** ** ** ** ** **
The defence has, therefore, seriously challenged the extra judicial confession on the following grounds:
(1) That it was hit by Section 24 of the Evidence Act (herein after referred to us 'the Act') as it was procured after inducement made that accused No.1 would be saved by these persons if he told the truth and that such inducement proceeded from a person in authority, viz., the Police Patel Dhula Kashna;
(2) That it was hit by Section 25 of the Act as it was a confessional statement made to a police officer, and
(3)That even the discovery part was not admissible as accused No. 1 was not in the police custody at the time when he made such a statement.
The prosecution, however, has relied on the fact that such a confession was made to a crowd and not to the Police Patel himself and that, therefore, it was not hit by Section. 24 or 25 of the Act. Mr. Vidyarthi also contended that in any event the information part which directly related to the discovery was admissible.
(9) Sections 24 to 30 of the Act deal with admissibility of confession i.e. a statement made by a person stating or suggesting that he had committed a crime. We have not to undertake a detailed analysis of the various sections as in the case of State of U.P. v. Deoman Upadhyaya : 1960CriLJ1504 , the Supreme Court on an analysis of Sections 24 to 27 of the Act and Section 162 of the Code of Criminal Procedure has held that the following material propositions emerge:
'(a) Whether a person is in custody or outside, a confession made by him to a police officer or the making of which is procured by inducement, threat or promise having reference to the charge against him and proceeding from a person in authority, is not provable against him in any proceeding in which he is charged with the commission of an offence.
(b) A confession made by a person whilst in the custody of a police officer to a person other than a police officer is not provable in a proceeding in which he is charged with the commission of an offence unless it is made in the immediate presence of a Magistrate.
(c) That part of the information given by a person whilst in police custody whether the information is confessional or otherwise, which distinctly relates to the fact thereby discovered no more, is provable in a proceedings in which he is charged with the commission of an offence.
(d) A statement whether it amounts to a confession or not made by person when he is not in custody, to another person, such latter person not being a police officer may be proved if it is otherwise relevant,
(e)A statement made a person to police officer in the course of an investigation of an offence under Ch.XIV of the Code of Criminal Procedure, cannot except to the extent permitted by Sec. 27 of the Indian Evidence Act, be used for any purpose at any enquiry or trial in respect of any offence under investigation at the time when the statement was made in which he is concerned as a person accused of an offence'.
(10)It was also held that in all these sections, the expression 'accused person' in Sec. 24 and the expression ' a person accused of any offence' have the same connotation, and describe the person, against whom evidence is sought to be led in a criminal proceeding. The adjectival clause 'accused of any offence' is therefore, descriptive of the person against whom a confessional statement made by him is declared not provable, and does not predicate a condition of that person at the time of making the statement for the applicability of the ban. The scheme thus appears to divide these cases in two classes: (1) confessional statements made by persons not in custody are admissible in evidence against such person in a criminal proceedings unless they are procured in the manner described in Sec. 24 or made to a police officer (Sec. 25) (2) while confessional statement made by persons in custody except those in the presence of a Magistrate (Sec 26) are not provable except to the limited extent permitted by Sec. 27 of the Ac, viz. so much of the information, whether confessional or otherwise which distinctly relates to a fact thereby discovered and no more. This distinction between the persons not in custody and persons in custody may appear to be somewhat paradoxical but it has been upheld by the Supreme Court by stating at p.24 (of SCR): (at p.1130 of AIR), as under: -
'Sections 25 and 26 were enacted not because the law presumed the statements to be untrue, but having regard to the tainted nature of the source of the evidence, prohibited them from being received in evidence. It is manifest that the class of persons who needed protection most were those in the custody of the police and persons not in the custody of police did not need the same degree of protection. But by the combined operation of Sec. 27 of the Evidence Act and Sec 162 of the Code of Criminal procedure, the admissibility in evidence against a person in a criminal proceedings of a statement made to police officer leading to the discovery of a facts depends for its determination on the question whether he was in custody at the time of making the statement. It is provable if he was in custody at the time he made it, otherwise it is not.'
Their Lordships further pointed out at page 26 (of SCR): (at p. 1131 of AIR) that this distinction had little practical significance and it was observed as under:-
'Section 46 of the Code of Criminal Procedures does not contemplate any formality before a person can be said to be taken in custody: submission to the custody by word or action by a person is sufficient. A person directly giving to a police officer by word of mouth in formation which may be used as evidence against him may be deemed to have submitted himself to the `custody` of the police officer within the meaning of Sec. 27 of the Indian Evidence Act: Legal Remembrencer V. Lalit Mohan Singh, ILR 49 Cal 167: (AIR 1922 Cal 342), Santokhi Beldar v. Emperor, ILR 12 Pat 241: (AIR 1933 Pat 149) (SB)'.
In the case of State v. Memon Mohamed Hussain Ismail : AIR1959Bom534 , the Division Bench of the Bombay High Court, consisting of Datar and Patel JJ., had also followed the ratio of the said Calcutta and Patna cases and had held that the ratio of those cases is that where a person goes to a police officer and makes a statement which shows that an offence has been committed by him, he accuses himself and though he is formally not arrested, since he is not free to move wherever he likes after disclosure of the information to the police he must be deemed to be in custody of the police. N Bakshia Mukinda v. State of Bombay, 62 Bom LR 80 : (AIR 1960Bom 263), also the Division Bench of the Bombay High Court, consisting of Gokhale and Kotval JJ. Also took view that the fact the accused was interrogated and that he made a statement and led the panchas and the police officer to a field and thereafter produced certain articles which were the subject-matter of dacoity was sufficient to establish that there was submission on his part to police custody. In Mt. Maharani v. Emperor : AIR1948All7 , Reghubar Dayal and Wanchoo J J had also after considering a number of rulings agreed with the view laid in all these cases that the word `custody` in Sec. 26 or 27 of the Act, does not mean formal custody but includes such state of affairs in which the accused can be said to have come into the hands of a police officer or can be said to have been under some sort of surveillance or restriction. Thus in all cases the `police custody` is deemed to extend even when the accused was deemed to have submitted to such custody of a police officer by submitting to the interrogation and by making statements about discovery and who could not thereafter be said to be a freeman. The word `police officer` is used in Sec. 25 and 26 and also in the proviso to Sec. 27 and it must have the same meaning in all these sections. It must cover a person who is authorised to exercise the powers of a police officer and would not necessarily mean a person who is in charge of the police station or who is empowered to make an investigation. If the statement to any such police officer is hit under Sec. 25 or 26 as tainted evidence, the principle underlying Sec. 27 viz., that the evidence relating to confessional or other statement made by a person while a person is in the custody of the police is tainted and, therefore, inadmissible, but if the truth of the information given by him is assured by discovery of a fact, it may be presumed to be untainted, must apply to all such statements. This would on the one hand shut out all evidence of a tainted nature while on the other hand permit the proof of to much of the information whether it amounts to confession or not distinctly leads to the discovery of a fact on the ground that its truth is assured. We must, therefore, in the light of these principles first consider whether the confession is hit by Secs 24 to 26 and thereafter consider the question of applicability of the proviso contained in Sec. 27 which creates the limited exception by making admissible that part of the information which distinctly relates to the facts discovered provided that the accused person is deemed to have submitted himself to the police custody.
Under Sec. 25 no confession made to a police officer shall be proved as against the person accused of any offence. The main expression to be construed is the confession 'made to' and not in the presence of the police officer. This expression had been interpreted in an unreported decision in Criminal Appeal No.953 of 1962 (Guj) by a Division Bench of this court, consisting custody to make a confession and where a Chaukidar has taken no part in bringing about the confession of the accused, then I think that such a confession made to a villager in the presence of a Chaukidar would not come within the mischief sought to be averted by Section 25, Evidence Act, and would, in my opinion, be admissible in evidence'.
(10)In that case it was found that the Chaukidar was in the smaller courtyard and the confession was not held to have been made to the Chaukidar. The real test which has to be applied appears to be a confession communicated to the police officer and it is such communication which makes it tainted evidence. Therefore in each case the question must be examined whether the statement was in fact made to a police officer or not. In the present case, Dhula Kashna, P.W.8 Ex.16, although he deposes that they had asked questions and they were replied to, he makes it clear that Maganbhai Chhaganbhai and others of Miabhoy and Vakil JJ., decided on the 13th February 1964 and it was held that the words 'statement made to a police officer' necessarily connote the idea of communication or in other words, a statement being communicated to a police officer by any person. These words also definitely imply that there should be some direct or indirect nexus or connection between the person making the statement and the police officer. Therefore, it is clear that there must be some communication to police officer for the purpose of showing that the statement was made to a police officer. Mr.Vidyarthi relied on the decision in Ghunnani v. Emperor : AIR1934All132 , where it was held by the Allahabad High Court that if a police man happens to be a member of the crowd of villagers and a confession is made to the villagers at large, the mere fact that a police man happened to be present in the crowd will not make the confession inadmissible in evidence. In that case it was further held that a confession to chaukidar was not a confession to a policeman within the meaning of Sec. 25 of the Evidence Act, and therefore, the observations are really obiter, and those observations could not throw any light on the interpretation of Section 25, in the absence of any detailed reasoning. In : AIR1948All7 , the Division Bench of the Allahabad High Court consisting of Raghubar Dayal and Wanchoo JJ, had followed the view taken by Justice Nanavaty in Emperor v. Shankar AIR 1934 Oudh 222 at p. 226:
'Although I am not prepared to go so far as to hold that a confession made to a private individual in the presence of a Chaukidar is in every case admissible in evidence, yet where it is not shown that the Chaukidar has in any way influenced the accused, who is not in were interrogating accused No.1. and accused No.1 was only interrogated in his presence and hearing. Accused No.1 has admitted the truth after about 1-1/2 hours, after interrogation had started about 8-30 p.m. to 9.0- p.m. Even though Dhula Kashna does not state that he had specifically interrogated the accused, the witness Maganbhai Parmbhai P.W. 7 Ex.15, in terms states that Dhula Kashna had taken part in interrogating accused No.1 had come before him that nothing would happen to him and that he should speak the truth. There is nothing on record to show what exactly happened in that hour and a half and as to who put the crucial question which ultimately made accused No.1 to give the incriminating answer. It is not clear on the record whether the incriminating answers were given in answer to the questions put by the police patel or not. If the prosecution wants to rely on a particular document it must show that the confession relied upon was not a statement made to the police officer. Once we cannot exclude the possibility of the crucial questions and answers being attributed to the police officer or it cannot be predicted as to those questions put by the police patel had influenced the mind of the accused, even assuming that the statement was made to all the persons present it would not cease to be a statement made to the police officer in so far as the facts of the present case are concerned. We are, therefore, of the view that this confession would be hit by Sec. 24 of the Act. Moreover, we are also of the view that the police officer having interrogated accused N0.1 and the accuse No.1 having made a discovery statement and having led the persons concerned along with the police patel to the Kuvewala field and discovered the dead body, accused No.1 must be deemed to have been in custody of the police officer. The statement would therefore also be hit by Section 26 of the Act and would be inadmissible as it was not made in the immediate presence of a Magistrate as provided therein.
(12) Besides, there is evidence in this case of witnesses Dahya Ranga P.W. 6 Ex.14, Chhagan Parag, P.W. 10 Ex.20 and Sukha Natha P.W. 12 Ex.22 that they had told accused No.1 that he would be save if he admitted the truth and that nothing would happen to him. Sukhabhai had admitted that when they started interrogating accused No.1 he did not admit anything but that thereafter they told accusedNo.1 to admit the truth and that they all would save him. Under Sec. 24 of the Act a confession made by an accused person is irrelevant in a criminal proceeding if it has been caused by any inducement, threat or promise having reference to the charge against the accused person, provided it proceeds from a person in authority and is sufficient to give the accused persons grounds which would appear to him to be reasonable for supposing that by making it he would gain any advantage in reference to the proceeding against him. The essential requirement, therefore, is that such inducement or promise must proceed from a person in authority. Mr.Vidyarthi argued that in this case the police patel Dhula Kashna had not offered any inducement whatsoever. It must be noted that Dhula Kashna was one of the entire party and it is not shown that he had protested when the others offered the inducement to accused No.1. In such circumstances the inducement could be said to have proceeded from him as well and it was sufficient to give the accused No.1 reasonable ground to believe that by making the confession he would be saved by all the persons concerned, including the police officer, in reference to the proceeding against him. Therefore, a doubt has even cast in the circumstances of the case as to the voluntary nature of the confession and questionable confession must be discarded in considering the evidence of the guilt of accused No.1 also under Sec. 24 of the Act.
(13) But the other question still remains whether the part of the confessional statements which relates to the information given by accused No.1 and which is vouchsafed by the ultimate discovery of the dead body in the Kuvawala field can be admitted in evidence. We have already considered that in view of what had happened, accused No.1 can be deemed to have surrendered to the police custody when he made the confessional statement in question and discovered the dead body. Therefore, on the principle of the authorities which we have just now referred to, Sec. 27 of the Act would be clearly applicable. In Praboo v. State of Uttar Pradesh : 2SCR881 , the Supreme Court has held that the said section provides 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 confession or not, as relates distinctly to the fact thereby discovered may be proved. In Pulukuri Lotayya v. Emperor, 74 Ind App 65 (77); (AIR 1947 PC 67 at p.67 at p.70), the Privy Council considered the true interpretation of Section 27 and said:--
'It is fallacious to treat the fact as equivalent to the object produced; the fact discovered embraces the place from which the object is produced and the knowledge of the accused as to this, and the information given must relate distinctly to this fact. Information as to past user, or the past history, of the produced is not related to its discovery in the setting in which it is discovered. Information supplied by a person in custody that `I will produce a knife concealed in the roof of my house` does not lead to the discovery of a knife; knives were discovered many years ago. It leads to the discovery of the fact that a knife is concealed in the house of the informant to his knowledge, and if the knife is proved to have been used in the commission of the offence, the fact discovered is very relevant. But if to the statement the words be added `with which I stabbed A `, these words are inadmissible since they do not relate to the discovery of the knife in the house of the informant'.
(14) Relying on these observations the Supreme Court has held that the statement of the appellant that the axe had been used to commit the murder or the statement that the blood-stained shirt and dhoti were his were inadmissible. Applying this principle, in the present case also the statement that accused No.1 had killed his brother with an axe would be clearly inadmissible. The words `I removed and buried the dead body of the deceased in the Kuvawala field` and the fact of the discovery, which was the distinct result of this information, could be proved under Sec. 27, as in this case accused No.1 could deemed to be in the police custody at the time when he made the statement in question. He was no longer a free man when he made the statement and led the persons including the police patel and the panch witness Bhema Natha to the Kuvawala field and discovered the dead body, which was identified to be of the deceased Vira Mava. The Panch witness Bhema Natha P.W.13 Ex.23, has proved the panchanama in question about the discovery. Therefore, we hold that the learned Judge was wrong in admitting the entire confessional statement made by the accused No.1 in evidence and that the portion of the confessional statement viz.,'that I had removed and buried the dead body in the Kuvawala field' along with the fact of the discovery must be held to have duly proved by the prosecution.
(16) Order accordingly.