1. (After setting out the facts and detailing the evidence continued).--I am inclined to think that the Judge has attached too little weight to the evidence as to the circumstances under which the accused made his statement; but, however that may be, I am of opinion that so much of the statement as related distinctly to facts thereby dicovered was admissible in evidence, not as a confession, but as evidence of the facts thereby discovered.
2. Now it seems to me that no facts deposed to were discovered by the prisoner's statement, 'that he had robbed Kristo Rishi of Rs. 48, whereof he had spent Rs. 8 and had Rs. 40.' Upon this point the Sessions Judge says: 'According to Straight, J., in Empress of India v. Pancham I.L.R. 4 All. 198 and Queen-Empress v. Babu Lal I.L.R. 6 All. 509 the evidence of Adu's statement that he had robbed Kristo Bishi of Rs. 48 is inadmissible, but Stuart, C.J.'S opinion in the first case is in favour of its admission in explanation of the delivery of the money and the case of The Queen v. Paqaree Shaha 19 W.R. (Cr.) 51 is a distinct authority therefor. Section 27, Act I of 1872, moreover legalises the reception of any statement of an accused whether amounting to a confession or not, which leads to the discovery of a material fact, and it is clear that the confession of the robbery was the necessary preliminary of the surrender of the Rs. 40, and it is impossible to separate them. Had he not confessed the robbery Adu would not have made over any money to the Sub-Inspector; and the surrender of the money must necessarily have been accompanied or immediately preceded by some explanatory statement. I have accordingly received the evidence thereof.' Now I cannot agree with the Judge, when he says 'the confession of the robbery was the necessary preliminary to the surrender of the Rs. 40,' still less can I agree with him when he says 'it is impossible to separate them,' by which I suppose he means 'impossible to separate this part of the prisoner's statement from what preceded and followed it.'
3. I emphatically endorse the observation of Straight, J. in Queen-Empress v. Babu Lal I.L.B. 6 All. 509 where he says: 'No judicial officer dealing with such provisions should allow one word more to be deposed to by the Police officer detailing a statement made to him by an accused, in consequence of which he discovered a fact, than is absolutely necessary to show how the fact that was discovered is connected with the accused, so as in itself to be a relevant fact against him. Section 27 was not intended to let in a confession generally, but only such particular part of it as set the person to whom it was made in motion, and led to his ascertaining the fact or facts of which he gives evidence;' and I must respectfully but firmly express my dissent from the observations of Stuart, C.J. in Empress of India v. Pancham I.L.R. 4 All. 198 where that learned Judge says: 'But I have no doubt in my own mind that statements by Police officers embodying and including what may be understood as a confession or admission of guilt by an accused person are not wholly inadmissible, but may be received and, applied so far as they prove merely corroborative circumstances and not an absolute confession of guilt.'
4. I am also of opinion that the prisoner's admission that he had assisted Ram Kristo in the theft of Raj Chunder Rishi's hides was inadmissible. The fact of the theft of these hides was already known, though not to the Sub-Inspector; and I think it would be a most dangerous thing to extend the provisions of Section 27 and allow a Police officer who is investigating a case to prove an information received from a person accused of an offence in the custody of a Police officer, on the ground that a material fact was thereby discovered by him, when that fact was already known to another Police officer.
5. Now, considering the whole oral evidence, and accepting the prisoner's admissions (subject to what I have said I think ought to be rejected) as true, how does the case stand
6. I think it may be taken to be proved that the prisoner and Ram Kristo left Hogla in company on the night of 29th Kartic in Kamaruddin's boat; that on the way Ram Kristo pawned the chain and keys to Ishan Chunder Das; that they continued their journey to Barisal where they arrived on 30th Kartic, and where Ram Kristo sold 21 hides for Rs. 50, which he received in cash, to Rahim Buksh; that the prisoner, though not actually present at the salef knew of it, and knew that Ram Kristo had received Rs. 50; that they left Barisal in company; that at some period he quitted Kamaruddin's boat, took Ammuddin's boat, travelled a certain distance in it, then abandoned it and walked home, and that Ram Kristo has not since been heard of. This is all that I think can be taken to be proved, even accepting the prisoner's admission as true.
7. I do not think that is sufficient to convict the prisoner of murder.
8. In Russell on Crimes, 4th edition, Vol. I, p. 770, it is said: 'It has been considered a rule that no person should be convicted of murder unless the body of the deceased has been found.' And a very great Judge says: 'I would never convict any person of murder or manslaughter unless the facts were proved to be done, or at least the body be found dead. But this rule, it seems, must be taken with some qualifications; and circumstances may be sufficiently strong to show the fact of the murder, though the body has never been found. Thus, where the prisoner, a mariner, was indicted for the murder of his captain at sea, and a witness stated that the prisoner had proposed to kill the captain, and that the witness being afterwards alarmed in the night by violent noise, went upon deck, and there observed the prisoner take the captain up and throw him overboard into the sea, and that he was not seen or heard of afterwards; and that near the place on the deck where the captain was seen, a billet of wood was found, and that the deck and part of the prisoner's dress were stained with blood; the Court, though they admitted the general rule of law, left it to the jury to say, upon the evidence, whether the deceased was not killed before his body was cast into the sea; and the jury being of that opinion, the prisoner was convicted, and (the conviction being unanimously approved of by the Judges) was afterwards executed.
9. But where upon an indictment against the prisoner for the murder of her bastard child, it appeared that she was seen with the child in her arms on the road from the place where she had been at service to the place where her father lived, about 6 in the evening, and between 8 and 9 she arrived at her father's without the child, and the body of a child was found in a tide-river near which she must have passed in her road to her father's, but the body could not be identified as that of the child of the prisoner, and the evidence rather tended to show that it was not the body of such child, it was held that she was entitled to be acquitted; the evidence rendered it probable that the child found was not the child of the prisoner; and with respect to the child, which was really her child, the prisoner could not by law be called upon either to account for it, or to say where it was unless there were evidence to show that her child was actually dead.
10. I will not go so far as to say that under no circumstances, in this country, could a charge 6f murder be sustained without proof of the finding of the dead body, but considering the well-authenticated instances of the subsequent appearance in the flesh of persons said to have been murdered, and whose death has been deposed to by eye-witnesses, the production of bones, alleged to be those of a man, and discovered to be those of a Woman, and the numerous false charges which are brought against innocent people, I should require the strongest possible evidence as to the fact of the murder if the dead body were not forthcoming; that evidence is, I think, wanting here.
11. If the evidence of Jasimuddin, his brother, and mother, as to Ram Kristo's dying declaration is put on one side, as 1 think, it ought to be, there is no evidence to support the charges of grievous hurt and robbery.
12. With regard to the charge of stealing Aramuddin's boat, I do not think it can be sustained, as there is not only no evidence that the prisoner intended to convert it to his own use, and make it permanently his own property, but the evidence is entirely the other way.
13. The charge of the theft of the 19 hides from Raj Chunder Rishi's verandah rests entirely upon the prisoner's statement to Mookerjee, which I have already said, I think, was inadmissible.
14. Thus, in my opinion, all the charges against the prisoner fail, and he must be acquitted of them all and discharged from jail.