- (1.) THIS is revision by Mohan Dhakar of Kaithoon, who has been convicted along with one other accused under sec. 454 read with sec. 380 of the Indian Penal Code, and sentenced to fix months' rigorous imprisonment and a fine of Rs. 200/- by the learned first Class Magistrate, Kotah, by judgment dated 7th May, 1956. His appeal was dismissed by the learned Sessions Judge, Kotah, by order of 22nd August, 1956.
(2.) THE case for the prosecution is that Jagannath Dhakar of village Kaithoon had gone to his field on 28th March, 1955, where he was informed by Ramchandra that a Jock of his house had been broken open. Jagannath came to his house, and found that several locks had been broken, and one gold chain, one gold Navan and Rs. 207/- in cash had been stolen. A report wa9 made at Police station, Kaithoon, and the police, after investigation, challaned Panna and Mohan for offences under sec. 454 and 380 of the Indian Penal Code. THEir trial resulted in their conviction as aforesaid. Panna had filed an appeal, but has not come up in revision. The only evidence against Mohan is that, (1) he was seen going near the house on that day by Kishanlal, P. W. , and (2) he made a statement to the police, as a result whereof the two gold ornaments were recoverd. As to first, it was admitted by Kishenlal in cross-examination that the house of the accused was also closeby, and therefore, nothing turns out on his being found near the place of occurrence on that day. as to the second point, the confessional statement Ex P.- 5 in the following words : - 'before the Motbirs Mangilal and Madholal, the accused Panna and Mohan stated that the property which they had concealed in the stones near the well of Gajanand will be pointed out by them. The relevant portion of the recovery memo Ex. P - 2, is as follows : - "before Motbirs Mangilal and Madholal and Rlhirnbakas, the following property was recovered at the intenance of Pana and Mohan from under :he stones near the well of Gajanand : - l. One gold Nava. 2. One gold chain. " A perusal of the above document shows that the confessional statement was a joint statement by the two accused, and the recovery was also joint recovery by the two accused. S. 1. Lal Singh P. W. 8 was particularly questioned if he could say who gave the confessional statement first, but he said that he was unable to say who first gave the confessional statement. He was also questioned as to who pointed out the property first, but he said that he could not say. He emphasised that both the accused at one and the same time made the recovery, although added later that pnna had pointed out while Mohan had taken cut the articles. The Motbirs Mangilal and Madholal were produced. Mangilal denied in his examination-in-chief about any statement of the accused having been made in his presence. He spoke of the recovery of a chain as having been made by Panna, although Mohan was also present at the time. He said that Mohan was then given a beating, and he took out the other thing. Madholal P. W. 4 stated that the two accused said that they would point out the place where the property lay, and that statement was Ex. P. 5. Thereafter the two accused took the police to the well of Gajanand, and took out two articles, but he could not say which accused took out which article. In cross-examination Madholal stated that he did not recollect whether Panna and stated his willingness to get the property recovered. The evidence of the two Motbirs is not consistent, and. therefore, what is staled in Ex. P - 5 and Ex. P - 2, which is the only authentic account of what happened, must be taken to be correct. This is, as stated earlier, a joint statement followed by a joint recovery, and the Sub-Inspector is unable to say which of the accused gave the statement first, and which of the accused made the recovery of which article. The two courts have relied on State Government M. P. vs. Chhotelal Mohanlal (1) for the proposition that a joint statement followed by a joint recovery was admissible against the accused who participated in the recovery. Learned counsel for the petitioner has strongly contended that a joint statement followed by a joint recovery is not contemplated by section 27 of the Evidence Act, and is not admissible against either of the accused, and whatever other evidence may be against Panna, his client is not liable to be convicted on this evidence alone. The contention is correct. The very language of sec. 27 of the Evidence Act. in my opinion, contemplates a satement by an individual accused, and the discovery which may follow such statement. A joint statement of several accused or joint recovery by several accused persons is not contemplated. In the Nagpur case the two accused gave similar statements, but the recovery was separately made of different articles, and in that context the observation is that "the respective statement made by each of the respondents is admissible in evidence against him. " Another case Ranchhod vs. The State (2), which was relied upon by the learned Deputy Government Advocate, is also distinguishable. In that case one Jimipal had given information to Kok Singh S. I. about the whereabouts of the body of the deceased, whereupon Kok Singh informed another Sub lnspector Jagpat, and Jagpat was able to draw out a similar statement from Pooran Singh, who subsequently proceeded to a well, and pointed out the corpse. It was argued on behalf of Pooran Singh that his statement of subsequent discovery should be discarded in considering the evidence against Pooran Singh, but that contention was overruled, because of two circumstances: - (1) That the information by Pooran Singh was given to a different person, and (2) the recovery was made in pursuance of the act of Pooran Singh. This was not a case, again, of any joint statement or joint discovery. A direct authority on the point is, however, found in Puttu vs. Emperor (3), where, after discussing certain authorities, it is observed that where the evidence was that all the accused persons jointly pointed out the place where other places from where articles belonging to the deceased were recovered the facts discovered on such information could not be used as evidence against any of the accused persons. In my opinion the view taken in this Oudh case is founded on sound judical principles, for the alleged confession and discovery would lose all meaning, if they cannot be attributed to any one particular accused. This view is fortified by certain observations in other case also. In Durlav Namasudra vs. Emperor (4) it has been observed at page 299 that - It has always beed held that the fact discovered should not be treated as having been discovered from the joint information of all the persons who may have made statements under sec. 27 and in the circumstances stated in the section. This case was approved by the Full Bench decision of the same High Court in Rafiqueddin Ahmad vs. Emperor (5) In Faqira vs. Emperor (6), it has been observed that - It has been frequently pointed out by this Court that these jeint discoveries are not admissible at all against any of the accused unless it can be shown who first made the discovery. In Queen-Empress vs. Babulal (7) it has been observed at page 549 and 553 that - I have more than once pointed out that it is not a proper course, where two persons are being tried, to allow a witnesses to state "they said this", or "they said that", or "the prisoner then said". It is certainly not at all likely that both the persons should speak at once, and it is the right of each of them to have the witness required to dispose as nearly as passible to the exact words he individually used. . . . . . . . . . . . . . . . In detailing statements of his kind, which are alleged to have led to discovery, it is of the essence of things that what each prisoner said should be precisely and separately stated 11 the evidence was not clear upon this point, and the witness refused to be more explicit, the Judge should have paid no attention to it. In the present case there is no reliable evidence as to what was said or done by Mohan, apart from what may have been said or done by Panna. The confessional statement under sec. 27 of the Evidence Act, Ex. P-5, and the subsequent discovery evidenced by Ex. P.-2 are, therefore, not admissible in evidence against Mohan. There is no other evidence implicating the accused in the crime. The revision is, therefore, allowed, the order of conviction passed by the Fust Class Magistrate, Kotah on 7th May, 1956, and confirmed by the Sessions Judge, Kotah, by judgment dated 22nd August, 1956, is set aside, and the accused Mohan is acquitted. He is on bail, and need not surrender. His bail bonds are cancelled. .;