1. This is an appeal from a decision of the First Class Magistrate of Khargone acquitting the respondent Sitaram of a charge under Section 380, I. P. C.
2. It was alleged by the prosecution that on the night of 17th January 1956, at about 9 p.m., a theft was committed at the residence of Sukmabai and Rs. 961-4-0 were stolen. The prosecution sought to prove the guilt of the accused mainly by the evidence of Sukmabai and by the evidence of the recovery of Rs. 965 from the possession of the accused. The learned trial Magistrate disbelieved the statement of Sukmabai that on 17th January 1956, she was in possession of Rs. 961-4-0 and that this amount had been stolen. The trial Magistrate also held that there was no evidence to show that the amount recovered from the possession of the accused was the one which had been stolen from the house of Sukmabai.
3. Mr. Sharma, learned Government Advocate for the State, admitted that there was no evidence to show that Rs. 965 recovered from the possession of the accused were identical with the currency notes or cash stolen from the house of Sukmabai. He also did not rely on the evidence of Sukmabai. The argument of the learned Government Advocate was that while the accused was being examined under Section 251-A, Cr. P. C., before the framing of the charge, the accused admitted having committed the theft; and that this statement should have been considered by the lower Court as one under Section 342, Cr. P. C., and the accused should have been convicted thereon. The con-, tention cannot be accepted.
The consideration of the documents referred to in Section 173, Cr. P. C., and the examination, if any, of the accused under the provisions of Sub-sections (2), (3), (4) and (5) of Section 251-A, Cr. P. C., is only for the purpose of determining whether prima facie there is any ground for discharging the accused or for presuming that he, has committed an offence. The examination of the accused under Section 251-A, Cr. P. C., must necessarily be with regard to the material against him in the documents referred to in Section 173, Cr. P. C., and the answers given by the accused during such examination explaining those documents can at the most be the material on which a Magistrate can discharge the accused or frame a charge against him.
But the answers given by the accused do not constitute any evidence either for or against him. That being so, Section 342(3), Cr. P. C., which applies to the answers given by the accused when he is asked to explain any circumstances appearing in the evidence against him, cannot be said to be applicable to answers given by the accused under Section 251-A when he is examined before the framing of the charge.
In fact, according to the decision of the Supreme Court in the case of Vijendrajit v. State of Bombay, AIR 1953 SC 247 (A), even the statement of the accused under Section 342, Cr. P. C. is not evidence. That an unsworn statement of the accused as to his defence when he is not examined as a witness is not evidence is now clear from Section 342-A, Cr. P. C., which gives the accused option of examining himself as a witness and to tender his own evidence on his behalf.
Again according to the above noted decision of the Supreme Court, an accused person cannot be convicted merely on his statement under Section 342 when there is no evidence to support the prosecution case. For these reasons the argument of the learned Government Advocate that the accused should have been convicted on his statement made before the framing of the charge cannot be accepted. In consequence, the appeal is rejected.
4. I agree.