STATE Vs. MEMON MOHAMAD HUSAIN ISMAIL

JUDGEMENT

(1.) (After stating the facts and the contentions His Lordship continued:) Before dealing with the evidence at this stage I might dispose of the contention with regard to the admissibility of Exhibit 29 containing some admissions and of statements made by the accused and reproduced in the panchnama regarding the discovery of the body. So far as the question of Exhibit 29 is concerned, an objection to its admissibility was raised at the time when that document was put in and has been renewed in this Court at the time of arguments, though not very seriously. It would appear that the said statement would be admissible under S. 8 of the Evidence Act as showing tie conduct of the accused subsequent to the death of the deceased in any event. It would also appear that it is not hit by the provisions of S. 25 at all in this case. In order that S. 25 should be operative to prevent an admission being received in evidence, it must amount to a confession for it is provided therein that no confession made to a police officer shall be proved as against a person accused of any offence. It has been observed in Narayana Swami v. Emperor, 66 Ind App 66 at p. 81: (AIR 1939 PC 47 at p. 52):

(2.) With regard to the panchnama Exhibit 54, or what will be more appropriate to state the statements of accused reproduced in the panchnama or deposed to by witnesses which are sought to be proved, it is argued that these are not admissible under S. 27 of the Indian Evidence Act. The learned counsel argues that S. 27, which says "when 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" would show that the information must be given or a statement must be made by a person who at that time is accused of any offence and is in the custody of the police. If these two conditions are not satisfied then even if it satisfied the other conditions of the section it is not admissible. For the proposition that at the time of making the statement he must be an accused person the learned counsel has relied on Deonandan Dusadh v. Emperor, reported in 1LR 7 Pat 411: (AIR 1928 Pat 491), and Jalla v. Emperor reported in AIR 1931 Lah 278. In ILR 7 Pat 411: (AIR 1928 Pat 491), it was held that a statement made by a person who was not accused of an offence at the time of making the statement, was not admissible under that section. In coming to this conclusion reliance was placed on the case of Queen-Empress v. Babu Lal reported in ILR 6 All 509 which is a Full Bench case. The question referred to the Full Bench was whether or not S. 27 was a qualification to both Ss. 25 and 26 or only to S. 26. It appears there was some difference of opinion in the cases decided in that Court; in one of the cases Mr. justice Mahmood had held that S. 27 was merely a proviso or a qualification to S. 26 and had no bearing on S. 25; which resulted in making every statement made to a police officer inadmissible in evidence even if it satisfied the conditions laid down in S. 27. The other view was that it was a proviso to both sections 25 and 26. The majority of the Judges constituting the Full Bench held that S. 27 was applicable as a proviso to both Ss. 25 and 26. Mr. Justice Oldfield does not construe the section in this manner, nor does Mr. Justice Brodhurst. It would appear that the learned Judge states at page 519, after giving an illustration of a person immediately after committing a murder going to the Police station and giving himself upto the Police officer and making a statement before that officer and. his subordinates of all the facts and pointing out the body of the victim and giving up the weapon with which he had committed the murder, that S. 27 would still be applicable to a case like that. The learned officiating Chief Justice held that S. 27 is applicable as a proviso to both Ss. 25 and 26, and Mr. Justice Duthoit expressed a general opinion without expressing any opinion as to the construction of S. 27 itself. It is only Mr. Justice Mahmood who construed S. 27 in the manner suggested while dealing with the argument as to whether it is a qualification to section 26 or to S. 25 as well. That case therefore cannot) be regarded as an authority for the suggested construction. The Lahore case seems to construe the section in the same way.

(3.) In S. 24 of the Evidence Act, words precisely similar to those used in S. 27 are used; it refers to a confession made by an accused person and if the contention that is now made is accepted, it might introduce a great deal of injustice to persons accused of an offence, because all confessions made by a person before he. became an accused, would be admissible even if they were obtained by inducement, threat or promise. Section 24 is considered in the case of Emperor v. Cunna, 22' Bom LR 1247: (AIR 1920 Bom 270) (FB). Sir Lallubai Shah at p. 1261 (of Bom LR): (at page 273 of AIR) says that that section will be applicable to a confession made by a person, who becomes subsequently accused of an offence. The other Judges in effect accept this, but they differed from the learned Chief Justice on the question of fact as to whether the confessions were made by inducement, threat or promise. The phrase has been used in both sections and it must be interpreted in the same manner in both sections. No possible reason can be suggested why it should have a different meaning. We are therefore of opinion that the words information received from "a person accused of any offence" in S. 27 cannot be read to mean that he must be an accused when he gives the information but would include a person if he became subsequently an accused person, at the time when that statement is sought to be received in evidence against him.