Debabrata Mookerjee, J.
1. This is a reference made by an Additional Sessions Judge of 24-Parganas recommending that the verdict of the jury acquitting the accused Sailendra Nath Samanta be set aside and that he be re-tried in accordance with law under Section 304, Penal Code.
2. The accused was placed on his trial on a charge under Section 304, Penal Code, before an Assistant Sessions Judge and a jury. The allegations were that at about 8 p.m. on 26-6-1954, one Jatindra Chandra Haldar having trespassed into the plantain grove of Sailendra with a view to stealing green bananas, Sailendra fired a shot from his gun which wounded Jatindra over the left buttock and this resulted in the latter's death. On 27-6-1954, at about 9-15 a.m. the accused went to Magrahat Police Station and lodged an information.
The police thereafter proceeded to Magrahat Railway Station where Jatindra had been removed and recorded there another statement made by the deceased Jatindra. An investigation followed which resulted in the trial of the accused upon a charge under Section 304, Penal Code.
3. The defence denied the charge and the case of the accused was that he had been falsely implicated; alternatively, he claimed to have caused the death of Jatindra in the exercise of his right of private defence of person and property.
4. At the trial, it appears, the statement made by the deceased Jatindra was treated as the first information report, and the trial Judge excluded from evidence the statement of the accused which was prior in point of time. The jury brought in an unamimous verdict of not guilty, and the trial Judge in agreement with that verdict acquitted the accused. Thereafter the mother of the deceased made an application before the Sessions Judge of 24-Parganas impugning the validity of the verdict on the ground that the jury had been improperly deprived by the trial Judge of the opportunity of considering a valuable piece of evidence in that the statement of the accused hadbeen withheld from them. This statement is claimed to constitute an important item of evidence without which the jury could not be said to have been assisted to a correct verdict. The learned Additional Sessions Judge has agreed with the contention put forward on behalf of the applicant, the mother of the deceased, and made this reference recommending that the verdict of the jury be set aside and a new trial ordered.
5. It is to be observed that the State Government did not think it necessary to prefer an appeal against the order of acquittal made by the trial Judge in agreement with the verdict of the jury; and when this reference came up, the State did not appear until it was told to do so by an order of this Court.
6. The statement of the accused which is said to have been improperly held back from the Jury was to the effect that at about 9-30 p.m. when he was keeping watch in his garden, he found a man moving about; on being challenged, the man came up with a spear; several bunches of bananas had already been removed by the man and he approached Sailendra in such a manner as to cause apprehension of danger to his life. Sailendra then fired his gun which he was carrying at the moment and raised a hue and cry which attracted people. The wounded man was then removed to Sailendra's house. A doctor was calledin to render assistance to the wounded man, Sailendra added that the injured could not be brought to the thana on account of lack of transport.
7. The information which was given by the deceased was recorded later at the Magrahat Railway Station when the police officer saw him there. In that information the accused was implicated as being responsible for the injuries on Jatindra.
8. The trial Judge declined to receive into evidence the statement of the accused Sailendra to the police, and treated the statement of the deceased Jatindra as the first information report in the case.
9. The learned Additional Sessions Judge seems to think that the result of the trial was materially affected by reason of the omission on the part of the trial Judge to place before the jury some portion at least of the statement of the accused to the police. The learned Additional Sessions Judge has analysed and split that statement into three parts and thinks that with the excep-tion of one part which might be considered to toe of an inculpatory nature, the other two parts ought to have gone to the jury.
10. On behalf of the State it has been streneously contended that at least those parts which did not incriminate the accused ought to have been allowed in evidence. It is argued that the jury has been deprived of the advantage of hearing the evidence relative to the innocuous parts of the statement and that has led to a mis-carriage of justice.
11. It is conceded by Mr. Sen on behalf of the State that the whole of the statement of the accused could not possibly have gone to the jury in view of the provision of the Indian Evidence Act that confessions made to the police cannot be proved against a person accused of an offence; but those parts of the statement which did nor, amount to confession could well have been used in evidence at the trial. Reliance is placed on Section 27, Evidence Act, and in support of the contention my attention is drawn to the case of Superintendent] and Remembrancer of Legal Affairs, Bengal v. Lalit Mohan 25 Cal WN 788: (AIR 1921 Cal 111) (A). It was held that although the first information report in that case was not admissible in evidence in its entirety, so much of it as contained a mere narration of events prior to the occurrence and portions which led to the discovery of material evidence were admissible. It was further held that if portions of the statement are admitted, the person affected thereby may demand that the statement should be considered in its entirety. Yet the principle that portions of statement of confession may be admitted and others excluded is recognised in the Evidsnce Act itself and also in judicial decisions. I respectfully agree with the observations made in that case, but the conditions mentioned in Section 27 have to be fulfilled, and that strictly before a portion of the statement can possibly be allowed in evidence under that section.
12. Section 27, Evidence Act, is in the nature of a proviso and it says:
'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.'
Section 26, in my view, is the main section which provides that no confession made by any person whilst he is in the custody of a police officer shall be receivable in evidence against him unless it be made in the immediate presence of a Magistrate. Section 27 lays down an exception to the rule enunciated in Section 26, and insists upon certain conditions being fulfilled before the application, of Section 27 is attracted. The statement must be made by a person already in the custody of the police officer, and the provable part of the information, whether amounting to confession or not, must relate distinctly to the fact thereby discovered. The actual discovery of a thing in consequence of the information is considered to be a guarantee of the truth of the information and of the fact of its communication to the police. The conditions mentioned in Section 27 have, therefore, to be fulfilled before the application of this section can be thought of.
13. In the instant case, there is nothing on the record to indicate that any discovery was made in consequence of the information which is said to have been withheld in the case. Furthermore, the accused person was not in police custody at the time. That being so, there can beno question of the application of Section 27 of the Evidence Act.
14. There is another aspect of the matter. If the statement of the accused is taken as a whole, it could not be said to be a confession at all. The statement read as a whole indicates that a theft had been committed, and the person committing theft had been surprised in the act of committing it, and that the thief was about to attack the accused with a deadly weapon. It was in these circumstances that the accused had used his gun. Having done so, he claimed to have acted in the exercise of his right of defence of property and person. Taking the statement, such as it is in its entirely, it would be difficult to say that it was a confession. If it was not a confession it might be argued, then there would be no objection to its reception in evidence, and Section 25 of the Evidence Act would not be a bar. This view may be reasonable to take, but that does not assist the State in its present contention. In order that the statement of the accused may be treated as the first information, it has to conform to the requirements of Section 154, Criminal P. C. That section provides that every information relating to the commission of a cognizable offence if given orally to an officer in charge of a police station shall be reduced to writing by him or under his direction and he read over to the informant; and every such information whether given in writing or reduced to writing as aforesaid, shall be signed by the person giving it and the substance thereof shall be entered in a book to be kept by such officer in such form as the State Government may prescribe in this behalf. The essential requirement in Section 154 is that it must relate to the commission of a cognizable offence. Taking the statement of the accused as a whole, it is impossible to say that it relates to the commission of the offence of culpable homicide. On the other hand, it seems to make it clear that the accused by acting in the manner in which he did, merely acted in the exercise of the right recognised by law to defend his own person and his property. A man has the right of inflicting injury even to the extent of causing death in certain circumstances when he is acting in his right of private defence of person or property. If the statement of the accused is taken as a whole and accepted there cannot be the slightest doubt that it did not seek to give any information relating to the commission of a cognizable offence. The statement was a complete exoneration, and did not disclose that any offence had been committed. For the purpose of this case, the offence would be the offence of murder or culpable homicide not amounting to murder; but the statement far from indicating that it related to the commission of such offence negatived it and spelt out a complete defence. In that view of the matter, this could not possibly be treated as a first information even if it be held that the statement was not hit by Section 25, Evidence Act.
15. The next question that ariser, is whether this statement could be treated as an admission. The statement seems to admit the presence of the accused and the deceased at the scene of the occurrence. It admits that the accused fired his gun which caused injury to the person who had committed theft of bananas and approached him with a deadly weapon, nOW, if this is an admission it, must be read as a whole. The law does not permit an admission to be truncated and taken piecemeal. You must take the whole of it or none of it. That seems to be the view of the Supreme Court in Hanumant Govind v. State of Madhya Pradesh, : 1953CriLJ129 , where it has been clearly ruled that an admission made by a person, whether amounting to a confession or not, cannot be split up and part of it used. The admission must be used either as a whole or not at all. Assuming for a moment that if the statement had gone before the jury, they could not have used a part of the admission which favoured the prosecution. They would have after being properly instructed by the Judge, taken the admission as a whole, and if that was believed that would completely exonerate the accused.
16. Looking at the statement of the accused as part admission of guilt; the question arises whether the statement could have been used in the case. A confession in order to be treated as such must be a confession properly so called. It cannot in part admit a crime and in part exonerate the accused. The decision of the Supreme Court in Palvinder Kaur v. State of Punjab, : 1953CriLJ154 , clearly rules that a confession must either admit in terms the offence, or at any rate substantially all the facts which constitute the offence. An admission of a gravely incriminating fact, even of a conclusively incriminating fact, is not of itself a confession. A confession that contains self-exculpatory matter; cannot amount to a confession if the exculpatory statement is of some fact, which if true, would negative the offence alleged to be confessed.
17. In the instant case the fact of using the gun and causing the injury on the buttock of the deceased may constitute admission of a gravely incriminating fact, but that cannot, taking the statement as a whole, amount to a confession. Even if it was a confession, it could not be received in evidence by reason of the provisions of Section 25, Evidence Act which rules out confession to the Police. I do not think that in the circumstances of the case, the learned Trial Judge misdirected the jury by Keeping the statement of the accused from them.
18. Assuming for a moment, for the sake of argument, that the statement of the accused was improperly held back from the jury, I do not think that would by itself be an omission of sufficient importance to entitle this Court to hold that the unanimous verdict of the jury had been improperly had. Section 167, Evidence Act, provides that the improper rejection of evidence shall not be ground of itself for a new trial or reversal of any decision of any ease, if it appears to the Court before which such objection is raised that, if the rejected evidence had been received, it ought not to have varied the decision. It is, therefore, necessary to examine the position regarding the salient features of the evidence in this rase so that this Court may pronounce if there has really been a miscarriage of justice.
19. It is to be observed that most of the material witnesses were declared hostile in the case, and permission was asked for by the prosecution to cross-examine those witnesses. There were no eye witnesses, and the case depended entirely upon circumstantial evidence. Important links that made one connected chain which might inevitably lead to the conclusion of guilt of the accused Were absent. The prosecution did not succeed in adducing evidence upon which it could fully rely. Many of the witnesses called by them gave the case away. It is indeed difficult to say in these circumstances that the decision in the case, as reflected in the jury's verdict would have been materially altered if the statement of the accused had been placed before the jury. Assuming that the statement was admissible in evidence, Section 167 constitutes a bar to a fresh trial unless it couldbe established that there would have been material difference in the result if the evidence allegedly improperly rejected had been allowed to be produced.
20. In these circumstances, I must rejectthe Reference and allow the unanimous verdict ofthe jury to prevail.