A statement made by the accused under Sec. 342, Criminal P. C., can be used as evidence against him in a sessions trial, as Sec. 287, Criminal P. C., specifically states that such examination of the accused duly recorded by or before the committing Magistrate shall be read as evidence.

Banerji, J.

1. The appellant has been convicted under Sec.395, Penal Code, and sentenced to undergo rigorous imprisonment for ten years. Four other persons were tried in this analogous trial but they were given the benefit of doubt and acquitted.

2. Shortly, the prosecution case was that a dacoity was committed in the house of one Meghlal Yadav on the night of 22 and 23-6-1952. In that dacoity, the prosecution witnesses claimed to have identified the appellant and also, others. The learned Sessions Judge discussed the evidence and found the same discrepant and on that finding he refused to act on it. He, however, was convinced that the appellant had taken part in the dacoity, because when he was examined under Sec.342, Criminal P. C, the committing Magistrate, he admitted his guilt and also named other persons who were concerned in that dacoity.

Along with this statement made under Sec.342, Criminal P. C., before the committing Magistrate, another fact was taken into consideration by the learned Additional Sessions Judge which was that from the house of this appellant four rent receipts (Exts. 1/10 to 1/13) were recovered, by the Sub-Inspector of police (P. W. 14) who had visited the village on the next day and carried out the house-searches not only of this appellant but also of some other persons who were suspected along with him.

The four assessors who assisted the learned Additional Sessions Judge in the trial of this appellant were unanimously of the opinion that he was guilty under Sec.395, Penal Code..

3. Mr. Anirudh Prasad Sinha, appearing as amicus curiae on behalf of the appellant, has urged that the learned Additional Sessions Judge should Save discarded the story of recovery of the four rent receipts from the house of the appellant as there, were materials to show that someone else had planted them. I may state here that the factum of dacoity has not been challenged in this Court. Indeed, the evidence is overwhelming to prove-that there was a dacoity in the house qf Maghlal Yadav (P. W. 1) as stated by him.

It is also not disputed that in thev course of the dacoity cash, ornaments and a bundle containing rent receipts and other papers were removed by Hie miscreants. Mr. Sinha has drawn our attention to the deposition of P. W. 7 where the witness has stated to this effect that one Ratheku Dafadar was also present during the house-search of the accused and he was entering the house of this accused and other accused persons every now and then.

On a" suggestion being thrown, the witness said that he could not say if Ratheku planted all these receipts. There is no evidence to indicate that Ratheku Dafadar had any enmity with the appel lant for which he was trying to implicate the accused falsely by foisting some incriminating article in his house. The evidence of the investigating officer shows that these four rent receipts were recovered from a house, which was occupied by the appellant and his nephew, Baswa, who figured as a co-accused, but has since then been acquitted.

From the evidence of P. W. 7 and P. W. 14 and the evidence of other witnesses I am convinced that these four rent receipts (Exts. 1/10 to 1/13) were recovered from the house of P. W. 1 in the course of the dacoity and they were subsequently found in a house which was occupied jointly by this appellant and his nephew, Baswa.

4. If this was the Only evidence against the appellant, then, certainly, he was entitled to an acquittal as the prosecution has not been able to prove that the house was in occupation of the appellant, alone. But, there is some other material on the record to show that this appellant was concerned in the dacoity. When he was examined under Sec.342, Criminal P. C., by the learned Committing Magistrate, he said:

"All those who committed the dacoity have not been arrested. I have committed the dacoity in the house of Megh Lal Yadava. Sk. Majwa, Sk. Shakar, Sk. Ajru, Maula Khan, Rafik Laheri and others were with me in committi