1. The appellant was the third accused in S.C. No. 52 of 1939 before the learned Sessions Judge of Vizagapatam. The three accused in that case were charged with the murder of one Pendyala Ramalingam, Village Munsif of Kondasekharapalli and with the murder of Pantala Appayya, a bandy driver and with causing hurt with a dangerous weapon to two of the witnesses in the case, P.Ws. 14 and 15. The evidence in the case established the fact that the deceased Ramalingam and the two witnesses started in Appayya's bandy from Kondasekharapalli on the night of the 20th June, last to go to Parvatipur and that they were attacked by three men about half way on their journey. Ramalingam was killed immediately but Appayya survived until the 22nd when he died in hospital and the two witnesses received minor injuries. The evidence in the case was twofold; firstly, the evidence of identification and secondly, evidence based upon the confession made by the appellant. The evidence of identification was not considered by the learned Sessions Judge sufficiently safe to act upon. He accepted neither the evidence of the two witnesses who were travelling in the bandy nor that of the two other witnesses who say that they saw the three accused near the scene of offence shortly before the offence must have been committed, and in consequence acquitted the first and second accused.
2. The accused were arrested on the 24th June, and the appellant made a long statement which was recorded as Ex. Y. At the conclusion of that statement the appellant promised the police to take them to the place where the first accused had buried the spear with which he had stabbed the occupants of the bandy. The next day, the 25th June, the third accused accordingly took the police to a gedda and, after he had himself unsuccessfully searched for the spear, the first accused took it out and produced it. The evidence upon which the third accused has been convicted by the learned Sessions Judge consists almost entirely of this statement. The statement has been admitted in full as one made under Section 27 of the Indian Evidence Act. It seems however to us very doubtful whether this is a statement admissible under Section 27 at all. No doubt, in one sense of the word, if the evidence is believed - and we see no reason why it should not be - it was the information given by the appellant which actually led to the fact that the police officer came to this particular gedda. But if the events of that morning be more closely analysed, it will be seen that the discovery of the spear was not in the essential sense of the word due to the information given by the third accused but was due simply and solely to the action of the first accused who, according to the prosecution case, had himself hidden the spear in that particular spot. No doubt it is not necessary that the informant himself should personally recover any property about which he fives information. But when the informant has tried unsuccessfully to recover such property it must, we think, be conceded that the effect of his information has become completely exhausted. No doubt if one of the police officers themselves or any third party acting on the information of the third accused had recovered this spear, Section 27 would have been applicable. But, as it is, we are of opinion that this spear was recovered not because of any information given by the appellant, though that may have been the proximate cause of the presence of the party at the gedda, but by the action of the first accused himself. We would accordingly hold that Ex. Y does not fall within Section 77 but within Section 26 and is inadmissible in evidence. That being so, there is no evidence upon which the appellant could possibly be convicted. This appeal must be allowed and the conviction set aside and he will be set unconditionally at liberty.