Kalidas Mukherjee, J.@mdashThis is an application u/s 482 Cr.P.C. assailing the order dated 09.3.2009 passed by learned Additional Sessions
Judge, 2nd Fast Track Court, Berhampur in Sessions serial No. 154 of 2008 u/s 376(2)(g)/302/34 of the Indian Penal Code.
2. In course of the evidence of Chandan Das, S.I. of Police the prosecution sought for permission to exhibit the statements of the accused
recorded u/s 161 Cr.P.C. The defence immediately filed an application on 14.1.2009 contending, inter alia, that such statement was not
admissible. It has been contended that the learned Trial Judge by the impugned order dated 09.3.2009 illegally and without application of judicial
mind rejected the petition filed by the defence and held that the whole of the statements recorded u/s 161 Cr.P.C. were admissible in evidence and
directed the same to be marked as exhibit 12 and exhibit 13. It has been further contended in the application that the learned Judge did not
consider that the purported confessional statements were allegedly made by the petitioners while in police custody and, as such, inadmissible in
evidence. It is contended that the learned Judge did not take into consideration the provision of Section 27 of the Indian Evidence Act. Being
aggrieved with the order impugned, the accused persons have filed the instant application.
3. The learned Counsel appearing for the petitioners submits that the statements u/s 161 Cr.P.C. are inadmissible in evidence except where it leads
to the recovery u/s 27 of the Indian Evidence Act. It is contended that the whole of the statements cannot be marked exhibit. It is contended that
the learned Trial Judge observed that the point of recovery could not be separated from the rest of the statement and, as such, the whole of the
statements should be marked exhibit. The learned Counsel has referred to and cited the decision reported in 2008(2) SCC (Cri) 266 [Alok Nath
Dutta and Ors. v. State of West Bengal] paragraph 54.
4. The learned Counsel appearing for the O.P. State submits that if the statement regarding recovery can be separated from the rest of the
statement that portion should be marked exhibit. In this connection the learned Counsel has referred to and cited the decisions reported in Nuzrul
Sk. @ Nazrul Mondal Vs. State of West Bengal, and K. Chinnaswamy Reddy Vs. State of Andhra Pradesh, .
5. In this case of Aloke Nath Dutta and Ors. v. State of West Bengal (Supra) it has been held in paragraph 53 as follows:
53. It is, however, disturbing to note that a confession has not been brought on record in a manner contemplated by law. Law does not envisage
taking on record the entire confession by marking it an exhibit incorporating both the admissible and inadmissible part thereof together. We intend
to point out that only that part of confession is admissible, which would be leading to the recovery of dead body and/or recovery of articles of
Biswanath; the purported confession proceeded to state even the mode and manner in which Biswanath was allegedly killed. It should not have
been done. It may influence the mind of the Court. See State of Maharashtra v. Damu SCC at P. 282, para 35.)
6. In the case of K. Chinnaswami Reddy v. State of Andhra Pradesh and Anr. (Supra) it has been held in paragraph 9 as follows:
9. ...Section 27 allows that part of the statement made by the accused to the police ""whether it amounts to a confession or not"" which relates
distinctly to the fact thereby discovered to be proved. Thus even a confessional statement before the police which distinctly relates to the discovery
of a fact may be proved u/s 27....
7. P.W. 18 S.I. Chandan Kumar Das has stated that he recorded the statement of accused Shibu Talukdar and Ratan Halder in course of
investigation. He has stated that he seized broken brick, one branch of mango tree stained with blood (having length of 18"") from the place of
occurrence in presence of witnesses; the accused identified the brick and said branch of mango tree at the spot. The whole of their statement u/s
161 Cr.P.C. have been marked exhibit 12 and exhibit 13 respectively. Towards the end of the statement u/s 161 Cr.P.C. accused Shibu Talukdar
stated that after Silpi died, the branch of tree and the broken brick were dropped in a bush and if he was taken there, he would be able to identify
the same. Similarly Ratan Halder towards the end of his statement u/s 161 Cr.P.C. has stated that after Silpi died, the brick and the branch of tree
were thrown in a bush and if he was taken there he would be able to identify the same.
8. Provision contained in Section 27 of the Evidence Act is quoted hereunder:
27. How much of information received from accused may be proved. � 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.
9. It is clear that so much of that information whether it amounts to a confession or not as relates distinctly to the fact thereby discovered may be
proved. In the instant case both Shibu Talukdar and Ratan Halder told that after Silpi died the branch of tree and the brick were thrown in a bush
and if they were taken to that place they would be able to identify the same. 10. P.W. 18 has also stated that pursuant to the statement of Shibu
Talukdar and Ratan Halder he recovered one piece of brick and another piece of branch of mango tree. u/s 27 of the Evidence Act this much of
the information received from Shibu Talukdar and Ratan Halder relating to the discovery of those articles may be proved by the prosecution u/s 27
of the Evidence Act. The learned Trial Judge erred in law in holding that each and every word of the statements are inter-linked with each other
and cannot be separated from the remaining portion and, as such, the whole of the confessional statements of the accused Shibu and Ratan
recorded by the I.O. was admissible in evidence. I find that the observation of the learned Trial Judge is not sustainable in law in view of the
discussions made above. I find that part of the statements of these two accused where they have stated that after Silpi died the branch of mango
tree and the brick were thrown in the bush and if they were taken to that place they would be able to identify the same, this part of the statement
be marked exhibit. The whole of the statement u/s 161 Cr.P.C. cannot be marked exhibit. The order impugned is set aside. The learned Judge will
mark that part of the statement as stated above as exhibit 12 and exhibit 13 and proceed to conclude the trial as early as possible. The application
is disposed of accordingly.
11. Let a copy of this order along with the L.C.R. be sent to the learned Court below immediately.
12. Urgent Photostat certified copy, if applied for, be handed over to the parties as early as possible.
