ATHAPPA GOUNDAN Vs. EMPEROR

JUDGEMENT

(1.) The following questions have been referred to Full Bench, viz.: (1) Is the whole or any part of the following statement: ?He said that at about 11 P.M. on the night of March 26, 1936, himself and Gurunatha Goundan, son of Kanda Goundan of Erangattur, together killed Sennimalai Goundan alias Sottayan by gauging his mouth with cloth and throttling his neck with hands and also by putting a rope and pressing it...that night...they got two bottles of illicit arrack by paying Rs. 2 to Gandhi Ranga Royan of Kallippatti who got it from some other place...that a small quantity was left over in one bottle only, that...(they) buried (1) the empty bottle, (2) a rope and the cloth, gag in a dunghill next to the cattls shed in the same compound and the other bottle with some arrack in a heap of mud near a log of wood in a corner of the compound east to the choultry at Kallippatti and that he would go and take them and produce them. This is known to us, alleged to have been made by accused No. 1 admissible against accused No. 1 under Section 27, Evidence Act, and if yes, how much of it; and (2) if the answer to No. 1 is in the affirmative, can such statements or any part thereof be taken into account against accused No. 2 under Section 30, Evidence Act?

(2.) In the order of reference my learned brothers Mockett and Borwill, JJ., the referring Judges directed that in order that the Full Bench could give the fullest consideration to this matter, the whole of Ex. G which sets out the statement made by accused No. 1 should be typed and added to the record to be placed before the Bench. This direction has been carried out and the Court translation of Ex. G where it relates to the cloth buried in the dunghill reads as follows: ?The cloth which was used for gagging the mouth? . The learned Counsel for the appellants agree that that is the correct translation. The facts of this case are sufficiently stated in the order of reference and I will therefore proceed to discuss Section 27, Evidence Act, which my learned brothers in their order of reference correctly say has given rise to opinions which from the case-law are by no means uniform. That section reads as follows: Provided that 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, so much of such information whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered may be proved.

(3.) Divergent opinions have been given by Judges upon how much of statements made by accused persons in the custody of the Police in consequence of which facts are thereby discovered can be proved of which the following may be given as examples, namely that the accused has buried the weapon with which he cut or stabbed the deceased in a certain place or has stolen property which he has pledged or disposed of with certain persons, or has with the property stolen done something or has murdered some one and thrown the body into a well, or has buried a weapon, adding with which he stabbed or cut the deceased. Some Judges have taken the view that only such part of the statement as relates to the burial or disposal of the articles can be proved and that the further part of that the article had been used by the person for stabbing or cutting or that the property disposed of or pledged, etc., was stolen property must be excluded; other Judges have taken the view that the latter statements can also be proved; and the cases directly bearing on this question need very careful examination. The first of these is Reg. V/s. Jora Hasji 11 B. H.C.R. 242 the head note of which reads as follows: Under Section 27, Evidence Act, not every statement made by a person accused of any offence while in the custody of a Police Officer, connected with the production or finding of property is admissible. Those statements only which lead immediately to the discovery of property, and in so far as they lead to such discovery are properly admissible. Whatever be the nature of the fact discovered, that fact must, in all cases, be itself relevant to the case, and the connection between it and the statement made must have been such that that statement constituted the information through which the discovery was made, in order to render the statement admissible. Other statements connected with the one thus made evidence, and thus mediately, but not necessarily or directly connected with the fact discovered are not admissible.