1. [His Lordship, after dealing with the general aspect of the case and in particular the cases of the appealing accused, stated as follows as regards accused No. 14:]
2. Accused No. 14 was arrested at Bagewadi Railway Station on May 18 and he produced Rs. 40 from his house on May 28. The cash has not been identified. The panchnama about the production, exhibit 85, contains the incriminating statement which I have already quoted. According to the punch, exhibit 81, on being asked by the Sub-Inspector if he would produce the money connected with the Alnavar Bank case, he said that he would produce the money from his house. He then added that the accused said that he would produce 'some amount of the Alnavar Bank dacoity from his house'. The first statement does not connect the money produced with the dacoity but the second statement does. The learned Judge has admitted both these statements, in spite of the provisions of Section 27 of the Indian Evidence Act, as be seems to have thought that the case of Emperor v. Chavadappa Pujari (1944) 47 Bom. L.R. 63 is an authority for the proposition that 'the statement made by an accused person of the nature of a confession should be allowed to go in evidence under Section 27 of the Indian Evidence Act, in case that statement was necessary to discover any fact which was in evidence and relevant in the case.' If the words 'that statement' are to he loosely interpreted as the learned Judge has done, then the proposition would be in conflict with the decisions in Beg. v. Jora Hasji (1874) 11 B. H. C. R. 242, Queen Empress v. Nana I.L.R (1889) Bom. 260 and Emperor v. Ganu Chandra (1931) 84 Bom. L.R. 803: The principal point that was decided in Emperor v. Chavadappa Pujari (1944) 47 Bom. L.R. 63 was that where the accused makes a statement, 'I have concealed the property at a particular place and I will produce it', and that if it is discovered in consequence of that statement, it is evidence of his possession, even though the stolen article is kept or concealed in another man's property. Their Lordships were thus concerned with the question whether possession could be inferred, for the purposes of the application of ill. (a) to Section 114 of the Indian Evidence Act, from the statement of the accused which led to the discovery of the stolen property in that case. The admissibility of the statement in question under Section 27 does not appear to have been a question in issue in the case. In Emperor v. Ganu Chandra (1931) 34 Bom. L.R. 308 each of the seven accused had stated that he would point out the place where (his share of the property stolen in the Dahiwadi dacoity was buried before he produced a part of the property lost in the said dacoity. It was held that only a part of the statement could be admitted under Section 27, viz. the statement that the accused would point out the place where the property was buried and that the words 'stolen in the Dahiwadi dacoity' must be excluded on the ground that they were not necessarily connected with and did not distinctly relate to the discovery of the property. Beaumont C. J. said (p. 306) :-
The police officer to whom that statement is made is not at liberty himself to dissect it, and give evidence of part of it only. He can only state the fact of what information was given to him. But it seems to me that when the Judge gets the evidence of that information, he 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, viz., the hidden property. I think the Judge must have regard to the fact, that the information, expressed as it is in a single sentence, really involves first an admission that there was a dacoity, secondly an admission that the accused took part in it, thirdly an admission that he got part of the property, and fourthly a statement as to where the property is.
The first three parts of the dissected sentence are not admissible in evidence, but the fourth part is.' This conclusion was held to be in accordance with the full bench decision of this Court in Queen-Empress v. Nana I.L.R (1889) Bom. 260. There the accused produced certain stolen property after saying that 'he had kept it and would show. He said he had buried the property in the fields'. It was held that the statement that he had buried the property in the fields, which had distinctly set the police in motion and led to the discovery of the property, was admissible, but that the statement that he had kept property, not being necessarily connected with the fact discovered, was not admissible. This decision refers to an earlier decision of this Court in Beg. v. Jora Hasji (1874) 11 B. H. C. R. 242, where West J. said (p. 244):
For instance, a man says : ' You will find a stick at such and such a place. I killed Rama with it.' A policeman, in such a case, may be allowed to say he went to the place indicated, and found the stick but any statement as to the confession of murder would be inadmissible. If, instead of ' you will find', the prisoner has said, ' I placed a sword or knife in such a spot', when it was found, that, too, though it involves an admission of a particular act on the prisoner's part, is admissible, because it is the information which has directly led to the discovery, and is thus distinctly and independently of any other statement connected with it. But if, besides this, the prisoner has said what induced him to put the knife or sword where it has been found, that part of his statement, as it has not furthered, much less caused, the discovery, is not admissible.
It was pointed out that Section 27 was an exception to the earlier Section 26 and it was remarked (p. 246):-
The rules of exclusion and the exception to them being definitely laid down, the exception is not to be extended to cases not properly falling within it.
In Emperor v. Bhikha Gober : (1943)45BOMLR884 the pawchanama recited that the accused who was hi police custody had told the panchas that he had committed the murder of the deceased and had removed her ornaments and he pointed out the place where the ornaments were found. Beaumont C. J. observed that the statement that the accused had committed a murder could not fall under Section 27 of the Indian Evidence Act as it was not a statement required to lead up to the production of the property and it was quite enough to say that he would show the property which belonged to the deceased. Mr. Jathar, however, has contended, as pointed out by Lokur J. in Emperor v. Namdeo Kaikadi : (1944)46BOMLR546 , that the test laid down by Sargent C. J. in Queen-Empress v. Nana was, what is the information given by the accused which set the police in, motion and led to the discovery of the property, and that judged by this test it would not be proper to admit merely the statement 'I will produce some amount from my house' out of the statement which, according to the panch (exhibit 81), accused No. 14 made to the panch, leaving out the words 'of the Alnavar Bank dacoity', The argument is that an innocuous statement like 'I will produce the money from my house' could not have had the effect of setting the police in motion unless there was something else connecting the money with the crime which the police were investigating and that that something would be the words 'of the Alnavar Bank dacoity'. In support of this view, which, it was conceded, was in conflict with Emperor v. Ganu Chandra and the two preceding cases underlying it, Mr. Jathar has pointed out that the statement admitted in Emperor v. Namdeo Kaikadi (1944) 46 Bom. L.R. 540 was 'I put a bomb in Rajkotwalla's office, I will show it to you', and not merely 'I will show a bomb to you'. Mr. Justice Lokur in that case observed (p. 550) :
It would indeed be unreasonable to suggest that a statement which would be inadmissible under Section 27, if it were placed in a separate sentence, would be admissible if it were' amalgamated with some other admissible statement. The protection given by Sections 24 to 26 of the Indian Evidence Act should not be dependent on the ingenuity of a police-officer or the folly of the prisoner in composing the sentence which conveys the information leading to the discovery.
The last sentence refers to the words 'whether it amounts to a confession or not' in Section 27. The other significant words in that section are 'so much of such information', and 'as relates distinctly'.
3. With all respect, it seems to me that in Namdeo's case it cannot be said that the fact that accused No. 1 had placed a bomb in Bajkotwalla's office was one of the facts discovered, as stated at p. 550. The question what information set the police in motion may be interpreted in more than one senses, one being that the whole of the incriminating statement made is such information, and another is that only that part of the statement should be regarded as having set the police in motion which can be said to be the immediate and proximate cause of the discovery, leaving' out the other parts as inadmissible under Section 26. It is to be remembered that Section 27 is an exception to the general principle that a confession made by a person while in police custody cannot be proved as against him unless it has been made before a Magistrate, and. the exception must be interpreted as strictly as possible.
4. In our opinion, therefore, out of the statement made by the panch the only part which is admissible is, 'I will produce money'. If the articles produced could have been identified, it would have been an incriminating statement, in that it would show possession of the accused, so that the accused might have been convicted under Section 411. Such a statement, therefore, cannot be said to be an entirely innocuous residue of the actual statement made by the accused. Even if the property had been identified, it would have been doubtful if the evidence of the panch could be regarded as of any value, seeing that he gave the accused's statement only after he had read the panchnama. The learned Judge, therefore, was wrong in relying on the recitals in the panchnama and on the panckas' evidence as to the whole of the statement made by the accused. The conviction of accused No. 14, therefore, cannot be supported by the evidence in this case.
5. In the result, the appeal succeeds and we set aside the convictions and sentences passed on the appellants and acquit them. The fines; if .paid, to be refunded. We set aside the order made with regard to the property by the learned Judge as to the four amounts of cash attached from accused Nos. 14, 15, 17 and 20 and direct that they should be returned to the said persons. The ring (article No. 70) which was alleged to have been produced by accused No, 15 should also be returned to him. The four rings attached from accused No. 10 should be handed over to the bank.