1. This is an appeal by the Superintendent and Remembrancer of Legal Affairs, Bengal against the verdict of the jury and order of acquittal passed thereon by the Sessions Judge of Malda on a charge under Section 302, I.P.C.
2. The case for the prosecution was that the accused Bhajoo Majhi murdered one Baneswar on the night of 25th February 1928, the motive for the crime being alleged to be a love intrigue between the accused and the deceased's wife Munia.
3. The jury brought in a unanimous verdict of not guilty and the learned Judge accepting it acquitted the accused.
4. In support of the appeal against that order two main grounds have been urged, firstly, that the jury was not constituted according to law, as there were only seven jurors instead of nine as required by Section 326(1) read with the proviso to Section 274(2), Criminal P.C. This ground has not as a matter of fact been taken in the petition of appeal and was only put forward at the 11th hour. We do not think, therefore, that it ought at so late a stage so be entertained. It appears moreover that no objection of any kind was raised at the trial, nor has any allegation been made that the accused were prejudiced in any way.
5. This ground accordingly fails and must be disallowed. The second ground urged on behalf of the appellant is that the learned Sessions Judge erred in rejecting evidence as to certain statements and conduct of the accused in pointing out places at which discoveries of importance were made as a consequence of the information given by him. These statements are referred to in para. 8 of the petition of appeal, and the question which arises in connexion with them is, whether they should have been allowed to go in evidence in their entirety, that is to say, including the admissions said to have been made by the accused that he had killed the deceased and had thrown his body into the river, or whether only so much of the information given by the accused as related to the actual discovery of the blood stains near the tree and the articles of clothing in the river was admissible.
6. The answer depends upon the construction to be put on Section 27, Evidence Act. That section is in the nature of a proviso to the proceeding Section 26. Section 26 reads as follows:
No confession made by any person whilst ho is in the custody of a police officer, unless it be made in the immediate presence of a Magistrate, shall be proved as against such person.
7. Section 27 goes on to say:
Provided 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 a confession or not, as relates distinctly to the fact thereby discovered, may be proved.
8. The precise meaning to be abbached to Section 27 is not altogether free from difficulty, and it is possible to interpret it as allowing even a confession of guilt to go in provided it has led to discovery. On the other hand it may be read as meaning no more than that the facts discovered may be proved excluding the actual confession So far as this Court is concerned the more restricted interpretation has been given to the section, and it appears to be well settled that only so much of the information can be allowed to go in as relates distinctly or immediately to discovery. That seems to be the correct view of the section. The language bears that interpretation, and I do not think it can ever have been the intention of the legislature to admit statements containing an actual confession of the crime. A distinction is apparently drawn between that part of the information which leads directly to discovery of material facts, and that part of it which cannot in itself be held to lead to any discovery, the principle underlying the distinction being that discovery affords some guarantee of the truth of a portion of the statement, but not necessarily of the whole. If that portion of the statement or information which contains a confession of the commission of the crime, were admitted there would be a great temptation for the police to drag in statements of this nature. It has been hold over and over again that the prohibition contained in Sections 25 and 26 Evidence Act against false and fabricated confessions must be strictly applied. Section 27 being a proviso to the two preceding sections must be strictly construed and any relaxation must be sparingly allowed, care being exercised to see that the purpose and object of Sections 25 and 26 and the safeguard provided in Section 27 are not rendered nugatory by any lax interpretation. Section 27, it is true, says 'whether it amounts to a confession or not' and it may be argued that these words favour the wider interpretation. But in using these words the legislature had, as I think, in mind the meaning of the word confession, viz.:
an admission made at any time by a parson charged with a crime, stating or suggesting the inference that he committed the crime,
and it means, therefore, no more than this that so much of the information as leads to discovery may be proved, even if the facts discovered lead to an inference of guilt. For statements of this kind obviously do suggest a very strong inference of guilt although taken by themselves they would fall short of proof.
9. In my judgment the Sessions Judge was right in adopting the restricted view of Section 27. This ground, therefore, also fails. The appeal is dismissed and the accused if in custody will be released.
10. There is a school of legal thought in India which holds that in construing Acts of the Indian legislature, the natural meaning of the sections should be given effect to regardless of previous decisions, and especially of decisions other than those of Indian Courts. The Evidence Act in general and Section 27 in particular are examples which in my opinion, indicate the falsity of this point of view.
11. If their natural meaning were given to the words of Section 27 regardless of of their parentage and history. I am satisfied that the result would be contrary to the intention of the legislature. It would be so wide as to under Section 26 practically useless. 'Relates to' means ordinarily, 'is connected with' or 'has reference to' while 'distinctly' means 'clearly' or 'definitely' or 'positively' or 'undeniably' or 'undoubtedly' (see the Oxford Dictionary.) If, therefore, so much of the information as is clearly connected with, or has reference to, the fact thereby discovered, is admissible under Section 27, it is difficult to see where the line can be drawn. The presence of Section 26 to which Section 27 is only a proviso, shows that this conclusion cannot have been intended. I agree with Mahmood, J., in his most learned interesting judgment in Queen Empress v. Babulal (1884) 6 All. 509 at p. 520 that Section 27 is not a proviso to either Section 24 or Section 25. It follows that some restricted or limited meaning, narrower than the natural meaning must be attached to these words.
12. The Evidence Act, as stated by Sir James Pitzjames Stephen in his introduction, is little more than an attempt to reduce the English Law of Evidence to the form of express propositions arranged in their natural order with some modifications rendered necessary by the peculiar circumstances of India.
13. The English Law of Evidence consists mostly of negative rules declaring what is not evidence. It is almost wholly judge-made law, formed by degrees, to meet the exigencies of particular cases and comparatively of very modern date, to which have been added the glosses which successive textbook writers have put upon the decisions of the Judges. The Evidence Act, as stated by Woodroffe, was drawn up chiefly from Taylor on Evidence, and he based his treatise largely on the work of former authors. Section 27 was an attempt to apply the English Law of Evidence about information unduly obtained from a prisoner to information given by an accused while in the custody of a police officer and is merely a paraphrase of Taylor's, para. 902 (see the Edn. 11, p. 614). The words 'relates distinctly', are taken directly from that source. And reference to the decision upon which his paragraph is based R. v. Butcher-posted (1798) 1 Leath. C.C. 265 shows that the words were his own invention, or that of a previous author, and are not to be found in the decision itself.
14. It is necessary, therefore, to ascertain what meaning Taylor himself attached to these words. Para. 902 reads as follows:
When, in consequence of information unduly obtained from the prisoner, the property stolen, or the instrument of the crime, or the body of the parson murdered, or any other material fact, has been discovered, proof is admissible that such discovery was made conformably with the information so obtained. The prisoner's statement as to his knowledge of the place where the property or other article was to be found, being thus confirmed by the fact, is shown to be true, and not to have been fabricated in consequence of any inducement. It is, therefore, competent to prove that the prisoner stated that the thing would be found by searching a particular place, and that it was accordingly so found; but it would not, in such a case of a confession improperly obtained, be competent to inquire whether he confessed that he had concealed it there. So much of the confession as relates distinctly to the fact discovered by it may be given in evidence, as this part at least o the statement cannot have been false.
15. The crucial words are in the last line. Only that part of the statement which cannot have been false is admissible. For example that the prisoner stated that the thing would be found by searching in a particular place and that it was accordingly so found but not that he confessed that he concealed it there.
16. The difficulty of applying these English rules about information unduly obtained, and their unsuitability, to the Indian situation where information is given by, an accused while in the custody of a police officer is manifest. Under the English rule it is assumed that the prisoner has confessed, but that his confession must be excluded because being obtained improperly, it may be false. His admission, however, of knowledge about the whereabouts of the thing cannot be false, because it is discovered subsequently in the place indicated by him. But the position in India is that confessions to or while in the custody of a police officer are excluded because if alleged to have been made to the police officer, they may have been invented by him and if made to others while in the custody of a police officer, they may have been induced by him and may be false. In neither case is the discovery of the thing any guarantee that the accused had knowledge of its whereabouts.
17. Phipson (Edn. 6, p. 270), states that facts disclosed in consequence of inadmissible confessions are receivable if relevant and where property has been discovered or delivered up in this way so much of the confession as strictly 'relates' thereto will be admissible, for these portions at least cannot be untrue, but independent statements not qualifying or explaining the fact though made at the same time will be rejected. It will be observed that his statement of the rule is much narrower than that of Taylor, being restricted to property which has been discovered or delivered up, nor does he use Taylor's word 'distinctly' but the word 'strictly' which is the word used in the reporter's note of the case of R. v. Butcher (1798) 1 Leach. C.C. 265 tried at Maidstone Summer Assizes in 1798, which is the main authority relied upon by both Taylor and Phipson.
18. Phipson moreover states that the earlier rule admitted the facts but excluded the accompanying statements R. v. Warwickshall (1783) 1 Leach. 263, and the reporter in the note above referred to, goes on to quote Mr. East 2, C.L. 658, as saying:
But it seems that this opinion namely the opinion expressed in the note to R. v. Butcher (1798) 1 Leach. C.C. 265 must be taken with some grains of allowance, for even in such case the most that is proper to be left with the jury is the fact of the witness having been directed by the prisoner where to find the goods and his having found them accordingly, but not the acknowledgment of the prisoner having stolen or put them there which is to be collected or not from all circumstances of the case and this is now the more common practice.
19. And Taylor in a note to para. 902 says that Ld. Eldon laid down the rule somewhat more strictly saying in Harvey's case (1800) 2 East. 658, that where the knowledge of any fact was obtained from a prisoner, under such a promise as excluded the confession from being given in evidence, he should direct an acquittal, unless the fact proved, would itself have been sufficient to warrant a conviction without any confession leading to it.
20. Whether or not the rule laid down by the Judges at one period was as wide as is suggested in Leach's note upon R. v. Butcher seems to me very doubtful and the evidence on this point is extremely, meager, see especially : R. v. Griffen (1809) R. & R. 151, where the Judges were divided R. v. Jones (1809) R.& R. 152, R. v. Mosey (1784) 1 Leach. 265. I am satisfied from personal experience that it has not been the practice so to apply it in England during the last quarter of a century, and I do not believe it to be the law in England today. In my opinion, Ld. Eldon's view is the correct one. However, I have no doubt that the practice in England now is, and doubtless was at the time when the Evidence Act, was passed, to allow to be stated in evidence that in consequence of information received from the prisoner, certain facts had been discovered, thus to that extent fixing the prisoner with knowledge.
21. And to this extent, I am satisfied [that such evidence may be given under Section 27.
22. This was the view taken by the learned Sessions Judge, and I am of opinion that he was right in excluding the remaining part of the statement of the accused, which the Crown has urged should have been admitted, apart altogether from the wider question which I have been discussing, I do not consider that the facts discovered in this case were discovered in consequence of the prisoner's alleged statement that he felled the deceased, and threw his body into the river, but in consequence of the prisoner taking the witnesses to the spots referred to in the evidence and pointing out to them the marks in the grass and the clothing of the dead man. On the second point taken by the prosecution, I do not think that this Court ought to listen to any argument by the Crown against an acquittal, which is based on a technical objection about the constitution of the jury. Especially in view of the fact that no objection was raised at the trial, and that this point was not even included among the grounds of appeal but was raised for the first time at the hearing.
23. For these reasons, I am of opinion that this appeal should be dismissed.