V.P. Tyagi, Ag. C.J.
1. This appeal by Kanhiya is directed against the judgment of the learned Additional Sessions Judge, Gangapur City dated March 14, 1974 whereby the appellant was convicted for an offence under Section 302. I.P.C. and sentenced to imprisonment for life for having committed murder of Mst. Dhooli and her son Shyoji, a nine year old boy. He was also convicted for an offence under Section 379, I.P.C. and sentenced to undergo rigorous imprisonmeni for one year and to pay a fine of Rs. 200, or in default to further undergo rigorous imprisonment for two months. Both the substantive sentences were however ordered to run concurrently.
2. The facts giving rise to this case are as follows:
Mst. Dhooli was married to Kanhiya resident of village Jhopada. She had a son Shyoji from this wedlock. In the year 1972 just before 'Holi' Mst. Dhooli's brother Durgalal, came from Jadawata to fetch his sister Mst. Dhooli and took both Mst. Dhooli and Shyoji to his village Jadawata on a promise that both of them shall return on March 6, 1972. Mst. Dhooli's husband Kanhiya waited for the return of his wife upto March 9, 1972. When Mst. Dhooli and her son did not reach her husband's house, Kanhiya went to Jadawata to find out the cause for not returning in time. Kanhiya was informed by Durgalal that both Mst. Dhooli and Shyoji had left by a bus for village Jhopada. A search was made but no trace could be found out except that some bones and pieces of clothes near river 'Galba were found out. There is nothing on the record to indicate that the bones could belong either to Shyoji or to Mst. Dhooli. A report was lodged at the Police Out-post, Chothka on March 9, 1972 that Mst. Dhooli and Shyoji were murdered. A case of murder was registered but no trace was found either of the corpus delicti or of the act of murder. On July 6, 1972 accused Kanhiya was arrested at 12-30 p.m. vide Ex. P-15. It is alleged that while he was in custody Kanhiya furnished information regarding the ornaments which were worn by Mst. Dhooli on the day when she disappeared and in pursuance of that information, which was recorded in memo Ex. P-16, recovery of the ornaments of one pair of silver 'kada' of her legs and another pair of silver 'kada' of her hands, and one silver 'pipal patta Jhumka' was made. After usual investigation accused Kanhiya was found responsible by the investigating agency for the murder of Mst. Dhooli and Shyoji and therefore he was challan-ed. Kanhiya faced his trial under Section 302, I.P.C. before the Court of Additional Ses-sons Judge, Gangapur City.
3. There was no eye-witness to the occurrence, therefore, the prosecution placed reliance on circumstantial evidence. The most important circumstance, on which reliance has been placed by the prosecution, is the recovery of the ornaments of Mst. Dhooli from the 'Dhunda' belonging to the accused Kanhiya. Except this circumstance there is nothing on the record to connect Kanhiya with the disappearance of Mst. Dhooli and Shyoji and the removal of the ornaments from the body of Mst. Dhooli. The learned Judge believing this circumstance as a piece of evidence to connect the accused with the murder of Mst. Dhooli and Shyoji convicted him for offences under Sections 302 and 379, I.P.C. as referred to above. It is against this judgment that Kanhiya has filed this appeal before us.
4. The learned Public Prosecutor and Mr. Agarwal, appearing on behalf of the appellant, agree that there is no other circumstance except the recovery of the three silver ornaments of Mst. Dhooli at the instance of Kanhiya to fasten the guilt on the shoulders of Kanhiya appellant.
5. Mr. Agarwal urged that the recovery of the ornaments cannot be said to be at the instance of accused Kanhiya because according to the arrest memo Ex P-15, Kanhiya was arrested by the Police on July 6, 1972 at 12-30 p.m. whereas Ex, P-16, which is an information memo, recorded by P.W. 14 Shri Shanker Saroliya, Deputy Superintendent of Police, was prepared at 12 noon, which shows that before Kanhiya accused was taken into custody the information was passed on by him to the Deputy Superintendent of Police. In these circumstances it is urged that the information given by the accused to the police authorities cannot be covered by the provisions of Section 27 of the Evidence Act as Kanhiya could not be said to be in custody at the time when the information was given by him to the police authorities.
6. Section 27 requires that if the information whether it amounts to a confession or not relates distinctly to certain facts which are ultimately discovered is given by the accused to a Police Officer while he was in custody then that information to the extent to which discovery has been made shall be relevant in evidence. The question therefore arises whether a person who was not formally arrested if passed on certain information and disclosed certain facts to the Police Officer which ultimately resulted in certain discoveries then whether such confessional facts disclosed by the accused to the Police Officer, can be read in evidence against the accused by applying the provisions of Section 27 of the Evidence Act?
7. It is not disputed that the information was passed on regarding the whereabouts of the ornaments belonging to Mst. Dhooli by Kanhiya to the Deputy Superintendent of Police which means that Kanhiya was with the Police at the time when the information was given by him. Ex. P-16 shows that the information was recorded at 12 noon whereas the arrest memo Ex. P-15 indicates that the formal arrest was made by the Deputy Superintendent of Police at 12-30 p.m.. In these circumstances the point for determination is whether the information as given by accused-appellant Kanhiya shall be taken to have been given while he was in custody of the Police?
8. In State of Uttar Pradesh v. Deoman : 1960CriLJ1504 this very question came up for the consideration of their Lordships of the Supreme Court, whether before an actual arrest shown by the police authorities a person could be said to be in the custody of the police for the purpose of Section 27 of the Evidence Act? The learned Judges in that connection observed:
Section 46 of the Code of Criminal Procedure 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 information 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 Section 27 of the Indian Evidence Act.
9. In Maharani v. Emperor AIR 1941 All 7 : 48 Cri LJ 939 the learned Judge described the meaning of word 'custody' used in Section 27 of the Act as follows:
The word 'custody' in Section 26 or Section 27 does not mean formal custody but includes such state of affairs in which the accused can be said to have come in the hands 'of a police officer or can be said to have been under some sort of surveillance or restriction.
10. In another case: Aghnoo Nagesia v. State of Bihar AIR 1966 SC 110 : 1966 Cri LJ 100 the Supreme Court again considered this question and observed:
For the purpose of the case we shall assume that the appellant was constructively in police custody and therefore the information contained in the first information report leading to the discovery of the dead bodies and the tangi is admissible in evidence.
In that case the information was given by the accused by lodging the first information report soon after the murder was committed and by the time the information was recorded he was not formally arrested. Learned Judges of the Supreme Court in these circumstances held that at the time when the information was passed on by the accused he will be deemed to be constructively in custody. The doctrine of constructive custody applied by the Supreme Court is applicable to the circumstances of the present case.
11. The Investigating Officer in the witness-box was not questioned by either party to explain the anomaly in the timings recorded in Ex. P-15 and Ex. P-16, but if we take it that the timings recorded by him in these two documents were correct even then it is difficult for us to accept Mr. Agarwal's contention that the accused was not in constructive custody of the police at the time when he passed on information when Ex. P-16 was prepared, because it was in the presence of the police that the information was given by him and therefore even if formal arrest had not been made and he was formally arrested after half an hour when the information was passed on to the Police Authorities it shall be deemed that the accused was in the constructive custody of the police and therefore the information recorded in Ex. P-16 in pursuance whereof discoveries of the silver articles were made shall be relevant in evidence and is admissible under Section 27 of the Evidence Act.
12. The next question which in the context of these discoveries arises is whether in the circumstances of this case Kanhiya can be held guilty for murder of I Mst. Dhooli and her son Shyoji? The investigating agency could not discover the corpus delicti nor is there any evidence on the record to show that both Mst. Dhooli and her son Shyoji died between 6th and 9th March, 1972. The prosecution did not take care to bring on record any fact that the bones and pieces of clothes seized near the river either belonged to or could be that of Mst. Dhooli and her son Shyoji, In the absence of any material on record it is difficult to hold that Mst. Dhooli and Shyoji have died. In this view of the matter the charge under Section 302, I.P.C. for committing murder of Mst. Dhooli and Shyoji cannot be sustained.
13. The next question is what offence has been committed by the accused in the circumstances of this case. The three ornaments belonging to Mst. Dhooli have been discovered in pursuance of the information given by accused Kanhiya. This discovery cannot lead us to infer that the ornaments were removed from the body of Mst. Dhooli after she was murdered. At best a presumption can be drawn against Kanhiya, from whose possession the ornaments of Mst. Dhooli were recovered, after a lapse of about four months that he was guilty of an offence under Section 411, I.P.C.
14. Accused-appellant Kanhiya is therefore convicted under Section 411, I.P.C. He is acquitted of the charge under Sections 302 and 379, I.P.C. and the sentences awarded to him under the said two offences are set aside. The accused-appellant Kanhiya shall however undergo a sentence of two years' rigorous imprisonment under Section 411, I.P.C. The accused-appellant Kanhiya was arrested on July 6, 1972 and since then he is in jail. He has already undergone the sentence awarded to him under Section 411, I.P.C. He shall therefore be released forthwith from jail, if not required in any other case. The appeal is accordingly disposed of.