RAMA SHETTY Vs. STATE OF KERALA

JUDGEMENT

(1.) THE Additional Sessions Judge of Tellicherry made this reference after convicting the first accused under S. 302 of the Penal Code and awarding him capital punishment and also convicting the third accused under the same section read with S. 34 sentencing him to imprisonment for life and acquitting the second and the fourth accused persons. THE first accused, the condemned prisoner, has filed Crl. Appeal No. 202 of 1970 and the third accused has filed Crl. Appeal No. 203 of 1970.

(2.) THE counsel of the appellants had drawn our attention to Ex. P6 in the case, the mahazar for the recovery of M. Os. 1 and 2. He has argued that no reliance should be placed on the recovery, because Ex. P6 refers to a joint statement given by accused persons 1 and 3 to the police when they were arrested. ' Ex. P6 is only the mahazar for the recovery of M. Os. 1 and 2: it contains no statement of the accused persons in their own words. Under S. 27 of the Evidence Act, if any fact is deposed to as discovered in consequence of information received from a person accused of any offence in the custody of a police officer, so much of such information, whether it amounts to a confession or not, as related distinctly to the fact thereby discovered, may be proved. Now, S. 27 is an exception or proviso to S. 25 and 26. This is clear from the language of the section itself. S. 25 enacts that no confession made to a police officer shall be proved as against a person accused of any offence. And S. 26 lays down that no confession made by any person while 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. Evidently, S. 27 is an exception to these provisions. And the Supreme Court has also said so in Ramkrishna mithanlal Sharma v. State of Bombay (AIR. 1955 SC. 104 ).

(3.) NOW about Ex. P6. Ex. P6, as already stated, does not contain any statement of either of the accused persons or any definite information as given by a particular accused person. It states that in pursuance of the information given by the two accused persons MOs. 1 and 2 were recovered. The public Prosecutor points out that it is possible to construe Ex. P6 as saying that MOs. 1 and 2 were recovered in pursuance of information given by the first and the third accused persons respectively MO. 1 was recovered in pursuance of information given by the first accused and MO. 2 in pursuance of information given by the third accused. Still, the information cannot be proved unless the information is definite (in the actual words of the accused persons ).