R.A. Jahagirdar, J.
1. In Sessions Case No. 148 of 1974 tried by the learned Sessions Judge of Sholapur three persons were prosecuted for the offences punishable under section 302 read with section 34 and section 202 read with section 34 of the Indian Penal Code. Accused No. 1 is the father while accused Nos. 2 and 3 are his sons. The following table brings out the relationship between the parties :
Namdeo|----------------------------------------------------------| |Krishna Accused 1 Babu| |--------------------- ------------------------ | | | |Govind Accused 2 Gopal accused 3 Jayaram (deceased) =Sindhu
Jayaram, who is the victim of the offence for which this prosecution was launched, is the nephew of accused No. 1 and the cousin of accused Nos. 2 and 3. They are all residents of village called Tadavale in Barsi Taluka of Sholapur District. We are not narrating the detailed allegations, which according to the prosecution led to the commission of this crime because it is not disputed that the crime had been committed and further because this appeal can be disposed of on a very narrow ground. It may now be mentioned that there was dispute between accused No. 1 and Jairam relating to the ownership of a land.
2. On 25th of May, 1974, alleges the prosecution, Jayaram left his house telling his wife that he was going to do some work in the filed and would be returning soon. Though he went to the filed fairly early on that day, which was Saturday, he did not return for a long time though he had told his wife that he would return by about 10 a.m. Sindhu got anxious and then made inquiries with accused No. 3 who told her that her husband had on the previous day taken some amount from him for going out of the village. Accused No. 3 told her that on that day, namely, Saturday he had not seen her husband. Sindhu waited till next day morning and on that day she went to Barsi to make inquiries with her uncle one Krishna Mandlik. She was informed that her husband had not gone there. After she was informed that her husband had not gone there, she returned to the village and on Monday the 27th of May, 1974 she went to a village called Washi where also Jayaram was not to be found. She returned to her place on Tuesday. Thus she continued to search for her husband till 31st of May, 1974 on which day one Baliram is to have disclosed her that there was some fight in the filed on the previous Saturday in which the accused and Jayaram were involved. This information had been secured Baliram from one Babu Narayan Kharage who is the servant of Nana Jamale. Further inquiries were made and Sindhu suspecting that some great calamity had befallen on her husband made an application which is at Exhibit 23 to the Police Head Constable of Tadavale outpost. On this application Police Head Constable Kulkarni made some inquiries and after recording the statements of Babu Kharge, Ramkisan Jayaram Mali, Baliram Jamale, Vishnu Jamale and some others thought that it was a case of cognizable offence and took accused Nos. 1 and 2 to Pangari Police Station on 3rd of June, 1974 and produced them before the P.S.I.
3. The investigation was partly conducted by Police Jamadar Kisan Ganpat Jadhav, P.W. 18, who formally arrested accused Nos. 1 and 2 on 4th of June, 1974. Then on the same day accused No. 1 is said to have made a statement under section 27 of the Evidence Act pursuant to which the dead body of Jayaram was discovered in the filed called Takke. The body was exhumed in the presence of the Tahsildar of Barsi and Dr. Deshpande conducted the post-mortem examination on the site. Thereafter accused Nos. 1 and 2 are said to have made a joint statement before the police and the panchas that they had concealed the axe and the pickaxe by burning the same in the mud in the streamlet Man which runs through the field of this village. Pursuant to this statement both accused Nos. 1 and 2 took the police and the panchas and discovered the axe and pickaxe from the mud. Accused Nos. 1 and 2 again are said to have made a statement that they would show the mango tree some pieces of which had been cut for the purpose of burning the clothes of the deceased. Pursuant to this statement again the spot where the clothes wee burnt is said to has been discovered by the police. On these and other allegations to which we have not made a reference, the prosecution was launched against all the three accused.
4. In the Sessions Court the prosecution examined Sindhu to disclose the various steps which she took for searching her husband. The three witnesses who were alleged to have seen the fight between the three accused and the deceased Jayaram on 25th of May, 1974 were also examined. The panchas were examined to prove the various panchanama as including those under which the discoveries are said to have been made by the accused. The learned trial Judge noticed and, in our opinion, rightly that the prosecution had relied upon the following circumstances to prove its case against the accused :
(1) Motive which was proved by the dispute relating to the land.
(2) The discovery of the dead body at the instant of accused No. 1.
(3) The discovery of the axe and the pickaxe at the instance of accused Nos. 1 and 2.
(4) The subsequent conduct of the accused.
(5) That the deceased Jayaram was last seen in the company of the accused inasmuch and they were engaged in a fight on 25th of May, 1974.
The discovery of the spot where the clothes of the deceased are said to have been burnt has not been relied upon by the learned Sessions Judge and, in our opinion, rightly. The learned Sessions Judge did not rely upon the same because from that no incriminating circumstance emerged which would connect the accused with the offence in question. We would also provide an additional reason, namely, that this discovery also is said to have been made pursuant to a joint statement of accused Nos. 1 and 2 and as we will show a little later in the judgment, the statement of a person accused of an offence under the Evidence Act does not contemplate making of a statement by two or more accused persons. The learned Sessions Judge was, however, not impressed by the prosecution case against accused No. 3 whom he acquitted of all the offences with which he has been charged. He has, however, come to the conclusion that the prosecution proved its case beyond reasonable doubt against accused Nos. 1 and 2 and convicted them of the offence punishable under section 302 read with section 34 of the Indian Penal Code. Each of them was sentenced to life imprisonment for the same. The learned Sessions Judge also convicted both accused Nos. 1 and 2 for the offence punishable under section 201 read with section 34 of the Indian Penal Code for which each of them was directed to undergo rigorous imprisonment for 2 years. This he did by his judgment and order dated 14th of July, 1975.
5. Accused No. 2 has challenged the said convictions and sentences by this appeal. Mr. L.G. Kahre appearing for the accused has assailed the findings of the learned Session Judge in so far as they relate against accused No. 2 by contending that they are vitiated not only by conjectures and surmises but also by misunderstanding of the relevant legal provisions. We have no difficulty in accepting contentions of Mr. Khare and we proceed straightway to give reasons. We have already pointed out above the circumstances which are said to have been found against both the accused. Of these circumstances, the one relating to the discovery of the dead body at the instance of accused No. 1 cannot obviously be used against accused No. 2 .The other circumstance, namely, discovery of the axe and the pickaxe at the instance of accused Nos. 1 and 2 and the circumstance that the deceased Jayaram was last seen in the company of the accused when there was a scuffle between the accused and Jayaram have got to be considered by us.
6. P.W. 3 Sitaram Keshav Patil has mentioned that on 4th June, 1974 'both the accused Nos. 1 and 2 stated that they had kept an axe and pickaxe in the mud in the river.' He also said that they further stated that they would produce the same. Thereafter, the panchas, accused Nos. 1 and 2 and the police went towards the streamlet and the accused took out the axe and pickaxe which were kept in the mud. It may be stated at this stage that the axe and the pickaxe did not contain any blood stains. Reliance had been placed by the learned Sessions Judge on this discovery because according to him the prosecution evidence shows that those two articles belonged to Jayaram. If the article belonging to a dead person are discovered at the instance of the accused, that could be, according to the learned Sessions Judge, used as a circumstance against the accused. However, in our opinion, this discovery had be discarded for a different reason.
7. Section 27 of the Evidence 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 relates distinctly to the fact thereby discovered may be proved. Section 27 contemplates a statement of information given by a person accused of an offence and not by person accused of an offence. Obviously, this section does not contemplate a joint statement made by two or more accused persons. The reason for this is obvious, namely, as pointed out by the Madras High Court in Re Sheik Mahaboob : AIR1942Mad532 :
'that all the accused could not have been questioned together, nor could it be believed that they simultaneously made a confession of their guilt. If the police discovered the whereabouts of the stolen article from the statement of one accused then the statements of the other accused would not be admissible because they did not lead to any discovery.'
8. The legal position that when a fact is discovered in consequence of information given by one accused, and the other accused persons also give the same information, it is not legitimate to say that the fact is discovered within the meaning of section 27 from the information given by all of them has also been affirmed by our High Court in Emperor v. Shivputra Baslingava A.I.R. 1930 Bom 244.
9. In Lachhman Singh v. The State : 1952CriLJ863 , the prosecution had alleged that on being interrogated by the police, the accused persons made certain statements which were duly recorded by the police and in those statements it was disclosed that dead bodies of the persons murdered were thrown in a Nala and thereafter the police party with the accused went to the dead bodies were discovered but the initial pointing out was by the accused 'S'. The Supreme Court held that even if the rule to be applied in the case was that it was only the information which was first given that was admissible under section 27 and once a fact has been discovered in consequence of information received from a person accused of an offence, it could not be said to be rediscovered in consequence of information received from another person, the case was covered by the rule and the discoveries made at the instance of 'S' were admissible in evidence under section 27. The fact in Lachhman Singh's case show that a particular accused made the initial pointing out of the things which were disclosed. The question whether the joint statement as the one which appears in our case could be covered by section 27 of the Evidence Act was not decided by the Supreme Court in Lachman Singh's case.
10. The joint statement is a statement made by two persons simultaneously. Such a situation is practically inconceivable especially with reference to section 27 of the Evidence Act. Two or more persons cannot in chorus make a statement contemplated by section 27. A joint statement must in practice mean the same statement or similar statements made by two or more persons. In such a case only the statement which is made earlier and which leads to the discovery will be admissible under section 27 of the Evidence Act and the subsequent statement or statements will not be.
11. The admissibility of a joint statement purported to have been made under section 27 of the Evidence Act was considered by a Division Bench of this Court consisting of Chagla C.J. and Gajendragadkar J., as he them was in a judgment which was delivered by it on (11th of January, 1950 in Criminal Appeals Nos. 454 and 64 of 1949, with Criminal Revision Application No. 952 of 1949). The judgment itself is not reported but has been approvingly cited by the Supreme Court in Ramkishan Mithalal Sharma v. State of Bombay, : 1955CriLJ196 . Reliance had been placed on behalf of the appellant before the Supreme Court on the judgment of Division Bench of this Court referred to above in connection with statements in support of certain submissions made there. The Supreme Court has pointed out by referring to the judgment of the said Division Bench as follows :
'An exception was there taken to the statement of the police officer that in consequence of certain statements made by accused 1 and 2 in that case he had discovered the missing pages of the Bombay Samachar of the 23rd April, 1948 and it was contended that statement was inadmissible in evidence.
The question that really arose for the consideration of the Court there was whether the joint statement attributed to the accused 1 and 2 in that case was admissible without specifying what statement was made by a particular accused which led to the discovery of the relevant fact and it was rightly hold that a joint statement by more than one accused was not contemplated by section 27 and the evidence of Mistry, the Police Officer, in that behalf should therefore, have been excluded.' (Emphasis provided).
In the judgment of the Division Bench of this Court and the judgment of the Supreme Court which approved the said judgment of the Division Bench the question of the admissibility of a joint statement under section 27 was not kept open. In our opinion, that question has been conclusively decided and the decision is that a joint statement by two or more accused persons under sexton 27 of the Evidence Act is not admissible.
12. In view of this legal position the evidence in the present case relating to the discovery of the axe and pickaxe alleged to have been made pursuant to a joint statement of accused Nos. 1 and 2 will also have to be totally excluded from our consideration. Apart from the fact that though these two articles did not bear any blood stains, this is an additional reason way the discovery of those two articles cannot be used by the prosecution against accused No. 2.
13. Then the other circumstance relied upon by the prosecution against accused No. 2 is the one of the accused being last seen together with the deceased Jairam. In support of this circumstance the prosecution examined three witnesses. (P.W. 7), Babu Narayan has deposed to, among other things, that on Saturday which can be said to be 25th day of May, 1974 on which day this offence is alleged to have been committed he saw the accused and Jairam on the track near the Bandh in between the land of Nana Jamale and Jayaram. He further says that he saw a scuffle going on and the three accused beating Jayaram. He was working as a servant of Nana Jamale and at the relevant time was busy collecting cowdung. After this beating was seen by him, he filed another basket of cowdung and when he turned towards the direction in which he had earlier seen the scuffle he only saw the three accused and Jairam was not was not there. He, however, proceeded to say that the accused went away towards their farmhouse in the filed towards the river. His statement had been recorded by the Police Head Constable on 2nd of June, 1974 after Sindhu had made an application to the police outpost at Tadavale. He was asked whether he had stated in the statement of 2nd of June, 1974 that he identified those persons he insisted that he identified those four and that he had stated in that statement of 2nd of June, 1974 that the accused were assaulting Jayaram.
14. Police Head Constable Babu Ramchandra, (P.W. 17), who has recorded the statement of Babu Narayan, has admitted that the latter has not stated before him in his statement of 2nd of June, 1974 that he saw the four persons on the filed or that he identified those four persons. The head constable also mentioned that Babu did not state before him that the three accused were assaulting Jayaram. It is not possible to accept the assertion made by Babu Narayan, (P.W. 7), who is a 70 year old man, that he had seen the accused or that he had seen the accused assaulting Jayaram on 25th of May, 1974 especially when it has been brought out that at the earliest opportunity when he made the statement to the police he has not mentioned this fact.
15. The next witness relied upon by the prosecution in support of this circumstances of being last seen together is one Ramkrishna Jayaram, (P.W. 10). In paragraph 3 of his deposition he has mentioned that on the Saturday in question he heard the big voice of accused No. 1 Krishna and he saw him beating Jayaram with sugarcane. This aroused his curiosity and he went ahead and then he saw accused Nos. 2 and 3 pushing Jayaram. The evidence of this witness collapsed almost in the first onslaught in the cross-examination when he admitted that in his statement of 2nd of June, 1974 he did not mention the fact of the fight between the accused and Jayaram. The bold statement, therefore, made by this witness in the examination-in-chief has got to be rejected.
16. Then there is the testimony of Vishnu Dhondiba Jamale (P.W. 12), who has stated that he had told Pandurang Jamale and Baliram Jamale that Babu Kharage had told that there was a Maramari between Jayaram and the accused. His information, therefore, is only secondary and the primary source of information, namely, Babu Kharage, has been found to be unreliable and therefore, Vishnu's testimony is absolutely of no use to the prosecution.
17. It is thus clear on a review of the depositions of these so called eye-witnesses and other evidence that the prosecution has filed to prove that Jayaram was seen last in the Company of the accused on 26th of June, 1974. The scuffle deposed to by the witnesses has not been proved by any acceptable evidence. The circumstance of the accused being seen last together in the company of Jayaram has not been thus proved by the prosecution. The learned Sessions Judge, however, underestimated the importance of the failure of the two witnesses to mention the fact of their having seen the accused in the company of Jayaram in their earliest statements which were recorded on 2nd of June, 1974 by opining that those statements had been only recorded pursuant to the application made by Sindhu and investigation into the commission of a cognizable offence had not yet been started. When the investigation proper started pursuant to the recording of the commission of the cognizable offence these witnesses have given the story about which they are now deposing to the Court. The learned Sessions Judge, therefore, thought that there was no omission amounting to material contradiction in the statements made by them to the police during the course of the investigation of this offence. He, therefore, thought the testimonies of these two witnesses could easily be accepted. We are unable to share this view of the learned Session Judge. The statements which these witnesses have made on 2nd of June, 1974 were statements made to a police officer who was making inquiries, if not investigation, pursuant to the application made by Sindhu whose husband was missing. The question of the whereabouts of Jayaram and the question of what happened to him were necessarily involved in the inquiry which has being made by the police head constable. It is inconceivable that during the course of such an inquiry such vital information of the scuffle between the accused and the deceased Jayaram which was said to be known these two eye-witnesses could have been kept back by them from the Police Officer. We are, therefore, satisfied that these two witnesses, namely (P.W. 7), Babu Narayan and (P.W. 10), Ramkrishna Jayaram, are not reliable when they say that they had seen the scuffle between the accused and Jayaram on Saturday the 25th of May, 1974. The prosecution case against accused No. 2 was accepted by the learned Sessions Judge only on the basis of these two circumstances. Since, in our opinion, these two circumstances are not existent as against accused No. 2, the conviction of accused No. 2 will have to be set aside.
18. In the result, this appeal must be allowed and is hereby allowed. The convictions and sentences recorded by the learned Sessions Judge of Sholapur in respect of Govind Krishna Jadhav accused No. 2 in Sessions Case No. 148 of 1974 are hereby set aside. He shall be set at liberty forthwith.