1. In this case three persons were charged with house-breaking at night and theft of property worth about Rs. 22,000 said to have been committed in the bungalow of the complainant on the Walkeshwar Road on the 11th February last year. The theft and the house-breaking alleged were undoubtedly committed. A part of the property stolen was later on traced to one Moti Narottam residing in the Palanpur territory, and as a result of the investigation that followed upon this tracing of the property the present accused who belong to the Kaira District, were sent up for trial to the Second Presidency Magistrate.
2. The property which has been traced bad been identified, and there can be no doubt that the property traced to Moti and the witness Shiva in the case formed part of the property stolen from the house of the complainant. The principal evidence against these three persons was the evidence of the witness Moti Narotam. The learned trial Magistrate acquitted accused Nos. 2 and 3 on the ground that the evidence of Moti Narotam, who was undoubtedly an accomplice, required independent corroboration and that there was no such corroboration in any material particulars, as regards these two accused persons. As to the accused No. 1 the trial Magistrate held that such corroboration was afforded first by the close resemblance between the foot-print of accused No. 1 and the tracing of a foot-mark which was found on a table in the house of the complainant immediately after the offence, and secondly, by the evidence of the Inspector of Police to the effect that the accused No. 1 pointed out on the 5th June the house which he had entered on the night of the offence and the various places in the house connected with the offence, and accordingly convicted him. The accused No. 1 has appealed to this Court and the points in the appeal relate to the admissibility and sufficiency of the evidence relied upon by the learned Magistrate as corroborating the story of the accomplice so far as it affects the appellant.
3. I may mention at the outset that the general account given by the accomplice appears to me, as it appeared to the trial Magistrate, to be substantially true, and that under the circumstances corroboration as to the connection of the accused with the house-breaking and theft is needed. It is proved in the case that about this time Shiva occupied a house in Khet-wadi, that the three accused used to stay with him or to visit him and that probably they were in Bombay at the time, when this theft was committed. But that circumstance does not corroborate the story of the prosecution that the three accused were concerned in the theft on the night of the 11th of February. In fact the trial Magistrate has not treated the circumstance in that way as to accused Nos. 2 and 3, and it is equally ineffective as regards accused No. 1.
4. The argument in the appeal has mainly ranged round the two circumstances which the trial Magistrate has relied upon as sufficiently corroborating the evidence of the accomplice as to the connection of accused No. 1 with the theft. The evidence, which relates to the resemblance of the two footprints is not sufficient to corroborate the accomplice. A careful comparison of the foot-print with the tracing on the glass does not yield any better result than that the two footprints may be of the same man. It is impossible to say with any degree of confidence on a comparison of these prints that the mark which was observed on the table in the house of the complainant on the night of the 11th was really the mark of the right foot of accused No. 1. There was some argument as to the admissibility of the evidence of the expert examined on behalf of the prosecution to establish the identity. But it is not necessary to go into that question. Assuming his evidence to be admissible, it is clear that his opinion cannot be accepted as establishing the identity of the appellant as the foot-marks do not coincide with sufficient accuracy. In the course of the argument it was fairly conceded by the Government Pleader that he could not maintain that the two marks were sufficiently identical, and on a comparison of these two marks I have come to the same conclusion. The apparent resemblance between the two marks does not carry the case of the prosecution any further than the evidence of the accomplice.
5. As to the second item of corroboration which consists of the evidence of the Inspector and the complainant, the question is whether that evidence is admissible. The learned Magistrate is of opinion that it is admissible. I am, however, unable to agree with that view. In my opinion the evidence taken as a whole shows that it is evidence of a confession of the accused in the presence of a Police Officer. It is true that in terms it purports to establish that accused No. 1 pointed out the house and the various places connected with the offence ; and it is contended that it is really evidence of the conduct of the accused, and that therefore it is admissible under Section 8 of the Indian Evidence Act. It is clear from the evidence that the real significance of the conduct arises out of the statements made by the accused at the time, and that the conduct apart from the statements made either expressly or impliedly by gestures by the accused has very little value. The meaning that was conveyed to the witnesses by what is contended to be the conduct of the accused and not his statements was really conveyed by the statements made at the time when he pointed out the various places. Such statements would clearly be inadmissible under Sections 25 and 26 of the Indian Evidence Act as they were made to the Police Officer or to the complainant in the presence of the Police Officer. It is common ground that no fact is deposed to as discovered in consequence of the information furnished by the accused and that Section 27 of the Indian Evidence Act does not apply. I am unable to accept the contention urged by the learned Government Pleader that this evidence, which is substantially evidence of the confession of the accused in the presence of a Police Officer, can be admitted as evidence of conduct, apart from the accompanying statements, under Section 8. It is further urged that in any case the statements made by the Police Officer to the complainant in the presence of the accused that he (the accused) was going to show the various places connected with the theft, would be admissible under Explanation 2 of Section 8. I do not think however that Explanation 2 can apply to the statement made by the Police Officer to the complainant in the presence of the accused, first because the conduct, apart from the accompanying statements, is not shown to be relevant, and secondly because under the circumstances such a statement cannot be said to affect the conduct of the accused. For these reasons I am of opinion that the evidence of the Police Inspector and the complainant as to the pointing out of the various places by the accused No. 1 is really evidence of the confession of his guilt made while he was in the custody of the Police Officer and is therefore inadmissible.
6. In the result therefore we have the evidence of the accomplice without any material corroboration as to the connection of the appellant with the theft and house-breaking. On that evidence the learned Magistrate has rightly refused to convict accused Nos. 2 and 3 and under the circumstances the accused No. 1 also is entitled to the same treatment. I am of opinion that the evidence of the accomplice is insufficient to justify the conviction of the appellant on the charge of theft and house-breaking. The conviction and sentence must be set aside and the appellant should be acquitted and discharged.
7. I agree Taking the evidence and circumstances in this case I think it is inevitable that the appellant must be acquitted. He is convicted of theft and, apart from the two matters to which I will allude later on, the evidence of importance in the case is directed to connect him, not with the theft, but with the disposal of certain of the stolen property some time after the theft and at places hundreds of miles away from the scene of the offence. The evidence of the approver Moti makes much more certain the connection of himself and other persons with the stolen property than the connection of the present appellant and those who were co-accused as thieves with him. The Magistrate very rightly, as I think, found it quite impossible to convict any of these three persons on the strength of Moti's evidence. As regards the present appellant, however, he was convicted by reason of the two items of evidence which my learned brother has fully dealt with.
8. As regards the foot-print, all I need say is that after the closest examination and after careful comparison of the outline taken on glass of the foot-print found on the table with the foot-print of the accused No. 1, the present appellant, the result is this. The two may be impressions of the foot of the same person, but it is at least equally possible that they may be the impressions of the feet of different persons. That item of evidence is therefore absolutely neutral.
9. As regards the other item I entirely agree with my learned brother that in this case what the appellant was doing was that he was making a confession to a Police Officer. But the confession comprised not merely words but gestures, and what is sought to be done is, while not proving the words, to prove gestures and further to prove all that is necessary to give significance to those gestures. But I quite agree that gestures are just as much a part of a confession as are the words used. So that item of evidence also must be discarded.
10. Therefore I think the order of acquittal, as I have said, in this case is inevitable.