1. Six persons, namely Satis Chandra Seal, Sudhir Kumar alias Dulo Bose and Brojendra Nath Alias Cheton Mitra being the three appellants in Appeal No. 109 of 1943 and Charubala Dassi being the appellant in Appeal No. 130 of 1943 and Surendra Nath Mitra and Beni Madhab Moulik were put upon their trial on a variety of charges before the Additional Sessions Judge of Khulna. The appellant Satis was charged under Section 409, Penal Code, or alternatively under Section 52, Post Office Act. He was unanimously found guilty, by the jury under Section 409, Penal Code, and was sentenced under that section to six years rigorous imprisonment and to a fine of RS. 200 and in default of payment to a further period of one year's rigorous imprisonment. The appellants Sudhir and Brojendra were charged under Section 409/120B, Penal Code, or alternatively under Section 52/70, Post Office Act, and also under Section 411, Penal Code. The jury brought in an unanimous verdict of guilty against both of them under Section 409/120B and also under Section 411. The appellant Sudhir was sentenced under Section 409/120B to five years rigorous imprisonment and to a fine of Rs. 200 and in default of payment to a further period of one year's rigorous imprisonment. The appellant Brojendra was sentenced under Section 409/120B to rigorous imprisonment for five years. No separate sentence was passed on either of them under Section 411, Penal Code. The appellant Charubala was charged under Section 411 or alternatively under Section 414, Penal Code. She was unanimously found guilty by the jury under Section 414 and was sentenced to six months' rigorous imprisonment. The other two persons Surendra and Beni Madhab were charged under Section 409/120B, Penal Code, or alternatively under Section 52/70, Post Office Act. They were unanimously found not guilty of either of the charges and were acquitted. Against their respective convictions and the sentences passed on them by the Additional Sessions Judge of Khulna on 20th January 1943, Satish, Sudhir and Brojendra have preferred Appeal No. 109 of 1943 and Charubala has preferred a separate appeal, being Appeal No. 130 of 1943. The two appeals came up before us together. The case which was set up by the prosecution at the trial before the Additional Sessions Judge may be briefly summarised as follows:
2. In April 1942 there were attached to the Khulna Bazar Post Office, which was a sub-post office, three employees namely the Sub-Post Master, Panchanan Biswas (P. W. 1) the clerk, Shaik Abdul Gani (P. W. 2) and the mail peon, Satis Chandra Seal appellant 1 in Appeal No. 109 of 1943. On 27th April 1942, four insured parcels of the total value of Rs. 9300 and two V. P. parcels and one ordinary registered parcel and certain ordinary parcels were delivered at the Khulna Bazar Post Office for transmission to the respective addressees. At about 5 P.M. on that date the four insured parcels were put into a small yellow bag by the Sub-Post Master in the presence of the clerk and Satis. Satis tied up the bag after pasting a label and sealed it with the insured seal. The registered parcels were similarly put in another small bag and sealed. Then these two small bags and the ordinary parcels and some letters in a bundle and a parcel list made out by the clerk and signed by the Sub-Post Master were put in a bigger bag called the mail bag which was tied up and sealed by Satis with the mail seal. All this operation took place in the presence of all the three employees of the Khulna Bazar Post Office. After this the clerk Shaik Abdul Gani left the post office. Shortly thereafter the Sub-Post Master Panchanan Biswas also left the post office, having been called away by the appellant Sudhir, a clerk of the Postal Superintendent's office, by means of a slip and the appellant Satis waited at the Khulna Bazar Post Office with the Mail bag for the arrival of the hand cart from the main post office with the mail bags from there. Before his departure the Sub-Post Master left with the appellant Satis the mail seal to enable the latter to seal the second mail bag containing ordinary letters to be despatched from the Khulna Bazar Post Office at 5-45 P.M. The hand cart from the main Post Office came late that day. During this interval the appellant Satis opened the first mail bag, took out the small insured parcel bag and the parcel list from the mail bag and then re-tied and re-sealed the first mail bag with the mail seal that had been left with him for sealing the second mail bag. This insured parcel bag was made over by the appellant Satis to the appellant Brojendra who was waiting outside the Khulna Bazar Post Office. The appellant Brojendra took away the insured parcel bag to his house and subsequently the money was divided amongst the appellants Satis, Sudhir and Brojendra. Surendra and Beni Madhab did not get any share of the money but they helped Satis, Sudhir and Brojendra in committing the crime.
3. Meanwhile the hand cart carrying the mail bags from the main Post Office arrived at the Khulna Bazar Post Office and the appellant Satis put the first mail bag of the Khulna Bazar Post Office in the hand cart and accompanied the two peons of the main Post Office with the hand cart to the R.M.S. Office. There all the mail bags including the first mail bag of the Khulna Bazar Post Office were made over to the head sorter of the R.M.S. named Nagendra Nath Das (P.W.4). The head sorter opened the first mail bag of the Khulna Bazar Post Office but did not find in it either the parcel list or the insured parcel bag. Nagendra wrote a letter to the Sub-Post Master of the Khulna Bazar Post Office and sent it by a peon but the latter could not find the Sub-Post Master and came back with the letter, Nagendra then posted the letter as an express letter to the Sub-Post Master. The appellant Satis came back to the Khulna Bazar Post Office and enquired about the Sub-Post Master but the latter was not found at home. Next day, 28th April 1942, the Sub-Post Master received the express letter sent by Nagendra and the Sub-Post Master wrote to the Superintendent of Post Offices intimating about the loss. On the same day at about 2 P.M. Ashutosh Maitra (P.W. 12) the sub-record clerk of R.M.S. sent intimation of the loss in writing to the police. This was recorded as the first information report.
4. At about 10 P.M. on 28th April 1942, the appellant Satis was arrested by the police. His house was searched but nothing incriminating was found there. On 30th April 1942, at 2 P.M. the appellant Brojendra was arrested and his house was searched at 6 P.M. While in police custody the appellant Brojendra made certain statements to the investigating officer and pointed out certain places from where the sum of Rs. 1999 in G.C. Notes and coins and certain other incriminating articles, e.g., the triangular ring attached to the missing bag and the tin box in which some of the coins had been packed at the time the parcel was delivered to the Bazar Post Office were found. The appellant Sudhir was arrested at 9 P.M. on 30th April 1942, and his house was also searched. He also made certain statements to the investigating officer while in police custody and indicated certain places but nothing was found there. On being questioned by him his sister's husband Surendra who was also arrested made certain statements to the investigating officer and on a second search at about 11 P.M. on the same day the sum of Rs. 2145 was found near a plantain tree in the compound of Brojendra's house. The appellant Charubala was arrested in the early hours of 1st May 1942, and while in police custody she made certain statements to the investigating officer and on her house being searched the sum of RS. 4110 was recovered.
5. The above searches and recovery of the money and other things were made in the presence of search witnesses including Mr. B.C. Mukherjee the Inspector of R.M.S., Mr. K.C. Sen a postal Inspector and the head clerk in the office of the Postal Superintendent. The confessional statements of Brojendra, Sudhir and Charubala to the investigating officer while in police custody were made in the presence of these persons. On 1st May 1942 the appellants Satis, Sudhir and Brojendra and the appellant Charubala were produced before the Magistrate for recording their confessions. On reflection Satis and Charubala did not make any confession. Brojendra made a confession before the Magistrate on 1st May 1942 and Sudhir also made his confession before the Magistrate on the next day. Both of them, however, subsequently retracted their respective confessions. At the trial before the learned Additional Sessions Judge no less than 30 witnesses were examined on behalf of the prosecution. It is necessary only to refer to the evidence of some of them. [After considering the evidence his Lordship proceeded.] Shamsur Rahaman (P.W. 30) the investigating officer stated as follows:
I arrested Chetan alias Brojendra Mitra on 30th April at 2 P.M. and after arrest he made a statement to me and from his statement, I got an information that he got some money from an insured bag of the Khulna Bazar Post Office and the money was divided in his bari and the money in his share was kept by him under the ground of his west pota ghar in a ghati and in a thermo flask. He kept the silver coins and the small coins in his ghati and the notes in the thermo flask. He also stated that the tin kouta in which the silver coins (rupees) were packed was kept by him concealed in a tank. He also stated that he had burnt the postal bag and he had thrown the two rings of the bag in the tank. Brojen also stated to me that he had made over notes over Rs. 2000 to Sudhir alias Dulo Bose and he had made over Rs. 5000 to accused Satish Sil, and Satish Sil informed Brojen that he would keep his share of money with Tuku's mother. I took Chetan to Chetan's bari and there Chetan produced the money from under his floor by removing the earth. He produced a ghati containing silver rupees, eight annas bits and four annas bits from underneath his floor and he also produced a thermo flask from underneath his floor and that thermo flask contained notes. I counted the money and found Rs. 749 in Kushra rupees, eight annas bits and four annas bits. I opened the thermo flask and found Rs. 1250 in notes. I prepared a search list. This is that ghati Ex. 16 and this is that thermo flask Ex. 17, I took the said money, ghati and thermo flask in custody. Brojen produced the tin kouta from the tank. This is that tin kouta Ex. 7. There was straw in it. I prepared this search list Ex. 24 for the tin kouta, in the presence of witnesses.
Further on the witness deposed as follows:
I arrested Sudhir on 30th April 1942 at 9 P.M. Sudhir made a statement to me and I got the information that he had kept the money which he got in his share out of the stolen postal money underneath the floor of his ghar in a tin kouta which was kept in a byum. The byum was kept underneath the floor of his ghar. I then took him to his bari at 10-30 P.M. in the night of 30th April and I reached his bari at 11 P. M. Sudhir took me to his west pota ghar after the observance of necessary formalities and then he removed the loose earth from a hole underneath his cot and then he said that he kept the byum with the money there but the byum was not there and then he said that his bhagnipati Suren had removed the byum from that place and then I arrested his bhagnipati Suren. Suren then stated that he had removed the money to a banana grove underneath the ground covered by Chopras. Then Suren, Sudhir, I and others went to the banana grove and there, Suren Mitra brought out this tin kouta Ex. 9 after removing the plantain phatras and some earth. The tin kouta Ex. 9 was opened and Rs. 2145 was found in notes there.
Finally this witness stated as follows:
In that night I came to know on enquiry that there is a Tukurma at Sibbati and her name is Charubala. I went there on 1st May 1942 at 6-30 A.M. I searched her bari, I first arrested Charubala and then I searched her bari. At first I got Rs. 540 from her iron chest and I made this search list Ex. L and Charubala did not make any statement about this money. I also found seven guineas in the iron chest and I did not take the same on that day. During the time of search, Charubala made a statement to me and stated that Satish had given her some notes tied in a jharan and she had kept that money in three cigarette tins and had kept those three tins underneath the ground in three different places. She took us with her in order to produce the money in the three cigarette tins. She took us near privy near the fencing and she dug the earth with a spade and a tin kouta was brought out from the ground. Then we were taken to north-western side of her bari in her compound and she dug out earth near a matan tree and brought out a cigarette tin from underneath the ground. Then we were taken to the south in the same compound and there also she dug out some earth with a spade and brought out a tin kouta from underneath the ground. The said 3 tin koutas were opened and I found them full of notes. The said 3 tin koutas were about 4 fingers underneath the ground. In the first tin kouta, there was Rs. 1280, in 100 rupee notes, ten rupee notes and five rupee notes. In the second kouta Rs. 1060, was found in five rupee notes and in the third kouta, Rs. 1770, was found in 100 rupee 10 rupee and five rupee notes. Charubala also produced the said jharan. These are the 3 tin koutas, Exs. 11, 12 and 13. This is that jharan Ex. 14. I prepared this search list Ex. 21 in the presence of witnesses. Charubala signed her name in the search list in my presence.
6. One Mr. B.C. Mukherjee, Inspector of R.M.S.E. Division was examined before the Committing Magistrate under Section 219, Criminal P.C., when he stated as follows: (After setting out the evidence his Lordship proceeded.) Mr. B.C. Mukherjee was not called to give evidence at the trial before the learned Additional Sessions Judge but the above deposition of this witness was, at the instance of the Public Prosecutor and in spite of objection of the defence lawyers, admitted in evidence under Section 33, Evidence Act. In the order sheet under date 13th January 1943 we find the following order:
'The Public Prosecutor then puts in the deposition of P.W.B.C. Mukherjee under Section 33, Evidence Act. The defence raises objection to the tender of the deposition of P.W.B.C. Mukherjee. Heard the learned Public Prosecutor and the learned Counsels and the learned lawyers for the accused. The Public Prosecutor further puts in the statements of the accused persons before the Committing Magistrate under Section 287 Criminal P.C. These are all read as evidence.'
7. Mr. Ganguli appearing for the appellants has submitted that the statements said to have been made by Charubala, Brojendra and Sudhir to the investigating officer during investigation are clearly protected by Section 162 (1), Criminal P.C., and were wrongly admitted in evidence. He further contended that apart from the objection based on Section 162 (1), Criminal P.C., the evidence of Mr. B.C. Mukherjee given before the Committing Magistrate was wrongly admitted in evidence under Section 33, Evidence Act. In our judgment both these contentions are well founded. As to the first contention, it cannot be and in fact has not been denied by Mr. Serajuddin Ahmed appearing for the Crown that these statements were made to a police officer in course of an investigation under chap. 14, Criminal P.C. It is true that these statements were made by persons who eventually came to be accused of the very offence, during the investigation of which they are said to have made those statements. The case in Narayana Swami v. Emperor cited by Mr. Ganguli clearly supports his contention that the language of Section 162 (1) is wide enough in its ordinary meaning to include statements made to a police officer during investigation by an accused person. In that case their Lordships of the Judicial Committee adverted to Sections 25, 26 and 27, Evidence Act, but did not express any final opinion on the question whether Section 162, Criminal P.C, pro tanto repealed the provisions of Section 27, Evidence Act. On the facts of that case, the declarant was not in police custody and no alleged discovery was made in consequence of this statement and consequently Section 27, Evidence Act, had no application to that case. In the ease now before us, however, each of the declarants namely Brojendra, Sudhir and Charubala were in police custody at the time they are said to have made their respective statements to the investigating officer and some parts at any rate of their statements distinctly led to the discovery of some money and other incriminating articles during the searches of their respective houses. Mr. Ahmed, therefore, contends that on the facts of the present case those statements are clearly admissible in evidence under Section 27, Evidence Act.
8. Mr. Ganguli has fairly and very properly drawn our attention to the fact that since the decision of the Judicial Committee in Narayana Swami v. Emperor Section 162 has been amended by Act 15 of 1941 by adding the words 'or to affect the provisions of Section 27, Evidence Act' to Sub-section (2) of Section 162, Criminal P.C. This amendment relieves us of the necessity of considering the interesting point raised but not decided in Narayana Swami v. Emperor for Section 162, Criminal P.C., as it now stands, is expressly made subject to the provisions of Section 27, Evidence Act. Under Section 25, Evidence Act, no confession made to a police officer can be proved as against a person accused of any offence. This prohibition is general. Under Section 26, Evidence Act, no confession made by any person whilst he is in the custody of a police officer, unless it be made in the immediate presence of a Magistrate, can be proved as against such person. It is, therefore, clear that under both these sections the impugned statements of Brojendra, Sudhir and Charubala cannot be proved. Then comes Section 27, Evidence Act, which is a proviso to Section 26 as pointed out by the Judicial Committee in the case mentioned above. Under this section 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. On this section two questions arise for our consideration, namely, (1) whether the whole of the impugned statements are admissible in evidence and (2) as against whom are they or any part of any of them admissible. Beading the evidence of those prosecution witnesses who purport to reproduce the statements said to have been made by the accused persons whilst in police custody we find that parts of the statements constituted a general confession of guilt, parts of them are imputations of guilt on the accomplices, parts of them led to the discovery of the money and other incriminating articles and parts of them constituted statements made after the discovery of the money. These parts may be easily severable. Section 27 only lets in so much of the statements, whether they amount to a confession or not, as relates distinctly to the fact thereby discovered. On a careful consideration of the evidence before us, we are not of opinion that the admission of the whole of those statements in evidence can be justified by the terms of Section 27, Evidence Act. Further reading Section 27 with Section 26 to which it is a proviso it appears clear to us that the statements or if the whole of any of them is not admissible, the parts of them which are admissible, can be proved only against the person who made it. Section 27 in our opinion does not sanction the letting in of the statement of one person made to a police officer, while in police custody, as evidence as against another person. The position appears to us to be that generally speaking these statements are hit by the provisions of Section 162 (1), Criminal P.C., and cannot under this subsection be used for any purpose except as therein mentioned. By reason, however, of Sub-section (2) of that section, as it stands at present, only certain kinds of statements which are hit by Sub-section (1) of that section but which come within Section 27, Evidence Act, may be proved as against the person making it. In this view of the matter, we are of opinion that the admission in evidence of the whole of all the statements said to have been made by Brojendra, Sudhir and Charubala and at any rate the use thereof against persons other than the maker thereof was erroneous and illegal. There was not even a caution against the use of such evidence against third parties anywhere in the Judge's summing up.
9. As to the second contention of Mr. Ganguli, namely, that the deposition of Mr. B.C. Mukherjee before the committing Magistrate's Court was wrongly admitted in evidence, we find that this witness was examined under Section 219, Criminal P.C. It is not quite clear from the records whether this examination was held in the presence of the accused persons. Further Section 33, Evidence Act, sanctions the admission of the evidence of an absent witness only on certain specified grounds. It is well established that before such evidence is let in the Court must arrive at a finding, on evidence formally and regularly taken and recorded, that one or other of the grounds specified in the section exists: see Emperor v. Gajendra Mohan Kar : AIR1943Cal222 . We find nothing in the order sheet or in the learned Judge's summing up to show on which of the grounds specified in Section 33 this deposition was allowed to be put in. The admission of this deposition in evidence without such a finding was clearly illegal. This deposition has clearly prejudiced all the accused persons.
10. That these confessional statements purported to be reproduced by a number of witnesses in their respective depositions and referred to over and over again in the learned Judge's summing up must have had a considerable effect on the minds of the jury and prejudiced all the accused persons we do not for a moment doubt. In our opinion the trial has been clearly vitiated by reason of illegal admission of evidence of the statements of Brojendra, Sudhir and Charubala given by witnesses called at the trial. It has also been vitiated by the illegal admission of the deposition of Mr. B.C. Mukherjee which has affected all the accused persons. Mr. Ganguli has also contended that there are serious misdirections in the summing up and further that the confession of Sudhir was not admissible in evidence because of the violation of the provisions of Section 24, Evidence Act. We are not much impressed with his arguments on these points. In the view we have taken on the question of the admissibility of the evidence relating to the confessional statements said to have been made to the police officer, it is not necessary for us to deal with these points in greater detail.
11. The result is that the appeal of Satis, Sudhir and Brojendra (Appeal No. 109 of 1943) is allowed, the convictions and sentences are set aside and we direct that these three appellants be retried according to law. We trust that the lower Court will keep in mind the observations we have made above. Pending the retrial, let the appellant Sudhir Kumar alias Dulo Bose only be released on bail to the satisfaction of the learned Sessions Judge. The appellant Charubala having served out her sentence her appeal (Appeal No. 130 of 1943) is not pressed and the same will stand dismissed. Let the record be sent down as early as possible.
12. I agree.