G.K. Misra, J.
1. The prosecution case is that in the morning of 28th December of 1959 Baud Naik left his village to get medicine for his wife from one Narsingh Durva. While returning back he went to Ghumaramath forest to drink Salapa juice. While in the jungle Sukman and Sukuru killed him with an axe and he died on the spot. After reaching the village Sukman told his brother Aitu Durva (Accused No. 1) that he killed Badu Naik. Accused Chaitan is the nephew of Sukuru. Aitu and Chaitan accompanied Sukman and Sukuru to the jungle where the dead body was lying. All of them carried the dead body and threw it into Kolab river. In Sessions Case No. 8 of 1960 Sukman was convicted under Sections 302 and 201, I.P.C. and Sukuru was convicted under Section 201, I.P.C. Chattan was examined as P. W. 8 and Aitu as P. W. 9 in that sessions case. Both of them deposed in the Committing Court as also in the Sessions Court that they knew that Badu Naik had been killed and on account of the request of Sukman and Sukuru, who are their direct near relations, they assisted them in causing the disappearance of the dead body of Badu Naik, Though in clear terms they did not state that it was their intention of screening the offender from legal punishment, their statements, read as whole convey that meaning and the existence of intention is to be gathered from the facts and circumstances of the case. The present prosecution against the accused persons is under Section 201, I.P.C. on the basis of their admissions made before the Committing Court and the Sessions Court in Sessions Case No. 8 of 1960 in the Court of the Sessions Judge of Koraput.
2. Both the accused persons plead that they are not guilty. In their statements under Section 342, Cri. P. C. they state that at the instigation of the police they had deposed that they assisted Sukman and Sukuru in the disappearance of the dead body, but in fact they did not throw the dead body of Badu Naik.
3. The learned Assistant Sessions Judge acquitted the accused persons under Section 201, I. P, C. holding that Section 132 of the Indian Evidence Act is a bar against the prosecution of the respondents. The State of Orissa has filed this appeal against the order of acquittal.
4. The admitted position is that besides the admission of the accused persons that they committed an offence under Section 201, I.P.C. there is no other evidence against them. P. W. 5 (I.O.) stated that he had not examined any independent wit-ness as being not available in connection with the complicity of the accused persons in screening the offence. There are no materials in this case to show that the respondents were compelled by the Court or counsel either expressly or impliedly to give the answers.
5. Section 132 of the Indian Evidence Act runs as follows.
A witness shall not be excused from answering any question as to any matter relevant to the matter in issue in any suit or in any civil or criminal proceeding upon the ground that the answer to such question will criminate or may tend directly or indirectly to criminate such witness or that it will expose or tend directly or indirectly to expose, such witness to a penalty or forfeiture of any kind.
Provided that no such answer, which a witness shall be compelled to give shall subject him to any arrest or prosecution or be proved against him in any criminal proceeding except a prosecution for giving false evidence by such answer.' The accused persons as witnesses in the previous sessions case deposed to facts which clearly in-criminate them under Section 201, I.P.C. The point for decision is whether the answers so given shall not subject them or be proved against them in any criminal proceeding except in a prosecution for giving false evidence by such answer. The present prosecution is certainly not for giving false evidence by such answer. It is clearly one under Section 201, I.P.C. on the basis of those answers (Exhibits 10 and 11). The key word in the proviso is 'Compelled'. The proviso protects the witness only if he was compelled to answer the incriminating question. As to what constitutes compulsion there is conflict of judicial authority. In some cases it has been held that in order to be entitled to the protection the witness must object to the question which tends to incriminate him/ In other cases it has been held that the witness need not specifically object to the question and the mere fact of his being called to the witness-box, sworned and questioned about relevant facts implies that he is compelled to answer the question. The former view is correct. The question whether the statement was made voluntarily or under compulsion is a question of fact. Compulsion may be express or implied and not involve the necessity of a formal objection to giving the answer and of an order being made at the time of compelling the witness to answer nor can any set form of words be prescribed in which the claim should be made by the witness. Cases are conceivable in which the Court may hold that the claim was made by implication. For instance, a question may be asked by the Court. A witness may hesitate to answer the question and the Court says 'You must answer' and the witness answers. He may be deemed to have claimed the protection. But an obligation under law to state the truth as a witness on oath cannot ipso facto be equated with compulsion. The position in law has been clearly enunciated in D. Subraman-yam v. N. Narasimham AIR 1929 Mad 323 (326). The learned Assistant Sessions Judge relied upon Sheo Karan Lal v. Bandi Prasad AIR 1943 Pat 117 which is clearly distinguishable. In that case in a proceeding under Section 145, Cri. P. C. between two brothers the witness was repeatedly asked questions suggestive of his wife's unchastely. His pleader objected. The questions were allowed by the Magistrate and he had to give; the answers. The witness answered that he was not pulling on well with his wife as he had illicit connections with the wife of his brother. It was rightly held that the witness had the right to answer the questions put to him in any way he thought proper because he was compelled to answer the question and whether the answer was deliberately false was quite irrelevant. In the Patna case the question put to the witness was thoroughly irrelevant to the subject-matter of the proceeding. Despite the irrelevancy the witness was compelled to answer the particular question and therefore the protection was directly within the purview of the proviso. This does not however support the broad proposition that even though a witness is not compelled to give a particular answer either expressly or impliedly he is still entitled to the protection of the proviso. The learned Assistant Sessions Judge misconceived the legal position and his view that the admissions of the respondents cannot be used against them as evidence, is contrary to law,
6. This does not however solve the difficulty. The question is whether the conviction can be sustained merely on the basis of the admissions, there being no other evidence in support of the prosecution case. Law is clear that an admission is the best evidence that an opposing party can rely upon, and though not conclusive, is decisive of the matter, unless successively withdrawn or proved erroneous. In their statements under Section 342, Cri. P. C. respondents state that police instigated them to make the admissions. Their suggestion seems to be that police gave them assurance that if they admit their own complicity after implicating Sukman and Sukuru they would not be subject to prosecution. it is somewhat regrettable that the pleader appearing for the defence did not even make such suggestion to the I.O. (P. W. 5). Even if such a suggestion would have been put to the I.O. the obvious answer that there was no instigation can be visualised. To explain the admission there is no other material on the record excepting this bare statement of the accused persons under Section 342, Cri. P. C. There is another important circumstance, which cannot be ignored. Though the evidence against these two accused persons was available from the very beginning of the investigation, the prosecution did not choose to try the respondents along with Sukman and Sukuru in Sessions Case No. 8 of 1960. It cannot however be suggested that prosecution is not entitled to do so. It is neither illegal nor improper. But the facts stand that the prosecution has not suggested any reason as to why they did not put the respondents in their joint trial with Sukman and Sukuru. From a perusal of the judgment (Exhibit 12) in the Sessions Case No. 8 of 1960, it seems clear that without the evidence of the respondents, who are accomplices it would have been difficult to sustain the conviction in that case. It can therefore be reasonably inferred that the prosecution was of opinion that for the success of the previous sessions case the evidence of the respondents was very material. In such context the explanation of the respondents under Section 342, Cri. P. C, may be taken as true and sufficient for the purpose of discharging the onus of explaining away the admission. under Section 342(3) the answer given by the accused may be taken into consideration in such enquiry or trial. In State of Maharashtra v. Laxman Jairam : AIR1962SC1204 their Lordships held that it cannot be said that in no case the statement of an accused person be taken to be sufficient for the purpose of discharging the onus if a statute places the onus on him under Section 342, Cri. P. C. Their: Lordships observed:
under Section 342 of the Criminal Procedure Code the Court has the power to examine the accused so as to enable him to explain any circumstance appearing in evidence against him. Under Sub-section (3) of that section the answers given by an accused person may be taken into consideration in such enquiry or trial. The object of examination under Section 342 therefore is to give the accused an opportunity to explain the case against him and that statement can be taken into consideration in judging the innocence or guilt of the person so accused.
In the facts and circumstances of S. this case though the accused did not make any suggestion to the I.O. that there was instigation on the part of the police the explanation of the accused can be accepted as sufficient to explain the admission. I would conclude by saying that the conviction of the respondents cannot be upheld merely on the basis of exhibits 10 and 11. The accused are therefore entitled to acquittal though for different reasons.
7. The appeal fails and is dismissed.