S. R. K. PRASAD, J. ( 1 ) THESE three Criminal Appeals arise out of a Judgment rendered in Sessions Case No. 33 of 1999 by the I Additional Metropolitan sessions Judge, Hyderabad, convicting the accused for the offence punishable under section 395 of the Indian Penal Code, to undergo Rigorous Imprisonment for period of seven years and to pay a fine of Rs. 500/- each in default to suffer Simple Imprisonment for a period of three months and also sentenced to undergo Rigorous imprisonment for a period of three months for the offence under Section 342 of the Indian penal Code. ( 2 ) THE factual matrix, that are required for consideration, can be briefly stated as follows:- On 05-10-1997 at about 2. 00 a. m. namely intervening night of 04-10-1997 and 5-10-1997, Accused persons entered the premises of S. K. Agencies in Walker Town of secunderabad, threatened the watchmen p. W. M. Sanjeev Kumar and P. W. 3 G. Ramulu showing revolver and knives to bring keys from P. W. 2, opened the grill door and broke open one of the doors inside. When the watchmen resisted the gangmen, the gangmen beat both of them, put both of them along with cleaner Venkat Naidu inside a room forcibly and bolted the room from outside. They also broke open the other door lock and taken away 2 cash chests of Godrej company containing a cash of Rs. 10. 00 lakhs along with one goods auto bearing No. AP- 10t 698. At about 6. 00 a. m. one Mr. Raghu of rama Dharam Kanta, adjacent to the premises, came there to make a telephone call and on seeing him, the watchmen shouted and requested him to open the doors and they came out and told him about the incident. Mr. Man Mohan Das, Bhanwarlal and Natwar Das were informed by Murlidas about the incident, who are the partners of m/s. S. K. Agencies situated at New Boiguda. Then P. W. 1 Mr. Natwar Das rushed to the office after seeing inside the premises and missing of the articles presented a complaint ex. P-1, which was registered as Crime no. 317 of 1997 under Section 395 of the indian Penal Code and Ex. P-30 FIR of chilkalguda Police Station. On 16-11-1997 at about 10. 00 a. m. one Mr. Natwar Das rushed to the office after seeing inside the premises and missing of the articles presented a complaint ex. P-1, which was registered as Crime no. 317 of 1997 under Section 395 of the indian Penal Code and Ex. P-30 FIR of chilkalguda Police Station. On 16-11-1997 at about 10. 00 a. m. one Mr. Mekala Yadagiri noticed a goods auto bearing No. AP-10 T 698 at a distance of half kilometer in Nallavalli forest and also two iron boxes/chests at a distance of 10 feet from the auto. He presented a report to the Sub Inspector of Police zinnaram, which was registered as Crime no. lllofl997 under Section 102 of the Code of Criminal Procedure, as per Ex. P-2 complaint and as per Ex. P-3 FIR. The said fir was transferred to Chilakalguda Police station on the point of jurisdiction. During the course of investigation, on 04-01-1998 all the Accused were arrested and some of the stolen cash and silver ornaments were recovered from their respective possession in the presence of mediators. The Inspector of Police, East Zone, Detective Department, took over the investigation and laid the charge sheet against the Accused for the offence punshable under Section 395 of the Indian penal Code, after getting photographed the palm prints found on the properties and getting them examined by an expert and after recovering M. Os. 1 to 135. ( 3 ) THE plea of the accused for the charges framed under Sections 395 and 343 of the indian Penal Code is one of denial. The prosecution in all examined as many as 16 witnesses. Ex. P-1 is the complaint in Crime no. 317 of 1997 given at the earliest possible time. Ex. P-2 is another complaint lodged in police Station, Zinnaram. Both are registered as Ex. P-30 and Ex. P-3 and investigated into. P. Ws. 2 and 3 are eye witnesses and watchmen of M/s. S. K. Agencies, who are said to have been threatened and detained in a room and thereafter P. W. 2 identified A-l as one of the accused persons among the assailants. P. W. 2 also narrated the incident that took place on the intervening night of 4/5-10-1997. He was working as watchman in S. K. Agencies since four years. According to him, on the fateful day he attended duty at 05:00 p. m. and went to his house at about 09. P. W. 2 also narrated the incident that took place on the intervening night of 4/5-10-1997. He was working as watchman in S. K. Agencies since four years. According to him, on the fateful day he attended duty at 05:00 p. m. and went to his house at about 09. 00 p. m. for taking dinner and returned at about 10. 00 p. m. Ramulu was also doing duty from 06. 00 p. m. on that day. One lorry of their company came to the office during night at about 10. 00 p. m. and the cleaner venkat Naidu went outside and returned back after taking food. He further stated that himself and Ramulu duly locked the gate and the cleaner was sleeping on the lorry parked inside the compound wall. They have locked the grill of the office from outside and chitchatted for some time there and slept near the grill. It is his version that about 02. 00 a. m. on that night five persons entered their compound wall from backside and one of them cut telephone wire. On hearing the sound of cutting the telephone wire, he woke up and found one of them armed with a pistol and one person armed with a knife and also one person having a rod. They first demanded Ramulu to give keys, Ramulu said that he was not having keys and they were with him (P. W. 2 ). Again they asked him to give keys and when he said that he was not having keys, one of them gave blow and took the keys from his pants pocket. Then they opened the grill gate and forcibly took P. W. 2 and Ramulu inside the grill gate and made them to sit in the varandah. They closed the grill gate and thereafter they broke open the locks of the two side rooms, put himself and Ramulu in one room and bolted from outside. They searched the room for cash-chest. They again removed himself and ramulu from the room and asked them to show the chest. When they said that they could not show the chest, again they put them in the room and confined in the room. Thereafter the cleaner who was sleeping on the lorry was also brought and put in the same room. They again removed himself and ramulu from the room and asked them to show the chest. When they said that they could not show the chest, again they put them in the room and confined in the room. Thereafter the cleaner who was sleeping on the lorry was also brought and put in the same room. The assailants took the keys of auto from the board and taken away two chests in that auto. It is also his version that himself and Ramulu came to know about this when they were freed on the next day. In the morning at about 6. 00 a. m. , one Raju, night watchman in Rama Dharmakanta came to their office for telephoning. He could see him from the window and called him and he opened the doors and they came out of the room. He has identified A-l as one of the assailants and also identified M. O. 27 rod, m. 0. 28 revolver and M. O. 20 knife. He has also identified M. O. 22 chest. It is also in his evidence that he could identify A-l as he used to work as Hamali in Miyapur Godown. He has seen him first time in the court after the said incident. ( 4 ) P. W. 3 Ramulu also narrated the incident that took place. It is also his version that on the fateful night himself and P. W. 2 were doing duty as watchmen of the company and one lorry came to their office and was parked inside the main compound gate. The-cleaner of the lorry was sleeping on the lorry while him self and P. W. 2chitchatted till around 01. 00 a. m. and thereafter slept. On that night about 4 or 5 assailants came to them and one was holding revolver, one was holding knife and one was holding iron rod. The assailants took the keys from them after beating them and broke open the door and put himself, P. W. 2 and the cleaner of the lorry in a room and one person amongst them remained in the room having rod and the door was closed from outside. After some time they left himself, P. W. 2 and the cleaner in the room bolted it from outside and left the place. After some time they left himself, P. W. 2 and the cleaner in the room bolted it from outside and left the place. He identified A-5 present in the court as one of the assailants who was present for sometime with them in the room and did not identify the other assailants because they covered their faces with masks, it is also elicited in the evidence that A-5 also had mask, but after taking tobacco from him for chewing, he removed the mask. In the morning on the next day, one person belonging to Rama Dharmakanta came to their office for telephoning opened the door bolt on their request. The assailants took away the keys and also auto parked in the compound wall of their office. On the next day they found that the cash chests were carried away by the assailants in the goods auto parked in the premises, it is also his version that he went in the tempo of Eliah to both the houses of Mamuraja and Muralidas at Himayatnagar and informed them about the incident, thereafter P. W. 1 Natwar Das gave a report after visiting the premises. ( 5 ) P. W. 1 who is the partner of m/s. S. K. Agencies categorically states that they are the distributors of Hindustan Lever limited, Britannia, Horlicks and also for other companies such as M/s. Shamdass and Sons and M/s. Reetu Trading Company. They have got another agency by name Minal agency, situated at Tarnaka. The three agentiesnamelys. K. Agencies,m/s. Shamdass and Sons and M/s. Reetu Trading Company are being operated from the same premises. It is his further version that the sale proceeds of M/s. S. K. Agencies, M/s. Shamdass and sons and M/s. Reetu Trading Company, located in the premises No. 108/3, Walker town and the sale proceeds of Minal agencies were deposited in their office room located in S. K. Agencies, as they got cash chest in their M/s. S. K. Agencies office. Normally, the sale proceeds cash is deposited on the same day evening around 06. 30 or 07. 00 p. m. It is also his version that in order to identify the sale proceeds of a particular company, they used to put rubber stamp of the respective company in short form on the cash bundles. Thesaksmenofm/ask. Normally, the sale proceeds cash is deposited on the same day evening around 06. 30 or 07. 00 p. m. It is also his version that in order to identify the sale proceeds of a particular company, they used to put rubber stamp of the respective company in short form on the cash bundles. Thesaksmenofm/ask. Agencies put the rubber stamps as s. K. , M/s. Minal agencies as m. A. , M/s. Shamdass and Sons as s. S. and M/s. Reetu Trading Company as r. T. /950 . The number 950 is their account number. Thecashpertains to M/s. S. K. Agencies, m/s. Shamdass and Sons and M/s. Reetu trading Company, will be put in one cash chest and the cash pertains to M/s. Minal agencies will be put in another chest. The cash received by the salesmen will be entered in the concerned registers. It is also his version that his uncle Manmohan Das has received the cash on that day and informed him about the same and on that day they received rs. 3,82,943/- from M/s. S. K. Agencies, rs. 2, 14,830/- from M/s. Shamdass and sons and Rs. 76,480/- from M/s. Reetu trading Company. The cash pertains to each of the company will be put in separate chest. Res. 3,28,500/- from M/s. Minal Agencies was put in another chest. The total cash received on that day was Rs. 10,02,753/ -. It is also his version that at about 08. 00 p. m. they closed the office duly locking the cash chests and the office and left for their houses. He received a telephone call from his uncle mr. Manmohan Das informing that a dacoity took place in their office and the same was informed to him by watchman Ramulu. He immediately came to the office and found the locks of the office broken, doors were broken, all the material were scattered, two cash chests and one delivery auto bearing no. A. P.-l-T 698 were missing and learnt, about the incident from the watchmen and thereafter presented a report (Ex. P-1) to Police station Chilakalguda. He has also identified the cash bundles which were marked as m. Os. 1 to 14 and M. 0. 16 pair of silver ear studs, M. 0. 16 two small plate engraved as h. L. L. , M. O. 17 one small silver agarbatti stand having Laxmi Goddess. P-1) to Police station Chilakalguda. He has also identified the cash bundles which were marked as m. Os. 1 to 14 and M. 0. 16 pair of silver ear studs, M. 0. 16 two small plate engraved as h. L. L. , M. O. 17 one small silver agarbatti stand having Laxmi Goddess. M. O. 18 silver kumkum box, M. O. 19 four silver coins engraved as H. L. L. each kept in one plastic bag. M. O. 20 one coin of Goddess Laxmi kept in a plastic box, M. O. 21 one coin of Goddess laxmi of silver. He also identified M. O. 23 the auto bearing No. AP-10 T 698, which has been rediscovered by the police. ( 6 ) P. W. 4 K. Rajesh, who is the watchman of Rama Dharmakanta, situated atboyaguda, speaks about going to M/ s. S. K. Agencies for telephoning and finding P. Ws. 2 and 3 inside a room and that they were kept in the room and bolted from outside and those persons asking him to remove the bolt from outside. He also speaks about the five assailants attacking them. ( 7 ) P. W. 5 Mr. Manmohan Das speaks about receipt of the cash and also P. Ws. 2 and 3 being watchmen on that day. He has also deposed that P. W. 3 informed him that on the previous night five assailants came to their office, threatened him with knife and committed decoity and took away the cash chests and auto. It is also his version that he observed in the office that all the articles were scattered on the ground and the two cash chests and one goods auto, which was kept inside the compound wall, were found missing. He further deposed that a balance of Rs. 10,02,753/- pertaining to the four business concerns, Pooja samans, which were silver articles were in the almyrah. The total amount missing from chests was reported to police after verifying the registers with the permission of the police. He identified m. Os. 1 to 14,16 to 18,24 to 26 locks, M. 0. 23 goods auto and M. 0. 22 two cash chests. It is also his version that all the three agencies namely M/s. S. K. Agencies, M/s. Shamdass and Sons and M/s. Reetu Trading Company, are being managed by P. W. 5. He identified m. Os. 1 to 14,16 to 18,24 to 26 locks, M. 0. 23 goods auto and M. 0. 22 two cash chests. It is also his version that all the three agencies namely M/s. S. K. Agencies, M/s. Shamdass and Sons and M/s. Reetu Trading Company, are being managed by P. W. 5. ( 8 ) P. W. 6 Mohan Das is a partner of m/s. S. K. Agencies and is also a partner of m/s. Minal Agencies situated near Tarnaka. According to him P. W. 1 was managing all the firms. He will receive sale proceeds of m/s. Minal Agencies from the salesmen, which is situated at Tarnaka, and will take the same to M/s. S. K. Agencies for depositing daily and their cash will be put in separate chest. According to him on 04-10-1997 he received an amount of Rs. 3,28,500/- from his salesmen and took the same to m/s. S. K. Agencies, got prepared currency notes in 100 denomination in bundles and kept the same in the cash chest. On the intervening night of 4/5-10-1997, there was theft in the premises of M/s. S. K. Agency and the entire cash and two cash chests were taken away. They used to put rubber stamp of their company s name in short form as m. A. on cash bundles and he identified m. Os. 1, 2, 5 and 9 as the cash bundles pertaining to their company deposited in m/s. S. K. Agencies. He learnt about the theft from P. W. 5. He visited the premises of m/s. S. K. Agencies and found theft of cash, silver pooja articles, silver coins and one goods auto. According to him his cash will be kept in the chest, keeping in a bag. There is no record regarding handing over the cash to P. W. 5. P. W. 5 did not maintain record about receipt of cash from him. ( 9 ) P. W. 7 Mr. P. Chandra Sekhar, who is working as Sub Inspector of Police, Zinnaram, medak District, since 06-11-1996, deposes about receiving information from one yadaiah on 06-11-1997 regarding finding of auto bearing No. AP-10 T 698 and two cash chests in broken condition and thereafter obtaining complaint Ex. P-2 and FIR Ex. P-3. He identified Ex. P-4 seizure panchanama in respect of M. Os. 22 and 23, wherein the articles were seized. P-2 and FIR Ex. P-3. He identified Ex. P-4 seizure panchanama in respect of M. Os. 22 and 23, wherein the articles were seized. He has also identified m. O. 22 the two chests and M. O. 23 the seized auto. According to him he conducted panchanama before registering FIR. He put the crime number out of his memory even though the FIR was not registered. When he wanted to deposit the properties before the court, the Magistrate did not receive the same and then the CCS people received the same. ( 10 ) P. W. 8 Mr. B. Venkat Rao deposed about his acting as panchayatdar at the time of observing the scene of offence. According to him, the articles were scattered on the ground and found locks of doors broken and lying. There were one knife and a rod lying on the ground and the police seized the broken locks and iron rod and knifelike instrument. They have also observed a revolver there. According to him M. Os. 24 to 26 were broken locks and door handle lock, m. O. 27 is the iron rod and M. O. 28 is the revolver found there. M. 0. 29 is the knife like instrument found there. ( 11 ) P. W. 9 Mr. D. Pochaiah, who is finger print expert in Finger Print Bureau, State crime Record Bureau, Hyderabad, working as Finger Print Expert since 1971. He deposed about the examination of scene of offence including the entrance and exit and finding of two chance prints on the door of the room, one chance print on steel almyrah, one chance print on the suit case and one chance print on another almyrah. He got photographs of the chance prints through his cameraman kishan Rao attached to N. F. S. L. Out of the photographs taken, four chance prints were found unfit for comparison, i. e. , prints marked as B. C. D. E. in his report. The chance prints A and F are found to be fit for comparison. The chance print a was found on the door of the entrance room, the chance print f was found on Steel Almyrah, were found to be fit for comparison. The chance prints A and F are found to be fit for comparison. The chance print a was found on the door of the entrance room, the chance print f was found on Steel Almyrah, were found to be fit for comparison. It is also his further version that he compared the chance prints with the finger prints of A-l to A-5 and found that the chance print marked as a is identical with palm print of A-2 N. Motilal s/o. Chandraiah and the chance printmarked as f is identical with the portion of palm print of A-4 L. Srinivas s/o. late Kishan Rao. He submitted his report Ex. P-7, to the inspector of Police. Exs. P-8 and P-9 are the comparison photographs of A-2 and A-4. He also gave his opinion that the chance prints a and f tallied with the portion of palm prints of A-2 and A-4 respectively. ( 12 ) P. W. lomr. Mohd. Saleemuddin, who is a member of Gram Panchayat of Narsapur village, deposed that on 04-01-1998 at about 10. 00 a. m. , CCS police of Hyderabad apprehended A-2 Motilal at Srinivasa Wines on the Main road at Narsapur. He identified a-2 in the court. On the strength of the information that he concealed Rs. 1,40,000/- in the dicky of his scooter, the police seized the cash of Rs. l,40,000/-in his presence. Ex. P-ll is the information given by A-2 in his confession. It is also his version that the police seized the cash of Rs. 1,40,000/-, a revolver and the scooter of A-2 in his presence and in the presence of another panch, under panchanama and they attested the panchanama. It is also his version that on currency note bundles, there were stamps of m. A. , s. K. . The papers pertaining to scooter were also seized by the police. It is his evidence that A-2 has given information about the involvement of A-l Ramaswamy; a-3 Nagaraju; A-4 Vasu and A-5 Durgaiah and promised to show them. The admissible portion is marked as Ex. P-13. A-2 led them to the house of Nagaraju A-3 in Premnagar, narsapur and showed A-3, who was present in his house. On enquiry with A-3, A-3 brought Rs. 77,000/- cash from his house. He went inside and brought the cash while p. W. 10 was standing outside, and the police seized the same in their presence. P-13. A-2 led them to the house of Nagaraju A-3 in Premnagar, narsapur and showed A-3, who was present in his house. On enquiry with A-3, A-3 brought Rs. 77,000/- cash from his house. He went inside and brought the cash while p. W. 10 was standing outside, and the police seized the same in their presence. A-3 also showed his scooter in his house and the police seized the same. Since A-3 told that he purchased that scooter with the amount which was the subject matter of theft. Scooter was also seized along with the documents. The cash recovered from A-3 was in the denomination of Rs. 100/- and Rs. 50/- notes and he could not give the details of the notes, but the same were written in panchanama. Ex. P-14 is the relevant portion regarding the seizure of cash and scooter. ( 13 ) A-2 and A-3 led them to the house of a-l situated in Manthur, which was at a distance of 8 kms. from Narsapur. A-2 and a-3 showed Ramaswamy A-l in his house. Police interrogated A-l in their presence. A-l has given information that he concealed rs. 1,00,000/- in his almyrah and promised to show it, and also gave information that he concealed some silver coins in his almyrah. The admissible portion of the information is marked as Ex. P-15. He is unable to give the details of the cash, but he can identify the silver coins and plates, which are seized under panchanama. M. O. 16 are the silver plates, M. O. 19 are the silver coins and m. O. 32 is the steel almyrah, which is also seized by police. The seizure panchanama is ex. P-16. ( 14 ) ON the information given by A-2, which was already marked as Ex. P-11, A-2 and other accused took them to Yavapur village to the house of Durgaiah A-5. Police interrogated A-5 and he gave information that he concealed cash of Rs. 37,600/- in box and promised to show the same. The admissible portion of the information is marked as Ex. P-17. In pursuance of the said information he took out the cash from trunk and the total cash is Rs. 37,000/- in various denominations. He also told that he purchased one Luna moped and the police seized the said Luna and cash under panchanama. Ex. P-18 is the relevant portion of panchanama. P-17. In pursuance of the said information he took out the cash from trunk and the total cash is Rs. 37,000/- in various denominations. He also told that he purchased one Luna moped and the police seized the said Luna and cash under panchanama. Ex. P-18 is the relevant portion of panchanama. M. O. 33 is the Luna. It is also his versions that at the place of recovery, concerned panchanamas were written and he attested the same. On the currency bundles markings of m. A. , s. K. and s. S. are found. Out of M. Os. 1 to 14 some of the cash bundles are recovered from A-l, A-3 and A-5. He cannot say which of the cash bundles are recovered from which of the accused since the marks of M. A. , s. K. and s. S. are found on the bundles. He could not identify the same. Witness stated as above when he was shown the entire cash bundles M. Os. 1 to 14. ( 15 ) DURING cross-examination, he has stated that the police obtained his signatures on 10 to 20 papers. He does not know the contents of panchanama on which his signatures were obtained. This witness treated as hostile. ( 16 ) P. W. 11 Mohd. Riazuddin, who is a resident of Narspur, also states that the C. I. of Police told them that A-l to A-4 committed theft and asked them to sign on panchanama and accordingly, they signed on the panchanama. It is also his version that he found some cash on the table and he does not know whether the cash and other articles recovered on the in formation given by A-l to a-3 and A-5. Nothing was seized in his presence from them. His signatures were found on the panchanama on Exs. P-19 to p-22. This witness also turned hostile. ( 17 ) P. W. 12 is V. Lakshminarasimha Rao stated that on 04-01-1998 at about 8. 00 or 8. 30 p. m. On hearing the commotion in the 2nd floor of his house bearing No. 1-8-7/3, at chikkadpalli, he went to the 2nd floor and found CCS police and A-4 Srinivas in the custody of the police. The police asked him to act as mediator. There was another panch. Police told them that they arrested A-4 recovered cash of Rs. 87,000/- from a bag and Rs. The police asked him to act as mediator. There was another panch. Police told them that they arrested A-4 recovered cash of Rs. 87,000/- from a bag and Rs. 700 /- from his pocket and one pair of kammalu, and shown the same to them. The police also have told them that they have recovered some papers of LML scooter from a-4. Panchanama to that extent was conducted and he attested the same. Police seized the articles alleged to have been recovered from A-4 in their presence and their signed chits were affixed to the said articles. This witness is treated hostile. According to his statement in cross- examination, police interrogated A-4 in their presence and A-4 has taken out the cash of rs. 87,000/- from the bag Rs. 700/- and one pair of gold kammalu from his pocket and produced the same before them. The accused also stated that he purchased Vespa-M. 0. 34 and produced the documents Exs. P-24 to p-29 and the police seized the same in their presence. On the cash there are marks of m. A. , s. K. recovered from the bag and he found the marks of r. T. 950 and s. S. . It is his further version that on the date of seizure it was his daughter s birthday. They did not enquire A-4 as to where and when he purchased m. O. 15. Police obtained their signatures on some chits and also on the panchanama ex. P-23. Their signed chits were not affixed on any of the articles in their presence. After panchanama he went to his house. ( 18 ) P. W. 13 is M. Yadagiri. According to his version, on 06-11-1997, while himself along with Laxma Reddy, Narasinha Reddy were going to Narsapur on scooter, they saw s. I. of police and they all went inside the forest and saw one goods auto abandoned there. The villagers and police already know about the said auto. Police asked him to give a report and accordingly he gave a report in the evening at the police station. Ex. P-2 is the report given by him and it bears his signature. M. O. 23 is the same abandoned auto, which has been found in the forest area. This witness is also treated hostile. Police asked him to give a report and accordingly he gave a report in the evening at the police station. Ex. P-2 is the report given by him and it bears his signature. M. O. 23 is the same abandoned auto, which has been found in the forest area. This witness is also treated hostile. ( 19 ) P. W. 14, V. Prakash Rao, Inspector of police, Intelligence Department, Hyderabad, speaks about receiving the complaint on 05-10-1997 at 10. 00 a. m. and registering a case in Crime No. 317 of 1997 under Sec. 395 of the Indian Penal Code and issuing FIR and sending it to all concerned. ( 20 ) P. W. 15, Afsar Ali Khan, speaks about observing the scene of offence after receipt of fir from Chilkalguda Police Station and finding missing of cash chests and existence of iron rod and open locks and finding of telephone wire being cut. Later further investigation was taken up on 09-10-1997 by sri Sharifuddin. It is also further stated that inspector and another S. I. of Chilkalguda and the staff were present at the scene of occurrence when he visited the scene of occurrence at 12. 00 noon. He did not enquire with them as to at what time they arrived. They were also observing the scene of occurrence. He was there at the premises on that day till 09. 30 p. m. He was one of the inspectors of Anti Decoity and Robery in ccs, Hyderabad, working since 05-10-1995. ( 21 ) P. W. 16,sk. Sharee fuddin speaks about his taking up of the case for further investigation from P. W. 15, examination of witnesses. According to him he intercepted the accused Motilal (A-2) at 09. 45 a. m. with the assistance of C. Sivaramulu, C. I. of Police, narsapur and his staff at Narsapur cross roads, in the presence of Mediators P. Ws. 10 and 11, while he was going on Bajaj Chetak scooter. A-2 confessed that he concealed stolen cash in scooter dicky and also a part of the amount in his pocket and also gave information that a toy revolver used in the offence was concealed in the dicky. The relevant information is P. W. 11. He drew the panchanama and the relevant information is exs. P-11 and P-12. A-2 confessed that he concealed stolen cash in scooter dicky and also a part of the amount in his pocket and also gave information that a toy revolver used in the offence was concealed in the dicky. The relevant information is P. W. 11. He drew the panchanama and the relevant information is exs. P-11 and P-12. The accused also gave information about the involvement of A-3, a-5, A-4 and A-l. The relevant information is Ex. P-13. In pursuance of the information given by him, the accused showed the money and he seized the currency notes worth Rs. 1,40,000/- and also toy pistol (M. O. 28) and also seized Rs. 3,40,000/- cash produced by accused from his pocket. He also speaks about A-2 leading them to the house of co-accused Nagaraju (A-3) situated at Premnagar, Narsapur bearing H. No. 1-48. He has shown A-3 in his house. He arrested and interrogated A-3 in the presence of mediators P. Ws. 10 and 11, at the house of a-3. A-3 gave information that he concealed stolen cash of Rs. 75,000/- in polythene bag concealed in his room and a part of the amount in his pocket. It was about Rs. 2,000/- and A-3 also confessed that he purchased scooter out of stolen cash which was parked at his house. The information given by him is ex. P-39. In pursuance of information given in Ex. P-39, the accused brought the cash which was concealed under the bed and produced and also produced Rs. 2,000/- from his pocket and the same was seized by him along with Scooter bearing Engine No. 33mb dg 31202 with chasis No. 06fbdg 29655 (M. O. 34) and connected documents. He further states that he seized the above items of property in the presence of mediators, under panchanama Ex. P-14. From there they went to the house of A-4, but A-4 was not found there. A-4 belongs to the same village. A-2 lead them to Mantur village of Narsapur mandal to trace out A-l Ramaswamy. A-l was present at his house and he was arrested and interrogated in the presence of same mediators. A-l confessed that he conceale rs. 1,00,000/- stolen cash in his almyrah and the said almyrah was also purchased out of stolen cash. He gave information that stolen silver coins were also kept in almyrah. A-l was present at his house and he was arrested and interrogated in the presence of same mediators. A-l confessed that he conceale rs. 1,00,000/- stolen cash in his almyrah and the said almyrah was also purchased out of stolen cash. He gave information that stolen silver coins were also kept in almyrah. A-l also gave information that he concealed knife in the almyrah which was used in the commission of offence. He produced loose cash of Rs. 4,370/- from his pocket. He showed the almyrah and opened the same and they found cash of Rs. 1,00,000/-, silver coins and knife and silver articles. P. W. 16 seized the cash of Rs. 1,00,000/-, silver coins, silver articles and knife from the almyrah and also seized the almyrah and the cash produced from his pocket under panchanama Ex. P-16. M. Os. 16 to 19 are silver articles. M. O. 29 is the knife. The cash seized from almyrah were in bundles having corporation Bank slips and rubber stamps. M. O. 32 is the steel almyrah, seized under panchanama. ( 22 ) IT is also his further version that A-2 and other accused led them to Yawapur village, in Toopran Mandal and pointed to the house of A-5. A-5 was present in the house and he was arrested at 16. 45 hours and interrogated in the presence of same mediators. A-5 gave information that he concealed stolen cash in his hut in a trunk and also confessed that he purchased a moped, which was parked at his house. The information leading to recovery was Ex. P-17. A-5 showed the trunk and opened the same and they found cash of Rs. 37,600/- in different denominations. He seized the cash and moped under panchanama Ex. P-18. M. O. 33 is moped. The cash was also having corporation Bank slips and rubber stamps of companies. Thereafter the accused led them to the room of Vasu (A-4) situated at chikkadpalli in Hyderabad bearing no. 1-8-7/3, Sarvodaya Colony. A-4 was present at his house, which was pointed out by accused. A-4 was interrogated in the presence of P. W. 12 and another. A-4 gave information that he purchased one LML vespa scooter out of stolen cash and also kept cash of Rs. 87,000/- in his room and also rs. 700/- cash in his pocket and promised to show the same. The admissible portion is ex. P-40. A-4 was interrogated in the presence of P. W. 12 and another. A-4 gave information that he purchased one LML vespa scooter out of stolen cash and also kept cash of Rs. 87,000/- in his room and also rs. 700/- cash in his pocket and promised to show the same. The admissible portion is ex. P-40. In pursuance of said confession the accused (A-4) showed the cash concealed in canvas bag in his room. He seized cash of rs. 87,000/-and also cashofrs. 700/-keptin his pocket and also LMI. Vespa under panchanama Ex. P-23. The LML Vespa scooter bears Engine No. IPD 826010 and Chasis no. C1qd 834681 withreg. No. AP10k1805. It was parked in front of the gate. He seized the same and also relevant documents. He further states that he also seized one pair of gold ear studs from the possession of accused. M. O. 15 was the same. He seized the cash, lml Vespa (M. 0. 34) and ear studs (M. O. 15) under seizure panchanama Ex. P-23 in presence of P. W. 12 and one Raju. The cash was in bundles having Corporation Bank slips and rubber stamps of the companies, such as m. A. . s. A. , s. S. , rt/950 . It is also in his evidence that he sent the accused persons for judicial remand. Since the cash was mixed while depositing in court it was difficult to identify how much cash was recovered from which accused. He received the opinion of Finger Print Expert. He also collected the auto trolley (M. O. 23) and two cash chests (M. 0. 22) from Zinnaram Police. He also collected documents from Zinnaram police Station such as panchanama and FIR and thereafter he filed the charge-sheet. ( 23 ) AFTER trial the lower court found A-l to A-5 guilty for the charges under Secs. 395 and 342 of the Indian Penal Code and convicted and sentenced each of them as stated above. Aggrieved by the same A-l, a-3, A-4 and A-5 preferred Criminal Appeal no. 444 of 1999 and A-2 filed Criminal Appeal 216 of 1999. ( 24 ) A State brief counsel has been appointed, not knowing about the preferring of Appeal by A-5 through a counsel. Hence, there is no need to entertain the Criminal appeal No. 1310 of 2002, filed on behalf of a-5 by the State brief counsel. 444 of 1999 and A-2 filed Criminal Appeal 216 of 1999. ( 24 ) A State brief counsel has been appointed, not knowing about the preferring of Appeal by A-5 through a counsel. Hence, there is no need to entertain the Criminal appeal No. 1310 of 2002, filed on behalf of a-5 by the State brief counsel. ( 25 ) THE point for consideration is whether the prosecution has proved the guilt of the accused beyond all reasonable doubt for the charges under Sections 395 and 343 IPC. ( 26 ) IT is the case of the prosecution that on 05-10-1997 atabout02. 00a. m. at the premises of M/s. S. K. Agencies, Walker Town, secunderabad, five persons entered the premises detained the watchmen namely p. Ws. 2 and 3 and threatened them with knives and pistol and taken away two cash chests as well as the goods auto from the premises. They kept watchmen and others inside a room and bolted from outside and left. They got released themselves with the help of P. W. 4, when he came to the said premises for telephoning and informed the same to P. W. 1 Natwardass, who in turn visited the premises and found the chests, cash and also auto missing and presented a report-Ex. P-1 before the Chilakalaguda police Station. Thereupon P. W. 14 registered fir in Crime No. 317 of 1997. In the mean while, the auto was found near forest area and the same was seized by Zinnaram Police after registering it as Crime No. 111 of 1997 on the strength of report given by P. W. 13 m. Yadagiri. Thereafer, the investigations have been conducted and charge-sheet has been laid by the Inspector of Police, East zone, Detective Department, CCS, Hyderabad. ( 27 ) THE prosecution has placed the ocular evidence as well as circumstantial evidence namely recovery of properties in pursuance of the confessions made by the accused. The prosecution has also placed palm impressions, which were found at the scene and examined by the expert who deposed that they tally with the impressions of A-2 and A-4. ( 28 ) IN an appeal against the conviction, this Court is bound to reappriase the entire evidence and come to fresh conclusion while keeping in view all the findings arrived at by the Sessions Jm ge and also the reasons given, to arrive at a just finding. ( 28 ) IN an appeal against the conviction, this Court is bound to reappriase the entire evidence and come to fresh conclusion while keeping in view all the findings arrived at by the Sessions Jm ge and also the reasons given, to arrive at a just finding. ( 29 ) P. WS. 2 and 3 are the eye witnesses, who narrated the incident. P. W. 2 identified a-l as one of the persons amongst the assailants. P. W. 3 identified A-l and A-5. P. W. 3 identified A-l as he worked as Hamali at Miyapur godown of their agency. ( 30 ) IT is mainly contended that the- assailants names were not mentioned in the fir and if really they were identified they could have given out the names to P. W. 1, who in turn would have mentioned their names. It is well settled law that FIR is not an encyclopedia of all the evens. FIR need not contain all the material particulars since all the particulars will come out only during the course of investigation by police and during investigation names of the persons who are identified can always be disclosed and they can be charged later on. No. identification parade has been conducted in this case. P. W. 1, cannot give out the names of the persons who are responsible for the dacoity, as he learnt about it only in the morning on the strength of information given by P. W. 3 and also after his visit to the scene of offence. P. Ws. 1 and 2 categorically stated that A-l previously worked as Hamali and both of them have stated that they knew A-l. The evidence discloses that some of the accused were not wearing masks. P. W. 3 has stated that A-5 was having mask when he first came and when he was inside the room, he removed the mask, obtained tobacco from him for chewing. It appears that he is having defective eyesight. But, he states that he can see the nearer articles. The evidence of p. W. 3 appears to be natural as he appeared to have supplied tobacco to A-5 for chewing. If his version is taken into consideration, there is no artificiality in his version. In all probability, he must have identified A-5 as he supplied tobacco to him. If the evidence of p. Ws. The evidence of p. W. 3 appears to be natural as he appeared to have supplied tobacco to A-5 for chewing. If his version is taken into consideration, there is no artificiality in his version. In all probability, he must have identified A-5 as he supplied tobacco to him. If the evidence of p. Ws. 2 and 3 is taken into consideration, it can be said that their identification is natural and trustworthy. No doubt, the cleaner, who was detained along with P. Ws. 2 and 3, namely Nagaraju was not examined. It does not in any way falsify the version of P. Ws. 2 and 3. Moreover, there is absolutely no motive to speak falsehood with regard to the identification. They are said to have been threatened and beaten and keys were snatched away from them. They have seen the accused armed with pistol and knife and they were detained in a room, bolting it from outside. The version given out by P. W. 2, corroborate the version of P. W. 3. This fact is corroborated by the version of P. W. 4 also since he states that he noticed P. Ws. 2 and 3 inside a room, which was bolted from outside and he went to their rescue and removed the bolt of the door. Hence, the version of P. W. 4 is natural and trustworthy. He is said to be working in Rama Dharmakanta and he is said to have come there in the morning at 6. 00 a. m. to make a telephone call to his owners and he has noticed the same. His version is also natural. There is no motive for him to speak falsehood. Hence, he corroborates the evidence of P. Ws. 2 and 3 regarding the incident that took place. P. Ws. 2 and 3 identified A-l and A-5. In view of the corroboration, I have no hesitation to find that the evidence of P. Ws. 2, 3 and 4 is believable. The prosecution is also forthcoming with the Res gestae evidence as spoken to by P. W. 1, in respect of the incident and also about the reporting the matter by p. W. 2 to P. W. 1, who in turn gave a report to the Police, under Ex. P-1, which led to registration of FIR. Hence, I am of the considered view that the evidence of P. Ws. P-1, which led to registration of FIR. Hence, I am of the considered view that the evidence of P. Ws. 2 and 3 is reliable and trustworthy in view of the prosecution proving the factum of identification of A-l and A-5 through p. Ws. 2 and 3. ( 31 ) IT is next to be seen whether this Court can place reliance upon the evidence regarding the alleged recoveries made in pursuance of confessions. The mediators who are said to be present at the time of confession turned hostile and they did not support the version. P. W. 10, who is a member of the gram Panchayat, categorically states that he deposed previously in his chief examination due to the pressure by police and he did not see the accused persons previously. He also further stated that material objects he identified in the court are only seen for the first time in the court. Thus, no reliance can be placed on the testimony of P. W. 10 as he is giving different versions. The other mediator i. e. , P. W. 11 also turned hostile. He only identified his signatures said to have been found on Exs. P-9 to P-22. His evidence does not support the persecution theory. P. W. 7, the Investigating Officer, states that he conducted panchanama before registering fir and he gave out the crime number out of his memory without registering the FIR. He speaks about the seizure in the presence of mediators Kandi Narasimhulu and Yadagiri. But, Yadagiri, who was examined as P. W. 13, did not support the prosecution. P. W. 13 stated that he gave the complaint at the instance of the police and by then the police and several people were present having found goods auto. Hence, all is not well with the investigation. Moreover, the confessional statements recorded by the police do not contain the signatures or thumb impressions of the concerned accused. It is categorically stated by the Apex Court in Jackaran Sing v. State of Punjab that no credibility can be given to such disclosure statement, when it does not contain signature or thumb impression of the accused. The relevant portion is as follows:"8. So far as the conscious possessions of the weapon Ex. M/o/4 is concerned, the disclosure statement, Ex. P-9 inspires no confidence. The relevant portion is as follows:"8. So far as the conscious possessions of the weapon Ex. M/o/4 is concerned, the disclosure statement, Ex. P-9 inspires no confidence. Firstly because none of the two panch witnesses, Yash Pal and sukhdev Singh, ASI, have been examined at the trial and secondly because the disclosure statement does not bear the signature or the thumb impression of the appellant. Even, the recovery memo of the revolver and the cartridges, Ex. P-9/a which is also attested by Yashpal and sikhdev Singh does not bear either the signatures or thumb impressions of the accused. The absence of the signatures or the thumb impression of an accused on the disclosure statement recorded under section 27 of the Evidence Act detracts materially from the authenticity and the readability of the disclosure statement. According to the defence version the appellant had been arrested during the night intervening 15-16 June, 1984 and not on 23rd June, 1984, as alleged by the prosecution. The statement of P. W. 4, surinder Kumar to the effect that "i had seen the accused in the police station for the first time after about 13-14 days of the occurrence" probabilities the defence version. The prosecution case that the appellant was arrested on 23-06-1984 and led to the recovery of the revolver and the cartridges pursuant to the disclosure statement, therefore, becomes suspect. We are unable to place any reliance upon the alleged disclosure statement and the recovery of the revolver and consequently the opinion of the Ballistic export connecting the empties with ex. M/o/4 become irrelevant. The appellant has denied ownership of the crime revolver and the prosecution has led no evidence to show that the crime weapon belonged to the appellant. There is no other circumstance pressed into aid by the prosecution to connect the appellant with the crime. The prosecution has thus not been able to establish the case against the appellant beyond a reasonable doubt. We, therefore, accept his appeal and set aside the conviction and sentence recorded against him. The appellant is on bail. His bail bonds shall stand discharged. " ( 32 ) HENCE, it is clear that none of the disclosure statements namely, confessional statements m de by the appellant do not contain the signatures or thumb impressions of the accused and they cannot be given any weight. The appellant is on bail. His bail bonds shall stand discharged. " ( 32 ) HENCE, it is clear that none of the disclosure statements namely, confessional statements m de by the appellant do not contain the signatures or thumb impressions of the accused and they cannot be given any weight. Moreover, the panch witnesses do not support the case of he prosecution regarding the correctness and authenticity of the alleged seizure. Hence, in view of the principles laid down by the Apex Court in the case stated (1) supra, the confessional statements produced are invalid and no reliance can be placed on the said statements. Moreover it is unbelievable that the accused has kept the money in his scooter dicky and a toy pistol and going round. The seizure also appears to be made almost three months after the incident. If the said circumstances are taken into consideration, much weight cannot be given since nobody will keep the cash and toy pistol in the scooter dicky and go round to be apprehended by the police. ( 33 ) IN so far as the contention of the counsel appearing for A-2 that he has been illegally detained for more than 65 days by the police and thereafter produced before the court, there is absolutely no evidence placed before the court regarding the same, except drawing the attention of the court to circumstances, namely, recovery has been made three months after the incident. Even the accused has not made any attempt to claim, except mentioning the same in the examination under Section 313 of Code of Criminal procedure. The circumstances mentioned are not sufficient to find about the illegal detention in the absence of any material or legal evidence. Therefore, finding cannot be arrived at about the alleged illegal detention. As the seizure is found to be invalid, much value cannot be given to the alleged seizure of the properties. I also state that the actual words uttered by the accused have not been reduced into writing by the investigating officer (P. W. 16) in the statement of the accused which was recorded during the course of his investigation. When once the disclosure statements do not contain the actual words uttered by the accused, which led to the discovery, the same cannot be taken into consideration. When once the disclosure statements do not contain the actual words uttered by the accused, which led to the discovery, the same cannot be taken into consideration. I must state that proper evidence has not been let in by the prosecution in respect of the alleged disclosure statements. In fact, in Ex. P-11, some portion of the confessional statement recorded, is inadmissible. The portion "the revolver which I used in the commission of offence" is certainly inadmissible as it is hit by Section 27 of the Indian Evidence Act. The portion marked in Ex. P-13 as confessional statement of A-2 is totally inadmissible, since there is no discovery or recovery of the property. What he stated is that "if police and panchas follow me, I will show my associates Nagraj, Durgaiah, Vasu and ramaswamy", which is totally inadmissible ex. P-15 also absolutely inadmissible, since he speaks about keeping the stolen silver coins and articles in the almyrah. ( 34 ) IN view of the above inadmissible evidences, I am not prepared to act upon the alleged seizures of the vehicles, money etc. I find that the evidence placed before the court is inadmissible and it cannot be acted upon, for want of signatures of the accused on the alleged confessional statements and also from the fact that some of the confessions leading to discovery are found to be defective and hit by Section 27 of the Evidence Act. Hence, I find that the recoveries said to have been made due to the confessions made by the accused cannot be believed as the confessions are not obtained as per law and not proved before the court also as per law. ( 35 ) THE next circumstantial evidence placed by the prosecution is finding of palm impression at the scene and then taking photographs and comparing them with the palm impressions of A-2 and A-4. P. W. 9 is d. Pochaiah and is working as Finger Print expert in Finger Print Bureau, State Crime record Bureau, Hyderabad, since 1971. He underwent training for 6 months at hyderabad. He visited the scene of occurrence at the request of the Chilkalguda police on 05-10-1997. It is his version that out of the photographs taken four chance prints were found unfit for comparison and two chance prints i. e. , A and F are found fit for comparison. He underwent training for 6 months at hyderabad. He visited the scene of occurrence at the request of the Chilkalguda police on 05-10-1997. It is his version that out of the photographs taken four chance prints were found unfit for comparison and two chance prints i. e. , A and F are found fit for comparison. He compared the chance prints with the preserved finger prints pertaining to the persons involved in the property crimes and they were not identical. Subsequently, the Police, CCS sent the finger prints of A-l to A-5 and on verification he found that the finger prints of A-2 were found identical to chance print a and the finger prints of A-4 were found identical with the chance print f . Ex. P-7 is his report for comparison of photographs. Exs. P-8 and P-9 are the comparison photographs of A-2 and A-4. It is a case of finding the palm prints at the scene of occurrence, taking their photographs and then calling for an expert opinion for comparing them. The admissibility of those palm prints has to be decided since Sec. 45 does not make a mention regarding the palm prints and only refers to finger prints. Section 45 of the Indian Evidence Act reads as follows:"section 45: Opinions of experts - When the Court has to form an opinion upon a point of foreign law, or of science, or art, or as to identity of hand writing or finger impressions, the opinions upon that point of persons specially skilled in such foreign law, science or art, or in questions as to identity of handwriting or finger impressions are relevant facts. " ( 36 ) THE admissibility of the palm prints has been considered in a decision rendered by the Bombay High Court in Emperor v. Babulal Behari and others, and relevant portion is as follows: "the question as to opinion presents some difficulties. The wording of the section admits opinion as to finger impressions. Does this include palm impressions, and is there a science of such impression? As is observed by woodroffe and Ameer Ali, 8th edn. (1925), p. 427: the words "science or art" if interpreted in a narrow sense, would exclude matters upon which expert testimony is admissible both in England and America, such as questions relating to trades and handicrafts. The general rule laid down by Taylor, Vol. As is observed by woodroffe and Ameer Ali, 8th edn. (1925), p. 427: the words "science or art" if interpreted in a narrow sense, would exclude matters upon which expert testimony is admissible both in England and America, such as questions relating to trades and handicrafts. The general rule laid down by Taylor, Vol. 2 (11th edn.), S. 1418, is that:"the opinion of the witnesses possessing peculiar skill is admissible, whenever the subject matter of inquiry is such that inexperienced persons are unlikely to prove capable of forming a correct judgment upon it without such assistance; in other words, when it so far as to require a course of previous habit or study, in order to obtain a complete knowledge of its nature. In the present case it is apparent from photographs and the fifty seven points that, without Mr. Saldanha s assistance, it would be next to impossible to appraise the similarities or otherwise of the impressions. As regards science: Mr. Saldanha has gone to the length of saying that he is prepared to swear that the impression on the hand cannot be the impression of anyone but that particular accused, because these ridges and furrows on the palm do not change and are different in the case of each individual. The skin of the finger and the palm is after all one and the same, belonging to one organ, the hand, and possessing precisely the same characteristics. But while the whorls and the loops of the fingers have been observed in the case of millions of individuals and accurately classified, so that the probabilities are millions against a mistake as to the identity of finger prints in the case of two individuals, scientific observation, classification and inference in the case of palm prints is neither so accurate nor so great. Mr. Saldanha himself admits that this comparison of palm prints has not been decisive in any previous case in his own observations. It is also to be observed that in India the opinion of expert illiterate trackers called "puggees" has invariably been admitted by Courts in different provinces, including, to my own knowledge, Sind, without any exception having been taken as far as I am aware and has been valued as evidence. Under these circumstances i think that palm impressions are akin to finger impressions. The knowledge of both is a study for the same class of expert. Under these circumstances i think that palm impressions are akin to finger impressions. The knowledge of both is a study for the same class of expert. They are in fact a portion of the same science, though it has not been found necessary by the police and other experts to develop the science of palm impressions to the same extent that finger impressions properly so called have been developed. It appears to me on the whole that such opinion should be admitted rather than excluded, to be weighed by the Court and the jury for whatever it is worth". ( 37 ) IT can be seen from the said observations by the Bombay High Court that it is science. In fact, comparison of palm prints is a developing science. The expert is entitled to speak about the same by comparing the palm prints. He could show that they belonged to the same person. He has noticed similarities by taking points in palm prints. I have also examined the points picked out by the expert. They tallied. The chance palm prints found in this case at the scene almost tally with the palm prints of a-2 and A-4. It is a developing science and there is no reason to reject the said science, when it is based upon cogent reasons. This aspect has already been considered by the bombay High Court. As the dacoity was committed wearing masks, the only left out alternative is comparison of finger impressions or palm impressions found at the scene. An expert is entitled to speak about similarity of the palm prints and ask the court to accept the same. When palm prints tally, it conclusively shows the presence of the accused at the scene of occurrence. In spite of the fact that words, palm prints are not mentioned under Sec. 45, it does not in any way deter the court from considering the advancement made in the science regarding comparison of palm prints. In view of the tallying of the palm prints, I am of the considered view that this evidence is admissible and the court can find a person guilty since his presence in the crime is proved beyond doubt on the strength of the palm prints. In view of the tallying of the palm prints, I am of the considered view that this evidence is admissible and the court can find a person guilty since his presence in the crime is proved beyond doubt on the strength of the palm prints. In this case palm impressions of the a-2 and A-4 alone are tallying, I am of the view that they are guilty of the offences with which they are charged on the strength of the said material. ( 38 ) IN so far as property is concerned, the accused have not claimed it. P. Ws. 1,4 and 5 claimed the respective properties as belonging to them. They also spoke about the keeping the cash inside the safes. The only thing that has been elicited in their examination is that they are in the habit of distributing silver coins during the festivals like Deepavali etc. Hence, it is contended that the property might have been planted in the chest. It is also contended that by mere seizing of the silver coins, cannot ipso facto prove that the accused committed the theft, as P. Ws. 1, 4 and 5 are in the habit of distributing silver coins on auspicious occasions, as can be seen from the evidence of P. W. 5. P. W. 1 stated that five people have participated in the crime, whereas P. W. 3 stated that four or five people have participated in the crime. In all probability, four people might have participated in the offence, in view of the evidence of P. W. 2 and due to failure to prove the participation of another person by clinching and reliable evidence. P. W. 2 identified A-l, P. W. 3 identified A-l and A-5. Chance palm prints were found tallying by P. W. 9 in respect of a-2 and A-4 with their palm prints. ( 39 ) IN so far as A-3 is concerned, no body identified him. The recoveries said to have been made from A-3 were not proved according to law. Hence, A-3 is liable to be acquitted in so far as the offence of dacoity is concerned. ( 40 ) SECTION 391 of the Indian Penal Code defines dacoity, which reads as follows: "391. The recoveries said to have been made from A-3 were not proved according to law. Hence, A-3 is liable to be acquitted in so far as the offence of dacoity is concerned. ( 40 ) SECTION 391 of the Indian Penal Code defines dacoity, which reads as follows: "391. Dacoity:- When five or more persons conjointly commit or attempt to commit a robbery, or where the whole number of persons conjointly committing or attempting to commit a robbery, and persons present and aiding such commission or attempt, amount to five or more, every person so committing, attempting or aiding, is said to commit "dacoity". ( 41 ) SECTION 395 of the Indian Penal Code deals with the punishment for decoity, which reads as follows:"395. Punishment for dacoity:- 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. " ( 42 ) AS seen from the above definition, in order to convict the accused under Sec. 395 of the IPC, it must be proved that 5 or more persons have participated in the commission of robbery, then only it will become decoity. ( 43 ) UNDER Section 390 of the Indian Penal code, robbery is defined as follows:"390. Robbery:- In all robbery there is either theft or extortion. When theft is robbery:- Theft is "robbery" if, in order to the committing of the theft, or in committing the theft, or in carrying away or attempting to carry away property obtained by the theft, the offender, for that end, voluntarily causes or attempts to cause to any person death or hurt or wrongful restraint, or fear of instant death or of instant hurt, or of instant wrongful restraint. When extortion is robbery:- Extortion is "robbery" if the offender, at the time of committing the extortion is in the presence of the person put in fear, and commits the extortion by putting that person in fear of instant death, or instant hurt, or of instant wrongful restraint to that person, or to some other person, and, by so putting in fear, induces the person so put in fear then and there to deliver up the thing extorted. " ( 44 ) SECTION 392 IPC prescribed punishment for the offence of robbery under section 390 IPC. It reads as follows:"392. " ( 44 ) SECTION 392 IPC prescribed punishment for the offence of robbery under section 390 IPC. It reads as follows:"392. Punishment for robbery:- Whoever commits robbery shall be punished with rigorous imprisonment for a term which may extent to ten years, and shall also be liable to fine; and, if the robbery be committed on the highway between sunset and sunrise, the imprisonment may be extended to fourteen years. " ( 45 ) IN view of the above, I find that the case falls under the definition robbery but not under the definition of decoity . ( 46 ) THE lower court also found that the accused are guilty of the offence under sec. 342 IPC. Section 342 IPC reads as follows:"342. Punishment for wrong ful confinement:- Whoever wrongfully confines any person, shall be punished with imprisonment of either description for a term which may extend to one year, or with fine which may extend to one thousand rupees, or with both". ( 47 ) P. WS. 2 and 3 state that they are wrongfully confined and evidence is cogent and consistent, which has been corroborated by the evidence of P. W. 4. All the accused except A-3, are guilty of the said offence. Hence, I find that A-l, A-2, A-4 and A-5 alone are guilty of the offence under Sections 392 and 342 IPC as the prosecution proved the case beyond all reasonable doubts. ( 48 ) COMING to the sentences, it is not shown whether the accused are first offenders or habitual offenders. The lower court imposed the sentence of R. I. for seven years and also fine of Rs. 500/- each. A-l is said to have worked as hamali under the agency for some time. In the circumstances, having regard to the fact that there is no material to show that they are habitual offenders, I feel that ends of justice would be met if the sentence of imprisonment of R. I. for seven years imposed by the court below against all accused except A-3, i. e. , A-l, A-2, A-4 and a-5 is reduced to five years R. I. while confirming the fine amount. Similarly the sentence of three months R. I. imposed against all the accused, except A-3, for the offence under Section 342 IPC is reduced to that of fine of Rs. 100/- each. Similarly the sentence of three months R. I. imposed against all the accused, except A-3, for the offence under Section 342 IPC is reduced to that of fine of Rs. 100/- each. ( 49 ) IN the result, the judgment of conviction and sentence imposed against a-l, A-2, A-4 and A-5 for the offence under section 395 IPC is set aside and instead A-l, a-2, A-4 and A-5 are convicted for the offence punishable under Section 392 IPC and they are sentenced to undergo R. I. for five years and each and the sentence of fine of Rs. 500/- imposed against them under Section 395 IPC shall, be treated as fine under Section 392 ipc. ( 50 ) THE conviction imposed against all accused except A-3 for the offence under section 342 IPC is confirmed but the sentence of imprisonment imposed by the court below is reduced to that of fine and all the accused, except A-3 are sentenced to pay a fine of rs. 100/- each in default to suffer simple imprisonment for one week each. ( 51 ) AS A-3 is acquitted of all the charges framed against him, the convictions and sentences passed by the court below against a-3 under Sections 395 and 342 IPC are set aside. The fine amount, if any paid, by him shall be refunded to him. ( 52 ) IN so far as the property which is seized and produced by the police is concerned, the order passed by the court in respect thereof shall stand confirmed. ( 53 ) INSOFAR the appeal preferred by the state Brief Counsel (Criminal Appeal No. 1310 of 2002) is concerned, the same is dismissed as not maintainable, in view of the preferring of appeal by A-5 through a counsel. ( 54 ) COMING to the establishment of prosecution for the guilt of P. W. 10 for perjury, there may be some truth in the evidence of p. W. 10. He must have yielded under pressure to depose and later spoke to the truth about the fact of recoveries said to have been made three months after the commission of the offence. In that view of the matter, I am of the considered view that there is no need to proceed against P. W. 10 under Section 344 code of Criminal Procedure. ( 55 ) IN the result, Criminal Appeal nos. In that view of the matter, I am of the considered view that there is no need to proceed against P. W. 10 under Section 344 code of Criminal Procedure. ( 55 ) IN the result, Criminal Appeal nos. 444 and 216 of 1999 are partly allowed and sentences are modified to the above effect, while A-3 is acquitted.