Rowland, J.:— The appellant Adhik Lal Pathak has presented one appeal from jail and a second petition of appeal has been presented on his behalf through an advocate. The two appeals have been heard together. He has been convicted of dacoity by a Magistrate exercising special powers under Section 30 of the Cr PC, and sentenced under S. 395, Penal Code, to suffer rigorous imprisonment for seven years. The occurrence took place at about 8 P.M on the evening of 16th March 1941. This was a day on which bazar was held at Mosabani. Certain traders who had been doing business at the that were returning in four carts. The traders were sleeping inside and cartmen driving when a party of dacoits attacked them, inflicted injuries on some of them and robbed the traders of their cash. The first information was laid the same evening at 10 P.M at police station, Ghatsila. In the course of the investigation, the Sub-Inspector arrested the appellant Adhik Lal apparently on suspicion or on some information which has not been disclosed and according to the prosecution case Adhik Lal made a statement to the Sub-Inspector that he was with the dacoits and that one of his companions had buried some money. He took the Sub-Inspector to a certain place where Rs. 23-6-0 were found buried under the ground. The appellant had on his own person a sum of Rs. 14-5-4½. A test identification was held at which other witnesses failed to make any identification, but one witness the cartman Bhujanga Bhagat identified the suspect Adhik Lal stating that this was the man who snatched away his dhoti, assaulted him with a lathi and tore his shirt. At the trial the evidence against the appellant consisted of the direct testimony of Bhujanga Bhagat who identified him and said that this accused removed the dhoti which the witness was wearing making the witness naked, put his hand in the witness's pocket, found nothing in the pocket and tore the witness's shirt. He claimed to have identified the accused Adhik Lal with the light of the lantern which was hanging below the cart.

2. It is argued before us that the Magistrate would clearly not have convicted the appellant on the uncorroborated testimony of a single identifying witness in respect of an occurrence which took place at night had he not been influenced by the evidence as to a statement made by the accused and leading to the recovery of some property. It is argued that if this statement and evidence is excluded the accused was entitled to an acquittal, and it is said that the statement of the accused made to a police officer in the course of investigation is excluded from evidence by the express words of Section 162(1) of the Cr PC, and not saved by Section 27 of the Evidence Act. In support of this contention reliance is placed on the Privy Council decision in 18 Pat. 2341 which has clearly laid down that Section 162 of the Cr PC, is wide enough to include not only a statement made by a witness to a police officer in the course of an investigation, but also to cover any statement including a confession made by an accused person.

3. Their Lordships, however, expressed no opinion on the question whether the words of S. 162 had the effect of repealing the provisions of S. 27 or whether the provisions of that section are to be understood to continue in force by way of an exception to the general prohibition in S. 162 as being a special law in force at the time of the enactment of the Code of Criminal Procedure and therefore under S. 1(2) of the Code not affected by anything contained in the Code in the absence of any specific provision to the contrary. This very point has come up, since that Privy Council case was decided, before no less than six of the High Courts, in India. Of these the High Courts of Lahore and Allahabad in Full Bench decisions, namely, 21 Lah. 242,2 and I.L.R (1940) ALL. 3963 have taken the view that the effect of Section 162 of the present Cr PC is pro tanto to repeal Section 27 of the Evidence Act, so that a statement made to a police officer during an investigation is not admissible in evidence even if made by an accused person in police custody in the circumstances specified in Section 27 of the Evidence Act. In less than two months after the above Lahore decision, which bears date 8th March, an amendment to the Code of Criminal Procedure was rushed through the Punjab Legislature, on 29th April 1940, that S. 162 should not be deemed to affect the provisions of Section 27 of the Evidence Act. So the view taken in the Lahore High Court is not now the law in the place where that decision was pronounced.

4. On the other hand there are decisions of the Madras, Bombay and Nagpur High Courts and two decisions of this Court to the contrary effect. In 18 Pat. 4504 a Division Bench of this Court held following 55 Mad. 9035 and 51 Mad. 9676 that Section 27 of the Evidence Act, is a special law within the meaning of Section 1(2) of the Cr PC, and is not specifically repealed by S. 162, of the Code. This was followed in D.R No. 8 of 1941.7 In the Madras High Court, the same view was taken by a Division Bench in I.L.R (1939) Mad. 9478 following the previous Full Bench decisions of the same High Court. In Bombay the Madras decision last mentioned as well as the Patna decision in 18 Pat. 450, were approved and followed in A.I.R 1941 Bom. 146.9 In the Nagpur High Court, in A.I.R 1940 Nag. 6610 a similar result was arrived at independently, on a reading of the relevant sections of the Code and Evidence Act. Relying on the Allahabad and Lahore pronouncements, Mr. S.N Sahay asked us to re-examine the whole question and interpret de novo the words of the sections and the observations to be found in the judgment of the Privy Council in 18 Pat. 234. We see no reason to enter into a fresh examination of the entire position at this stage when the observations of their Lordships have been already examined and there are two pronouncements of a Division Bench of this Court supported by the opinions of the majority of other High Courts. I would adhere to the view taken in the High Courts at Madras, Bombay and Nagpur and in this Court, and treat the law as settled by those decisions.

5. Mr. Sahay further invited us to hold that even if Section 162 of the Cr PC, did not by reason of S. 27 operate to exclude every statement made by an accused person to an investigating police officer, nevertheless the statement on which the prosecution rely in this case must be excluded because its admission would contravene Section 25 of the Evidence Act, in which it is enacted that no confession made to a police officer shall be proved as against a person accused of any offence. It has, however, 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 S. 26, but to Ss. 25 and 26 taken together. These decisions include the cases in 19 W.R Cr. 51,11 11 Cal. 68512 in the Calcutta High Court; 3 Bom. 12,13 10 Bom. 59514 and 14 Bom. 26015 in the Bombay High Court; and 4 ALL. 198,16 6 ALL. 509,17 and 31 ALL. 59218 in the Allahabad High Court. The observation of their Lordships on which Mr. Sahay relies is to be found at the foot of p. 249 in 18 Pat. 234 where it is said:

Section 27 seems to be intended to be a proviso to S. 26 which includes any statement made by a person whilst in custody of the police and appears to apply to such statements to whomsoever made, e.g, to a fellow prisoner, a doctor or a visitor.

6. It may be doubted whether their Lordships intended to reverse, without examining, such a long and continuous current of authority in the Indian Courts, but I will in this case express no opinion on that point because it seems to me that the statement given in evidence and said to have been made did not amount to a confession. The accused never said that he had committed the dacoity though he had admitted having been in the company of the dacoits. In 18 Pat. 234 there are observations as to what is and what is not a confession. Their Lordships say:

It may be useful to state that in their Lordship's view no statement that contains self-exculpatory matter can amount to a confession, if the exculpatory statement is of some fact which if true would negative the offence alleged to be confessed. Moreover a confession must either admit in terms the offence, or at any rate substantially all the facts which constitute the offence. An admission of a gravely incriminating fact, even a conclusively incriminating fact is not of itself a confession, e.g, an admission that the accused is the owner of and was in recent possession of the knife or revolver which caused a death with no explanation of any other man's possession. Some confusion appears to have been caused by the definition of confession in Article 22 of Stephen's ‘Digest of the Law of Evidence’ which defines a confession as ‘an admission made at any time by a person charged with crime stating or suggesting the inference that he committed that crime.’ If the surrounding articles are examined it will be apparent that the learned author after dealing with admissions generally is applying himself to admissions in criminal cases, and for this purpose defines confessions so as to cover all such admissions, in order to have a general term for use in the three following articles, confession secured by inducement, made upon oath, made under a promise of secrecy. The definition is not contained in the Evidence Act, 1872; and in that Act it would not be consistent with the natural use of language to construe confession as a statement by an accused ‘suggesting the inference that he committed the crime.’

7. If the statement made by Adhik Lal is regarded as a statement other than a confession, this portion of the argument of Mr. Sahay has no application to the facts of this case. I am of opinion that the statement and the fact of recovery of the money were rightly admitted in evidence and that on this evidence taken with the direct evidence of Bhujanga Bhagat that he identified the accused, the lower Court was right in convicting the appellant. Lastly we were asked to consider the sentence of seven years as excessive; but the crime of robbery must in all cases be considered as a serious crime and under S. 392 in the case of robbery a graver punishment can be awarded if it be committed on the highway between sunset and sunrise. There is no similar provision in respect of dacoity; but the offence itself is punishable with transportation for life. Nonetheless in the case of a dacoity it seems to me to be an aggravation of the offence when it is committed on the highway between sunset and sunrise. The sentence does not seem to me to be excessive and I would dismiss the appeal.

Shearer, J.:— I agree.

G.N/R.K

8. Appeal dismissed.