not recite that accused No. 1 had concealed the articles. Shri Chitnis relied upon a case of the Privy Council in the Case of "Pulukuri Kottaya v. King-Emperor1. In that case, this is what has been observed: " The second question, which involves the construction of Section 27 of the Indian Evidence Act, will now be considered. That section and the two preceding sections, with which it must be read, are in these terms: "25. No confession made to a Police Officer shall be proved as against a person accused of any offence." ''26. No confession made by any person whilst he is in the custody of a Police Officer, Unless it be made in the immediate presence of a Magistrate, shall be proved as against such person." The explanation to the section is not relevant. "27. Provided that when any fact is deposed to as discovered in consequence of information received from a person accused of any offence in the custody of a Police Officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved." 1. 49 BLR 508; Relied 00. "27. Provided that when any fact is deposed to as discovered in consequence of information received from a person accused of any offence in the custody of a Police Officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved." 1. 49 BLR 508; Relied 00. Section 27, which is not artistically worded, provides an exception to the prohibition imposed by the preceding section, and enables certain statements made by a person in police custody to be proved. The condition necessary to bring the section into operation is that the discovery of a fact in consequence of information received from a person accused of any offence in the custody of a Police officer must be deposed to, and thereupon so much of the information as relates distinctly to the fact thereby discovered may be proved. The section seems to be based on the view that if a fact is actually discovered in consequence of information given, some guarantee is afforded thereby that the information was true, and accordingly can be safely allowed to be given in evidence; but clearly the extent of the information admissible must depend on the exact nature of the fact discovered to which such information is required to relate. Normally the section is brought into operation when a person in police custody produces from some place of concealment some object, such as a dead body, a weapon, or ornaments, said to be connected with the crime of which the informant is accused. Mr. Megaw, for the Crown, has argued that in such a case the "fact discovered" is the physical object produced, and that any information which relates distinctly to that object can be proved. Upon this view information given by a person that the body produced is that of a person murdered by him, that the weapon produced is the one used by him in the commission of a murder, or that the ornaments produced were stolen in a dacoity would all be admissible. If this be the effect of Section 27, little substance would remain in the ban imposed by the two preceding sections on confessions made to the police, or by persons in police custody. If this be the effect of Section 27, little substance would remain in the ban imposed by the two preceding sections on confessions made to the police, or by persons in police custody. That ban was presumably inspired by the fear of the legislature that a person under police influence might be induced to confess by the exercise of undue pressure. But if all that is required to lift the ban be the inclusion in the confession of information relating to an object subsequently produced, it seems reasonable to suppose that the persuasive powers of the police will prove equal to the occasion and that in practice the ban will lose its effect. On normal principles of construction their Lordships think that the proviso to section 26, added by Section 27, should not be held to nullify the substance of the section. In their Lordships' view it is fallacious to treat the "fact discovered" within the section as equivalent to the object produced; the fact discovered embraces the place from which the object is produced and the knowledge of the accused as to this, and the information given must relate distinctly to this fact. Information as to past user, or the past history, of the object produced is not related to its discovery in the setting in which it is discovered. Information supplied by a person in custody that "I will produce a knife concealed in the roof of my house" does not lead to the discovery of a knife; knives were discovered many years ago. It leads to the discovery of the fact that a knife is concealed in the house of the informant to his knowledge and if the knife is proved to have been used in the commission of the offence, the fact discovered is very relevant. But if to the statement the words be added "with which I stabbed A", these words are inadmissible since they do not relate to the discovery of the knife in the house of the informant." Bearing in mind the observations contained in the aforesaid ruling I will now proceed to examine the\statement of accused No. 1 at Exhibit 50. But if to the statement the words be added "with which I stabbed A", these words are inadmissible since they do not relate to the discovery of the knife in the house of the informant." Bearing in mind the observations contained in the aforesaid ruling I will now proceed to examine the\statement of accused No. 1 at Exhibit 50. Deleting the inadmissible portion, this is what he has stated: "I voluntarily give my statement that the amount and revolver which was at that time with me, is concealed by me at a place near my house which is not known to anybody. The same is kept hidden in a plastic bag. I am ready to show that hiding place where I had kept money and revolver, come with me." The above portion has been translated by me from the original statement, which has been made in marathi. I find that the statement contains all the requisite details which are required for it being admissible under Section 27 of the Evidence Act. The statement makes a clear averment that the amount and the revolver are concealed by the accused. It further avers that it has been concealed at a place near his house which is not known to anybody. If further recites that it has been kept hidden in a plastic bag and it finally offers to show the hiding place where the accused had kept the money and the revolver. In consequence of the statement, accused No. 1 has led the raiding party to his house and he has recovered the amount and the revolver from between the wall of the house and the mat of the temporary bath room which was found outside and adjoining his house. In view of these circumstances I have no hesitation in holding that the discovery in question is duly proved. The contention of Shri Chitnis that the evidence in this behalf is inadmissible, is therefore rejected. 11. It would, thus, be seen that a substantial amount of Rs. 10,000/- is recovered from the possession of accused No. 1. The said amount was kept in hiding. It was hidden along with a revolver. The contention of Shri Chitnis that the evidence in this behalf is inadmissible, is therefore rejected. 11. It would, thus, be seen that a substantial amount of Rs. 10,000/- is recovered from the possession of accused No. 1. The said amount was kept in hiding. It was hidden along with a revolver. In the confession (Exhibit 36), to which I will have an occasion to make a reference at a later stage, accused No. 8 has stated that at the relevant time accused No. 1 had touched a revolver on the abdomen of the complainant. Hence, the finding of the revolver along with Rs. 10,000/- lends assurance to the involvement of accused No. 1 in the crime. The evidence of the complainant, coupled with the evidence of discovery, in my view, is sufficient to record a finding of guilt against accused No. 1. In addition to the above evidence, the prosecution has led the evidence of P.W. 8 Hanumanta Koli, a Panch witness. He has deposed that one Harlram Chaurasiya produced a sum of Rs. 2,000/- which were given to him by accused No. 1 for safe keeping. A panchanama (Exhibit 42) in respect of the amount produced was drawn up. In the present case, Hariram Chaurasiya has not been examined. Hariram Chaurasiya is not an accused. He was not in custody. Hence, the statement of Hariram is a statement made to the police during the course of investigation and the same is hit by Section 162 of the Criminal Procedure Code and is, therefore, inadmissible. This part of the evidence will, therefore, have to be ignored while considering the case against accused No. 1. However, I have already found that the other evidence, which I have referred to, is sufficient to bring home the guilt against accused No. 1. 12. I will now take up for consideration the case of accused No. 10. Accused No. 10 is similarly placed as accused No. 1. The evidence against him consists of the evidence of the complainant. The complainant has attributed overt acts to accused No. 1 and 10 alone. Though he has mentioned about the presence of the other accused, the overt acts are attributed only against accused Nos. 1 and 10. The role attributed in the evidence of the complainant to accused No. 1 0 is consistent with the role referred to him in the First Information Report (Exhibit 29). Though he has mentioned about the presence of the other accused, the overt acts are attributed only against accused Nos. 1 and 10. The role attributed in the evidence of the complainant to accused No. 1 0 is consistent with the role referred to him in the First Information Report (Exhibit 29). Accused No. 10 was arrested from Machha Reddi. He was arrested by P.W.12 P.S.I. Satav. Apanchanama in respect of the arrest (Exhibit 57) was drawn up. He was brought to the Kalyan Railway Police Station. While in custody accused No. 10 made a statement (Exhibit 58) volunteering to produce an amount of Rs. 5,000/-. The statement after deleting the inadmissible portion, recites that "out of the amount of that brief case Rs. 5,000/- are kept by me in my residential house at a given address which I am ready to produce." As in the case of the statement of accused No. 1 (Exhibit 50) the present statement also contains all the requisite details so as to make it admissible under Section 27 of the Evidence Act. The statement is in respect of an amount of Rs. 5,000/-. The statement recites that the amount has been kept by accused No. 10, that it has been kept in his residential house and that he is ready to produce the same. Consequent upon the statement, the raiding party, which includes the Panch witness P.W. 14 Bhoir and P.W. 12, P.S.I. Satav, went to the residential house of accused No. 1, which is the same mentioned in the statement (Exhibit 58) namely Shaikh Madar Chawl, toehind Sant Bhuwan, Shiv Road, and Shahad. From the house, accused No. 10 has produced one paper bag from which he produced a bundle of notes. The bundle consisted of 42 notes of Rs. 100/- each and 16 notes of Rs. 50/- each. The accused, thus, has produced a sum of Rs. 5,000/-, in pursuance of his statement, from his house. After the discovery, P.W. 16, P.11 Gaud made a station diary entry. The extract of the station diary entry is at Exhibit-n. The Station Diary entries which are prepared both after the discovery made by accused No. 1 as also accused No. 10, give a guarantee to the fact that the property in question was recovered and deposited at the police station at the time mentioned in the station diary. The extract of the station diary entry is at Exhibit-n. The Station Diary entries which are prepared both after the discovery made by accused No. 1 as also accused No. 10, give a guarantee to the fact that the property in question was recovered and deposited at the police station at the time mentioned in the station diary. In my view, the above evidence amply corroborates the evidence of the complainant in respect of the involvement of accused No. 10 in the instant crime. In addition, we have the evidence in the form of the confession of accused No. 8 to lend assurance to the complicity of the accused Nos. 1 and l0 in the crime. This takes me to the case of accused No. 8. 13. P.W. 11, P.S.I. Shinde, has stated that he received information that accused Nos. 5 to 9 were sleeping in the house of accused No. 8. Hence, he called panchas and proceeded to the house of accused No. 8. There, the four accused were found sleeping. As far as accused No. 8 is concerned, on his personal search being taken, a cash amount of Rs. 4,000/- i.e. 40 currency notes of Rs. 100/denomination were found in his pocket. The panchanama (Exhibit 53) was drawn up. Panch witness P.W. 13 Narayan Kanadi was examined in order to prove the panchanama. He, however, did not support the prosecution in its entirety and was, therefore, declared hostile. He, however; did state that the police arrested two to four persons and recovered cash amount in currency notes of Rs. 50/- and Rs. 100/-. The panchanama, however, has been deposed to by P.S.I. Shinde, I have examined his evidence critically and I find no reason to doubt its veracity. 14. In addition to the above evidence, we have the evidence in the form of a confession of accused No. 8 which is to be found at Exhibit 36. While in custody, accused No. 8, on 21st of March, 1986 at about 3.20 p.m., volunteered to make a confession. Accordingly, he was produced before P.W. 6 Shri Arvind Purandare, a Judicial Magistrate, First Class, Ulhasnagar. The learned Magistrate asked several questions to the accused in order to satisfy himself whether the accused was prepared to make the confession voluntarily or whether he was pressurised to make the same. Accordingly, he was produced before P.W. 6 Shri Arvind Purandare, a Judicial Magistrate, First Class, Ulhasnagar. The learned Magistrate asked several questions to the accused in order to satisfy himself whether the accused was prepared to make the confession voluntarily or whether he was pressurised to make the same. He followed the requisite formalities and on being satisfied he gave accused sufficient time for reflection. Accused No. 8 was given three days time to make sure that he wanted to make the confession. He was once again produced before the Magistrate on the 24th of March, 1986 at about 3.30 p.m. The Magistrate once again questioned the accused. On being satisfied that the accused was willingly making the confession without any force or fear, he proceeded to record the confession (Exhibit 36). The questions put by the Magistrate and the answers given by the accused prior to the recording of the confession forms a part of the confession. I have gone through the same and I find that the same is sufficient to justify an inference that the confession made by the accused has been made voluntarily. In the confession accused No. 8 has inter alia stated that on 20th of February, 1986 while he was at his house, several accused persons including accused No. 1 came to his house. Accused No. 1 told him that they have to take away a V.I.P. Bag with force from a black complexion merchant of goats going from Shahad Station. Accused No. 8 initially refused but accused No. 1 told him that he is having his revolver with him and accused No. 8 should not be afraid. They persuaded him to wear his clothes. He started along with them and came 19 Shahad Station at about 10.20 a.m. where accused No. 1 gave the details as to how the merchant will come. He also disclosed that all arrangements have been made, accused No. 10 is having chilly powder, he was having another revolver and one knife. At about 10.25 a.m. one black complexion merchant of goats was seen coming from the platform having a V.I.P. bag in his hand, which was shown by accused No. 1 to them. Accused No. 1 told them in which compartment of the local the said merchant will go and they had also to go in the said compartment. At about 10.25 a.m. one black complexion merchant of goats was seen coming from the platform having a V.I.P. bag in his hand, which was shown by accused No. 1 to them. Accused No. 1 told them in which compartment of the local the said merchant will go and they had also to go in the said compartment. The accused, thereafter, boarded the very compartment which the merchanst boarded. After the train left Dombiwali Station accused No. 10 threw chilly powder in the eyes of the merchant and the person who was-accompanying the merchant. Accused No. 1 and original accused No. 11 touched revolvers on the abdomen of the said merchant. Accused No. 10 touched a knife on the abdomen of the merchant. When chilly powder was thrown it also went in the eyes of accused No. 8. Accused No. 8 was quite frightened. Due to fear he entered in the crowd and started seeing the incident. Someone pulled the chain. They all got down ahead of Diwa Station and accused No. 8 went to Thane through the said train and came to Shahad Station through Titwala train and returned to his house. 15. The confession then proceeds to state that on the next day accused No. 1 and 11 came to his house and started giving him Rs.4,000/-. Accused No. 8 refused it. Accused No. 1 told him not to worry. He kept the money on the chair and went away. He did not inform about the amount to his parents but kept the money as it was. On the 5th of March, 1986 he came to know that accused No. 1 was arrested by the police. Hence he met every one and informed them that accused No. 1 was arrested by the police. He was frightened. Then all assured him no~ to worry, accused No. 1 will not tell their names and that they would come to sleep in his house and on that night the other accused came to sleep in his house. At 3.00 a.m. police came to his house and seized amount of Rs. 4,000/- which was kept by him as it was. The police also seized money from the other accused who were sleeping in his house. This, in substance, is the text of the confession. 16. At 3.00 a.m. police came to his house and seized amount of Rs. 4,000/- which was kept by him as it was. The police also seized money from the other accused who were sleeping in his house. This, in substance, is the text of the confession. 16. Shri Samant learned Advocate appearing on behalf of accused No. 8, has serious objections both to the admissibility as also to the veracity of the confession. He has taken serious exceptions to the manner in which the confession has been recorded. He has placed reliance on clause 18 of the High Court manual which prescribes that in the absence of exceptional reasons, confessions should ordinarily be recorded in open Court and during court hours. He has pointed out that despite these specific directions, P.W. 6 Purandare has chosen to record the confession in his chamber. Shri Samant has placed reliance on the case of "Ram Chandra and another v. State of Uttar Pradesh2, where the Supreme Court was dealing with the recording of a confessional statement in jail. Dealing with a clause, similar to clause 18 of our High Court Manual, the Supreme Court observed: "The first rule in the Manual says that confessions may ordinarily be recorded in open Court and during court hours unless for exceptional reasons it is not feasible to do so. This is a very important provision which emphasises that the Magistrate in recording confession is exercising part of his judicial function in the manner prescribed by law. A confession taken in jail without any adequate reason there for and in disregard of the instructions contained in the Government orders is improper." When asked why the recording was made in chamber, the learned Magistrate has stated: " 1 know that all the judicial work is to be taken in open Court. As the work in question was of recording confession I thought it necessary to record in chamber. Hence I did the said work in chamber in my opinion, it was necessary to record the same in chamber. As there were windows and door to the Court hall, I thought that it is desirable to record the confession in chamber. There is door and window to my chamber,.....the window is on the backside of the chamber " 17. Hence I did the said work in chamber in my opinion, it was necessary to record the same in chamber. As there were windows and door to the Court hall, I thought that it is desirable to record the confession in chamber. There is door and window to my chamber,.....the window is on the backside of the chamber " 17. It is no doubt true that as per the instructions contained in the Manual, it is provided that the confession should, as far as possible, be recorded in open Court. In the instant case, the confession has been recorded in chamber. The learned Magistrate has given an explanation. He has found that the chamber was a more appropriate and convenient place to record the confession. He has apparently found that since there) are windows and doors to the Court hall there may be less privacy. It is possible that the Magistrate has found the chamber more convenient because he 2. A.I.R. 1957 S.C. 381. may have wanted to prevent members of the public or police officers from entering at the time of recording the confession. If he were to record the confession in the Court Room it may have been difficult to prevent entry of members of the public or even the police personnel from entering. In that event, the accused would not have been free from possible outside pressures at the time of recording the confession. In my view, the explanation offered is reasonable. I do not find that any doubt is created by recording the confession in chamber. The first objection of Shri Samant, therefore, stands rejected. 18. Shri Samant next took me through the text of the confession. He pointed out that as per the notings in the confession as also the evidence of the learned Magistrate, the recording of the confession was concluded within a span of half an hour. According to Shri Samant if regard is had to the questions which may have been put and the answers which may have been given by accused No. 8, it is not possible that the recording would have been completed within a span of half an hour. Hence, according to Shri Samant, this casts a shadow of doubt on the veracity of the confession. 19. The above submission presupposes that the confession was made in response to the questions which were put by the learned Magistrate. Hence, according to Shri Samant, this casts a shadow of doubt on the veracity of the confession. 19. The above submission presupposes that the confession was made in response to the questions which were put by the learned Magistrate. A perusal of the confession shows that whenever questions were put and answers elucidated the same were reproduced in the same manner. As far as the main text of the confession is concerned, the same is not in question and answer form. It is, therefore, possible that the accused gave the confession in a narration form and the same was recorded. The submission also presupposes that the time of half an hour which is mentioned is the precise time taken for recording the confession. It is possible that the time may be by approximation. In my view, the time factor can have no bearing on the veracity of the confession. 20. Shri Samant then pointed out that the confession was not scribed by the learned Magistrate himself but it was scribed by his Bench Clerk and on his dictation. The learned Magistrate also did not ask the accused to read the confession after it was recorded though the accused is educated. He has further pointed out that each of the pages of the confession have not been initialled by the learned Magistrate. Since the learned Magistrate has not followed the requisite procedure, according to Shri Samant the confession looses its probative value. In my view, though the aforesaid details have not been complied with, the same do not go to the root of the matter and cannot, therefore, cast a doubt on the genuineness of the confession. 21. Shri Samant next contended that after the Chief Judicial Magistrate had sent the accused to the learned Magistrate - Purandare, to record the confession, Purandare caused for the relevant papers of investigation. Shri Purandare has stated that he called the papers in order to see the nature of offence and in order to put preliminary questions to the accused. He has stated that he might have seen the First Information Report but does not remember whether he had seen the other papers. He received the papers on the 21st of March, 1986 and parted with those papers on the very day. Thereafter, at no time he had called for the investigation papers. He has stated that he might have seen the First Information Report but does not remember whether he had seen the other papers. He received the papers on the 21st of March, 1986 and parted with those papers on the very day. Thereafter, at no time he had called for the investigation papers. When shown one statement dated 18th of March, 1986, of accused No. 8 recorded by the Police u/s. 162, Cr. P.C. which is marked 'A' for identification, he has stated that the same was supplied to him along with the said papers. Shri Samant then pointed out a letter appearing at Exhibit 46 dated the 7th/8th April, 1986 where under the learned Magistrate has forwarded the confessional statement of the accused along with the investigation papers. Shri Samant contended that if the learned Magistrate had parted with those papers on the very day i.e. on the 21st of March, 1986 and had not called for them again, there is no explanation how he happened to forward the investigation papers on the 7th of April, 1986. Shri Samant further went on to contend that since the learned Magistrate was in possession of the statement of accused No. 8 recorded under Section 162 of the Code of Criminal Procedure, all that he has done is to substantially reproduce the same by way of confession of accused No. 8. In my view, Shri Samant is adding words in the evidence of the learned Magistrate which do not appear in his evidence. All that the learned Magistrate has stated is that he received the papers on 21st of March, 1986 and that he had parted with those papers on that very day. He has not stated that he sent back those papers on that very day. It is possible that after perusing the papers he may have left them with his staff to be kept in the office and it is possible that he did not have an occasion to call them for his perusal again and the papers may have been sent along with the confession on the 7 thl8th April, 1986. In regard to the further contention that the learned Magistrate may have merely reproduced the statement of the accused recorded by the police under section 162, the objection has only to be stated for being rejected. In regard to the further contention that the learned Magistrate may have merely reproduced the statement of the accused recorded by the police under section 162, the objection has only to be stated for being rejected. I do not find that any material has been elucidated in the cross-examination of the learned Magistrate in order to make good a charge that he is a partisan witness. A witness who is handing love with the police machinery and who is to oblige the prosecution and harm the accused. I find that the learned Magistrate has deposed in a straight-forward manner and I do not have the slightest doubt about his independence in the matter of recording the confession. 22. Shri Sam ant next placed reliance on section 164(4) of the Criminal Procedure Code and pointed out that the confessions are required to be recorded in the manner provided in section 281 for recording examination of an accused person. Under sub-section (2) of Section 281, points out Shri Samant, provides that whenever an accused is examined by any Magistrate, the whole of such examination, including every question put to him and every answer given by him shall be recorded in full by the presiding Judge or the Magistrate himself or where he is unable to do so owing to a physical or other incapacity, under his direction and superintendence by an officer of the Court appointed by him in this behalf. Placing reliance on the aforesaid provision, Shri Sam ant has criticised that the text of the confession is not in question and answer form. Moreover, it has not been scribed by the learned Magistrate himself but by the Bench Clerk and this is despite the fact that the learned Magistrate is not shown to be handicapped with any physical or any other incapacity. 23. The confession does suffer from certain lacunae which have been pointed out by Shri Sam ant. Despite the same, I am not prepared to hold that the confession in question suffers from such infirmities that no reliance can be placed on it I have perused the material evidence in regard to the confession bearing in mind the lacunae pointed out and I find that the lacunae do not go to the root of ,.the matter and the same does not demolish the veracity of the confession. Hence, the contention of Shri Samant in that behalf deserves to be rejected. 24. Shri Samant next contended that the confession in question does not fully implicate the accused. It does not satisfy all the ingredients of the offence charged. Hence, the confession is not a confession at all. It is true that the confession does indicate that accused No. 8 was' a hesitant participant in the offence. He had initially refused to participate but was, later on, persuaded when assured of his safety in the mission. It is also true that at the time of the snatching of the bag he has not played any overt act. He joined the crowd and watched the proceedings. DesP1te this position one cannot overlook the fact that he did go alongwith the other accused on a mission which mission he knew was a crime. He, went alongwith other accused for the purpose of snatching the bag which was to contain a huge amount of cash. He has gone through the entire proceeding when the other accused, named accused Nos. 1 and 10, threw chilly powder on the complainant and his companion, pointed out revolvers and knife at him snatched the bag and made good their escape with the booty though accused No. 8 did not accompany his companions while they made good their escape, it is not possible to hold that he was not a party to the offence in question. Similarly though it is true that when accused No.1 and 11 came to his house on the next day and started giving him Rs. 4,000/- he initially refused it but when they left the amount on the chair and went away accused No. 8 kept that amount with him. He has, therefore, received a part of the booty. In the circumstances, it is futile to contend that the confession in question is not inculpatory and is therefore, not a confession at all. The aforesaid contention of Shri Samant, therefore, is rejected. 25. Shri Samant next contended that though a portion of the cash which was in the bag was recovered during investigation the other contents of the bag namely a lungi, a diary as also the bag itself have not been recovered. Though this may be so, this can hardly be a ground to cast a doubt on the case of the prosecution. Though this may be so, this can hardly be a ground to cast a doubt on the case of the prosecution. In the circumstances, I find that the evidence In regard to the confession of accused No. 8 is satisfactory and deserves to be accepted. In the circumstances I hold that the evidence in respect of the finding of Rs. 4,000/- on the person of accused No. 8 at the time when he was apprehended and the aforesaid confession made by him is sufficient to hold the complicity of accused No. 8, as proved. Once it is found that the evidence of confession is worthy of belief the same can be relied upon in order to lend assurance to the case of the prosecution as against the other co-accused also namely accused Nos. 1 and 10. 26. I, therefore, find that each of the three accused are found in possession of different amounts. As far as accused No.1 is concerned, the amount is associated with a revolver which appears to be a weapon of the crime. The finding of the amounts in possession of the accused is supported by the ocular evidence which I have already discussed. The same is supported by contemporaneous documents such as panchanamas, as also the station diary entries. The entries in the station diary lends considerable assurance to the point of time when the amounts were recovered. After the amounts were recovered they were deposited at the police station. This lends considerable guarantee to the case of the prosecution. It is futile to imagine that the prosecution agency may have shelled out money from its own pockets only to foist a false case against the accused. In the circumstances, I have no manner of doubt that the prosecution has brought home the guilt against the present accused. 27. I further find that as far as the accused are concerned, they have come up with inconsistent defences. As far as accused No. 1 is concerned the defence suggested to the witnesses is that there was a quarrel between him and the complainant when complainant was riding a motor-bike. As against this, in his statement under section 313 of the Code of Criminal Procedure, accused No. 1 has stated that he is doing hen "business whereas the complainant is engaged in mutton business and there is enmity on account of business rivalry. As against this, in his statement under section 313 of the Code of Criminal Procedure, accused No. 1 has stated that he is doing hen "business whereas the complainant is engaged in mutton business and there is enmity on account of business rivalry. As far as accused No. 10 is concerned, the defence suggested to the witness is that complainant desired that accused No. 10 should work for him. Accused No. 10 refused to work and, therefore, he was falsely implicated. As against this, in his statement under section 313 of the Code of Criminal Procedure, accused No. 10 has stated that there were disputes between him and the complainant on account of plumbing work. As far as accused No. 8 is concerned, in his statement under section 313 of the Code of Criminal Procedure, he has stated that the amount of Rs. 4,000/- was not found on his person as alleged. He has stated that two ornaments were taken by the police from his house and police asked his father to take them, sell them and bring the amount. The ornaments were accordingly sold for Rs. 3,100/-. In addition, his father obtained a loan of Rs. 900/-. A sum of Rs. 4,000/- was, thus, handed over to the police. In support of this defence, accused has led the evidence of D.W. 2 Krishna Salpe, who is none else but his father. In addition, he has examined D.W. 3 Kundanmal Jain, a money lender. The defence witnesses have altogether a different tale to tell. It is to be remembered that the raid at the house of accused No. 8 had taken place on the 6th of March, 1986 between 00.00 hours to 3.30 hours. According to the father of accused No. 8, at the time of raid police carried away a sum of Rs. 9001 - from their house. In addition the police had also taken away a Laxmai Har and a chain from the house. He has further stated that he pledged the aforesaid ornaments with the aforesaid money lender and obtained a sum of Rs. 3,100/-The said amount was paid over at the police station. The amount of Rs. 900/- which was earlier carried from the house and the additional amount of Rs. 3,100/- constituted the sum of Rs. 4,000/- which is alleged to have been recovered from accused No. 8. 3,100/-The said amount was paid over at the police station. The amount of Rs. 900/- which was earlier carried from the house and the additional amount of Rs. 3,100/- constituted the sum of Rs. 4,000/- which is alleged to have been recovered from accused No. 8. In support of the defence, the accused produced a receipt. It is intriguing to note that the receipt is also dated the 6th of March, 1986. This exposes the falsity of the defence set up by the accused. As far as the record goes, the amount of Rs. 400/- had been recovered from the accused No. 8 during the period of 00.00 hours to 3.30 hours on the 6th of March, 1986. The discovery is also reflected in the station diary entry (Exhibit 69). It shows that at 4.30 a.m. the amounts in question had been recovered. The said amounts are deposited in the police station at that time. If this be so, it is impossible that the father of accused No. 8 would, on the very day before 4.30 a.m. of 6th March itself, have obtained an amount of Rs. 3,100/- after pledging the ornaments with P.W. 3 Kundanmal and made them available to the police for being seized during the early hours of the 6th of March, 1986. In the circumstances, I find that the defence of the accused is both false and inconsistent. It is highly improbable and it fails to inspire confidence. 28. In view of the foregoing reasons I find that the learned Judge of the trial Court was more than justified in recording the impugned order of conviction and sentence against the appellants original accused Nos. 1,8 and 10 under sections 392 and 394 of the Indian Penal Code. 29. As pointed out in the initial paragraphs of the ORDER, I have found that the conviction of the appellants-original accused Nos. 1,8 and 10 under section 120-B of the Indian Penal Code is unsustainable. In the circumstances, the conviction and sentence under section 120- B of the Indian Penal Code as against accused Nos. 1, 8 and 10 is set aside. However, the order of conviction passed under section 392 and section 394 of the Indian Penal Code and the sentence of rigorous imprisonment for five years and fine of Rs. 1,000/- in default further simple imprisonment for three months, on each of the two counts is confirmed. 1, 8 and 10 is set aside. However, the order of conviction passed under section 392 and section 394 of the Indian Penal Code and the sentence of rigorous imprisonment for five years and fine of Rs. 1,000/- in default further simple imprisonment for three months, on each of the two counts is confirmed. The substantive sentence in respect of both the counts shall run concurrently. Appeal is partly allowed. The appellants-original accused Nos. 1, 8 and 10 shall surrender to their bail. Four weeks' time is granted to the appellants-original accused Nos. 1,8 and 10 to surrender to their bail. Certified copy be issued expeditiously. Appeal partly allowed.