B.N. Misra, J.
1. Dusasan Bhoi, Lax-man alias Nakhia Gochhayat and Kalia alias Babaji Bhoi have been convicted under Sections 302/34, 394 and 201, I.P.C. Each one of Ihem has been sentenced to imprisonment for life for the offence under Section 302/34, I. P. C, rigorous imprisonment for ten years for the offence under Section 394, I.P.C. and rigorous imprisonment for five years for the offence under Section 201. I.P.C. The sentences have been directed to run concurrently. Accused Ratna alias Ratna- kar Bhoi who was also tried along with the appellants for the same offences has been given the benefit of doubt and acquitted of all the charges.
2. The prosecution case may be briefly stated. Deceased Baraju Das and his wife deceased Sadhabi Debi were staying by themselves in their house in village Pata-pur. The deceased couple had no other family members living with them; their only married daughter Saraswati Debi (P. W. 10) was living with her husband in village Gopinathpur which is situated at a distance of 3 to 4 mile-s from village Patapur. Deceased Baraju was working as an Amin and he also had some landed properties. The appellants also belong to the same village Patapur. Appellant Dusasan was previously cultivating the lands of Baraju as a bhag tenant but in the year of occurrence Baraju had dispossessed Dusasan and had let out his lands to some other persons. On account of this, appellant Dusasan bore grudge against deceased Baraju. On 7-10-1975 at about 8 a. m. P. Ws. 1, 2, 3 and 4, who are co-villagers found that there was no sign of life in the house of Baraju. On entering the house they found that deceased Baraju was lying dead inside a room in the house and fire was burning over some jute and clothings lying on the dead body. P. Ws. 3 and 4 went to the police station at Salipur and P. W. 4 lodged F. I.R. Ext. 1 with P. W 16 who was then the officer-in-charge of the police station. A case under Section 302/201, I.P.C. was registered and the police took up investigation. After the arrival of the police in the village, when the villagers re-entered the room where the dead body cf Baraju was lying they found that the dead body of Baraju's wife Sadhabi was alto lying in the same room in a half-burnt state. The dead bodies were sent for post-mortem examination. Confessional statements of all the three appellants were recorded before the Magistrate (P. W. 14). After completion of investigation, charge-sheet was submitted against the appellants and accused Ratnakar Bhoi.
3. The defence plea is one of complete denial. The three appellants have denied that they had led to the recovery of gold and silver ornaments and cash belonging to the deceased persons. While appellant Laxman has denied to have made a confessional statement before the Magistrate, appellants Dusasan and Kalia have stated that they had put their thumb impressions on being asked to do so.
4. At the trial 16 witnesses have been examined on behalf of the prosecution and none on behalf of the defence. The learned Sessions Judge found the appellants guilty and convicted and sentenced them as noted above. Accused Ratnakar was given the benefit of doubt and acquitted.
5. P.W. 12 is the doctor who had conducted post-mortem examination on the dead bodies of Baraju and his wife Sadhabi on 9-10-1975 on police requisition.
P. W. 12 had found that the dead body of Sadhabi had decomposed and the hair on the head had been burnt. There were other burns at different parts of the body. The burns were, however, post-mortem. P. W. 12 had also found a lacerated wound (1/3') on the left side of the skull Vi' over the left ear. On dissection P. W. 12 found that there were some haemorrhagic patches on the neck. Half burnt jute was found sticking the skull. Brain membrains had sunk with spotty haemorrhages. No carbon shoots were present over the laryux and trachea. There was tear on the right side of the abdomen and the intestine had come out through this passage. Tongue was protruding from the mouth. The right hand was dislocated due to decomposition. According to P. W. 12, death was due to asphyxia, P. W. 12 had explained that if a person was tied by cloth over his nose and mouth or neck or if for any reason breathing stops, death would be caused on account of asphyxia. The lacerated injury could be caused by fall on any hard and blunt substance. The injury on the abdomen was due to post-mortem changes by efflux of time. Ext. 13 is the post-mortem report in respect of Sadhabi Debi.
P.W. 12 had also found that the dead body of Baraju was in a decomposed state and the limbs had contracted. All the fingers and the hair on the head were partly burnt. The face was swollen. The veins of the forehead were engorged, the eyes were closed and subconjuctival haemorrhage was present. The whole body gave an appearance of blackening and charring. No shoot was present inside the trachea. The abdominal wall was charred and had perforated at the right iliac region and the intestine was found protruding through the opening. Tongue was protruding from the mouth. The burns were, however, post-mortem. Ac- cording to P. W. 12, death was due to asphyxiA.P. W. 12 has further stated that death by asphyxia would be caused if breathing is choked, Ext. 14 is the post-mortem report in respect of Baraju Das.
In cross-examination P. W. 12 has stated that 'since there was no shoot inside the trachea and' laryux, death of Baraju and Sadhabi was not due to smoke in the room. The medical evidence noted above clearly establishes that the deaths of Baraju and Sadhabi had been caused by asphyxia, the burns on the dead bodies being post-mortem in nature.
6. In the present case there are no eye-witnesses to the occurrence which took place during the night of 6-10-1975. The prosecution case rests on circumstantial evidence. In : 1SCR266 (Khashaba Maruti Shelke v. State of Maharashtra) the Supreme Court observed (at p. 1612 of Cri LJ) as follows:-
In order to base the conviction of an accused on circumstantial evidence the Court must be certain that the circumstantial evidence is of such a character as is consistent only with the guilt of the accused. If, however, the circumstantial evidence admits or of any other rational explanation, in such an event an element of doubt would creep in and the accused must necessarily have the benefit thereof. The circumstances relied upon should be of a conclusive character and should exclude every hypothesis other than that of the guilt of the accused. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused. The circumstances must show that within all reasonable probability the impugned act must have been done by the accused. If two inferences are possible from the circumstantial evidence, one pointing to the guilt of the accused, and the other, also plausible, that the commission of the crime was the act of someone else, the circumstantial evidence would not warrant the conviction of the accused.
Keeping in view the aforesaid observations, the circumstances appearing against the appellants in this case may now be taken up for consideration.
7. Exts. 16, 17 and 18 are the three confessional statements of appellants Dusasan, Laxman and Kalia respectively. These have been recorded by P. W. Judicial Magistrate, First Class. The statement of appellant Dusasan in Ext. 16 is that as deceased Baraju did not give him the lands for bhag cultivation, out of grudge he and the other appellants entered the house of deceased Baraju at about midnight on 6-10-1975. They tied the hands, legs and mouths of the deceased couple with the clothes that they were wearing. Thereafter they removed the keys of the Sinduk from under the pillows of Baraju and his wife. They opened the Sinduka and removed currency notes, silver coins and gold ornaments. As they had strongly tied the mouths and noses of Baraju and his wife with clothes, after robbery they found that the couple had died in the meanwhile. Then they brought some jute from a nearby room in the house, spread the same over the dead bodies and set fire to the jute. Thereafter they left the place. The statements of appellants Laxman and Kalia, as contained in Exts. 17 and 18 respectively, are substantially same and therefore need not be repeated. The appellants in the Sessions Court denied to have made the confessional statements. Appellants Dusasan and Kalia have further stated that they put their thumb impressions on being asked to do so. On referring to Exts. 16, 17 and 18 and the evidence of P. W. 14, who recorded the said confessional statements, we find that the appellants were produced before P. W. 14 on 18-10-1975.
P. W. 14 gave them the necessary caution and allowed them time for reflection til] 20th. On the 20th he recorded Exts. 16, 17 and 18 after due observance of the formalities. The statements were recorded out of the sight and hearing of any police officer. In cross-examination P. W. 14 has stated that he had recorded the confessional statements verbatim and had read over and explained the statements to the appellants. The appellants had not complained before him about any ill-treatment or torture by the police. On scrutinising Exts. 16, 17 and 18 and the evidence of P. W. 14, we are satisfied that the confessions made by the three appellants were true and voluntary. There is no material on the basis of which it can be held that the confessions were involuntary or unlawfully induced and such an inference is not to be drawn merely because the said confessions had been retracted at the trial.
8. Prosecution relies on the evidence of P. Ws. 4. 6 and 8 to prove the extra- judicial confession made before them by appellant Kalia. It may be noted that P. Ws. 4 and 6 are co-villagers and P. W. 8 is the Grama Rakshi. These witnesses have stated that on being questioned appellant Kalandi admitted before them that along with other appellants he had committed robbery in the house of the deceased persons, that they had tied the mouths of the deceased couple as a result of which the couple had died and that thereafter they had set fire to the dead bodies. Appellant Kalia further admitted that he had received Rs. 322.00 as his share of the booty. He produced the said amount of Rs. 322.00 before P. Ws. 4, 6 and 8 and it was kept in his Zima until it was seized by the police under Ext. 5 In 43 Cut LT 512 : 1977 Cri LJ (NOC) 132 (Ori) (Madan v. The State), after a full discussion of the case law on the subject, it was held by this Court that a Grama Rakshi functioning under the Orissa Grama Rakshi Act must be held to be a police officer and as such any confession made to him was inadmissible in evidence under Section 25 of the Indian Evidence Act. The learned Sessions Judge was wrong in accepting the extra-judicial confession made by appellant Kalia before ihe Grama Rakshi (P. W. 8) on the ground that P. W. 8 had left the place for short periods to attend to calls of nature, etc. In view of the clear statement of P. W. 4 in para 11 of his deposition that the Grama Rakshi was present when appellant Kalia made his confession, the said extra-judicial confession must be ruled out as inadmissible. However, the fact that appellant Kalia had voluntarily produced Rs. 322.00 before P. Ws. 4, 6 and 8 must be accepted as a circumstance in the chain of evidence appearing against him, This conclusion is strengthened by the evidence of P. W. 4, according to whom, the appellants are labourers and are poor and they are ordinarily not expected to be found in possession of the cash and gold seized from them. It is also worthy of note that in his examination under Section 313, Cr.P.C. appellant Kalia has not claimed the sum of Rs. 322.00 as his, but has denied that he had deposited the said sum with P. Ws. 4, 6 and 8.
9. It is the further case of the prose-Hon that while in custody appellants Dusasan and Laxman confessed their fjuilt and led to the recovery of gold and silver ornaments and cash belonging to the deceased persons. Evidence in this regard comes from P.' Ws. 4, 5, 7 and 1,6. P. W. 16 is the Investigating Officer.
The learned Sessions Judge in para. 6 of his judgment has noted that while under arrest appellant Dusasan had confessed to have killed the deceased persons during robbery and had also stated that he would produce the said articles. The statement of appellant Laxman leading to the recovery of the stolen articles has also been noted in more or loss similar manner in para 7 of the judgment. We are constrained to observe that Courts at times indiscriminately admit statements made by accused persons in custody without ascertaining how much of such statements relate distinctly to the facts thereby discovered. Again and again it has been pointed out that a statement by the accused that he had committed the offence does not fall within Section 27 of the Evidence Act because such a statement is not at all required to lead up to the production of property. If, however, the accused states that he would show the property belonging to the victim and then leads In the recovery of such property, then that statement would be admissible.
10. In the present case, the statements made by the appellants Dusasan and Laxman while in police custody that they had killed the deceased persons is clearly inadmissible in evidence, P. Ws. 4, 5 and 7 have further stated that while in custody these appellants had stated that they would produce the articles of theft. The statements of these two appellants that they would produce the articles of theft would therefore be admissible under Section 27 of the Evidence Act. P. W. IB has ptated that on 10-10-1975 he had arrested appellants Dusasan and Laxman, P. Ws. 4, 5 and 7 have stated that appellant Dusasan stated before them that he would produce the articles of robbery. According to these three witnesses and P. W. l(i, appellant Dusasan thereafter led them to his house and dug a place at the root of the wall and brought out an earthen pot covered by another earthen pot which were inside the ground.
Appellant Dusa'san produced M. O. I. (gold necklace), M. O. II (gold chain). M. O. Ill (gold chain), M. O. IV (gold ear-flowers) M, O. V (gold Noli~one pair), M. O. VI (fourteen pieces of broken gold), M. O. VII (currency notes amounting to Rs. 1355.00), M. O. VIII (old rupee-coins), M. O. IX (silver t.aita), M. O, X (five silver, finger rings) and M. O. XI (pieces of silver) which wane inside the two earthen pots (M. O. XXI) and they were seized by P. W. 16 under seizure list Ext 6 prepared in the presence of witnesses and signed by them. Similarly appellant Laxman having stated in police custody that he would produce the articles of tJieft led the- witnesses to his house, dug the root of his wall inside the room and brought out a palm leaf basket containing several currency notes and two packets of Mahaprasad. P. W. 16 seized the palm-leaf basket (M. O. XIV), the two packets of Mahaprasad (M. O. XVI) and currency notes worth Rs. 970.00 (M. O., XIV) under the seizure list Ext. 7 prepared in the prurience of witnesses and signed by them.
11. We may next refer to the evidence of the Magistrate (P. W. 13) who had conducted the test identification parade and P. W. 10 the daughter of the deceased couple. P. W. 13 has stated that on 29-2-1976 he had held the test identification parade in respect of the suspected articles at the Salipur Tahasil Office. He had mixed the suspected articles along with Similar other articles and had hold the parade after observing all the formalities of law. Ext., 15 is that report of P. W. 13. He has stated that in his presence P. W. 10 had identified all the sold and silver ornaments except the nose rings. In her evidence in Court P. W. 10 has described and identified all the gold and silver ornaments a-s belonging to her parents. The learned Counsel for the appellants has urged that no importance should be attached to the test identification parade which was held almost four months after the occurrence and in this connection he relief on a decision of this Court reported in: (1977) 43 Cut LT 38 (Narayan Pal v. The State of Orissa). The facts of that case are however clearly distinguishable from the facts of the present case. That, case was concerned with identification of suspects, not articles of theft. It was held in that case that inordinate delay in identification of suspects, particularly when the delay is not satisfactorily explained by the prosecution, makes the identification an eye-wash and no importance should be attached to the same.
In a case, as the present one, where gold and silver ornaments belonging to the parents are identified by none else than-the daughter herself, such identifica- ,tion cannot be brushed aside merely on ,the ground of delay of about lour jmonths. As the daughter she knew which ornaments belonged to her father and which to her mother and she identified the same without any hesitation both at the parade and also in Court. Therefore, the identification of the stolen articles by P. W. 10 as belonging to the deceased persons must be accepted. P. W. 10 has further slated that the deceased persons had with them cash amounting to Rs. 8000.00 to Rs. 10,000.00. Appellant Laxman had dug out from under the ground the bamboo basket from which he had produced two packets of Mahaprasad and cash amounting to Rs. 970.00. In this context, the evidence of P. W. 4 may be recalled. P. W. 4 has stated that the appellants are labourers and poor and are not ordinarily expected to be found in possession of such cash and ornaments as were seized on production by them. The recovery of the gold and silver ornaments and the cash on production by appellants Dusasan and Laxman must therefore be accepted as circumstances in the chain of evidence appearing against these two appellants.
12. We have already held that the confessional statements of the three appellants as per Exts. 16, 17 and 18 are voluntary and true and they are not to be discarded merely because they have been retracted at the trial. These confessional statements of the three appellants are fully corroborated by the seizure of cash and ornaments from them as discussed above. The statements of the appellants in Exts. 16, 17 and 18 that they had strongly tied the mouths and noses of the deceased couple as a result of which they found that the couple had died during the robbery is fully corroborated by the medical evidence which is to the effect that the deceased couple had died on account of asphyxia. P, Ws. 4 and 5 have clearly stated that when they entered the house of the deceased couple on the following morning they found that the dead bodies were in a half-burnt state. This fullv corroborates the confessional statements of the appellants and the medical evidence adds further cor-roboration.
13. On consideration, we have no hesitation to hold that the circumstances discussed above appearing against the appellants are of a conclusive character and they exclude every hypothesis other than that of the guilt of the appellants. The prosecution has fully brought home all the charges under Sections 302/34, 394 and 201, I.P.C. against the appellants.
14. In the result this appeal is dismissed. The convictions of the appellants and the sentences passed against them are confirmed.
15. I agree to the result proposed by my learned brother. I would however, like to add a few words of my own. The prosecution led evidence to show that the appellants while under police custody confessed that they had committed robbery, and killed the deceased couple and they gave recovery of the stolen articles. The learned Sessions Judge admitted this evidence under Section 27 of the Indian Evidence Act, P. W. 16 is the Investigating Officer who arrested the appellants and seized the stolen articles, tliis statement in the court was in the following terms:On 15-10-1975, I arrested the accused persons on suspicion at the Police Station. After interrogation and recording of his statement accused Dusasan in presence of witnesses led me to his house and gave recovery of the currency notes, ornaments which he had concealed underneath earth inside a covered earthen pot ... Similarly accused Lakshman Goch- hait also confessed his guilt which I recorded and in presence of witnesses he led me and the witnesses to his house to give recovery of the stolen properties which he had kept as his share of the booty.
Had the learned Sessions Judge referred to the language of Sections 25 and 27 of the Evidence Act he would have seen that the confession made before the Police Officer was not admissible in evidence and that Section 27 does not operate to make admissible a confession which would be otherwise inadmissible under Section 25, unless some fact is discovered in consequence of some information given by the accused while under police custody. Section 27 is in the nature of an exception to the prohibition imposed by the preceding Sections. It runs as follows :-
27. Provided 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.
The wording of the Section 'so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered' indicates clearly that the information given by the accused has got to be split up. The irrelevant portion must be excluded and only that portion of the information which lends distinctly to the discovery of facts is admissible under Section 27, The Section is based on the view that if a fact is actually discovered in consequence of information given by the accused, same guarantee is afforded thereby that the information was true and accordingly can be safely allowed to be given in evidence, The confession of the appellants that they had committed robbery and killed the deceased couple does not fall within Section 27 because it is a statement not required to lead up to discovery of the property. The statements made by the appellants, as deposed to by the Investigating Officer (P. W, 16) and as recorded by him in the seizure lists (Exts. 5 and 6) to the effect that they had committed robbery; that they had killed the deceased couple and that some stolen cash and jewellery had fallen to their shares are inadmissible in evidence being hit by Section 25 of the Indian Evidence Act. But their conduct in leading the police officer to the place of recovery and their bringing out the stolen articles from underneath the earth is relevant, under Section 8 of the Evidence Act.