1. This is a State appeal against the acquittal of Lehna Singh respondent who was convicted by a Magistrate at Ludhiana under Section 19, Arms Act and sentenced to three months' rigorous imprisonment but was acquitted in appeal by the Additional Sessions Judge.
2. The facts of the case are quite simple, the story being that in consequence of information that the accused was keeping an unlicensed rifle, Assistant Sub-Inspector Santokh Singh of the Arms Staff went to the village of the accused, who, after being questioned, admitted that he had concealed a rifle in a manure heap lying outside one of the walls of his house and thereafter took out the rifle P-1 from underneath the manure heap. The recovery was supported by the evidence of Harcharan Singh and Rattan Singh P. Ws.
3. The accused denied his guilt but offered no explanation of the case against him and produced two witnesses of ordinary type who denied that any rifle was recovered from the possession of or through the agency of the accused. The evidence of these witnesses certainly could not influence the decision of the case one way or the other, and in fact it has not been relied on even by the learned Additional Sessions Judge in acquitting the accused.
4. The reason for the acquittal was that the learned Judge followed a decision of my Lord the Chief Justice in CM Revn No 883 of 1951. The facts in that case were not in any essential particular different from those of the present case, the accused having apparently made a somewhat similar statement to the police when questioned and then led the police to a field from which he dug up a pistol. In the present case it appears that Sunder Singh, the father of the accused, resides in the house outside which the rifle was recovered from a manure heap, and in the other case the field from which the pistol was recovered belonged to the father of the accused and his uncles. On those facts it was found by my Lord the Chief Justice that all that was proved was that the accused knew where the pistol was lying and that it might have belonged to some other member of the family.
The case of possession of the weapon could only be proved against the accused if the statement made by him to the police were believed and also found to be admissible in evidence. The question of the admissibility of the statement was simply dealt with as follows :
'The previous statement made by him to the Assistant Sub-Inspector was not admissible in evidence. That was not a statement leading to the discovery but merely a statement antecedent to the discovery. The discovery was made by the accused himself.'
Applying this passage, which was quoted verbatim, to the present case, the learned Additional Sessions Judge came to the conclusion that the statement alleged to have been made by the accused was not admissible and that without it the case against him was not established. It is contended on behalf of the State by the learned Assistant Advocate-General that the observations of my Lord the Chief Justice do not represent a correct statement of the law contained in Section 27, Evidence Act which reads :
'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.'
It would certainly appear to me to be taking a very narrow view of the meaning of the words 'discovered in consequence of information' to hold that when an accused says that he has hidden a certain object in a certain place, and then takes the police there and produces the object from the hiding place, the recovery is not in consequence of the statement, since it is clear that without the statement there would be no recovery. According to this narrow view the statement would be admissible only if, after the accused had made it, the police left him where he was and then themselves went to the place mentioned by the accused and found the object for themselves, but I cannot believe that it was the intention of the law that the fact that the accused himself also assisted in the recovery would make the statement, which preceded and, in the ordinary sense of the word, led to it, inadmissible, and in fact this very point has been considered in a number of decisions which do not appear to have been cited before my Lord the Chief Justice.
In -- 'Legal Remembrancer v. Chema Nashya', 25 Cal 413, which was a Crown appeal against an acquittal in a case under Section 411, Penal Code, it was held by Banerjee and Wilkins JJ., that if the statement of an accus-ed in the custody of the police is a necessary preliminary to the fact thereby discovered, it is admissible under Section 27, Evidence Act, and it is immaterial whether the statement is sufficient to enable the police to make the discovery, by themselves or is only of such a nature as to require further assistance of the accused to enable them to discover the fact.
A similar matter came before a Full Bench in -- 'Queen Empress v. Nana', 14 Bom 260. In that case the accused when questioned by the police said that he knew where the stolen property was and that he would show the place and said that he had buried the property in the fields. He thereupon took the police to the place where the property was concealed and himself dug up an earthen pot containing the property. It was held by the five Judges constituting the Bench that the accused's statement that he had buried the property in the fields was admissible in evidence under Section 27, Evidence Act, as it set the police in motion and led to the discovery of the property. It was further held that the statement is equally admissible under Section 27, whether the statement is made in such detail as to enable the police to discover the property themselves or whether it be of such a nature as to require the assistance of the accused in discovering the exact spot where the property is concealed.
A large number of cases in which a similar view has been taken are cited on pp. 236 and 237 of Monir's edition of the Evidence Act. Two or three cases are also cited by Monir at p. 235 and the earlier part of 236 in which a different view has been taken, but it appears that the leading case in which that view is expressed was -- 'Queen Empress v. Kama-ilia', 10 Bom 595 which was obviously overruled by the later Full Bench of Bombay. The decisions to the contrary appear to me to be much more authoritative and to have been more frequently followed, and I agree with them.
Applying them to the present case, I am of the opinion that the statement of the accused that he had concealed a rifle in the manure heap was admissible under Section 27 whether the accused thereafter produced the rifle from the manure heap himself or the police did so on the basis of the information. J therefore consider that the accused was rightly convicted by the trial Court and wrongly acquitted by the learned Additional Sessions Judge, and I would accordingly accept the appeal and convict Lehna Singh respondent under Section 19, Arms Act and sentence him to two months' rigorous imprisonment. He must surrender to his bail bond and serve his sentence.
5. I agree.