The Deputy Legal-Remembrancer vs Chena Nashya

Wilkins, J.—In this case the accused was convicted by the Deputy Magistrate of Nilphamari, on the 7th March last, with having dishonestly retained certain stolen property, viz., Rs. 940 in cash and a baguna, and was sentenced under sec. 411, Indian Penal Code, to 9 months'' rigorous imprisonment. In appeal, the Sessions Judge of Rungpur set aside the conviction and sentence and acquitted the accused, and against this order the appeal which is now before us has been filed by the Local Government under sec. 417, Criminal Procedure Code. The circumstances of the case as disclosed by the evidence were these: --On the night of the nth February 1897, the house of one Keramutullah Sarker was burglariously entered and a brass baguna with its contents, viz., Rs. 1,000 in cash and 2 silver ornaments were stolen from it. Information was given to the Police, who took up the enquiry, and in the course of their investigation unsuccessfully searched (amongst others) the house of the accused. On the 14th February the accused was questioned by the Sub-Inspector and made certain statements to him, offering to produce the stolen property. In consequence of these statements, a number of witnesses were taken by accused to a field close to his house, and there, at a spot pointed out by the accused, the stolen baguna was dug out of the ground; then accused took the party to the outer courtyard of his house, and pointed out a spot in a drain close by: further digging in the slope of the ditch at a place covered with rubbish brought to light an earthen pot containing Rs. 940, declared by accused to be part of the stolen Rs. 1,000. Upon these facts, the Deputy Magistrate convicted the accused. The defence of the latter was to the effect that complainant had falsely brought the charge against him, because he wished to marry a widowed sister of the accused, and the latter would not allow him to do so. But no evidence was adduced in support of this plea; the prosecution witnesses were, none of them, cross-examined on the point; and the accused merely called witnesses who attempted to show (but failed) that the first search of the accused''s premises including the actual places where the property was dug up had failed to discover the stolen property, which accordingly must have been deposited by or on behalf of the complainant where it was subsequently found.

The Sessions Judge in acquitting the accused has entered into certain arguments which are not very easy to understand. It is of course correct to say that, as a general rule, a confession made to a police-officer is not admissible in evidence. But sec. 27 of the Evidence Act provides that when any fact is deposed to as discovered in consequence of information received from an accused person, in the custody of a police-officer, so much of such information (whether it amounts to a confession or not) as relates distinctly to a fact thereby discovered, may be proved. Consequently, the Magistrate was not in error in recording so much of the accused''s statements to the Police as led to the discovery of the stolen property in this case. It is perfectly well proved that the accused did make such a statement, that he did take the search party to two secret places, that he did indicate that there the stolen property was buried, and that when these places were dug up, the stolen property was then found. The conclusion is irresistible, the guilty knowledge of the accused is clearly established, and no further proof of his dishonesty was necessary. If the Magistrate recorded a little more of the accused''s statements to the Sub Inspector than the law would strictly justify, the accused has not been prejudiced thereby; there is ample evidence apart from that against him.

I would therefore set aside the order of acquittal passed by the Sessions Judge and restore the order of the Deputy Magistrate convicting and sentencing the accused under sec. 411, Indian Penal Code, and I would direct the Magistrate to issue his warrant accordingly, in order that the accused may serve out that portion of the original sentence which is still unexpired.

Banerjee, J.

I concur. I only wish to say a few words with reference to the applicability of sec. 27 of the Evidence Act to this case. The learned Deputy Magistrate is wrong in saving that "sec. 27 of the Evidence Act does not apply because, to use the words of Straight, J., in Empress v. Panchu I. I. R. 4 All. 204, it was by the accused''s own act and not from any information given by him that the discovery took place." In the first place, the facts here were different from those of the case cited, the property in this case having been actually found out not by the accused but by one of the witnesses who dug up the property at the direction of the Sub-Inspector, upon the place being pointed out by the accused. And in the second place, the view taken by Straight, J. in the case referred to has been dissented from by a Full Bench of the Bombay High Court in a later case, Queen-Empress v. Nana I. L. R. 14 Bom. 260, which, in my opinion, lays down the correct rule, that where the statement of the accused is a necessary preliminary to the fact discovered, it is admissible under sec. 27 of the Evidence Act, the question whether the statement is sufficient to enable the Police to make the discovery by themselves or is only of such a nature as to require further assistance of the accused to enable them to discover the fact being immaterial. In this view, the statement of the accused that the property in question had been kept concealed by him in the place pointed out though that statement was made while the accused was in police-custody and not in the immediate presence of a Magistrate, would be admissible evidence against him. The view I take is in no way-inconsistent with that taken by this Court in Ada Shikdar v. Queen-Empress I. L. R. 11 Cal. 635, as the part of the information or statement that is here used as evidence against the accused under sec. 27 relates distinctly to the fact thereby discovered and does not go beyond it.