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Rangrao Dnyanu Nikam Vs. State - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtMumbai High Court
Decided On
Case NumberCriminal Appeal No. 356 of 1951
Judge
Reported inAIR1952Bom72; (1951)53BOMLR834; ILR1952Bom201
ActsEvidence Act, 1872 - Sections 24, 25, 26 and 27; Arms Act, 1878 - Sections 19; Explosive Substances Act, 1908 - Sections 5
AppellantRangrao Dnyanu Nikam
RespondentState
Appellant AdvocateK.S. Daundkar, Adv.
Respondent AdvocateD.V. Patel, Adv. for ;Govt. Pleader
Excerpt:
.....object is produced, and the knowledge of the accused as to this and that the information given by the accused, which can be admitted in evidence, must relate distinctly to this fact. the information given by the accused that he himself had kept the bomb in shamrao's cattle-shed cannot be said to relate distinctly to the fact discovered in this case, which is that the bomb had been keptin shamrao's cattle-shed and that the accused knew about it......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 sotting in which it is discovered.'in this case the statement made by the accused was in the following terms:'one month ago i had kept a bomb (handgrenade). i have kept that bomb in the eastern wall of the dung-pit in the dilapidated cattle-shed of my friend shamrao namdev nikam at chinchani. i will take it out and give it to you.'this statement can be divided into four parts,that the accused had kept a bomb one month previously; that the bomb had been kept in a wall of the manure pit in the dilapidated cattle shed of shamrao; that it had been kept there by the accused; and.....
Judgment:

Chainani, J.

[1] This is an appeal by the accused against his conviction under Section 19 (f), Arms Act and under Section 5, Explosive Substances Act, and the sentences passed upon him by the Sessions Judge, South Satara.

[2] The accused was arrested on March 12, 1950, I connection with some other offence. On March 20, 1950, he informed the Police Sub-Inspector, witness Bajirac Joshi, in the presence of panchas that he was in possession of a bomb, that he had concealed it in the compound of the dilapidated wada of Shamrao Nikam in the village of Chinehani and that he would point out the place at which he had kept the bomb. He then took the police and the panchas to the wada of Shamrao Nikam. There he removed a stone from the comer of one of the walls and took out a handgrenade. Thereafter from a heap of stones he took out two live revolver cartridges and produced them before the police. On these facts, the accused was subsequently sent up for trial forcommitting offences under Section 19 (f) of the Indian Arms Act and under Section 5, Explosive Substances Act, He pleaded not guilty to the charges. He stated that he and Shamrao were related, that he, therefore, used to go to Shamrao's wada frequently, that Shamrao had told him that he bad collected handgrenades and other arms and that he subsequently showed to him the places at which he had kept them. He, therefore, denied that he bad himself kept the articles at the places, which had been pointed out by him or that he was in possession of or bad control over them, The learned Sessions Judge disbelieved the plea of the accused, having regard to the statement which he had made before the police and the panchas before he pointed out the places at which the articles were found. In that statement the accused had stated that be had concealed the bomb at that place. The learned Sessions Judge, therefore, convicted the accused under Section 19 (f) of the Indian Arms Act and under Section 5 of the Indian Explosive Substances Act, and sentenced him to three years' rigorous imprisonment. The accused has appealed against his conviction and the sentence passed upon him.

[3] The principal point which arises for consi-deration in this appeal is whether the statement of the accused that be had concealed the articles in Shamrao's wada is admissible in evidence. Section 27 of the Indian Evidence Act, which is an exception to Sections 24, 25 and 26 of this Act, provides 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 relatesdistinctly to the fact thereby discovered may be proved.'

The words, 'so much of such information' and 'distinctly' are very important. They limit what may be proved against the accused. The whole of the statement of the accused is, therefore, not admissible under this section, but only that portion of it can be proved against him which has led to the discovery of the fact deposed to and which relates distinctly to the fact discovered, that is to say, only that portion of the accused's statement can be admitted which was the direct or immediate cause of the discovery of the fact deposed to. Anything which is not directly or clearly connected with or which is not the immediate cause of the discovery is not admissible. In Queen Empress V. Nana 14 Bom. 260, F. B. it was bold that only that portion of the accused's statement can be admitted in evidence as sets the police in motion and leads to the discovery of the property. In scene cases a view was formerly taken that where the admissible portion of an accused's statement cannot be separated from the inadmissible portion, the whole of the statement must be admitted under Section 27 of the Indian Evidence Act. This view was expressly dissented from by a Full Bench of theLahore High Court in Sukhan v. The Crown, 10 Lah. 283 F. B. As pointed out by Chief Justice Shadtial in his judgment in this ease,the protection given by Sections 24 26 and 26 of the Indian Evidence Act cannot be dependent upon the ingenuity of the police-officer or the folly of the prisoner in composing the sentence which conveys the information. In Emperor v. Ganu Chandra, 34 Bom. L. R. 303, a bench of this Court consisting of the Chief Justice Sir John Beaumont and Mr. Justice Broomfield hold that where the accused gives his information in the form of a compound statement, the Judge must before he records it as evidence or leaves it to the jury, divide the sentence into what are really its component parts and only admit that part which has led to the discovery of the particular fact. Sukhan v. Crown, 10 Lah. 283 F.B. and Emperor v. Ganu Chandra, 34 Bom. L. R. 303 were approved by the Privy Council in Kottaya v. Emperor, 49 Bom. L. R. 503 in which their Lordships of the Privy Council had to construe Section 27, Evidence Act. In the course of their judgment, their Lordships observed (p. 514):

' .... Mr. Megaw, for the Crown, has argued that insuch a case the 'fact discovered' is the physical object produced, and that any information which relate 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. 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 factdiscovered 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 sotting in which it is discovered.'

In this case the statement made by the accused was in the following terms:

'One month ago I had kept a bomb (handgrenade). I have kept that bomb in the eastern wall of the dung-pit in the dilapidated cattle-shed of my friend Shamrao Namdev Nikam at Chinchani. I will take it out and give it to you.'

This statement can be divided into four parts,that the accused had kept a bomb one month previously; that the bomb had been kept in a wall of the manure pit in the dilapidated cattle shed of Shamrao; that it had been kept there by the accused; and that the accused would take it outand give it to the police. The fact discovered in this case was that the bomb had been kept in the cattle-shed of Shamrao and that the accused knew about it. The only parts of the accused's above statement, which can be said to have directly led to the discovery of this fact, are the second and the fourth, in which it is stated that the bomb had been kept in Shamrao's cattle-shed and that the accused would take it out and hand it over to the police. The other portions of the statement that the accused had kept the bomb there one month previously cannot bo said to have led directly to the discovery of the above fact. This would have been discovered, even if the only information given by the accused bad been that a bomb was lying in Shamrao's wada and that he would point out the place where it had been concealed. In our opinion, therefore, the portions of the accused's statement that he had kept the bomb one month previously in Shamrao's cattle-shed arc not admissible in evidence,

[4] In Kottaya's case, 49 Bom. L. R. 508 referred to above, the Privy Council also considered what portions of the statements made by the accused in that case could be admitted in evidence. The statement of accused 3 in that ease was, 'I stabbed Sivayya with a spear, I hid the spear in a yard in my village. I will show you the place.' The Privy Council held that except the first part 'I stabbed Sivayya with a spear'; the whole of the statement was admissible. The portion of the statement that the accused had hidden the spear was admitted in evidence. The Privy Council took the same view with regard to the statements made by the other accused. Mr. Patel on behalf of the prosecution has, therefore, strongly urged that in this case the portion of the accused's statement that he had kept the bomb in Sham-rao's cattle shed should also be admitted in evidence. All the facts of Sottaya's case, 49 Bom L. R. 508 are not given in the printed report of it. It is, therefore, not possible to say whether the question as to who had hidden the articles at the places pointed out by the accused was of any importance in that case. It does not also appear that any arguments were addressed to the Privy Council on this point whether the accused's statements that they had themselves concealed the articles were admissible in evidence. In any case, th9 Privy Council have in their judgment clearly stated that the fact discovered in such cases is the place from which the object is produced, and the knowledge of the accused as to this and that the information given by the accused, which can be admitted in evidence, must relate distinctly to this fact. The Privy Council have also observed that information as to the past history of the object is cot related to its discovery. The information given by the accused that he himself had kept the bomb in Shamrao's cattle-shed cannot be said to relate distinctly to the fact discovered in this case, which is that the bomb had been keptin Shamrao's cattle-shed and that the accused knew about it. It relates to the past history of the bomb and shows how the bomb had come to be in Shamrao's wada and who had concealed it there. The view, which we are taking, is, therefore, in accordance with the decision of the Privy Council, if we have regard to the tests, which the Privy Council have laid down in the same case for determining what portion of the accused's abatement can be proved against him under Section 27, Indian Evidence Act.

[5] In this case if the accused's statement that he had kept the bomb in Shamrao's cattle-shed is excluded from evidence, as wo consider that it should be, the only remaining evidence against him is that he had knowledge of the places whore the handgrenade and the cartridges had been concealed. The evidence shows that Shamrao's wada in which these articles were found was in a dilapidated condition. It is, therefore, possible that the articles had been hidden there by Sham-rao or some other person and that the accused only know about this. It would not be right to infer merely from the fact that the accused know where the articles had been hidden that he had hidden them there. It cannot, therefore, be stated definitely that the accused himself was in possession of or had control over these articles.

[6] The convictions of the accused and the sentence passed upon him are, therefore, set aside and he is acquitted.

[7] Order accordingly.


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