T.U. Mehta, Actg. C.J.
1. This appeal arises out of the order of conviction and sentence recorded by the Court of the Additional Sessions Judge, Una is Session Trial No. 4-M/7 of 1977 in which both the appellants were charged for the offences contemplated by Sections 302 and 392 read with Section 34 of the I.P.C. As a result of the trial, the learned Sessions Judge has convicted the appellant Vijay Kumar for the offences under Section 302 and Section 392 read with Section 34. of the I.P.C. and has sentenced him to life imprisonment and fine of Rs. 1,000/- for the offence under Section 302, I.P.C., and to rigorous imprisonment of ten years and fine of Rs. 500/- for the offence under Section 392 read with Section 34, I.P.C.
2. He has convicted appellant Darshan Lal for the offence under Section 392 read with Section 34, I P. C. and has sentenced him to rigorous imprisonment of ten years and the payment of fine of Rs. 500/-.
3. The learned trial Judge has further ordered that out of fine which would be recovered, Rs. 1,000/- should be paid to Shrimati Ram Ashri the legal heir of deceased Shrimati Bhagwanti Devi who Is said to have been murdered.
4. Appellant Vijay Kumar is referred to in this judgment as accused No. 1, while the appellant Darshan Lal is referred to as accused No. 2.
5-27. (After discussing the evidence His Lordship continued). We, therefore, agree with the finding of the learned trial Judge that the death of the deceased was not natural and that it was the result of her murder.
28. Before discussing other evidence of the prosecution, we would like to consider the evidence led by the prosecution to prove the alleged extra-judicial confession of the accused said to have been made before P. W. 2 Amrit Ram. According to this witness, both the accused had approached him at 2 to 3 P. M. on 13th Jan., 1976 when they were looking 'perplexed'. After having said this, the witness deposes as under in proof of the alleged extra-judicial confession:
They told me that they have committed the sin and that I should get them pardoned. I told them that I was only a Panch and they should wait and I shall talk to the Panchayat President. Darshan Lal had told me that Vijay Kumar had killed the old lady with the sickle and that he was standing outside her room, that when Vijay Kumar had lifted the utensils and the ear-rings, the old lady had stood on the door, so she was killed, as he had recognised them. Again he said that earings were removed after she had been killed. The accused had left my house before I could inform and bring the Panchayat President there.
In our opinion, the above evidence can't be taken as an extra-judicial confession made by both the accused regarding the murder. Even if it is believed that both the accused admitted before this witness that they had committed 'Sin' and that he should obtain pardon for them, such an admission cannot be taken as the confession of the offence of murder having been committed. The above quoted portion from the deposition of the witness Amrit Ram clearly shows that whatever accused No. 2 Darshan Lal informed him about the killing of the deceased amounted to an exculpatory statement because Darshan Lal put the blame about killing squarely on accused No. 1 Vijay Kumar, keeping himself outside the house of the deceased. Such exculpatory statement made by a co-accused cannot be utilised against the accused No. 1 Vijay Kumar, and being exculpatory, it cannot be utilised against Darshan Lal himself. In our opinion, therefore, the learned trial Judge was not justified in putting any reliance upon the so-called extra-judicial confession of the accused persons. In the subsequent portion of the discussion, therefore, we have kept this evidence out of consideration.
29-32. (After discussing the evidence His Lordship continued). The learned Advocate of the accused contended that since the arrest of both the accused persons was not made immediately it was, for the prosecution to explain this fact, because this fact is such that, on the face of it, it requires some explanation. We are unable to accept this argument because late arrest of the accused is not by itself a circumstance which is not capable of being reasonably explained, Under the circumstances if the defence thought that this late arrest smacked of something fishy, it was for it to elicit some explanation from the investigating officer about the same before inducing the Court to condemn the witness. We are, therefore, not inclined to believe that accused No. 1 Vijay Kumar was arrested by the police on 14-1-1976 and not on 18-1-1976.
33. Both the discoveries were attacked by the learned Advocate of the accused on the ground that the articles were found concealed at the places which were open. This is true, but that does not carry the case of the defence further because the discovered articles were found concealed and were therefore out of the sight of the passers-by. Concealed articles were obviously within the exclusive knowledge of the person who had concealed them. They were not found lying open within the sight of everybody and therefore the mere fact that they were concealed at a place which was open is not sufficient to discard this evidence of discoveries, as of no use to the prosecution.
34. The above were the two common contentions regarding the discoveries made by both the accused persons. But with regard to the discovery of blood stained sickle, our attention was drawn to the deposition of P. W. 15 Brahma Nand who is one of the Panchas before whom the disclosure statement Ex. PK was made by the accused No. 1 Vijay Kumar leading to the discovery of the sickle. In his cross-examination this witness has stated that before the accused Vijay Kumar made the disclosure statement, the police told him that he should speak the truth about the case, and that if he did so, he would get his release fjgkbZ The English version of this part of the deposition of the witness uses the word 'concession' instead of the word 'release'. But that is a mistaken translation because the word in the original deposition, which is in Hindi, is 'Rehai' which means 'release'. The prosecution has not sought any clarification regarding this part of the deposition of the witness either in re-examination or during the course of the deposition of the other Panch witness P.W. 16 Raja Ram. It is further found that the Investigating Officer himself has not preferred to make a denial of the above allegation regarding inducement during the course of his deposition before the Court. Under the circumstances, we have to accept as correct the statement of P. W. 15 Brahma Nand that before the accused No. 1, Vijay Kumar, made the disclosure statement leading to the discovery of the sickle, the investigating Officer had induced him that if he spoke the truth he would be released.
35. In view of the above, the question which arises to be considered is what is the evidentiary value of the discovery and the proof of the confessional statement leading to this discovery, when the said statement was procured by the Investigating Officer who was undoubtedly a person in authority, by giving inducement. It is obvious that if a statement from the accused is procured by a person in authority by giving inducement, the said statement cannot be treated as a voluntary statement of the concerned accused. The learned Advocate of the appellant, therefore, contended that such a statement is hit by the provisions of Section 24 of the Evidence Act, and that the whole of the evidence of discovery which is found to be the result of such a statement is vitiated.
36. As against this, the learned Advocate-General, relying upon the two decisions of the Patna High Court in Mathura Prasad v. Emperor AIR 1946 Pat 210 : 48 Cri LJ 460 and Emperor v. Remis Christian AIR 1947 Pat 152 : 48 Cri LJ 497 contended that Section 27 of the Evidence Act serves as a proviso to Sections 24, 25 and 26, and hence even if the disclosure statement leading to discovery is procured by the Police under inducement, threat, promise or violence, the same is saved if it falls within the provisions of Section 27 even though the provisions of Section 24 appear to have been infringed.
37. Since we find that the judicial pronouncements on the question whether Section 27 acts as a proviso only to Sections 25 and 26 or even to Section 24, are not uniform and are rather contradictory to some extent, we propose to discuss this aspect of the case at some length.
38. Section 24 of the Evidence Act says that if a confession made by an accused person appears to the Court to have been caused by any inducement, threat or promise, having reference to the charge against the accused person, and proceeding from a person in authority then such a statement is irrelevant in a criminal proceeding if in the opinion of the Court it is sufficient to give the accused person reasonable grounds for supposing that by making it he would gain any advantage.
39. Section 25 of the Evidence Act which immediately follows, provides that no confession made to a Police Officer shall be proved as against a person accused of any offence.
40. Then follows Section 26 which says that no confession made by any person whilst he is in Police custody shall be proved as against such a person unless it is made in the immediate presence of a Magistrate. Then follows Section 27 which begins with the words 'provided that'. According to this Section, when a fact is deposed to as discovered in consequence of information received from an accused person who is in custody of a Police Officer, so much of such information, whether it amounts to confession or not, as relates distinctly to the fact thereby discovered, may be proved.
41. A close analysis of all these above referred four Sections of the Evidence Act will show that Section 27 acts as a proviso only to Sections 25 and 26 and not to Section 24. This will be apparent from the following analysis of the three sections which precede Section 27.
42. Section 24 contemplates the making of a confession by an accused person to any authority whether that authority belongs to the Police Department or to any other Department. Further, according to Section 24 it is not necessary that the accused person should be in Police custody at the time of making the confession in question.
43. When we come to Section 25, we find that it is confined to only those confessions which are made to a Police Officer by a person accused of an offence. For the purpose of Section 25 it is not necessary that the accused person should be in Police custody at the time of making the confession. But the main distinction between Sections 24 and 25 is that while Section 24 contemplates confession made in the presence of any person in authority, Section 25 contemplates a confession made only to one kind of authority, namely, a Police Officer.
44. Section 26 is still wider than Section 25. It contemplates a confession made to any person, whether he is a person in authority or not. However, to bring a case within the purview of Section 26, it is necessary that the confession in question should have been made whilst in police custody.
45. It is thus clear that, unlike Section 24 of the Evidence Act. Sections 25 and 26 are designed with a special reference to police. Provisions of Section 24 are of general character while the provisions of Section 25 and Section 26 are providing for special type of contingencies.
46. Analysis of Section 27, which serves as a proviso, shows that in one sweep it seeks to operate as a proviso to both the types of cases contemplated by Sections 25 and 26. We shall presently discuss how this is so.
47. Section 27 allows the proof of that part of the confession which leads to discovery of a fact. Even if this confession, which is in form of an information, is made to a police officer, the same can be proved under this section. Therefore, this aspect of the matter works as a proviso to Section 25 under which confession made to a police officer cannot be proved.
48. Section 27 also allows the proof of a confession made by a person whilst in police custody even if it is not made in immediate presence of a Magistrate. It therefore operates as a proviso to Section 26. Thus, Section 27 works as a proviso to both the preceding Sections 25 and 26. It has no connection with Section 24 and it was put in the scheme only because of the special provisions contained in Sections 25 and 26.
49. Provisions of Section 27 make it clear from their plain reading that they contemplate a stage when the case is under police investigation, because discovery of a fact is expected to be made only during investigation. Now, it is clear that Section 24 is not confined to any particular stage because confession contemplated by it is hit even if it is made before investigation has started. Another significant fact which deserves our notice is that Sections 25, 26 and 27 speak about the 'proof' of the confessional statement, but when Section 24 makes a reference to a confessional statement, it speaks about its 'relevancy'. The use of the same terminology in Sections 25, 26 and 27 suggests that they were enacted as a result of an integrated scheme.
50. Thus, the context in which Section 27 is placed, and the purpose for which it is enacted sufficiently indicate that it controls Sections 25 and 26 but not Section 24. This view gets fortified if we keep in mind the legislative history which brought Sections 25, 26 and 27 of the Evidence Act into existence. This legislative history is as under:
Before the Indian Evidence Act, which is Act 1 of 1872, came into existence, provisions similar to Sections 25, 26 and 27 were incorporated in the Cr. P.C. 1861 (Act 25 of 1861). The relevant Sections were Sections 148, 149 and 150. They were in the following terms:148. No confession or admission of guilt made to a Police Officer shall be used as evidence against a person accused of an offence.
It is obvious that this Section 148 was quite similar to the present Section 25 of the Evidence Act, the only difference being that the expression 'admission of guilt' is not found in the Section 25 of the Evidence Act, and while Section 146 of the Code of 1861 prohibited the use of confession 'as evidence', Section 25 of the Evidence Act prohibits the 'proof' of that confession. For our purpose, this difference is of no significance.
51-52. Section 149 of the Code of 1861 was in the following terms:
149. No confession or admission of guilt made by any person whilst he is in the custody of a Police Officer, unless it be made in the immediate presence of a Magistrate, shall be used as evidence against such person.
This Section is quite in pari materia with the present Section 26 of the Evidence Act, the only difference being that instead of the expression 'used as evidence' the Section 26 of the Evidence Act uses the expression 'shall be proved'.
53. Section 150 of the Code of 1861, which corresponds to the present Section 27 of the Evidence Act, was in the following terms:
150. When any fact is deposed to by a Police Officer as discovered by him in consequence of information received from a person accused of any offence, so much of such information, whether it amounts to a confession or admission of guilt or not as relates distinctly to the fact thereby discovered, may be received in evidence.
The notable difference between this Section and present Section 27 of the Evidence Act is that while under the above quoted Section 150 of the Code the fact discovered was required to be deposed to by a Police Officer, Section 27 of the Evidence Act does not insist that such a fact should be deposed to as discovered by a Police Officer. Another distinction is that under the provisions of the section the accused person need not be in the custody of Police Officer, under Section 27 of the Evidence Act he should be in such a custody.
54. Subsequently by the Cr. P.C. 1869 (Act 8 of 1869), the above referred Section 150 was altered as under:
Provided that when any fact is deposed to in evidence as discovered in consequence of information received from a person accused of any offence, or in custody of a Police Officer, so much of such information, whether it amounts to a confession or admission of guilt or not, as relates distinctly to the fact thereby discovered, may be received in evidence.
This altered Section 150 is quite in line with the present Section 27 of the Evidence Act.
55. All the above referred Sections, namely, Sections 148, 149 and 150 of the Cr. P.C. as they existed previously, were re-embodied in Sections 25, 26 and 27 of the Evidence Act when it came into force with very slight alterations of language. The point to be noted, however, is that all these three sections, namely, Sections 148, 149 and 150, were taken away at a time from the Cr. P.C. and embodied in the same fashion in the newly enacted Evidence Act, for the reason that they were intended to operate together. Their inter-connection shows that Section 27, which operates as a proviso, was intended to operate only upon the two previous sections, namely, Sections 25 and 26 with which it was connected even when similar provisions found their place in the Code of Criminal Procedure. This legislative history, therefore, gives a very dependable indication that Section 27 was not meant to operate as a proviso to Section 24 of the Evidence Act.
56. In this connection it would be worthwhile to note that a few years after the Evidence Act came into force a point arose before a Full Bench of the Allahabad High Court whether Section 27 controlled only the preceding Section 26 or both the preceding Sections 25 and 26 (Vide Queen Empress v. Babu Lal (1884) ILR 6 All 509, The majority of the Full Bench held that there was nothing in Section 27 to render its proviso inapplicable to the information received by a Police Officer, and just as Section 150 of the Cr. P.C. was intended to govern both the preceding Sections 148 and 149, even Section 27 of the Evidence Act was intended to operate upon both Sections 25 and 26. Mahmood J., of course, took a dissenting view because, according to him, Section 27 controls only Section 26 and not Section 25. But this view is not shared by the majority. Of course, this Full Bench judgment of the Allahabad High Court has not specifically considered whether Section 27 also controls Section 24 of the Evidence Act, but the line of reasoning adopted by the court clearly shows that Section 27 controls only the two preceding sections, namely, Sections 25 and 26 of the Act.
57. Thus, even without availing of the aid of other reported decisions on this question, we find, on the simple analysis of Sections 24 to 27, and the historical background under which Sections 25, 26 and 27 were brought in the Evidence Act, that Section 27 cannot be said to be controlling the provisions of Section 24 of the Indian Evidence Act.
58. We are fortified in the above view by several decisions, and we further find that there is another set of decisions, which categorically state that Section 27 controls not only Sections 25 and 26 but also controls Section 24 of the Indian Evidence Act. We also find that there is one line of thinking according to which Section 27 controls only Section 26, which precedes it, and neither Section 24 nor Section 25 of the Evidence Act. In our opinion, therefore, the legal position in this connection is rather confusing, and this is specially so, when we notice that the point has not been dealt with by the Supreme Court in any case though some rather casual observations in this connection are found to have been made by the Supreme Court without discussing the legal aspect involved in the question. We shall, therefore, presently refer to the different decisions which are available on this point.
59. We shall first take up for our consideration three Supreme Court decisions in which some rather casual observations are found regarding this point. In Ramkishan Mithanlal v. State of Bombay : 1955CriLJ196 , the Supreme Court happened to consider the admissibility of same evidence under Section 27 of the Evidence Act. Reference to para 22 of the reported judgment shows that after quoting Section 27 the Court has observed as under:
Section 27 is an exception to the rules enacted in Sections 25 and 26 of the Act which provide that no confession made to a police officer shall be proved as against a person accused of an offence and that no confession made by any person whilst he 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.
These are the only relevant observations in the decision. The observations make reference only to Sections 25 and 26 and the relevant discussion does not contain any debate on the question whether Section 27 controls even Section 24 for the obvious reason that no such question arose to be considered before the Supreme Court. In the subsequent decision of the Supreme Court in State of Uttar Pradesh v. Deoman Upadhyaya : 1960CriLJ1504 , the main question involved was whether Section 27 of the Evidence Act read with Sub-section (2) of Section 162 Cr. P.C. offended Article 14 of the Constitution. Hidayatullah J., while discussing this question is found to have made the following observations in para 65 of the reported judgment:
Section 27 which is framed as an exception has rightly been held as an exception to Sections 24 to 26 and not only to Section 26.
While making these observations, Hidayatullah J. was speaking only for himself and not for the court, and the other four Judges who were also the members of the Bench are not found to have made any such observations. Under the circumstances, the above observations of Hidayatullah J. cannot be taken to be the observations of the court. Even so, these observations coming from an eminent Judge of the Supreme Court are entitled to due weight. We, however, find that these observations are purely of casual nature because except the bare observations, no discussion on the subject is found, nor any question was raised before the court as to whether Section 27 controls even Section 24 of the Evidence Act. In yet another case of K. Chinnaswamy Reddy v. State of Andhra Pradesh, reported in : 3SCR412 , the Supreme Court happened to consider how much of the disclosure statement made by the accused unrlpi Section 27 would be admissible. Para 9 of the reported judgment shows that while discussing this question the Supreme Court has observed as under:
This Section is an exception to Sections 25 and 26, which prohibit the proof of a confession made to a police officer or a confession made while a person is in police custody, unless it is made in immediate presence of a Magistrate.
These observations show that Section 27 is taken as exception only to Sections 25 and 26 and no reference is made to Section 24. But even these observations are found to have been casually made because there was no point taken before the court to the effect that Section 27 controls even Section 24 of the Evidence Act.
60. It is true that the observations of the Supreme Court in the nature of obiter dicta are also binding on courts but, as held in Ranchhoddas Atmaram v. Union of India : 1961CriLJ31 , if the question 'was never required to be decided, and could not have been, or be treated to be decided', any casual observation on that question cannot be treated as binding. Since it is found not only that the above referred observations have been made quite casually without any point of discussion haying arisen, but also that they are not quite uniform inasmuch as Hidayatullah J. has observed that Section 27 controls even Section 24, we think that the point before us is res integra.
61. We shall first take up for our consideration those decisions in which it is observed that Section 27 of the Evidence Act controls all the three previous Sections, namely, Sections 24, 25 and 26.
62. The earlier decision which has taken this view is the one given by the Full Bench of Allahabad High Court in Emperor v. Misri reported in (1909) ILR 31 All 592 : 10 Cri LJ 212. In that case the accused concerned was induced to point out the hiding place of stolen property. The Government Advocate in that case contended that Section 27 of the Indian Evidence Act was a proviso to the preceding sections including Section 24 and made certain fact evidence which otherwise would not have been evidence, irrespective of the question whether an inducement was used or not. It, however, transpires from the judgment recorded by Knox, C. J. that the question which was considered by the Full Court was whether under the circumstances of the case evidence was admissible to show that the accused person as a matter of fact did go to a certain place and produced certain ornaments. After referring to Sections 24 to 30 of the Indian Evidence Act, the court observed that Section 27 of the Evidence Act, did not profess to, and did not deal with evidence as to the conduct or act of the accused, which is admissible under Section 8 or any of the preceding sections of the Indian Evidence Act and is subject to no limitation so as to make it relevant. After saying this the court has made the following observations which are the only observations relevant to the point under our consideration:
the learned Counsel who appeared for the accused wished us to limit the force of Section 27 and to read it as qualifying only Section 26 and not Sections 24 and 25. We see no ground for such limitation, and we hold that that section is a qualifying section to the three sections which immediately precede.
There is no discussion to show why the learned Judges came to the conclusion that Section 27 is a qualifying section to all the three preceding sections. They have disposed of the reference by observing that evidence was admissible to show that the accused as a matter of fact did go to a certain place and there produced the ornaments in question. After this, the case was laid before other Judges of the High Court, who, while passing the final order, are found to have made the following observations which go to take out much of the force of the above quoted observations that Section 27 controls even the Section 24. These observations are as under:
Of course in weighing evidence of this kind obtained under an inducement consideration must always be given to the fact that the evidence was in all probability secured by the promise held out. There may be cases where the circumstances are such that the fact that the discovery was induced by a promise would raise a doubt as to the genuineness of the discovery and render the evidence almost worthless.
If these observations are followed then the question whether Section 27 operates as a proviso to Section 24 or not becomes more or less academic. These observations of the Allahabad High Court have been approvingly quoted in a subsequent decision of the same High Court, namely, Dhoom Singh v. State reported in : AIR1957All197 . Therein it is held that where facts disclosed point to the accused having been subjected to third degree methods prior to the disclosure, the genuineness of the discovery is rendered doubtful and the discovery becomes worthless as a piece of evidence.
63. This, however, does not settle the point so far as the Allahabad High Court is concerned, because in Gaya Prasad v. State reported in : AIR1957All459 a Division Bench of the Allahabad High Court has observed that Section 27 of the Evidence Act is virtually a proviso to Sections 24, 25 and 26, and a statement made to Police would be admissible in evidence if it comes within the four-corners of Section 27. Except making such a bare statement, the reported decision does not contain any discussion as to how Section 27 would work as a proviso even to Section 24 of the Act.
64. It is found that in two cases, Calcutta High Court has taken a view that Section 27 governs all the three preceding sections. One of these cases is Amiruddin Ahmed v. Emperor, reported in (1918) ILR 45 Cal 557 : 19 Cri LJ 305. In the reported judgment following relevant observations made by Teunon J. are found at page 566:
It is said that the Sessions Judge is wrong in his view that Section 27 of the Evidence Act applies to and qualifies Section 24 and Section 25, as well as Section 26. Whether, as regards Section 24, the question strictly arises has not been made clear, inasmuch as it has not been shown to us that discoveries resulted or are said to have resulted from confessions other than confessions made to police officers, or when in the custody of police officers and not in the immediate presence of a Magistrate. If, however, the question does arise, in that case I am of opinion that Section 27 qualifies not only Section 26 and Section 25, but also Section 24. All three sections lay down general rules excluding confessions. It is in my opinion unnecessary to discuss the policy which has led to the enactment of these rules. It is sufficient to say that the same broad grounds or principles appear to underlie all three. In Section 27 follows an exception. The reason for making or providing this exception applies alike to each of the three preceding general rules. If the exception had been intended to apply only to Section 26 or only to Sections 26 and 25 we would have expected to find this intention expressly stated or to find the exception embodied in those two sections or in Section 26 alone. Further, the position of Section 28 which is also in the nature of an exception to Section 24, supports this view.
Another member of the Bench Shamsul Huda J. has observed that the reasons given for and against the view that Section 27 controls Section 25 also apply with equal force to the question whether that section likewise controls Section 24. Then, referring to the fact that Sections 25, 26 and 27 of the Evidence Act are taken from the old Cr. P.C. he has observed as under:
The fact, however, that Sections 25, 26 and 27 existed in the Cr. P.C. uncontrolled by any express provision such as we now have in Section 24 of the Evidence Act, may suggest the inference that by transferring those three sections from the Code of Criminal Procedure to the Evidence Act, no change in the law was intended to be introduced. But this argument is clearly fallacious, as Section 24 laid down no new principle but embodied a well-established principle regulating the admissibility of confessions : and even before it was formally enacted as a rule of Jaw in this country the principle governed these provisions of the Cr. P.C. even before their transfer to the Evidence Act of 1872.
For the reasons already stated above, and with due respect to both the learned fudges of the Calcutta High Court, we are of the opinion that simply because Section 24 deals with the subject of confessions made by the accused it cannot be said that Section 27 controls Section 24. In order to determine whether the exception contemplated by Section 27 controls one section or the other, the scheme of the Act, the collocation in which the proviso is placed and the context in which the preceding sections are enacted cannot be overlooked. Therefore, we do not find ourselves in agreement with the above referred view of the Calcutta High Court.
65. We may note that the same view is reiterated in the subsequent decision of the Calcutta High Court in Durlay Namasudra v. Emperor, reported in AIR 1932 Cal 297 : 33 Cri LJ 546, wherein it is held that Section 27 is an independent section and that it is not a mere proviso to Section 26 but cuts down the operation of Sections 24 and 25 as well. It may be noted here that Rankin, C. J., while deciding this case has pointed out the necessity of re-drafting Sections 24 to 27. It should further be noted that in spite of the above referred Calcutta decisions, the same High Court has in the case of Naresh Chandra v. Emperor reported in AIR 1942 Cal 593 : 44 Cri LJ 145, held that Section 27 of the Evidence Act is enacted as an excepting or qualifying rule of evidence, being framed as a proviso upon the preceding Sections 25 and 26. It is significant to note that it is not treated as qualifying the provisions of Section 24 of the Evidence Act, This is the position in Calcutta High Court. Now, we proceed to consider the views of other High Courts who have taken similar view.
66. The question seems to have been agitated before the Lahore High Court as early as the year 1928. A Division Bench of this High Court, in the case of Bulaqi v. Emperor, reported in AIR 1928 Lah 476 : 29 Cri LJ 1019, has observed as under:
There seems to me to be no reason to doubt that Sultan did show the place where the body was found buried and that he had been told before that the Sub-Inspector would attempt to do something for him if he did so. If there had been no such inducement it is clear that this circumstance would have been relevant under Section 27, Evidence Act, but it is urged that it is excluded by Section 24 because of the inducement. This subject is discussed at length at pages 279 and 280 of Amir Ali and Woodroffe's Evidence Act 8th Edition, where numerous authorities are given to the effect that Section 27 qualifies Section 24 as well as Sections 25 and 26.
It is apparent from these observations that apart from making a reference to the well-known commentary by Amir Ali and Woodroffe on Evidence Act, the learned Judges have not entered into any further discussion on this question.
67. So far as Nagpur High Court is concerned, we have come across two decisions, namely, Mt. Jamunia Partap v. Emperor AIR 1936 Nag 200 : 37 Cri LJ 1047, and Neharoo Mangtu Satnami v. Emperor AIR 1937 Nag 220 : 38 Cri LJ 642, In none of these two cases any discussion on the subject is found, but in the previous case it is observed that Section 27 of the Evidence Act is an enabling section providing an exception to the 'previous ones' which exclude confessions made to or in presence of the police, and in the latter case also similar observations are made. In the latter case of Neharoo Mangtu Satnami (supra) specific reference to Section 24 is not made, but it is observed that the question whether confession (to which Section 24 of the Evidence Act applies) was induced by promises or not is immaterial, because general ground for not admitting confessions made either to a police officer, or made under any inducement, or made by persons while in custody, is clearly the danger of admitting false confessions, but the necessity for this precaution disappears when the truth of the confession is guaranteed by the discovery of facts in consequence of the information given. We shall show hereafter how the said necessity for the precaution does not totally disappear even in cases where in consequence of the information induced from the accused certain facts are discovered. For the present it would suffice to say that we find ourselves unable to agree with the above observations with regard to the statements which are induced by the police from the accused.
68. It is found that a Full Bench of the Punjab High Court has observed in Ram Richhapal v. State that Section 27 constitutes a proviso or an exception to Sections 24, 25 and 26 which bar confessions made by accused persons in certain cases. Beyond making this statement we do not get any further enlightenment on this question from this decision. But in a subsequent judgment of that very Court given in Devi Ram Patt Ram v. State , it is observed that though apparently Section 27 of the Evidence Act provides an exception to Sections 25 and 26, a careful reading thereof shows that it is not really an exception to Section 25 at all but only an exception to Section 26 because Section 27 contains a phrase 'in custody of a police officer', which is found only in Section 26 and not in Section 25. Thus, this decision not only goes contrary to the above referred decision of the Punjab High Court but takes a still more restricted view which was taken by Mahmood, J. as early as 1884 in Babu Lal's case (1884) ILR 6 All 509 (FB) (supra).
69. The High Court of Patna in the case of Adhik Lal Pathak v. Emperor AIR 1942 Pat 156 : 43 Cri LJ 615 observed that it has been held in a long series of decisions of numerous High Courts that Section 27 of the Evidence Act is to be read as a proviso not only to Section 26 but also to Sections 25 and 26 taken together. This decision has, however, not referred to the question whether Section 27 also controls Section 24. Such a control is, however, clearly visualised by the same High Court in two subsequent decisions, namely, Mathura Prasad v. Emperor AIR 1946 Pat 210 : 48 Cri LJ 460 and Emperor v. Remis Christian AIR 1947 Pat 152 : 48 Cri LJ 497. In the latter decision it is very clearly observed that Section 27 is a proviso to Section 24 and controls it. If, therefore, a confession comes within the purview of Section 27 it is admissible in evidence even if it is hit by Section 24 having been induced by ill-treatment at the hands of the police. Many previous decisions taking such a view have been referred to in this judgment. We have already referred to these decisions in the foregoing portion of this judgment, and for the reasons contained in this judgment we find ourselves unable to follow this view.
70. We may now refer to those decisions wherein it is held that Section 27 controls only the two previous sections, namely, Sections 25 and 26. As will be noticed hereafter, even these decisions do not contain an exhaustive discussion on the disputed question.
71. In Queen-Empress v. Commer Sahib (1889) ILR 12 Mad 153 the High Court of Madras has cryptically stated that general rule applicable to confessions made by prisoners whilst in the custody of a Police Officer is contained in Section 26 of the Indian Evidence Act, and the proviso contained in Section 27 refers to an exception to that rule. No further discussion is found, A Full Bench of that High Court has observed in a subsequent case of Emperor v. Ramanuja Ayyangar AIR 1938 Mad 528 : 36 Cri LJ 1442, that it is now well settled that Section 27 is a proviso to both Section 25 and Section 26 which immediately precede it. While making these observations, Burn J, has not referred to Section 24. It would be seen hereafter that in subsequent cases the Madras High Court has taken a categorical view that statement made by the accused under Section 27 of the Evidence Act must be voluntary. We shall refer to these decisions at a subsequent stage. But before doing that we may refer to the views taken by Sind and Hyderabad High Courts.
72. In Alibux s/o. Allahbux v. Emperor reported in AIR 1947 Sind 36 : 48 Cri LJ 516 the Sind Court has held that Section 27 itself is a proviso to Sections 25 and 26 and that proviso must be construed very strictly. The decision does not contain any discussion as to whether it is a proviso even to Section 24 of the Act. In Anna v. State of Hyderabad reported in AIR 1956 Hyd. 99 : 1956 Cri LJ 887 we find a bare statement that Section 27 of the Evidence Act is an exception to the prohibition imposed by Sections 25 and 26 of the Evidence Act. Beyond this statement there is no further discussion on the question.
73. A single Judge of the Bombay High Court, Mr. Raju, J. has observed in Amrut Soma v. State of Bombay AIR 1960 Bom 488 : 1960 Cri LJ 1429, that the principle of Section 24 applies to the statement under Section 27 and if the statement under Section 27 is involuntary it would be excluded. About this exclusion of in' voluntary statement the High Court of Madras has held in two cases that it should be excluded. In Emperor v. Taduturu Poligadu AIR 1940 Mad 12 : 41 Cri LJ 242, it is observed that the general rule that a confession should be voluntary applies also to confessional statement under Section 27, and that a statement containing a confession extracted from the accused by taking him, holding him for a long period, subjecting him to incessant questions and pressing him to confess is not receivable in evidence even under Section 27 of the Evidence Act. The same view is taken by the same High Court in Re Chinna Papiah AIR 1940 Mad 136 : 41 Cri LJ 323. A case like the present one under our consideration came up before the Madras High Court in Re Annika Lakshmudu AIR 1942 Mad 237 : 43 Cri LJ 463. It was held in that case the statements by the accused were made in answer to a direct inducement, namely, that a promise that nothing would happen to them if they produced the sticks and knives which were used and that request was preceded by the words 'Did you commit the offence?' These statements were found by the court as inadmissible in evidence under Section 24 even though they led to the discovery.
74. On consideration of all the cases referred to above, and for the reasons already given, we are of the opinion that Section 27 controls only the two preceding sections, namely, Sections 25 and 26, and not Section 24 of the Evidence Act.
75. We are further of the opinion that even apart from Section 24, Section 27 of the Evidence Act contemplates only those statements of the accused which are voluntary in character. It need not be emphasised that if the statement in question is not voluntary and is procured by inducement or threats or by the use of third degree methods, it ceases to be the statement of the accused, and if it ceases to be the statement of the accused it is difficult to comprehend how Section 27 would be of any help, because that Section makes reference only to the statements which are made by the accused and not by other persons.
If it is held that the Police can procure a disclosure statement from the accused under inducements and threats and even by resorting to third degree methods, then it would be easy for an unscrupulous Police Officer, who has a prior knowledge about the place of concealment of an article which is used during the commission of the offence, to obtain the required statement from the accused who is in his custody and then to utilise it against him during the course of the trial. Such a situation is obnoxious to judicial conscience. If resort can be had to compulsion or inducement in the matter of testimonial utterances, the truth runs the risk of being smothered and the judicial decision which is based on the discoveries which are tainted by falsehoods would never be conducive to justice. Therefore, even on a bare reading of the provisions of Section 27 we have no doubt in our mind that the statement of the accused contemplated by that section must be a voluntary statement, and not the one which is induced by threat, inducement or third degree methods.
76. In view of the above findings, it is evident that Section 24 would have operation in spite of the existence of Section 27 of the Evidence Act. In that view of the matter, any statement induced by the investigating officer for the purpose of discovery of the 'mudamal' sickle would be covered by Section 24 of the Evidence Act. As we have already observed, since the statement induced by the police officer is not voluntary, that statement cannot be considered to be the voluntary statement of the accused and therefore even if Section 24 of the Evidence Act was not on the statute book this statement being not of the accused should be taken out of consideration. Now, this statement is found at Ex. PK. It makes a confession of the fact that the accused Vijay Kumar had himself concealed the sickle. This part of the statement of Vijay Kumar should, therefore, be taken out of consideration. If that is so done, what remains in evidence about this discovery is that the accused Vijay Kumar pointed out the place of the concealment of the sickle.
This is the evidence of the conduct which cannot be ruled as irrelevant unless it is shown that he was compelled to go to the place of concealment. There is no such evidence and, therefore, Vijay Kumar's conduct in pointing out the place of concealment of the sickle can be treated as relevant piece of evidence. This, however, would not help the prosecution in any manner because, as held in numerous cases, a mere fact that the accused concerned has pointed out the place of concealment of an article which is supposed to have been used during the commission of the offence would not connect the said accused with the crime so long as it is not shown that he was the author of the said concealment. In such cases it is very likely that the accused might have gathered knowledge about the place of the concealment of the offending article from some other sources.
77. Another aspect of the matter is that though the sickle was found stained with human blood, there is no evidence to show that the blood which was found on the sickle was the blood of the deceased. Here it should be noted that from the place of the incident many bloodstained articles were recovered and were sent to Serologist for examination. The Serologist has not recorded any blood group on any of these articles, nor has he noted the blood group of the blood found on the sickle. Reference to Serolo-gist's report shows that ft is totally silent on 'the question whether he made an attempt to ascertain the blood group found on any of the articles sent to him. Had evidence about the blood group found on all these articles including the sickle been available, the Court could have come to proper conclusion as to whether the blood found on the sickle was likely to be the blood of the deceased. Therefore, we are of the opinion that the mere discovery of the sickle found with human blood on it, does not connect the accused Vijay Kumar with the main incident of the murder.
78. This being the situation, the only evidence which can be pressed into service by the prosecution against the accused Vijay Kumar is the evidence that he along with the other accused had gone to the utensil-shop of PW. 3 Ram Nath at Una with a view to dispose of stolen utensils belonging to the deceased.
79. So far as the other accused Darshan Lal is concerned, as already noted above, the only evidence against him is the discovery of ear-ring belonging to the deceased and the sale of the stolen utensils of the deceased at the shop of the above referred witness PW. 3 Ram Nath at Una.
80. Now the question is whether from this evidence, we can safely conclude that both or any of the accused persons is proved to have committed the murder of the deceased.
81. The above evidence would show at the most that soon after the incident both the accused persons were in possession of stolen property and that this possession has not been satisfactorily explained by any of them. But, as held by the Supreme Court in Sanwat Khan v. State of Rajasthan reported in : AIR1956SC54 , where there is no evidence, direct or circumstantial, that robbery and murder formed parts of one transaction and where it is not even known at what time of the night these events took place, the mere fact that the accused produced shortly after the murder ornaments which were on the murdered person is not enough to justify the inference that the accused must have committed the murder. In this decision, the Supreme Court has approved similar observations made by the High Court of Bombay in Bhikha Gober v. Emperor reported in AIR 1943 Bom 458 : 45 Cri LJ 221 and has laid down the law in the following terms:
In our judgment no hard and fast rule can be laid down as to what inference should be drawn from a certain circumstance. Where, however, the only evidence against an accused person is the recovery of stolen property. and although the circumstances may indicate that the theft and the murder must have been committed at the same time, it is not safe to draw the inference that the person in possession of the stolen property was the murderer. Suspicion cannot take the place of proof.
In view of this, it is not possible to maintain the conviction of the accused persons under Section 302, I.P.C.
82-83. So far as accused Darshan Lal is concerned, he has made the disclosure statement found at Ex. PO with regard to the discovery of the earring belonging to the deceased. In this statement he has admitted that he was the author of this concealment. The earring has been subsequently identified as belonging to the deceased by Shrimati Ram Ashri, the daughter of the deceased, in presence of the Executive Magistrate, Shri V. P. Gupta, who is P. W. 4. She has also identified this earring during the course of the trial. At the time of the identification of this earring before the Executive Magistrate several other similar earrings were mixed with the discovered earring. The learned Advocate of the appellants made an attempt to attack this evidence of identification, but we don't find any infirmity therein. It was contended that other pairs of earrings were given to the Executive Magistrate by the Police for the purpose of identification. But this fact by itself does not destroy the credibility of the evidence of this identification. Ram Ashri's evidence is found to be quite dependable on this point. Under the circumstances, we hold that this earring belonged to the deceased and it was stolen from her person.
84. The evidence produced by the prosecution also contains sufficient material to show that the utensils which were sold by both the accused persons to Ram Nath were the utensils belonging to the deceased. They were lying in her house before they were stolen. Some of these utensils bear the inscription of the name of the husband of the deceased From the deposition given by P. W. 3 Ram Nath, it is apparent that he knew both the accused persons before these utensils were sold to him. He says that both the accused persons had approached him for selling these utensils. It is found that since Darshan Lal was more known to him he had passed receipt in his favour even though both the accused had approached him for sale, it is, therefore, safe to conclude that both the accused persons were in possession of the stolen utensils soon after the incident None of the accused persons has given any explanation as to how they came into possession of these stolen articles. Under these circumstances, this is a case in which Illustration A attached to Section 114 of the Evidence Act applies. According to this Illustration, a person who is in possession of stolen goods soon after the theft is either a thief himself or is a person who has received stolen goods and knows them to be stolen unless he can account for his possession. None of the accused has accounted for this possession in this case, and therefore it would be safe to presume that both the accused persons were themselves thieves.
85. We were asked to raise the presumption not of theft but of the receipt of stolen property by the accused. Looking to the facts of the case, we are not induced to come to the conclusion that the accused persons were mere receivers of stolen property. We rather come to the conclusion that they were themselves the thieves and that this theft was committed by them from the house of the deceased. Therefore, as held in the above referred decision of the Supreme Court in Sanwat Khan v. State of Rajasthan 1956 Cri LJ 150 they should be held liable under Section 380, I.P.C. The learned trial Judge has convicted the accused persons for the offences under Section 392, I.P.C. But since there is no clear or convincing evidence about robbery, we resort to the minimum presumption which could be made under law.
86. Thus, the accused persons are acquitted of the offences under Sections 302 and 392, I .P. C., but both of them are convicted for the offences under Section 380, I.P.C.
87. We have heard the learned Advocate of the appellants on the question of sentence. We don't find any extenuating circumstance which would induce us to take a lenient view of the offence. The offence under Section 380, I.P.C., is punishable to a term of imprisonment which may extend to seven years and fine. Looking to the facts of the case, we sentence each of the accused persons to serve the rigorous imprisonment of four years and to pay a fine of Rs. 1,000/-, in default of which, each, of them shall undergo further rigorous imprisonment of six months. The appellants to surrender and serve out the sentence keeping in view Section 428, Cr. P.C.
88. The appeal is disposed of accordingly.