1. The four petitioners have been convicted of having committed theft with respect to some slabs of marble and sentenced by the trial Court to undergo rigorous imprisonment for three months. On appeal the conviction was upheld but the sentence was reduced to one of rigorous imprisonment for a term of two months. The evidence against the accused may be divided broadly into two parts. One part consists of the evidence of persons who alleged that they saw the accused persons committing theft and the other part consists of the evidence of witnesses who say that three of the petitioners, namely, Tamijuddin, Asthir Mondal and Anesuddin Mondal, confessed their guilt and implicated Panchu Sheik.
2. As regards the alleged confession, we are of opinion that it is not admissible. The evidence has been recorded in a slipshod and perfunctory manner, and the only reasonable conclusion which we can draw from the evidence as it stands is that the confession was made when the accused persons were in the custody of chowkidars. That being so, the confession is hit by the provisions of Section 26, Evidence Act. It has been held by this Court that the term 'police officer' includes 'chowkidar,' and the confession having been made while the accused were in the custody of police officers, it has become inadmissible by virtue of Section 26, Evidence Act. Both the Courts below relied upon this confession and, in our opinion, they have relied upon it wrongly. The question remains whether the conviction should be upheld on the other evidence. The judgment of the Court of appeal below is thoroughly unsatisfactory because we are unable to appreciate from the judgment what the evidence really was. The learned lower appellate Court says this:
There are some discrepancies and in fact one prominent discrepancy in the evidence, such as between P.Ws. 3 and 4, but otherwise the prosecution story is clear, consistent mainly and convincing, as the learned Magistrate who saw the witnesses and had opportunity of direct examination points out.
3. From this confused and involved language one thing is clear, namely, that there is some prominent discrepancy in the evidence. The learned lower Court considers that this prominent discrepancy is not worth much, But we are left entirely in the dark as to what this prominent discrepancy is and it is not possible for us to determine whether the learned lower appellate Court was right in attaching no weight to it. Judgments of this description are of no assistance to this Court and it is not possible for this Court to decide from a judgment like this whether the Court below has appreciated the evidence in a reasonable manner. The judgment of the trial Court is equally unsatisfactory. It consists of ten typewritten pages, nine of which are devoted mainly to a consideration of the defence case. It is not possible to gather from the judgment of the trial Court what the prosecution evidence was. We can only gather what the conclusion of the learned Magistrate was regarding the evidence. Judgments ought to set out what the evidence is and not merely the conclusion of the learned Magistrate. I now revert to the judgment of the learned lower appellate Court. The learned Magistrate says this:
The F.I.B. and the investigating officer's evidence and P.W. 8's evidence that all the four accused confessed and begged to be excused - a fact which has been substantially corroborated and was clinched by their arrest at this spot, leave no loophole from these four accused.
4. Again it is difficult to gather exactly what the learned lower appellate Court wanted to say. It is legitimate to argue from this passage that the learned Magistrate was relying upon the first information report as a piece of substantive evidence. If he was doing this he was doing something which is not permitted by the law. The first information report is merely a piece of corroborative I evidence or a piece of evidence which may be considered for the purpose of ascertaining whether the story now told is different from the story told at the time when the first information was lodged. In these circumstances, we are of opinion that the decision of the lower appellate Court cannot be up-held and consider that the appeal should be reheard by the learned Sessions Judge. At the time of the rehearing, the alleged confessions made by the accused persons must be excluded and the learned Judge rehearing the appeal should bear in mind what we have said regarding the evidentiary value of the first information report. This rule is made absolute and the appeal shall be reheard in the light of the observations made above. The petitioners will continues on the same bail.
5. I agree.