Sharad Manohar, J.
1. This is an appeal against the order of conviction and sentence passed by the learned Addl. Sessions Judge, Nanded, convicting the present appellants who were original accused Nos. 1 and 7 respectively of the offence under section 395 of the IPC and sentencing them to rigorous imprisonment for 5 years and to pay a fine of Rs. 200/- and in default to suffer rigorous imprisonment for 6 months.
2. The facts relating to the prosecution case have been fully set out in the judgment in appeal and since I am confirming the order of conviction passed by the learned Judge, I find it unnecessary to refer to all the facts stated by him elaborately. However, I will mention the salient facts :--
It may be stated here itself that the factum about the offence of dacoity is not in dispute at least at this appeal stage. The only question to be decided is as to the identity of the offenders. There were in all 7 accused arrayed before the trial Court. The identification of 5 of them has been held by the Court not to have been established. The case of the present appellants is that their's also is the case of mistaken identity or, rather, falsely imputed identity.
3. The dacoity took place on 5-4-1982 at 10.30. p.m. The victims of the dacoity are Ganesh Ghadling Kadam and his friend one Babu Khajamiyan. Both of them are residents of Karkheli, Taluka Biloli. Ganesh is the Chairman of the Marketing Committee, at Dharmabad. On 5-4-1982, he had gone to Dharmabad on Motor Cycle. There he did some work and sold some of his agricultural products. Both of them started back for Karkheli at about 9.00 p.m. Ganesh was at that time having cash amount of Rs. 1980/- in currency notes of the denomination of Rs. 20/- each that is he had 99 notes of the denomination of Rs. 20/- with him. It is unnecessary to state as to why he was having the amount in exactly that form with him, because there is no challenge at the appellate stage to this aspect of the prosecution story.
Ganesh and Babu were having also wrist-watches with them. The wrist-watch of Ganesh was of Traca Company make whereas the wrist-watch of Babu was a Oskar Company make.
As these two reached the outskirt of the Karkheli village at about 10.30 p.m. at a distance of about half a kilometre from Karkheli, the prosecution contends, 7 accused tried before the Sessions Court, pelted a barrage of stones on the Motor Cycle and made Ganesh to stop the cycle. The miscreants surrounded the two, attacked them with stones, relieved them of the two wrist-watches and helped themselves with the cash amount of Rs. 1980/- kept by Ganesh in the pocket of his banian. Severe injuries were received by Ganesh in this incident so much so that his left wrist and his little finger of the right hand were fractured. It is the prosecution case that a pair of chappals of red colour was also stolen by the dacoites. Naturally the two victims raised shouts with the result that some of the villagers rushed to the spot. Upon approach of these villagers the dacoites took to their heels together with the booty of the dacoity. It is the prosecution case that when the dacoites talked amongst themselves, they used Lamani language. Further, all of them had concealed their faces by means of pieces of black cloth. But one of them was tall and muscular and another was short in height whereas the remaining were of the average height. The tall muscled man was wearing lungi whereas the other dacoites were wearing dothis. The case of the prosecution is that after committing the offence the dacoites ran towards the village Junni.
The villagers arrived and the incident was reported to the Police. The investigation started and proceeded. The first information report was taken down by the Police Officer concerned at 9.30 a.m. on 6-4-1982. The appellant No. 1, (who will be referred to hereinafter as 'accused No. 1') was arrested by the Police on 18-4-1981. It is the prosecution case that on 22-4-1982 he made a confessional statement before the Police in the presence of the Panchas stating that he had concealed one of the watches, which was the subject matter of the dacoity, at a particular place, reference to which will be made presently. In pursuance of the confessional statement, the panchas and the Police accompanied the accused to the spot referred to and pointed out by him and watch of the Traca make was recovered by the Police from the place. It is the contention of the prosecution that the watch was concealed by accused No. 1 at such a place that only he could have knowledge about the place of its concealment.
Accused No. 7 was arrested on 26-8-1982. According to the prosecution he also made confessional statement on 1-9-1982 of the nature contemplated by section 27 of the Evidence Act, expressing his readiness to point out the place where he had concealed the other watch. It is the prosecution case that he in fact did accompany the Police and the panchas to the particular spot and took out the watch from concealment. Here also it is the case of the prosecution that the place of concealment was such that it could be known only to the accused and to no one else.
During the course of investigation, the Police arrested four more accused, accused Nos. 2 to 6 recorded the statements of various witnesses and verified the antecedents of the various accused. The first charge-sheet was filed by the Police on 16-6-1982, but accused No. 7 was absconding on that day. He was arrested on 26-8-1982. On 13-9-1982 charge was framed against accused Nos. 1 to 6 in respect of offence of dacoity under section 395 of the IPC. It appears that the charge was later on amended after the arrest of accused No. 7. Whatever that may be, there is no grievance on the part of either of the above appellants as regards the legality of or adequacy of the charge against them. The only question raised by them relates to whether the charge is proved against either of them.
4. It is the case of the prosecution that an identification parade was held by Naib Tahsildar, on 13-5-1982, at Biloli, in which accused No. 1, was identified by both, P.W. 1 and P.W. 2. Likewise, identification parade in connection with accused No. 7 was held on 23-9-1982 and accused No. 7 was identified in the parade by complainant P.W. 1. It is further the case of the prosecution that accused No. 7 made a confessional statement on 1-9-1982 in the presence of the Panchas revealing the fact that he had concealed the watch which was part of the booty and he volunteered to show the place of concealment, that took the panchas and Police to the place of concealment and took out the said watch from there. It was of Oscar make and it was attached by the Police under a panchanama.
5. Evidence was led by the prosecution in support of the above case.
As against the evidence, the defence of the accused was one of total denial. Further, both the appellants, or rather all the seven accused came out with a common story of defence viz. that:
(i) they were tenants of father-in-law of the complainant P.W. 1;
(ii) they had made application to the talathi for mutations in respect of the land in their favour in the village records;
(iii) that in order to dissuade these accused from asserting their rights of tenancy in respect of the lands this proceeding was hatched against them by the complainant at the instigation of his father-in-law.
6. After examining the evidence of the prosecution, the trial Court had no difficulty in holding that so far as the factum of dacoity was concerned there was hardly any scope for doubting the same. The only question that was really posed before the Court was the one relating to the identity of the dacoits and the only evidence that was available to the Court to decide this question was--
(a) the oral evidence of P.W. 1 and P.W. 2 for identifying the dacoits;
(b) the identification parade;
(c) the confessional statements of the accused stating that they would point out the place where they had concealed the part of the booty;
(d) the actual discovery of the watches by the two appellants.
The Court found that the oral evidence as such was useless for fixing the identity of the offenders. Hence accused Nos. 2 to 6 were acquitted by the Court. But so far as the present appellants accused Nos. 1 and 7 were concerned there existed evidence of the identification parade as also of the confessional statements and the discoveries. Placing reliance upon the said evidence both the above appellants have been convicted and sentenced by the learned Judge as mentioned above.
7. In this appeal Mr. P.G. Godhamgaonkar, took me through the entire evidence, both oral and documentary. After examining the evidence it is quite clear that the oral evidence as well as the evidence relating to identification parade are of very meagre use. A part of that evidence is useful for proving the factum of the dacoity. But the question in this appeal is not as to whether the dacoity at all took place. That fact was not called in question by Mr. Godhamgaonkar at all and very rightly so. The evidence led by the prosecution in this behalf has practically gone unchallenged. Moreover, the fact remains that, P.W. 1. Ganesh and P.W. 2. Babu have been in fact injured and it is impossible to hold that the injuries could be self inflicted injuries. The panchanama of the scene of offence leave no room for doubt that the incident did take place on that day night. There can be no room for doubt that some dacoits did commit dacoity and helped themselves at least with the wrist-watches worn by P.W. 1. and P.W. 2. respectively. The only question is to the identity of the dacoits. Strenuous efforts were made by Mr. Godhamgaonkar to satisfy the Court that who-so-ever might be the dacoits, the identity of them cannot be fastened upon the present appellants.
8. In this connection he rightly pointed out that both the oral evidence and the identification parade, so far as they were relied upon for the purpose of establishing the identity of the dacoits, were useless, because, the evidence of P.W. 1 and 2, itself shows that the dacoits had completely concealed their faces by piece of black cloth. It is true that, according to the witnesses, one of the dacoits was tall and well built. Another was short and the remaining were of the average height. But, Mr. Godhamgaonkar was right in contending that this description is useless for identification. Out of the hundreds of dacoits that may be infesting this area, any number of them may be tall and well built; more or less equal number may be short structure and there may be any number of dacoits of average heights. From such description the identity of the assailants cannot be fixed upon the present appellants, one of the whom is tall and well built and the other of whom is short. The oral evidence of P.W. Nos. 1 and 2 in so far as it is directed to identification of these accused as dacoits, is, therefore, useless.
Similar is the position of identification parade. It really defies understanding as to how P.W. 1 and P.W. 2 could have contented that the present accused were the self same dacoits who had assaulted them on the fateful day. Their evidence in this behalf is more the result of their belief and guess work than of any factual knowledge.
9. The real question is as to whether their evidence gets any support from the confessional statements made by these two accused and from discoveries made by them of the two watches which were the part of the booty. Around this question will revolve the question of validity of the conviction of these two accused.
10. The submission of Mr. Godhamgaonkar on this question is two-fold. In the first place he contended that the evidence on record does not justify the conclusion that in fact any confessional statement was made by either of the accused or that any discovery of the incriminating articles was made by them before the Police in pursuance of the so called confessional statements. Secondly he contends that the incriminating articles namely the two watches have been recovered by the Police, allegedly, at the instance of the accused, not from their houses but from open spaces or from places to which strangers and outsiders had easy access. The legal result of this position, according to Mr. Godhamgaonkar, is that the incriminating articles cannot be said to have been 'discovered' within the meaning of section 27 of the Evidence Act in pursuance of the information received from the accused.
In support of this proposition he has relied upon quite a few authorities. I will refer to them while discussing the said second point.
11. Let me, however, deal with this first point. He contends that according to the prosecution after the accused were arrested they have made confessional statements before the Police in the presence of panchas and that the incriminating articles were recovered by the Police through the accused in the presence of panchas from the place of deep concealment. He took me through the prosecution evidence to satisfy me that the evidence does not justify the conclusion aimed at by the prosecution at all.
12. So far as accused No. 1 is concerned the relevant evidence relating to the discovery consists of the evidence of P.W. 4, Chandrayya Mallayya Gorje, who acted as Panch, before whom the alleged confessional statement was made by him. The witness has stated that on the relevant occasion the P.S.I. directed the panchas to interrogate the accused, that he made enquiries with the accused about his name etc. and that after being informed about his name Uklya accused No. 1 made confessional statement before the panchas that he had kept a wrist-watch under a heap of fodder at his Lamani Tanda and he would get the same recovered. He stated that the memorandum to that effect was drawn up and that he had signed the same.
13. The memorandum of the panchanama is produced and brought on record. In the memorandum it is stated that accused No. 1 made a statement before the panchas to the effect that out of the loot a watch which had come to his share had been buried by him in the earth below a stack of hay; that after burying it, he had kept a stone on the same; that he was prepared to take out the same voluntarily and that others should accompany him to Chikala Tanda for the purpose.
The witness further stated that after the witness and the Police accompanied the accused to the place pointed out by him, namely the place of Lamani Tanda the accused took them to the heap of fodder just near his own house. The witness stated that the stack of fodder was surrounded on all sides by fencing of thorny bushes, with a gate for ingress and exit. The witness stated that the accused Uklya went near the heap of fodder through the gate, removed some bundles of fodder and thereafter produced the wrist-watch before the party which was tied in a piece of cloth. According to the witness, the wrist watch found kept under the stones below the heap of fodder.
The witness referred to the Japti panchanama made at that time. The said panchanama is brought on record. The panchanama states that accused No. 1 took the Police Party with the panchas; to the place of Tanda, that he showed a house with a roof, to the south of the said Tanda, stating that it was his residential house and that the accused took them to a distance of about 5ft. to the south of the said house. That was an open space in which there was a stack of hay heaped. The panchanama states that the accused claimed the stack of hay to be of his ownership and that the same was fenced from all four sides with a gate on a Wicket (Phatak) for ingress and egress. The panchanama states that the panchas and the Police followed the accused, Uklya, who opened the gate and entered into the enclosed place, that accused No. 1 Uklya, removed some bundles of hay from the northern side of the stack, removed a stone at the bottom of bottom of the stack dug out some earth below the stone and took out small bundle wrapped up in some cloth. The panchanama mentions that when the cloth bundle was opened, a wrist watch of Traca-make with brass frame was taken out and presented before the panchas.
14. Mr. Godhamgaonkar's objection to this entire evidence is---
(a) that the cloth in which the watch was wrapped has not been attached and produced by the prosecution and hence the discovery is vitiated; (b) that there is difference in the version coming from the oral evidence of the panchas, the memorandum of the panchanama and from the Japti panchanama, as regards the place of concealment.
15. To my mind, all these submissions are plainly unacceptable. In the first place, I do not find relevance of the cloth in which the wrist-watch was wrapped for attachment. The fact that the watch was wrapped in the cloth is deposed to by the panch and he has not been cross-examined on that point. Even if the cloth was produced before the Court, no additional light would have been thrown upon the part imputed to accused No. 1. As regards the arguments relating to difference in version of the place of concealment, I do not see any material difference at all. These accused are admittedly Lamani people. They live in the place where the Tandas live. The Police Party, with the panchas, was taken by the accused actually to the place of the Tanda where the accused showed his house. The stack of hay was at a distance of about 5ft. from the house and it was enclosed space, in the sense that it was fenced by thorny bush with a gate for ingress and egress. This means that the stack of hay was of the ownership of accused No. 1 and that the enclosed space was part of the house occupied by accused No. 1. It may be that the stack of hay being not fully enclosed, in the sense that it was not bounded by four walls. Some other persons might have access to it particularly when the accused or the members of his family were not watching the same. But that does not mean that there was any material difference in the version relating to the place of concealment.
The argument based on the plea that the place of concealment was open space accessible to all will be dealt by me separately. The point here is that I do not see any reason to disbelieve the evidence of this panch or for the matter of that of the Investigating Officer, P.W. 2, who has deposed to all these facts again. There is nothing in the cross-examination of the Panch concerned to disbelieve his evidence showing that the watch in question was in fact taken out of concealment by accused No. 1. The fact that the watch belonged to P.W. 1. is not disputed. The accused has not claimed the ownership of the watch. Complainant P.W. 1. has identified the said watch to be his watch. His claim is not questioned by the accused. There is no suggestion that the watch was planted by the Police at the place of concealment. It is un-understandable as to how it was that the watch of P.W. 1 which was whisked away by some dacoits on the fateful night came to be concealed in the place which is a part of the house of accused No. 1. It would be equally intriguing, unless the prosecution theory is accepted, as to how it was that accused No. 1 knew about the place of concealment. But all these are matters of inferences. I will come to that part a little later. At this stage it needs be stated that no holes can be picked in the evidence of the panchas and their memorandum of Panchanama and Japti Panchanama so as to discard the evidentiary value of the same.
16. As regard the confessional statements made by accused No. 7, the prosecution evidence shows that the made confessional statements in the presence of panchas upon interrogation by them. P.W. 9, Gangaram Venkanna, is one of the panch witnesses examined by the prosecution in this connection. He deposed to the confessional statements made by accused No. 7 in which he has stated that he had kept a wrist watch in his house and that he would produce the same. The witnesses has also stated that the accused took the Police Party and the panchas to Chikala Tanda in Jeep, that the Jeep was stopped outside the village and that accused No. 7 took the party to the Kowtaha belonging to him. He further deposed that near his house there was a Paul (Paul means a heap of stones kept one over the other for purpose such as indication of boundary etc.). The witness stated that accused No. 7 removed some of the stones of the Paul and fished out a small bundle before them and that upon opening of the bundle it was found to contain a wrist watch of white colour. The watch is of Oscar make and it is duly identified by P.W. 2 Babu to be the one of which he was robbed on the night of the dacoity. It was attached under a panchanama. The Japti panchanama is brought on record in which also it is stated that this accused had made statements before the panch to the effect that he had concealed the watch in his village at Chikal Tanda under a stone Paul.
Mr. Godhamgaonkar's criticism of this evidence is that there is difference in version as regards the identity of the place of concealment in these three pieces of evidence, oral evidence of the panch witnesses, Memorandum of panchanama and the Japti panchanama. He also contends that there is difference in version of the Investigating Officer and of the panch witnesses. I fail to find any basis for such an argument. I find no inconsistency or contradiction or even variation in the evidence disclosed by these three pieces of evidence. The entire evidence leads to one conclusion namely that accused No. 7 told the Panchas that he had kept the watch in the Paul near his house situated in the vasti called 'Chikala Tanda'. The other objection of Mr. Godhamgaonkar is that this Paul was not a part and parcel of the residential house of accused No. 7. The evidence of panch witness P.W. 9 leaves no room for doubt that Paul in question was a part and parcel of the house of accused No. 7. The evidence clearly shows that accused No. 7 intended to take the party to his house. It clearly shows that accused No. 7 had told the panchas that he had kept the wrist watch in his house; that he took the party to his house; that he went near the Paul and removed some stones from the Paul and that he took out a small bundle containing the wrist watch from the below the stones. There is no cross-examination of the witness on the question that the Paul was not a part of the house. But I will presently examine the legal position even on the assumption that the Paul was not a part of the house of accused.
17. The further criticism of Mr. Godhamgaonkar in relation to both these confessional statements of accused Nos. 1 and 7 was as regards the alleged delay on the part of the Police in recording these statement. Accused No. 1 was arrested by the Police on 18-4-1982. He made the confessional statement on 22-4-1982. Accused No. 7 was arrested by the Police on 26-8-1982. He made the confessional statement on 1-9-1982. The argument of the learned Advocate was that the 4 days' delay in the case of accused No. 1 and the 6 days' delay in the case of accused No. 7 in the matter of recording of the confessional statements have not been explained by the prosecution.
18. The argument is plainly anamolous and meaningless. From the very nature of things all the confessional statements are recorded by the Police only when the accused shows his willingness to make the statement. The delay is not caused by the Police. The Police have no control over the accused in the matter of making of any of the confessional statements. Evidently Mr. Godhamgaonkar is making confusion of statements of other witnesses recorded by the Police during the investigation with that of the accused recorded by the Police during that time. Delay in recording the statement of the various witnesses has got to be explained by the Police. But if the accused have made delay in the matter of confession the blame cannot be brought home to the prosecution. The agreement is plainly preposterous.
19. All the above mentioned discussions would show that so far as the factual aspect of the confessional statements and the factual aspect of the recoveries are concerned, the evidence led by the prosecution is quite satisfactory and no fault can be legitimately found with the same.
20. But Mr. Godhamgaonkar came out with somewhat serious legal contention in this connection, viz. that even assuming that the confessional statement made by accused and, further, even assuming that in fact the incriminating articles were taken out by the two accused from the place of concealment, still, the question would remain as to whether the discovery coming from accused Nos. 1 and 7 respectively would fall within the compass of section 27 of the Evidence Act. The argument was that the articles have been recovered not from the house of either of the accused, but that they have been recovered from the place to which anybody could have had access.
21. In support of his contention, he relied upon quite a few authorities and I must proceed to examine them.
In : AIR1959MP125 , in the case of Shobha Param Kachhi & others. v. The State of Madhya Pradesh, all the discoveries by various appellants were said to be from open places accessible to the public and it was held by Madhya Pradesh High Court as follows :
'As all these discoveries are from places which are open and accessible to all, they do not, in the least, inspire confidence and must be discarded.'
On the broad proposition of law, that in all cases where discoveries were made from open space accessible to all, the discoveries lost evidentiary value, I will have occasion to state something a little later. But, at this stage, it may be pointed that in the case with which Madhya Pradesh High Court was dealing, the discoveries were not co-related with any confessional statements as such. In that case it was found by the High Court that the confessional statements made by the accused in the presence of the panchas were not voluntary statements at all. In fact, it has, in no uncertain terms, discarded the confessional part of the statements made by the accused. In the instant case the statement made by the accused, which leads to discovery, also broadly contains a confession. In the instant case the prosecution evidence is that each had stated that he had concealed the particular watch at the places which he was going to point out. This is no doubt a confessional part of the statement. If this part is not believed, then the subsequently discovery made by him is bound to lose good deal of its evidentiary value. This is the distinguishing feature between the case before me and the case with which Madhya Pradesh High Court was dealing.
21-A. The next authority relied upon by Mr. Godhamgaonkar is the judgment of the Madras High Court, reported in A.I.R. 1929; Mad. 846, in the case of Public Prosecutor v. Pakkiriswami and another. In that case the accused arrested under sections 457 and 380 of the I.P.C. made statements indicating a tank from which vessels, corresponding to the description of the stolen articles were recovered. But the tank was not the particular property of the accused nor was it even in his sole control. It was accessible to the public in general. The Court found it was possible that some other persons might have concealed the articles in the tank and on that basis it was held that the fact that the accused had knowledge about tank being the place of concealment of the stolen property did not mean that he had committed the offence of theft or any other offence.
As will be presently pointed out it is possible in such cases to infer that the accused shared the general knowledge with general public about the fact that the tank contained certain articles. The mere fact that the accused were having that knowledge would not warrant inference of they being the perpetrators of the offence of theft. This is plain logic. The question is as to whether in circumstances where the accused are having the exclusive knowledge of such fact, the legal inference would be the same.
22. The next authority relied upon is the judgment of the Lahore High Court, reported, A.I.R. 1917 Lah 48 in the case of Emperor v. Buta Singh. It was held in that case as follows:---
'The mere fact that a person points out a place not his own where stolen property is concealed, does not justify the Court in drawing the conclusion that the person who pointed out the stolen articles had received or retained it.'
It was also further observed in that case as follows :---
'The mere knowledge of the place of concealment does not necessarily lead to the conclusion that the person having such knowledge actually received the stolen articles or participated in the act of concealment.'
But if we turn to the facts of this case, they are identical as those in the above mentioned Madras case. Here also all that the accused Buta Singh did was that he pointed out the pond outside the village in which the stolen silver utensils were dumped by the dacoits. The allegation was that Buta Singh himself fished out the silver utensils in the presence of the Police and handed them over to the Police. But this part of the story was not wholly believed by the Court. The Court did hold that Buta Singh did point out the place where the stolen property was found. But the Court held that there was nothing on record to show that he was ever in possession thereof or had rendered assistance in concealing it. The Court found that Buta Singh's son who was himself absconding might have played the role of the dacoit and might have handed over the incriminating articles to some others; but the Court found that there was not a particle of evidence to connect Buta Singh with the part played by his son who was absconding. It was in these circumstances that the Court held that mere knowledge of the place of concealment does not necessarily lead to the conclusions that the person indicating the place of concealment actually received the articles or perpetrated the act of concealment.
What is noteworthy is that this so called discovery made by the Buta Singh could not be co-related with any confessional statement made by him. This is one of the most important distinguishing features in this case and I will have occasion to refer to its importance when I discuss the principle underlying section 27 of the Evidence Act read with the latest judgment of the Supreme Court on this point.
But before going to the said authority, it is necessary to discuss the question as to whether any part of the statement made by the present accused before the Panchas, as was incriminating against them, was admissible in evidence under section 27 of the Evidence Act or under any other provisions thereof. In this connection, it is to be noted that the statements made by both the accused before the Panchas were that they, the accused, had concealed these watches at the place which they were going to point out. They had, therefore, unequivocally confessed atleast certain part of the offence imputed to them. If they confessed that it is they who concealed the watches and if they took out those watches from the place of concealment, one of the two inferences, will be possible :
(a) That they were the actual offenders who committed dacoity during which these watches were stolen; (b) That they were receivers of the stolen property in question.
In the present case, it is nobody's contention that the accused might have been the receivers of the stolen property. The defence of the accused is one of the total denial, pure and simple. They denied that they ever pointed out the place of concealment, or that they took out the articles from the place of concealment, in the presence of panchas. Even Mr. Godhamgaonkar did not contend that the accused might be the mere receiver of the stolen property knowing it to be stolen.
22-A In this connection my attention was invited by Mr. Deshmukh, the learned Addl. Public Prosecutor, to the judgment of the Supreme Court : 3SCR412 , in the case of K. Chinnaswamy Reddy v. State of Andhra Pradesh and another. It has been held by the Supreme Court in that case that when an accused person states that he has concealed a particular article which is the subject matter of the offence and points but the place of its concealment himself, not only the fact that the article was recovered from the place of concealment pointed but by him out even the statement of the accused to the effect that he had concealed it at that place is admissible in evidence. This is what the Supreme Court has laid down in the said judgment :
'Section 27 is an exception to sections 25 and 26, which prohibit the proof a confession made while a person is in Police custody, unless it is made in immediate presence of a Magistrate. Section 27 allows that part of the statement made by the accused to the Police 'whether it amounts to a confession or not which relates distinctly to the fact thereby discovered to be proved. Thus even a confessional statement before the Police which distinctly relates to the discovery of a fact may be proved under section 27. It is only that part which distinctly relates to the discovery which is admissible; but if any part of the statement distinctly relates to the discovery it will be admissible wholly and the Court cannot say that it will excise one part of the statement because it is of a confessional nature. Section 27 makes that part of the statement which is distinctly related to the discovery admissible as a whole, whether it be in the nature of confession or not. Where in a burglary case, the accused in Police custody made a statement to the Police that he would show the place where he had hidden the ornaments and that statement led to the discovery of the stolen ornaments. Held that the whole of the statement relates distinctly to the discovery of ornaments and is admissible under section 27. The words 'where he had hidden them' have nothing to do with the past history of the crime and are distinctly related to the actual discovery that took place by virtue of that statement and would, therefore, not be admissible .'
Mr. Deshmukh also invited my attention to the judgment of this Court reported in A.I.R. 1945 Bom 292, it has been held that such statement was admissible under section 8 of the Evidence Act.
23. It is on this background I must now refer to the judgment of the Supreme Court : 1985CriLJ753 , in the case of Lachhman Ram etc. v. State of Orissa, It was held in that case that the factum of recovery of articles at the instance of the accused persons in the presence of Police Officers and panch who have witnesses who have deposed to the same is itself sufficient to bring the case not under the provisions of section 412 but also under section 391 with the aid of section 114 of the Evidence Act when the recoveries were made very soon after the occurrence. The Supreme Court went a step further in that case and held that the persons acting as panchas to the recovery could not identify the accused would not render their evidence as to recovery, liable to be rejected.
But what is noteworthy in connection with this case is identical argument as in the present case was advanced before the Supreme Court to the effect that the recovery was made from open space accessible to one and all. Dealing with this argument, the Supreme Court observed in para 9 of its judgment as follows:
'Secondly, the learned Sessions Judge was of the opinion that the various places were such as would be open and accessible to one and all. This reasoning of the learned Sessions Judge is not borne out by the record because the evidence of the investigating Officer as also the panch witnesses shows that the articles recovered were kept concealed either under a stone or under a bridge or at other places which cannot be said to be accessible to any ordinary person without prior knowledge.'
To my mind, the above proposition of law laid down by the Supreme Courts sets at rest considerable amount of confusion caused by the theory of 'accessible place open to all'. It may be that the broad proposition that a person sharing knowledge with others about the fact that certain properties lying dumped in some tank or pond will not give rise to the inference that he is the thief of the property or receiver of the stolen property, would be a readily acceptable proposition. Having mere knowledge of the place of concealment shared with the common public will not necessarily give rise to an inference of participation in the offence connected with the concealed property. But there arise occasions when this knowledge of concealment is had by a person exclusively. In the present case with which I am dealing as also the case with which the Supreme Court was dealing, the position was that the stolen property was concealed below certain stones or hay stick, when accused No. 1 in the instant case went to the enclosure, opened the gate of the enclosure, went to hay stack, removed certain bundles hay, found a stone below, removed the stone and took out the bundle containing the wrist-watch. His knowledge of concealment at such place in such manner could not be said to have been shared by him with the general public. It must be said, therefore, that though the place may be one to which anybody could have had access, (say at night time when nobody was watching it) the fact that there was something precious lying concealed at the place could not be known to the members of the general public at all. If any person could fish out this stolen property from below the hay stack, only two inferences are possible :
(a) That he himself had concealed the said stolen property in the deep interstices of the place of concealment . (b) That the property was planted by somebody there and the accused was made to point out the same by intimidation.
In the instant case the second possibility is ruled out because there is not as much as a suggestion of it in the evidence. Only the first possibility has got to be inferred.
24. The position as regards the discovery made by accused No. 7 from the stone Paul is in no way different in principle. I am prepared to assume that the Paul was not a part of the house belonging to accused No. 7, although I am not quite sure even about that position because the evidence on record is possible of being interpreted to warrant an inference that the Paul was really a part of the residential establishment of the accused. But even assuming that it was not so, the point is that the manner in which the stolen article was kept concealed by accused No. 7 below the heap of stones leave no room for doubt that it was he who had the exclusive knowledge of this concealment. Inference, therefore, must follow that it was he who concealed it there. It is not his case that he received the watch from anyone else. In fact he was absconding for a long time and immediately after arrest within 5 days, he pointed out the place of concealment. All these facts taken together point out an un-mistakable accusing finger to accused No. 7.
25. The other evidence of the prosecution namely that the dacoits were speaking in Lamani language assumes importance in this context. It may be that the evidence of the identification parade is not of much advantage to the prosecution. I have my own doubt as to whether when the accused were admittedly unidentifiable at the night of dacoity by virtue of concealment of their faces with black cloth they could be identified by P.W. 1 and P.W. 2 in the identification parade. I am, therefore, prepared to discard the entire evidence relating to the identification parade. But the fact remains that the present accused are Lamanis and they speak Lamani language. Accused No. 7 was absconding for a long time. Even accused No. 1 was absconding but he was apprehended much soon and all these circumstances ropped by the fact that they themselves pointed out the place where the stolen watches were concealed by them, read cumulatively, must give rise to the inference that they must have been the dacoits who participated in the dacoity in the night in question.
26. An argument was advanced by Mr. Godhamgaonkar that the only evidence against this accused is of discovery made by them and that the discovery contemplated by section 27 of the Evidence Act cannot be a substantive piece of evidence.
The discovery itself might not be substantive evidence in certain cases. The discovery might give rise to an inference either to theft or being the receiver of stolen property. In certain circumstances, the discovery may be stemming from knowledge shared with general public. But, when the discovery is accompanied by a confessional statement such as the one in the present case, as contemplated by the Supreme Court, in the case of K. Chinnaswamy Reddy v. State of Andhra Pradesh and another : 3SCR412 , the discovery becomes important piece of evidence for the prosecution and unless the accused accepts the same the conclusion of participation in the offences by him would be inescapable. As to what be the exact nature of the offence would depend upon the facts of each case. In a given circumstances, it might be the mere offence of receiving of stolen property knowing it to be stolen as contemplated by sections 411 and 412 of the Indian Penal Code and in other case it may be an inference of theft or dacoity. The evidence in the instant case does give rise to the inference of dacoity. Moreover, no case is made out before me that the two accused would be mere receivers of stolen property.
27. It is un-necessary for me to discuss the other part of the evidence of the prosecution. The entire evidence has been fully discussed by the Sessions Court and by and large, I am in agreement with the conclusion arrived at by the learned Judge in that behalf except on the question of the identification parade. But my doubt as regards the identification parade does not in way affect the ultimate conclusion arrived at by the learned Sessions Judge.
28. So far as the question of sentence is concerned I find no reason to interfere with the order passed by the Sessions Court in that behalf. No serious arguments were advanced on behalf of the accused before me in that connection.
29. The order of conviction and sentence passed by the learned Sessions Judge against the two appellants is, therefore, confirmed.
The appeal fails and the same is hereby dismissed.
The accused to surrender their bail-bonds within 15 days from today.