A statement of an accused made in police custody is admissible under Section 27 of the Evidence Act if it leads to the discovery of an item allegedly used in the crime.

JUDGMENT

Subhendu Samanta, J. - This is an appeal against the order of conviction u/s 412 of IPC passed by learned Additional Sessions Judge, 2nd Court Medinipur in Sessions trial No. XVI August, 1984 arising out of GR No. 142 of 1972 sentencing the accused/appellants to suffer rigorous imprisonment for 5 years each and to pay a fine of Rs. 2000/- in default to suffer rigorous imprisonment for a period of further six months.

2. In a nutshell the prosecution case is that on 06.02.1972 at about 6/7 p.m. a gang of dacoits raided the house of Kalipada Samanta (P.W. 1) when he was returning along with his sons and daughters (P.W 2 and P.W. 3) to their house from the cow-shed. The dacoits decamped with some household articles and a gun (MAT Exhibit- I) and some cartridges. Hearing hue and cry other persons of the locality came. Later police was informed and FIR was registered.

3. On suspicion 10 persons including the present appellants were arrested and out of them three persons were identified in the T.I Parade held by a Judicial Magistrate (PW 11).

4. It is the further case of the prosecution that pursuance to the statement made before S.I Gopal Ghosh by the accused/appellant No. 1 the gun was recovered at the instance of accused/appellant No. 2 from near-by field which was seized in presence of one seizure witness (P.W 6) who was also witness to the statement made by appellant No. 1 leading to the discovery of the gun. After completion of investigation police submitted charge sheet against all the ten accused persons. The appellants along with other eight accused were committed to the Court of Sessions and charge was framed against them u/s 395 of the IPC and u/s 412 of IPC only against accused/appellant No. 2 the accused person on query pleaded not guilty and claim to be tried.

5. During the trial prosecution examined 12 witnesses PW 1 was the owner of the house whose house was raided by the dacoits. PW 2 and PW 3 were the daughters and sons respectively of PW 1 who were the witnesses of the occurrence. PW 4 and PW 5 are the Para People who reached the place of occurrence after commission of dacoitees and heard about the incident from PW 1, P.W 2 and PW 3. PW 6 was an witness of the recovery of the seized gun and statement of accused/appellant No. 1 made before the police leading to the discovery of the gun. P.W 7, PW 8 and PW 9 are the other seizure witnesses. PW 10 drew the formal portion of the FIR, PW 11 was the Judicial Magistrate before whom TI Parade was conducted and PW 12 was the Arms clerk of the office of the District Magistrate, Medinipur.

6. During the examination of the accused persons u/s- 313 Cr.P.C they all pleaded innocence.

7. Learned Sessions Judge, heard the arguments of P.P. as well as the Defence Counsel and after considering materials on record acquitted all the accused persons from the change u/s 395 of the IPC but found the appellant No. 1 and 2 be guilty for the offence punishable u/s 412 of the IPC and sentenced them to suffer rigorous imprisonment for 5 years each and to pay fine of Rs. 2000/- in default to suffer RI for a period of further 6 months.

8. Hence this appeal.

9. Learned Advocate for the appellant submitted before this court that the impugned judgment and sentence passed by the Learned Sessions Judge, is illegal and improper it is not based on the evidences on the record. The Learned Court has failed to appreciate the facts and circumstances of this case and came to an erroneous finding. He again argued that though no charge has been framed against the appellant No. 1 u/s 412 IPC but he has been convicted under the same Section though he has been acquitted from the charge u/s 395 of IPC. He again argued that the Learned Judge made an erroneous approach in evaluating the evidences of the prosecution witnesses and arrived at a conclusion of guilty of the accused/appellant loosing sight of the Defence version of innocence.

10. He again argued that the order of conviction against appellants recorded by