Durlav Namasudra v. Emperor Opposite Party.

C.C Ghose, J.:— The appellants in this appeal are four persons named Durlav Namasudra, Kolo Namasudra, Karna Namasudra and Abhoy Namasudra. They were charged with having committed offences punishable under Ss. 302 and 201, I.P.C The jury found them not guilty on the charge under S. 302, I.P.C and the learned Judge agreeing with and accepting this verdict of the jury acquitted them of that offence. The jury however by a majority of 5 to 4 were of opinion that the present appellants were guilty under S. 201, I.P.C The learned Judge accepted the verdict of the jury as regards this and sentenced each of them to undergo rigorous imprisonment for a period of three years. One of the points taken in this appeal is that the jury having acquitted the appellants of the offence under S. 302, I.P.C were not competent to find them guilty under S. 201, I.P.C; in other words, the contention is that the jury having acquitted the appellants under the major charge were not entitled to convict them under the minor charge. Now, as regards this point the matter seems to be concluded by authority. First of all there is the case of Begu v. Emperor . A.I.R 1925 P.C 130 where the facts were as follows: Five persons were charged under S. 302, I.P.C, with murder and two of them were convicted the other three being acquitted under S. 302, I.P.C There was a body of evidence on the record which led to the conclusion that the three persons who had been acquitted under S. 302, I.P.C had assisted in removing the body knowing that a murder had been committed. They were found guilty under S. 201, I.P.C of causing disappearance of the evidence. The judgment of Lord Haldane in that case shows that there was nothing wrong in the conviction under S. 201, I.P.C in the circumstances that had happened. This case has been followed in the case of Umed Sheikh v. Emperor . [1996] I.C 867. a decision of Suhrawardy, J., and Duval, J. I need not go over the grounds covered by the judgment but it is sufficient to observe that having regard to the two decisions to which I have just called attention the argument that has been put forward in support of the contention that a conviction under section 201, I.P.C is not maintainable in the circumstances that have happened cannot be sustained.

2. The next contention that has been put forward is that the evidence of the Sub-Inspector who conducted the investigation shows that on the day when the accused are said to have made certain statements to him in consequence of which the dead body was discovered they were not in custody and that being so the admission of the statements made to the Sub-Inspector leading to the discovery of the dead body is hit by the provisions of Section 27 of the Evidence Act. Before I deal with this contention, it may be just as well to set out exactly what the Sub-Inspector stated in the witness box.

3. The Sub-Inspector in question is witness 18 in the Sessions Court and his name is Trailokya Nath Gogai. His evidence will be found on p. 87 of the record before us. He states definitely in cross-examination that he arrested the four accused Karna, Durlav, Abhoy and Kolo at 4 p.m on 12th December 1930 on suspicion but that there was nothing in his diary to show this. Then he adds these words. “I formally arrested these four accused at 3-50 p. in on 13th July 1930.” Therefore it is clear from his evidence that the arrest was not made before 3-30 p.m on 13th July 1930. In his evidence however he says this:

“I came to Nabagram at 10 a.m on 12th July 1930. An ejahar was then lodged by Felai before me on that day at 2 p.m I recorded what he said and I read it over to him. Felai then put his thumb impression on the ejahar. On recording the ejahar, I started an investigation. At 4 p.m on 7th December 1930 I examined Kolo, Kama, Abhoy and Durlav. I arrested them then and there on suspicion after their examination. On the forenoon of 13th July 1930 I proceeded to Abdua tank with the accused Durlav, Kolo, Karna and Abhoy and certain other witnesses. I went to that tank in consequence of the information given to me by all the four accused named above that the dead body of Rai Namasudra was concealed in the tank with stones tied to it. On reaching the tank, a dead body was recovered from it from under water hyacinths almost in the centre of the tank.”

4. Therefore it is clear from the evidence of the Sub-Inspector that the information such as it was which led to the discovery of the dead body had been given by these four accused on 12th July at a time when they were not in custody. This circumstance is, in my opinion, absolutely clear from the evidence of the Sub-Inspector Trailokya Nath Gogai. That being so, we have now to consider whether under the provisions of Section 27 of the Evidence Act, those statements were admissible in evidence. I do not wish to cite many cases: but it is now clear beyond all dispute that S. 27 is one of those sections which controls the three earlier sections, namely, Ss. 24, 25 and 26. In the last mentioned sections the danger of admitting confessions made to police officers or when in police custody is clearly pointed out. But although such confessions are inadmissible under the law, that is, under the sections which I have just mentioned, they may in certain circumstances lead to the discovery of the facts etc., in consequence of the information received from the persons in custody. Therefore the first thing that has got to be ascertained before Section 27 of the Evidence Act, can be applied is to find out whether or not the information such as it was which led to the discovery of certain other facts came from a person in the custody of a police officer. If such information has not come from a person in the custody of a police officer or has come from a person not in the custody of a police officer, then S. 27 would hit the admissibility of such statement in evidence and under no circumstances that I can think of having regard to the provisions of the law, is such a statement admissible in evidence. It seem to me therefore that if this evidence is ruled out, there is no other circumstance present on the record which would entitle the Court to convict the appellants under S. 201, I.P.C In my opinion, there is no other evidence and that being so, the irresistible conclusion to which I have been driven to come is that, having regard to the state of the record there is really no evidence which would entitle the Court to convict the accused under S. 201, I.P.C

5. There is just one other point which I may notice. The statements in question are said to have been made by four persons. Now, apart from the question whether these persons were in the custody of the police, it is quite clear that the statements of the persons other than the first person who made the statement cannot be used in evidence. The statement made by the first individual under S. 27 and in the circumstances described therein may be treated as evidence against him; but it is not allowable under the provisions of the law to treat the evidence of the other persons who may have made statements of the description referred to in S. 27 as evidence admissible under the provisions of that section. This question has been the subject of debate in several cases from the days of the Weekly Reporter; see in this connexion the case of the Queen v. Ram Churn Chung . [1875] 24 W.R Cr. 36.. and it has always been held that the fact discovered should not be treated as having been discovered from the joint information of all the persons who may have made statements under S. 27 and in the circumstances stated in the section. It has been laid down that it should be deposed that a particular fact has been discovered from the information of one person and this will let in under S. 27 so much of the information as relates distinctly to the fact discovered by reason of the statement made by that one person. So that, from that point of view also, there is a good deal to be said against the course adopted in the Sessions Court. On all these considerations, I come to the conclusion that there is really no evidence on the record, to the prejudice of the present appellants and that they should be acquitted of the charge framed against them. The appeal is allowed and the appellants must be discharged.

Rankin, C.J:— I agree. I would only point out that this case is a very good illustration of the necessity of Section 24 to 27 of the Evidence Act being redrafted. As my learned brother has pointed out, it has been decided by the highest authority that S. 27 is not a mere proviso to S. 26 but cuts down the operation of Ss. 24 and 25 as well. It is a curious section because while it begins with a proviso, it is an independent section and it repeats some of the conditions mentioned in S. 26. But though it is now well held that it is an exception to Ss. 24 and 25, there are elements of paradox in that contention. The first consequence is that a part of the statement may be given in evidence although it is under S. 24 induced by threat or promise—if something has been discovered in consequence of that part of the statement. The present case illustrates another matter. What was said in this case was said to the police. It was therefore not allowed to go in evidence by S. 25 and the consequence of holding that S. 27 is not a mere exception to S. 26 is this: that in a case like the present where the confession was made to the police, if the man was at liberty at the time he was speaking, what he said should not be admitted in evidence even though something was discovered as a result of it. That is the present case. It cannot be admitted in evidence because the man was not in custody, which of course is thoroughly absurd. There might be reason in saying that if a man is in custody, what he may have said cannot be admitted; but there can be none at all in saying that it is inadmissible in evidence against him because he is not in custody. Yet this is the consequence of saying that S. 27 is more than a proviso to S. 26. It is however well held by authority that is so: and, until the legislature takes the matter in hand, the paradox expressed in the present case will continue to be law. There seems to me to be nothing in Ss. 24 or 25 to prevent evidence being given:

“In consequence of something said by the accused I went to such and such a place and there found the body of the deceased.”

6. In cases under S. 27 the witness may go further and give the relevant part of the confession.

P.N/R.K

7. Appeal allowed.