This is a revision application by two persons Amrut and Madhya, whose convictions by the Judge-Magistrate, Bhandara, under section 360, Indian Penal Code were altered by the Sessions Judge, Bhandara, to ones under section 411, Indian Penal Code. The sentence of each accused was reduced from two and a half years' rigorous imprisonment to one year's rigorous imprisonment.

2. According to the prosecution, the property of two brothers Mahadeo and Ganpat, living in the same house at Ghodezari was stolen on 25-1-57. There are concurrent findings of both the Courts below that their property was stolen and this finding is not challenged. The conviction of the applicants, it is conceded by the learned counsel for the State, rested entirely on the statements made by them under section 27 of the Evidence Act, leading to discovery of part of the stolen property. Madhya made a statement whereby he agreed to discover property which had been buried on a dhura in his field, and accordingly a box containing ornaments was found buried at the spot. In pursuance of the statement made by Amrut cash was found in his house. Both the Courts below have held that cash had been identified and proved to be stolen property stolen at the time of the offence. They also held that the ornaments found in the field of Madhya were proved to be stolen property. The conviction of Amrut and Madhya therefore rests on these items of evidence only and this fact is conceded by Mr. Abhyankar, learned counsel for the State.

3. In revision however, it is contended that these statements are inadmissible because they were made as a result of harassment and continuous interrogation for several hours and therefore the statements are involuntary and are inadmissible in evidence. In his judgment the learned Sessions Judge has observed:

“This witness (Kashinath) has stated in para 7 of his evidence that the appellant Madhya was with the PSI from 5 P.M to 12 midnight and during that period the PSI was questioning him and that till 12 midnight, Madhya was not admitting anything. But at 12 midnight, he admitted that he had kept concealed the ??? ornaments in his field, and that he would ??? them out. He had also come out with a strange statement that after that he went for meals and returned after two hours and even at that time, the questioning of Madhya by the PSI was going on, and that nobody had slept that night up to 7 a.m next day. As per his version, Amrit was called on the next day, and he was questioned for one day, and that his questioning also went on till next morning.”

4. It is contended that the prosecution witness Kashinath (P.W 1) is the brother's cousin of the wife of Ganpat whose property had been stolen. The learned Sessions Judge, whose attention was drawn to In re, Chinna Papiah, AIR 1940 Mad 136 and Public Proescutor v. Munigan, AIR 1941 Mad 359, held that these cases were inapplicable in view of the special circumstances prevailing in Madras because in Madras State there was a rule (rule 303) in the Madras Police Executive Orders which runs thus:

“The practice of resorting to persuasion, trickery, or oppression to induce any accused person to confess is prohibited. It is right that the police, when they are endeavouring to discover the author of crime, should make inquiries of, or put questions to, any person from whom they think they can obtain useful information. But when once an accused person has been arrested, while they may, and indeed should listen to any statement which he may voluntarily make they are strictly forbidden to interrogate him or press him to make a statement.”

5. These principles are not new; a similar view has been taken in some English cases. In R. v. Knight and Thayre, (1905) 20 Cox CC 711 at p. 713, it was observed as follows:

“It is, I think, clear that a police officer or anyone whose duty it is to inquire into alleged offences, may question persons likely to be able to give him information, and that, whether he suspects them or not, provided that he has not already made up his mind to take them into custody. When he has taken anyone into custody, and also before doing so when he has already decided to make the charge, he ought not to question the prisoner. A magistrate or Judge cannot do it, and a police officer certainly has no more right to do so. I am not aware of any distinct rule of evidence that if such improper questions are asked the answers to them are inadmissible, but there is clear authority for saying that the Judge at the trial may in his discretion refuse to allow the answer to be given in evidence, and in my opinion that is the right course to pursue”.

6. In R. v. Histed, (1898) 19 Cox CC 16 at p. 17, it was observed thus:

“It is a matter on which I hold a strong opinion. No one, either policeman or anyone also has a right to put questions to the prisoner for the purpose of entrapping him into making admissions. A prisoner must be fairly dealt with.” In England a confession made to a police officer is admissible if it is not involuntary. Even where a confession made to a police officer is admissible it has been held that police officers should not put even a few questions to the accused. It is true that there are some English cases to the contrary, but in Indian conditions it would be more proper to hold that a statement made by an accused should be treated as involuntary if it is made after long interrogations by the police, because if statements made after lengthy interrogation are held to be admissible in evidence, that will only encourage improper questioning and interrogation of prisoners by the police.

7. Learned counsel for the State contends that in view of S. 161, Cr. P.C, the police have authority to question an accused person, because the words “any person” in section 161 include an accused. section 161, Criminal Procedure Code, reads as follows:

“1. Any police-officer making an investigation under this Chapter or any police-officer not below such rank as the State Government may, by general or special order, prescribe in this behalf acting on the requisition of such officer may examine orally any person supposed to be acquainted with the facts and circumstances of the case.

2. Such person shall be bound to answer all questions relating to such case put to him by such officer, other than questions the answers to which would have a tendency to expose him to a criminal charge or to a penalty or forfeiture.

3. The police officer may reduce into writing any statement made to him in the course of an examination under this section, and if he does so, he shall make a separate record of the statement, of each such person whose statement he records.” The marginal note to this section is as follows:

“Examination of witnesses by police.”

8. In the investigation police do not at first ordinarily know who the offender is and in their search for the offender they have to examine orally persons whom the police suppose to be acquainted with the facts and circumstances of the case. A person treated by the police as an offender and accused cannot come within the category of “any person supposed to be acquainted with the facts and circumstances of the case.” The Judicial Committee of the Privy Council has held in Pakala Narayana Swami v. Emperor, I.L.R 18 Pat 234 : (AIR 1939 P.C 47) that the words ‘any person’ in section 162 include any person though he may thereafter be accused. They observed,

“that the words in their ordinary meaning would include any person though he may thereafter be accused seems plain. Investigation into crime often includes the examination of a number of persons none of whom or all of whom may be suspected at the time. The first words of the section prohibiting the statement if recorded from being signed must apply to all the statements made at the time and must therefore apply to a statement made by a person possibly not then even suspected but eventually accused.”

9. What their Lordships said was merely that the expression ‘any person’ in Sec. 162 includes a person who was subsequently made an accused person even if he at that time was not an accused person. Their Lordships were considering the meaning of the expression ‘any person’ as used in section 162 Criminal Procedure Code. That expression was there used without any qualification. But in section 161 Criminal Procedure Code the expression is qualified by the words “supposed to be acquainted with the facts and circumstances of the case”. The Judgment of their Lordships of the Privy Council does not therefore govern the meaning of the expression ‘any person’ used in section 161, Criminal Procedure Code. Even in section 161, Criminal Procedure Code, the words ‘any person’ would include a person who was not accused when he was questioned but who was subsequently made an accused. In my opinion the expression ‘any person’ in section 161, Criminal Procedure Code, does not include a person who was then an accused. Moreover, statements made by the accused person after long interrogation by the police and admitted under section 27, Evidence Act, would be hit by Art. 20(3) of the Constitution of India. The contention appears to be that the statements made by the accused were made when they were questioned by the Police under S. 161 Cr. P.C If that be so the statement would be hit by Art. 20(3) of the Constitution.

10. The learned Sessions Judge rejected the evidence of Kashinath on the ground that in the cross-examination of the Sub-Inspector no suggestion had been made to him that he had interrogated the accused for a long time and that this suggestion was also not made by the accused in his examination. But Kashinath was a witness for the prosecution and was also closely related to the complainant. The defence had brought out in the cross-examination of prosecution witness Kashinath that the Sub-Inspector had interrogated the accused for a very long time. It was therefore not necessary for the defence to repeat the suggestion in the examination of the Sub-Inspector and in the examination of the accused as Kashinath was a prosecution witness and was closely related to the complainant. There is no reason to reject the evidence of such a witness on the ground that he had been won over by the accused. There is no reason to suppose that the witness who is clearly related to the complainant had been won over. He had signed as a witness the statements of accused recorded by the police under S. 27, Evidence Act, and also the seizure memos regarding the discovery of articles in consequence of information given by the accused.

11. Statements leading to discovery are admissible under S. 27 of the Evidence Act although they are statements made to the police in the course of investigation. Their Lordships of the Supreme Court have observed in Ramkishan v. Bombay State, (S) AIR 1955 SC 104, that S. 27 of the Evidence Act is an exception to the rules enacted in Ss. 25 and 26 of the Act.

12. Their Lordships have not observed that S. 27 is a proviso also to S. 24 of the Evidence Act. The principle of S. 24 should therefore apply to statements under S. 27, and if the statement appears to be involuntary it would be excluded. It is true that S. 24 of the Evidence Act in terms speaks of confessions only and in view of the decision of their Lordships of the Supreme Court in (S) AIR 1955 SC 104, and the Privy Council decision in Pulukuri Kettava v. Emperor, AIR 1947 PC 67, it is only the portion of the statement which does not amount to a confession and which refers distinctly to the fact thereby discovered that is admissible under S. 27 of the Evidence Act. In the present case the statements made by the accused Amrut and Madhya amount to confessions but only the portions distinctly relating to the fact thereby discovered have been admitted in evidence. If a confession is made which is irrelevant under S. 24 of the Evidence Act, it would not be proper to exclude only the portion which amounts to a confession and to admit that portion which does not amount to a confession and which relates distinctly to the fact thereby discovered. As already observed, there is no reason to reject the evidence of Kashinath that there had been long and undue interrogation of the accused before they made statement leading to discovery. Under S. 24 of the Evidence Act, if it appears to the Court that a confession is involuntary, it should be rejected. In view of the evidence of Kashinath which there is no reason to reject, I must hold that the statements made by Amrut and Madhya should be rejected as involuntary. As observed in Reg v. Mansfield, (1881) 14 Cox CC 639,

“it is not because the law is afraid of having truth elicited that these confessions are excluded but it is because the law is jealous of not having the truth.”

13. I therefore hold that the statements of Amrut and Madhya made after lengthy interrogation should not have been admitted in evidence.

14. It is now necessary to see whether after excluding the statements made under section 27 of the Evidence Act there remains any evidence upon which the conviction of either Amrut or Madhya could be founded. In the case of Amrut it is the prosecution case that in the house of Amrut cash was found amounting to Rs. 3000/- and according to the findings of both the lower Courts the cash had been identified as the property stolen from Ganpat and Mahadeo. These are findings of fact which rest on sufficient evidence. In the cash were found chits P-1 and P-2 written by Maruti (P.W 2), Diwanji of Mahadeo. In view of the fact that cash was proved to be stolen property which was found in the house of Amrut, his conviction under section 411 does not therefore require any interference in revision. As regards Madhya, Mr. Abhyankar, learned counsel for the State, urges that in view of the fact that a box containing ornaments proved to have been stolen property was found concealed in his field, his conviction should not be set aside in revision. It is true that a box containing ornaments was found buried in his field and these ornaments have been proved to be stolen property. The mere fact that the box containing ornaments was found in the field of Madhya does not prove that he was in possession of the box containing ornaments. The box may have been buried by someone else. There is also no evidence to show how far the field was from the house of Madhya. The conviction of Madhya under S. 411, I.P.C, is therefore set aside.

15. In the result, revision application of Amrut is dismissed. His bail bonds are cancelled and he is directed to appear before the District Magistrate, Bhandara, within 15 days. The revision application of Madhya is allowed and his conviction under S. 411, I.P.C, and the sentence passed on him are set aside and he is ordered to be set at liberty in this case, forthwith.

HD/H.G.P

Order accordingly.