B.C. Chakrabarti, J.
1. This revisional application is directed against an appellate judgment affirming an order of conviction and sentence under Section 411, I. P. C. passed in G. R. Case No. 314 of 1974 of the second court of Judicial Magistrate, Rampurhat.
2. On the complaint of one Nidhu Ranjan Sarkar (P. W. 1) that a theft was committed in his tailoring shop on the night between 17-7-1974 and 18-7-1974 the case was started. In the complaint it was started that the miscreants had broken open the shop room and carried away two Usha sewing machines along with the wooden frames, one Usha deluxe table fan and some tailoring materials. In the F. I. R. the informant gave the names of 3 of the petitioners, viz., petitioners Nos. 1-3 whom he suspected to be involved in the commission of the crime. The police after taking up investigation took the suspects as a also the petitioner No. 4 into custody. The articles, viz., 2 Usha sewing machines and the Usha table fan were said to have been recovered from inside the water of a tank at a place known as 'Dhenuburi Pukur' in mouza Kalishar near the town of Rampurhat. The prosecution case is that the articles were recovered in consequence of the statement made by the petitioners and the petitioners led the police to the place from where those articles were brought out.
3. Six witnesses were examined for the prosecution including the I. O. There was no evidence to directly implicate the petitioners or any of them with the actual commission of theft. But relying on the testimony of recovery of the stolen articles from inside the water in a tank at the instance of the petitioners, the learned Magistrate found the petitioners guilty under Section 411, I. P. C. In fact, 4 other persons were also arrested by the police but there being no incriminating evidence against them, they were acquitted. The petitioners were mentioned to suffer R. I. for 10 months each.
4. Being aggrieved the petitioners preferred an appeal being Cr. Appeal No. 28 of 1980. The learned lower appellate Court affirmed the findings of the trying magistrate and upheld the order of conviction and sentence.
5. Petitioners obtained the present Rule against the said appellate order.
6. Mr. Talukdar appearing in support of the petition contended that there is no statement recorded by the police which could come within the meaning of Section 27 of the Evidence Act and that the story of recovery of the articles by the petitioners was not reliable and not supported by the seizure-list witnesses. He also contended that the mere fact of recovery without more may not be sufficient to find the petitioners guilty under Section 411, I. P. C. In that view of matter, Mr. Talukdar argued that the the order of conviction passed by the learned Magistrate and as affirmed by the lower appellate court ought to be set aside. This being a revisional application the scope of enquiry is limited. We are not to hear and reassess the evidence for ourselves. All that we are required to do is to see whether there has been any basic error in law or procedure resulting in flagrant miscarriage of justice. The error complained of in this case is that while there is strictly no evidence under Section 27 of the Evidence Act, the two courts below thought that the evidence that has been adduced was sufficient for the purpose of Section 27 and that the petitioners could be convicted on the basis thereof,
7. In this case we get from the evidence of the I. O. (P. W. 6) that there is no recorded version of the statement made by the accused persons in consequence whereof the stolen articles were recovered Mr. Talukdar complained that the practice of not recording statement is unwholesome and ought to be deprecated. In support of this contention he referred to the decision in the case of Nathu v. State : AIR1958All467 . That decision lays down that under Section 27 that part only of the information given by an accused is admissible as distinctly relates to the facts discovered. Unless therefore the exact words used by an accused person in giving the information are known the court is not in a position to decide to what extent the particular statement of the accused is admissible in evidence. The practice of not recording the actual words by the investigating agency was therefore disapproved. In the case of Panchugopal v. State : AIR1968Cal38 , somewhat similar observations were made. It was observed that it is only proper for prosecution if they want to adduce evidence under Section 27 of the Evidence Act which is an exception to the power enjoined by Section 25 of that Act, to prove by production of written record only of so much of the statement as led to the discovery of the article. It is unsafe to rely on the oral statement of witnesses without cor-roboration by any written record of any such statement contemporaneously made, even if admissible. The decision does not in terms say that an oral statement not recorded is on that score alone inadmissible. All that it says is that it may be unsafe to rely on such evidence. In the present case we have in evidence that the 4 petitioners made statements pursuant to which the I. O. was led to a tank close to the town of Rarnpurhat and that the stolen articles were re-covered from under the water of the tank which was not an ordinary place for keeping objects like a sewing machine or a table fan. The evidence also indicates that the articles were brought out by the petitioners. The evidence of the I. 0. in particular is that the suspects took him to Dhenuburi tank within Kalishar mouza and that the accused persons brought out 2 Usha sewing machines and 1 Usha deluxe table1 fan from the pond. He prepared a seizure-list in presence of witnesses which was signed by the accused persons and one of whom being illiterate put his L. T. I. Mr. Talukdar drew our attention to the evidence of the search witnesses (P. Ws. 2 and 3) who while admitting the fact of recovery in cross-examination said as if they did not see the accused persons there. To this extent their evidence stands condemned by the petitioners Nos. 2 and 4 in their statement under Section 313, Cr. P. C. They admitted that they were there at the time and that they were taken in a police jeep. The evidence of the I. O. that the accused persons made statements, led the police to the pond and brought out the articles from inside the pond was not even challenged in cross-examination. Part of it is admitted by at least two of the petitioners in their statement under Section 313, Cr. P. C. Even though the statements made by the accused persons were not recorded, the fact remains that the accused persons led the police to the tank and brought out the stolen articles from inside the tank. This is evidence of a conduct which is relevant under Section 8 of the Evidence Act even if it may be otherwise not admissible under Section 27 of the Evidence Act (See Prakash Chand v. State : 1979CriLJ329 .
8. Mr. Talukdar finally contended that the recovery simpliciter is not sufficient to find that the accused were guilty of the offence, for a hypothesis that they knew of the articles being there without being in any way involved in the commission of the crime cannot be ruled out. In making this submission reliance was placed in the case of Md. Inayatullah v. State : 1976CriLJ481 . This was a case where the statement of the accused as recorded by the police was sought to be introduced into evidence. Part of the statement was clearly inadmissible. The other part related to the discovery of the articles, viz., certain oil drums. It was held that the facts proved could give rise to two alternative hypothesis, equally possible, viz. (1) that it was the accused who had himself deposited the stolen drums or (2) the accused only knew that the drums were lying at the place. Since either of the alternative hypothesis was possible it was held that the second hypothesis was compatible with the innocence of the accused and consequently the appellant was entitled to the benefit of doubt. In the instant case before us we do not think we can go that far in the facts of the case. Here, as we have already indicated, the articles stolen were kept in a most unusual and unlikely place and the positive and clear evidence is that the accused persons brought out the same by leading the police to that place. Such evidence not being contradicted we do not think we would be justified in making a hypothesis that the accused' might merely have known that the articles were there. That would be making a concession in favour of the accused to an extent not permissible in the facts and circumstances of the case. We therefore do not think that by taking the evidence of the conduct of the accused leading to the discovery of the articles which were proved to be stolen articles, the conviction under Section 411, I.P.C. was clearly justified. We were not addressed on the question of sentence. There is therefore nothing to interfere with the order impugned in this revisional application.
9. The application accordingly fails and the Rule is discharged.
10. The accused who are on bail do surrender to their bail-bonds and serve out the remainder of the sentence.
Jitendra Nath Chaudhuri, J.
11. I agree.