1. In the course of the investigation, according to-the prosecution, in consequence of a statement made by-accused No. 1, the gun, Muddamal, Article 7 was discovered. Ranch Motilal Mohanlal has proved the Panchnama and in the Panchnama it has been mentioned as follows:--
When the panchas went to the Police Station Koli Jaga Mohan (accused No. 1) was present and accused No. 1 stated that he had concealed the gun behind the bushes on-the western Shedha (boundary) of his field named Khariwadsituated in the Sim of village Kunvarrad and that he was willing to produce it if anybody accompanied him., thereafter accused No. 1 Is alleged to have taken the police party and 'panchas in the jeep car to the outskirts of Kunvarad and there he is alleged to have removed some branches and leaves and produced a gun. It has been brought out in the evidence of P. S. I. Patel that though, the accused No. I had been arrested on June 14, 1961, it was not till June 18 that accused No. 1 made the statement that led to the discovery of the gun. It has been admitted by P. S, I. Patel that there was repeated and persistent questioning of accused No. 1 by the police between June 14 and June 18 and it was only on the morning of June 18 that accused No. 1 showed his willingness to point out the gun. In the cross-examination or P.S.I. Patel details were elicited and it appears that in all accused No. 1 had been questioned for 121/2 hours after his arrest and before he showed his willingness to discover the gun. This period of 121/2 hours was spread out during the four days from June 14 to June 18.
2. In view of these facts, Mr. Barot argued before us, basing his argument on the observations of Raju J, in the case of Amrut Soma v. State of Bombay reported in AIR I960 Bom 488. This judgment was delivered by Raju J. sitting singly at Nagpur. He there held that the statementsmade by the accused persons after long interrogation Dy the police and admitted under Section 27 of the Evidence Act, would be hit by Article 20(3) of the Constitution of India, At page 489 Raju J. has observed:
'Moreover, statements made by the accused person alter long interrogation by the police and admitted under Section 21, Evidence Act, would be hit by Article 21(3) of the Constitution of India. The contention appears to be that the statements made by the accused were made when they were questioned by the Police under. Section 161 Cr. P. C. If that be so the statement would be hit by Article 20(3) of the Constitution.'
Article 20(3) of the Constitution of India provides that no person accused of an offence shall be compelled to be a witness against himself. After this decision was pronounced by Raju J. the matter was considered by the supreme Court in the case of the State of Bombay v. Kathi Kalu Oghad reported in AIR 1961 SC 1808 and there it was decided by a majority out of 11 Judges who heard this matter that so far as Section 27 of the Evidence Act was. concerned, there must have been compulsion of the person concerned to make Article 20(3) applicable and It was also held that the mere questioning of an accuses person by a police officer, resulting in a volunatry statement, which may ultimately turn out to be incriminatory, is not 'compulsion'. It was also held by the majority as shown at page 1816 in Para 16(1) as under;
'An accused person cannot be said to have been compelled to be a witness against himself simply, because he made a statement while In police custody, without anything more. In other words the mere fact of being In police custody at the time When the statement in question was made would not, by itself, as a proposition of law, lend itself to the inference that the accused was compelled to mane the statement, though that fact, In conjunction with other circumstances disclosed in evidence in a particular case, would be relevant consideration in an enquiry whether ornot the accused person had been compelled to mane the Impugned statement.'
Even the view of the minority consisting of S.K. Das, A.K. Sarkar and K.C. Das Gupta JJ. was that in order to make Article 20(3) applicable, there must be compulsion to give Information and the minority held as shown at Page 1820, Para 36 'that where the accused is compelled to give information, it will be an infringement of Article 20(3); but there is no such infringement where be gives the information without any compulsion and rat therefore conclusion not being inherent or implicit in the fact of the information having been received from a person in custody, the contention that Section 27 necessarily Infringes Article 20(3) cannot be accepted. The majority view, as we have pointed out above, was that the mere questioning by a police officer of an accused when he Is in police. custody 's not 'complusion' within the meaning of Article 20(3) of the Constitution of India. In view of this decision of the Supreme Court, the view expressed byRaju J. In AIR 1960 Bom 488 must be deemed to navebeen overruled.
3. In the particular case before us, there was no contention that the statement made by accused No. 1 was as a result of an Inducement, threat or promise hem out by the police officer or by anyone else and there Is no contention before us that apart from the questioning which was of a persistent nature, there was any ether element of compulsion so far as accused No. 1 was concerned. As the Supreme Court has pointed out, the merequestioning by a police officer, cannot be 'compulsion' within the meaning of Article 20(3) of the Constitution of India and hence in the light of the facts of this case, the piece of evidence in the shape of the discovery of the gun by accused No. 1 cannot be ruled out.