- (1.) THE appellant has been convicted under sec. 441 I. P. C. and sentenced to 18 months' rigorous imprisonment by the learned Sessions Judge, Pali.
(2.) BRIEFLY the prosecution case is that a robbery took place on 24th June, 1958 in village Sirma at the house of one Birdhichand Mahajan at about sun-set. During the course of this robbery Mst. Sunder sister of Birdhichand was relieved of her ornaments, and some other ornaments lying in a Katordan were taken away by the robbers. One of the robbers who remained standing outside the house of Bridhichand is side to have relieved Mst. Zamkoo mother of Birdhichand of her ornaments while she was coming back to the house after attending the call of nature. The report of the incident was made on the morning of 25th June, 1958 at Raipur Police Station and after investigation three persons namely Jodhsingh, Kalyansingh and Koopsingh were challaned under sec. 394 of the Indian Penal Code and the present appellant under sec. 412 I. P. C. and in the alternative under sec. 411 I. P. C. All these four persons were committed to the court of the Sessions Judge, Pali and after trial the learned Sessions Judge acquitted Jodhsingh, Kalyansingh and Koopsingh of offence under sec. 394 I. P. C. but convicted Tejsingh appellant under sec. 411 I. P. C. and sentenced him to 18 months' rigorous imprisonment The conviction of the appellant is mainly based on the evidence of recovery of silver ornaments Ramjol Ex. 1, Kanora Ex. 2, Kanora Ex. 3, a bunch of keys Ex. 4 and Jor Ex. 5 from a place near Beri Gundani at the instance of the appellant on 5. 10. 1958. The appellant was Formally arrested in this case on 3. 10. 1958 and is said to have given a statement before the investigating officer on the same day which led to this discovery. The statement given by the appellant is Ex. P8. The accused denied having given any information relating to the discovery of the things. The learned Sessions Judge treating the statement admissible under sec. 27 of the Indian Evidence Act held that the appellant himself was responsible for concealing these articles at the place from where they were recovered. These articles were identified by Mst. Sundar, Mst. Zamkoo and Birdhichand prosecution witnesses as belonging to them. The learned Sessions Judge in coming to the above conclusion relied upon a ruling of this Court in State vs. Indraj (1 ). Learned counsel appearing for the appellant urges that the appellant cannot be said to be in possession of the articles which are alleged to have been recovered at his instance from an open place accessible to all and sundry. It is urged that some portion of the statement Ex. P8 on which reliance has been placed by the learned Sessions Judge is not admissible in evidence and the only portion which is admissible in evidence does not disclose that it was the accused who concealed the articles at that place. It only discloses that the articles were lying concealed there. Reliance is placed in this connection on Pulukuri Kottaya vs. Emperor (2) and Trimbak vs. The State of Madhya Pradesh (3 ). Before deciding the question of admissibility of the statement Ex. P. 8 it is necessary to state its contents. The statement can be divided into two parts. In the first part the accused stated that Koopsingh had given him ornaments which are described in the statement. In the second part he stated the ornaments are lying buried under a Dhok tree over the top of a hillock near Beri Gundani. The learned Sessions Judge admitted the whole statement in evidence and from the first part of the statement drew the inference that since the ornaments are admitted to have been received by him from Koopsingh one of the robbers he must be taken to have concealed the ornaments at the place of recovery. While admitting in evidence the statements made by the accused before the police officers leading to recovery courts often lose sight of the fact that under sec. 27 of the Indian Evidence that part of the statement only which distinctly leads to discovery is admissible in evidence. The other parts of the statements which have no direct or proximate connection with the discovery do not fall within the ambit of sec. 27 of the Evidence Act. The very wordings of the section viz. , "so mush information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved. ',', are plain enough and need no elucidation. They put a limit on vered may be proved against the accused. All confessional statements made to a police officer unless made in the immediate presence of a Magistrate are inadmissible in evidence. (Sections 25 and 26 Evidence Act ). If the rule of law laid down in sec. 27 Evidence Act is not strictly kept in view there are chances of the inadmissible portions of the statements being brought in evidence against the accused which the law expressly forbids. In the well-known case Pulukuri Kottaya vs. Emperor (2), their Lordships of the Privy Council explained the principle underlying sec. 27 of the Indian Evidence Act and the observations made in that case were referred with approval in Pershad vs. State of Uttar Pradesh (4 ). Now an examination of the statement Ex. P/8 would reveal that the first portion of the statement viz. , that "koopsingh gave me the ornaments", clearly falls within the mischief of sec. 25 Evidence Act and is not admissible under sec. 27 Evidence Act because it is not the direct cause of the discovery of the ornaments. The learned Sessions Judge was therefore, in error in allowing this portion of the statement to be brought on the record. If the inadmissible portion of the statement is left out of consideration weak left only with that portion which only discloses that the articles are lying buried at a particular place without anything further to show as to who buried the articles there. It is not in dispute that the place form which the articles were recovered did not belong to the accused and is an open place accessible to all and sundry. From the fact of recovery alone therefore it cannot be held that the accused was responsible for concealing the articles at that place. In my opinion the following observation in Trimbak vs. State of Madhya Pradesh (3) are fully applicable to the facts of this case - "when the field from which the ornaments were recovered was an open one, and accessible to all and sundry, it is difficult to hold positively that the accused was in possession of these articles. The fact of recovery by the accused is compatible with the circumstances of somebody else having placed the articles there and of the accused somehow acquiring knowledge about their whereabouts and that being so, the fact of discovery cannot be regarded as conclusive proof that the accused was in possession of these articles". The learned Sessions Judge was not correct in distinguishing this case from the fact of the case in hand. The case The State vs. Indraj (l), to which the learned Sessions Judge has referred is quite distinguishable from the facts of this case. In that case explanation given by the accused in defence was that the stolen articles belonged to him and that he got them buried and then got them taken out. It was because of the recovery and the explanation given by the accused in the court that a presumption under sec. 14 of the Indian Evidence Act, Illustration (a) was drawn against the accused. No question regarding the admissibility of the statement made by the accused arose for determination in that case. This case therefore, can lend no assistance to the prosecution. In the present case from that portion of the statement which is admissible in evidence it cannot be attributed to the accused that he was responsible for concealing the articles there. In this view of the matter it cannot be said from the fact of recovery alone that the silver ornaments were recovered from the possession of the accused. There is no other circumstance to connect the accused with the crime. The conviction cannot therefore be sustained. This appeal is therefore, allowed. His conviction and sentence are set aside. He shall be set at liberty if he is not required in any other case. . ;