DURLAV NAMASUDRA Vs. EMPEROR

JUDGEMENT

(1.) The appellants in this appeal are four persons named Durlav Namasudra, Kolo Namasudra, Kama Namasudra and Abhoy Namasudra. They were charged with having committed offences punishable under Secs.302 and 201. I. P.C. The jury found them not guilty on the charge under Section 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 Section 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 Section 302, I. P.C. were not competent to find them guilty under Section 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/s. Emperor where the facts were as follows: Five persons were charged under Section 302, I. P.C., with murder and two of them were convicted the other three being acquitted under Section 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 Section 302, I. P.C. had assisted in removing the body knowing that a murder had been committed. They were found guilty under Section 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 Section 201, I. P.C. in the circumstances that had happened. This case has been followed in the case of Umed Sheikh V/s. Emperor [1926] 96 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 1 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 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, 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. 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 Kama, Durlav Abhoy and Kolo at 4 p. m. on 12 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. m. on 13 July 1930." Therefore it is clear from his evidence that the arrest was not made before 3-30 p. m. on 13 July 1930. In his evidence however he says this: I came to Nabagram at 10 a. m. on 12 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 7 December 1930 I examined Kolo, Kama, Abhoy and Durlav. I arrested them then and there on suspicion after their examination. On the forenoon of 18 July 1930 I proceeded to Abdua tank with the accused Durlav, Kolo, Kama 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.

(3.) 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 12 July at a time when they were not in custody. This circumstance is, in my opinion, absolutely clear from the evidence of the Hub-Inspector Trailokya Nath Gogai. That being so, we have now to consider whether under the provisions of Section 27, 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 Section 27 is one of those sections which controls the three earlier sections, namely, Secs.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, 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 Section 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 seems 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 Section 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 Section 201, I. P.C.