Bombay High Court
Nabi Mohamad Chand Husain And Ors. vs State Of Maharashtra on 17 July, 1979
JUDGMENT B.A. Masodkar, J.
1.These four appellants question their convictions under section 302, 326 and 506 of the Indian Penal Code as far as accused No. 1 Nabi is concerned, with the aid of section 34 under sections 302 and 326 and section 506 of the Indian Penal Code as far as accused No. 2 Imtiaz is concerned and further with the aid of section 109 for the offences under sections 302 and 326 of the Indian Penal Code as far as accused No. 3 Nanhe and accused No. 4 Mohomed are concerned.
2. The additional Sessions Judge, Bombay, who tried these accused, recorded these convictions arising out of the prosecution case that during the night between November 12 and November 13, 1973, these four accused were involved in an incident that took place in Tosa Bakery situated in Vijaywadi Lane, Girgaum, Bombay. At Exhibit 4 is the map that delineates the locale of the place of the occurrence. The prosecution alleged that one Nissar Ahmed (P.W. 4) was working as a mistry, while Sorab Irani (P.W. 5) was doing supervisory work in Tosa Bakery. Accused Nos. 2 and 3 were working in a nearby bakery called Orient Bakery, while accused Nos. 1 and 4 were on visiting terms with them. It was suggested by the prosecution that sometime before the date of the incident, one Jabarali left Bombay and entrusted his work of distribution of breads to accused No. 2. Accused No. 2 in the course of the work was required to collect breads from Tosa Bakary and it was suggested that during the absence of Jabarali accused No. 2 collected breads but did not pay for the same and it was Jabarali who had to pay the amount of Tosa Bakery. Again, when Jabarali left in October 1973 for his native place, he did not entrust the work to accused No. 2, but entrusted the work to P.W. 4 Nissar Ahmed who had engaged two persons by name Noorali and Rahmatali to look after the work of Jabarali. This is said to be the spark providing for the eventual violence. Whatever may be the history earlier, what happened on the relevant date, that is on the night between Nov. 12 and 13, 1973, is that as Nissar Ahmed had finished his work and was resting on a cot in the verandah of Tosa Bakery, all the accused came and out of them accused Nos. 1 and 2 stood on the road and gave a call to Nissar Ahmed to come out. As Nissar Ahmed woke up and went near the steps of the verandah, accused No.1 questioned him about his dispute obviously with regard to jabarali entrusting the work of distribution of breads and further threatened that unless the dispute was settled then and there, they would not leave the place. Nissar Ahmed denied to have any dispute and suggested that if at all there was any such dispute, they should come the next day in the morning. Upon this, it was alleged, accused Nos. 1 and 2 took out knives which the prosecution suggests are the same as articles 9 and 10. As soon as the knives were taken out, both the accused rushed at Nissar Ahmed but Nissar Ahmed retraced himself and went inside the bakery shouting by the name of Mohomed Halim (P.W. 3). Mohomed Halim who was sleeping in the bakery woke up and came out and saw accused Nos. 1 and armed with knives. He, apprehending a fatal assault, picked up an iron bar and dealt a blow on the head of accused No. 2 Imtiaz. Accused No. 2 held the iron bar after the receipt of the blow and just at the time accused No. 1 Nabi stabbed Halim on the right side of his chest by means of the knife which was in his hand. As Halim shouted "Mar Dala, Mar Dala", one Eklat, who was sleeping on a heap of stones by the side of the steps that lead to verandah of the bakery, also work up. Accused No. 1 then turned to Eklat and with the knife, which was in his hand, dealt a blow on Eklat's stomach. Eklat fell down as a result of the knife blow. When this assault was going on, it was alleged, accused Nos. 3 and 4 were giving shouts "Maro Sale Ko, Maro Sale Ko". Seeing that Halim and Eklat had received injuries, all the accused ran away from the place. Information was conveyed on telephone about the incident and just in few minutes a police van, upon receipt of instructions from the Control Room to the effect that a stabbing incident had taken place, came to Vijaywadi Lane. S.I. Kadam (P.W. 21), who was in charge of the police van along with Lance Naik Sambrekar (P.W. 2), put the injured persons in the van and proceeded towards C.T. Hospital. On the way, near Lokmanya Tilak Marg, Sambrakar got down and lodged a report as per Exhibit 6 which was taken down by S.I. Bahalme (P.W. 22). Having registered the offence, S.I. Bhalme proceeded to investigate the same. Mean while, he had instructed S.I. Rane (P.W. 20) to alert all police constable on duty and also to be in touch with Government Hospital so as to find out persons with head injuries and with further instructions to detain such persons. Eventually, information was received that in J.J. Hospital accused Nos. 1 and 2 had gone for treatment and that all the four accused together had gone by a taxi first to Nagpada Police Station and had contacted S. I. Sawant (P.W. 19). Therefore, as soon as accused Nos. 1 and 2 reached J.J. Hospital, because of the earlier alert caused to be given by S.I. Bhalme, all the four accused two of them having injuries, were apprehended and put under arrest at about 2.30 a.m. on November 13, 1973.
3. At G.T. Hospital, where the police van took the injured persons, there being no arrangement for immediate operation, the van was directed to St. George's Hospital. Eventually, the injured persons were examined and treated there by Dr. Palliwar (P.W. 14) and Dr. Mulay (P.W. 15). Eklat and Halim were indoor patients and Halim was discharged from the hospital on November 16, 1973. Eklat succumbed, though given the necessary treatment, at about 9.55 a.m. on the morning of November 13, 1973. Dr. Mukhadkar (P.W. 16) of the St. George's Hospital subjected the dead body of Eklat to post-mortem examination and recorded his notes as per Exhibits 33 on the same day.
4. It was the case of the prosecution that during the course of the investigation, accused No. 1 made a statement as per Exhibits 16, while accused No. 3 made a statement as per Exhibit 17 in the presence of the panchas. As a result of the latter statement, the police were led to one Shakin Ahmed (P.W. 12) and two knives, being Articles 9 and 10, were seized. The said knives along with the clothes of the deceased Eklat as well as the clothes of accused Nos. 1 and 2 were also sent to the Chemical Analyser for his report. The clothes of the deceased Eklat showed that they were stained with blood of human origin of 'B' group. So also the blood-stains found on the knife, article 9, were of human origin and of the same group, that is, 'B' group. Apart from getting the accused medically examined by Dr. Dongaonkar (P.W. 18), who found injuries on the person of both the accused (accused Nos. 1 and 2) and made injury reports which are at Exhibit 36 as far (as accused No. 2 is concerned) and at Exhibit 37 (as far as accused No. 1 is concerned), through Dr. Agarwal (P.W. 13), blood of accused Nos. 1 and 2 was collected and the blood group of these accused was determined to be 'AB', as far as accused No. 1 was concerned, and 'O', as far as accused No. 2 was concerned, as per Exhibit 24. The Chemical Analyser's report at Exhibit 45 showed that two of the clothes taken charge of during the investigation from accused No. 1 had bloodstains of 'B' group, while one piece of cloth taken charge of from accused No. 2 was having similar bloodstains.
5. In brief, the prosecution, therefore, relied on the direct evidence coming forth from the four eye-witnesses, including one of the victims, being P.W. 3 Mohamed Halim, P.W. 4 Nissar Ahmed, P.W. 5 Sorab Irani and P.W. 6 Abdul Hamid, and also on the discovery statement said to have been made by accused Nos. 1 and 3 (Exs. 16 and 17), and the eventual seizure of Articles 9 and 10 from the possession of Shakin Ahmed (P.W. 12) and it further tried to fortify its case by relying on the circumstance that accused Nos. 1 and 2 connected with the offence because the clothes seized from them had the same blood group as was found on the clothes of the deceased Eklat.
6. The plea in defence was one of denial and, as far as accused Nos. 1 and 2 were concerned, of an assertion that, in fact, they were the victims of the attack that was resorted to by Mohomad Halim and the deceased Eklat. Strong reliance was placed on the fact that both these accused had sustained injuries as was spoken to Dr. Dongaonkar as evidence by Exhibit 36 and 37, being the injuries on the vital parts like the frontal area of the head. It was further submitted that not only Halim but also Eklat resorted to attack by means of iron bars with which they were armed and what accused No. 1 did was nothing but in furtherance of the private defence of his own person as well as the person of accused No. 2 . Considerable argument was advanced before us that even on the prosecution it was only accused No. 1 who would be culpable and that too he having exceeded the right of private defence, the offence would be of a lower degree and would be covered by section 304, Part II of the Indian Penal Code as far as the death of Eklat was concerned, while he would be protected as far as the injuries found on the person of Halim were concerned by the right of privates defence available to him. It was contended that accused No. 2, on the facts narrated by the eye-witnesses, would not be guilty of any offence, much less with the aid of section 34 of the Indian Penal Code. Exception is taken to the use of Exhibits 16 and 17, the two statements said to have been made by accused Nos. 1 and 3 respectively, on the ground that these are not lawfully admissible. As far as accused Nos. 3 and 4 are concerned, it was contended that the evidence is clearly spurious and consistent and the learned Additional Sessions Judge was in error in holding them guilty of having abetted the principal offence. The mare fact that all the four persons were arrested together immediately after the incident would not be enough to rope in accused Nos. 3 and 4 into the commission of the offence.
7. In the background of those critical submissions, we have to first find out what exactly is the evidence of the four eye-witnesses examined by the prosecution with regard to the actual occurrence in which Halim was subjected to knife injury by accused No.1 and accused No. 1 used the knife also on the person of Eklat, who eventually died few hours after the incident in the hospital. As far as the homicidal death of Eklat is concerned, the matter does not admit any doubt. The evidence of Dr. Palliwar (P.W. 14), Dr. Mulay (P.W. 15) and Dr. Mukhedkar (P.W. 16) and his post-mortem notes (Ex. 33) leave no manner of doubt that Eklat had received a serious injury, being an incised wound on the abdominal area, 3" x 2" x abdominal deep, and the intestines were protruding out. There was one abrasion also on the left side of the abdomen starting from the middle of the horizontal wound. That Halim too had received an injury on the vital part is established by the evidence of Dr. Mulay. It was a stab wound on the right side of the chest wall near the nipple. Halim had two abrasions on the body. Near about the time, as we have indicated, these two accused (accused Nos. 1 and 2) were also subjected to medical examination and we have the evidence of Dr. Dongaonkar to the effect that he found on the person of accused No. 2 a contused lacerated wound, 3" x 1" x bone deep, on the parietal region and on the person of accused No. 1 a contused lacerated wound, 4" x 1/8" x subcutaneous deep on the frocilal region and an abression, 1" x 1/4", on the lateral aspect of the right thigh. Though X-ray was advised, there is no record of the same, nor Dr. Dongaonkar was in a position to say whether the X-ray was actually taken of the injury sustained by accused No. 2 This objective evidence coming forth from the medical experts indicates that there was an incident involving these four persons, being Mohomed Halim examined as P.W. 3, Eklat since deceased, accused No.1 Nabi and accused No. 2 Imtiaz, and as a result of the injury sustained by Eklat in that incident, he eventually succumbed. We have also further objective fact that some of the clothes of accused Nos. 1 and 2 had blood-stains of the same group as was found on the clothings of the deceased Eklat.
8. Now, turning to the eye-witness account as given by the four eye-witnesses and as to the actual occurrence, Nissar (P.W. 4) has stated that he was working at the relevant time at Tosa Bakery as a Mistry and he knew all the accused. He has then spoken about Jabarali's business and Jabarali entrusting the work of distribution of breads to accused No. 2 who had not paid the money for the supply of those breads and how Jabarali again when he left Bombay had entrusted the work to him and because of that how accused No. 2 was bearing a grudge against him. He has spoken of some talk between him and accused No. 2 in the month of Ramzan. On the day in question, that is, November 12, 1973, according to Nissar, at about 12 midnight his duty was over and then he went and slept on the cot which was in the varandah. After sometime, four persons come near Tosa Bakery at about 1a.m. and out of them accused Nos. 1 and 2 came near the railings and accused No.1 shouted asking Nissar to come out. Because of this event, he went out of the verandah and stood just in front of the bakery. Accused No. 1 then asked him as to what was the dispute between him and accused No. 2 Imtiaz. When Nissar told him that there was no dispute and that he was looking after the business entrusted to him by Jabarali, accused No.1 told him that accused No. 2 would not allow him to carry on that business and unless the dispute was settled, he would not leave the place. Upon this, both the accused took out the knives and on seeing this, the witness ran inside the verandah and shouted by the name of Halim. Halim came out from inside the bakery and came towards the door of the bakery and as Imtiaz was preparing for an assault with the knife on Halim, Halim picked up an iron bar and gave a stroke with it on the head of Imtiaz. Imtiaz then held the iron bar and at the time accused No. 1 Nabi assaulted Halim by means of a knife which was in his hand. Halim then gave a shout as he was stabbed on the right side of his chest. At that time, Eklat got up and accused No. 1 Nabi ran towards Eklat and stabbed him on the left side of the abdomen. At that time, accused Nos. 3 and 4 started shouting " Maro Sale Ko". Because of the injury, Eklat fell down and the accused ran away towards Girgaum Road. Eklat, before he was assaulted, was sleeping on a heep of stones which was lying just outside the verandah of the bakery. After about 5 to 10 minutes, a police van arrived at the place and removed Eklat and Halim to the hospital. The witness also went along with them. Then Nissar speaks of how at G.T. Hospital, they were directed to go to St. George's Hospital. The witness was not able to identify the knives, nor was in a position to say which knife was with which accused. In cross-examination, Nissar was asked about his connection with the bakery business and he stated that he had worked at number of bakeries in Bombay itself. He denied the suggestion that he was criminally involved in the incident concerning one Rustom Irani or in the incident of throwing stones at Police Officers. He has stated that he had worked in Orient Bakery for a year and three quarters before he had joined Tosa Bakery. He was also questioned about the profits that were earned by him. According to him, Imtiaz had not paid about Rs. 500/- to Rs. 600/- due to the bakery and that amount was required to be paid by Jabarali and, therefore, Jabarali did not entrust the business again to Imtiaz. He denied the suggestion that Imtiaz had himself paid any such amount. He denied the suggestion that Jabarali had asked accused No. 2 to pay Rs. 200/- only at Rs. 5/- per day. He also denied knowledge about accused No. 2 paying Rs. 5/- per day either to Jabarali or his brother Gafarali. He denied the suggestion that on the day of the incident, accused No. 2 had come to pay Rs. 50/- to Gafarali at Tosa Bakery. Similarly, suggestions were made with regard to the talk on the day of the incident concerning Rs. 200/- which the witness denied. He, similarly, denied that he was sitting on a Charpoy and that accused No. 1 had alone asked him to come out. According to him, both accused Nos. 1 and 2 shouted "Nissar come out". He denied the suggestion that he never came out after the shouts were given. Similarly, he denied the suggestion that accused No. 1 did not say that he would not allow him to carry on the business of Jabarali and that he would not go unless the matter was settled. He denied the suggestion that the talk was only with regard to the money. He has stated that he came out of the verandah and then he saw both accused Nos. 1 and 2 taking out the knives and, therefore, he went inside the bakery. He denied that when the talk was going on, he had shouted "Halim, Halim" and asserted that he raised those shouts when he saw both accused Nos. 1 and 2 taking out the knives. Similarly, he denied the suggestion that Halim gave a stroke with the iron bar immediately after the shouts were given. He has asserted that when Halim found that Imtiaz had rushed at him with a knife, Halim gave a blow with the iron bar. The suggestion that both these accused had no knives in their hands was also denied. According to the witness, when Halim gave the stroke, he was in the verandah and at that time accused No. 1 had stabbed Halim on his chest. He denied the suggestion that he was standing at the place without doing anything and stated that, in fact, he could not do anything. According to the witness, Halim did give shouts after receiving the stab wound. He admitted that accused No. 2 had held the iron bar after he received the blow with the iron bar at the hands of Halim. He denied the suggestion that at that time, Halim picked up the knife which was lying there and upon that scuffle started between accused No. 1 and Halim received an injury in that scuffle. He has stated that there might be 8 to 9 servants on the night in question in the bakery. Some of them were sleeping on the right side and some of them on the left side of the verandah and some were sleeping on the road. On the night in question, 9 persons were working in the night shift. He has stated that he was the only person sleeping in the verandah. He denied that 3 to 4 persons were sleeping in the Verandah on the night in question. The heap of stones was along the right side of the Verandah and just by the side of the railing. Eklat was injured and was found lying on this heap. There were two other persons sleeping on that heep. One of them was Abdul Hamid (P.W. 6). As soon as Eklat stood up, accused No. 1 stabbed him while he was standing. Eklat was just by the side of the heep of stones at that time and collapsed on the heep of stones saying that he was stabbed. He denied the suggestion that Eklat had picked up an iron bar which was lying there and gave the first stroke with the iron bar on the right thigh of accused No. 1 and when accused No. 1 looked back on receipt of the stroke on the thigh, Eklat gave another stroke with the iron bar on his forehead. Similarly, he denied the suggestion that Eklat had held accused No. 1 by him waist and a scuffled and ensued between the two and all the servants of the bakery had collected around accused No. 1. He denied the suggestion that they had prepared themselves for a fight of such a kind and that he himself was instigating by standing in the verandah and by shouting "Maro Salen Ko". A similar suggestion that accused No. 1 was required to enter into the fight to save his life as well as the life of accused No. 2 was put and denied. A suggestion was made that accused No. 4 was not present at the time of the incident, which was denied. In further cross examination, the witness asserted that Halim was sleeping just by the side of the counter in the room between the Verandah and the furnaces of the bakery. According to the witness, Sorab was also sleeping in that room and had got up after hearing the shout, but he did not try to intervene when Halim was being assaulted. When accused Nos. 1 and 2 came, the witness himself was sleeping, but upon their call had gone on the road upto a distance of about 10 to 15 feet from the steps of the bakery. He had not made any such statement to the police which omission was brought to his notice. According to the witness, accused Nos. 1 and 2 were standing on the road, when they took out the knives and when he saw the knives in the hand of accused Nos. 1 and 2, he shouted in the name of Halim and went inside the bakery. He had told the police that he ran inside the bakery when he heard accused No. 1 Nabi saying that he would not allow him to carry on the business and that he would not leave the place till the mater was settled. That statement the witness did not accept and the contradiction was brought on record. Accused No. 3 was seen by the witness standing just behind accused Nos. 1 and 2, when all the four accused had come to the bakery, but accused No. 3 was at a distance of 10 feet from accused Nos. 1 and 2. He had not told the police about the distance between accused Nos. 1 and 2 and accused No. 3. Then he admitted that accused Nos. 3 and 4 were at a distance of 10 feet from the steps of the bakery, when he had heard their shouts "Maro Salen Ko". According to the witness, accused No. 3 was all throughout shouting like that till Halim and Eklat were assaulted and he stopped shouting when all the accused ran away. The witness has asserted then that both the accused were shouting like that together. According to the further statement of the witness, after Halim was assaulted and he set down, he had heard accused No. 3 shouting "Maro Salen Ko". The witness had not made any such statement before the police and when this omissions was pointed out, he was unable to give any reason as to why the police did not record such a statement though, according to him he had told the police about it. This contradiction is significant. He denied that accused No. 3 was not present at the place. He had admitted that when the police van came, he did not say anything to the police about the incident. He has asserted that Halim's statement was recorded in the hospital in his presence.
9. The evidence of Nissar, as we will indicate after taking into account the evidence of the other two witnesses, except to the extent of attributing shouts for the first time in Court to accused No. 3, appears to us quite natural and inspite of cross-examination and suggestions about the unfolding of the incident, it commends all credence and acceptance. Nissar was sleeping in the Verandah which appears to be, as is the evidence of Draughtsman Ramrao Jadhav (P.W. 1) who had drawn the map of the scene of offence, having two steps to go down to the road of Vijaywadi Lane. This Verandah is very much a part of Tosa Bakery and appears to have a railing of about 3 feet height. There is a door that opens on this Verandah from inside the room where Tosa Bekary's office and the counter are situate and there is a further room down south accessible by door, which is the baking portion of the bakery. The evidence of Nissar shows that while he was so sleeping, he heard the call in his name and got up and came out face to face with accused Nos. 1 and 2. His evidence that earlier to the call, all the accused had come appears to us inferential, for on his own showing he was sleeping. There appears to have been some talk with regard to Jabarali's business between accused Nos. 1 and 2 on the one hand and Nissar on the other about which accused No. 1 was insisting upon settlement and in the course of the conversation both accused Nos. 1 and 2 had taken out the knives and Nissar had given the all in the name of Halim and retraced himself into the bakery. Halim, who was sleeping in the room, came out and seeing these two accused armed with knives and in threatening position, first dealt a blow on accused No. 2 with the iron bar and it appears that at that time he was stabbed by accused No. 1. Eklat, who was sleeping outside, was similarly knifed by accused No. 1. Thereafter, all the four accused had gone away from the place of the occurrence. The evidence of Nissar does not inspite confidence as far as the giving of the shouts by accused Nos. 3 and 4 is concerned, but with regard to the appearance of accused Nos. 1 and 2 and as to how the incident developed, it does not admit any doubt.
10. Apart from the say of Nissar, we have other evidence from the other natural witnesses like Mohomed Halim, Sorab Irani and Abdul Hamid. As we have indicated above, Mohomed Halim was actually injured and was in the position of the victim supported by the medical evidence with regard to the injuries sustained by him. The evidence of Halim is to the effect that he knew the accused since before and he himself has been working in Tosa Bakery for the last three years. On the day of the incident he went to sleep in the bakery premises, that is, in the room just adjacent to the Verandah of the bakery. He heard at about 1 a.m. the call given by Nissar in his name, "Halim, Halim". As he woke up and came out on the Verandah, he saw accused Nos. 1 and 2 with knives in their hands. They were just below the Verandah of the bakery. They come towards him to assault him. As he found them coming towards him with knives in their hands, he stepped back and picked up an iron bar and hit Imtiaz (accused No. 2) on the head. According to Halim, the iron bar was lying in the Verandah of the bakery from where he picked it up. Just at that time, accused No. 1 Nabi stabbed the witness on the right side of his chest. Halim then put his hand on the chest and bowed down. Just at that time he also saw accused No. 1 Nabi giving a stab injury on Eklat who was sleeping on the heep of stones lying near the building. He retracted back into the bakery and came out with a cloth piece by which he tied down the wound He heard the shouts of Eklat, "Mar Dala, Mar Dala". In the meanwhile, a police van came and both he and Eklat were taken to the hospital. He disclosed about the assault while on the way to the Police Constables and also disclosed the names of the accused. In cross-examination, he has stated that the counter in just in front of the entrance door and is at a distance of 2 feet from the door. He has further stated that 2 or 3 employees of the bakery were sleeping in the Verandah and the rest were sleeping on the road, but when he heard the shouts, he did not find these persons. Nissar was giving the shouts while he was standing in the Verandah and came running as he shouted. Nissar went towards the right side of the Verandah. Halim has stated that Nissar was sleeping on the night in question on a charpoy which was on the right side of the Verandah. He has denied to have any quarrel with accused No. 1 Nabi or being on inmical terms. He has denied the suggestion that immediately having heard the shouts of Nissar, he had picked up the iron bar and gave a stroke to accused No. 2 Imtiaz. He has admitted that Nissar was not doing anything, but he was simply standing when he (the witness) had assaulted Imtiaz. Imtiaz was on the first step from which one has to come to the Verandah. According to the witness, Imtiaz caught hold of the iron bar and fall down and at that time the witness was also holding the iron bar. Halim has denied the suggestion that he snatched away the iron bar from the hands of Imtiaz. According to him, at that time, he was subjected to injury by accused No. 1 Nabi by means of a knife as a result of which he gave up the hold on the iron bar. He denied the suggestion that he had picked up any knife which was lying in the bakery or that Nabi had caught hold of that knife or that he was attempting to assault Nabi with the knife. It is at this stage of his cross- examination that the witness tried to implicate accused Nos. 3 and 4 and stated that he heard the shouts "Maro Salen Ko, Maro Salen Ko" but did not see anything thereafter as he was inside the bakery. He has denied that Nabi and Imtiaz were not armed with knives. One Habib is the owner of Tosa Bakery and he had taken money from Habib. He used to borrow some money from Nissar also, which was working in Orient Bakery as manager. Halim was admitted that accused No. 2 Imtiaz used to seel bread prepared by Orient Bakery on hand cart. According to him, there e was no amount due either from Imtiaz to Tosa Bakery or from his bakery to Imtiaz at the time of the incident and all the accounts were settled about 2-3 months before the date of the incident. He has denied that he had not seen Eklat being assaulted with the knives. He has denied that there was any scuffle between him and accused No. 1 Nabi over the knife and that he received the injury on the chest in the scuffle. Similarly, he has denied that the iron bar fell down from his hand and Eklat came there and picked up the iron bar and tried to assaulted Nabi and, in fact, accused Nabi with that iron bar on his thigh and as Nabi looked back to find out who had assaulted him Eklat again assaulted Nabi with the iron bar on his head. He has denied that Nabi had bled due to injury. The suggestion that Eklat and Nabi in the course of the scuffle had come to firm grips was also denied by the witness. So also that Eklat received the injury in that scuffle by means of the knife was denied.
11. The evidence of Sorab Irani, who was manager-cum supervisor of the bakery, is so the effect that he was resting at the table just by the side of the counter in the room had Halim was sleeping near the cupboard in this very room and Nissar was sleeping in the Verandah. Elkat was sleeping on the heap of stones outside. He was awakened by the shouts "Halim, Halim" at about 1 a.m. The shouts came from Nissar. When he saw outside, accused No. 2 and one other persons, being Nabi (i) were seen armed with knives and standing just outside the bakery by the side of the stepped and had prepared themselves for assaulted on Nissar. When Halim came out, he found knives in the hands of these two accused and, therefore, he picked up and iron bar and gave a stroke on the head of Imtiaz. Imtiaz then raised the iron bar and just at that time Nabi, who was armed with the knife, gave a blow on the right side of the chest of Halim. He has stated that soon thereafter two young persons whose name he learnt afterwards shouted "Maro Salen ko, Maro Salen Ko" and hearing those shouts, Eklat got up and Nabi thrust the knife in the stomach of Eklat and Eklat fell down by saying "Mar Dala". After that, all the four persons had run away. 10-15 minutes later, a police van arrived. In cross-examination, Soran Irani has denied the suggestion that there were 2 or 3 persons sleeping on the left side of the Verandah. He has asserted that on the night in question, Nissar was sleeping in the Verandah. The road just in front of the bakery is about 10 feet in width and for going to the bakery, one has to enter from the steps which are just outside the Verandah and then come in the Verandah and to enter the bakery, one has to pass through the door and the counter is about 1 1/2 feet from one door. He had stated that as soon as he heard and the shouts, he got up from the chair and stood near the edge of the counter from where he could see all the things. When Eklat was being assaulted, he had come out and stood just by the side of the door and had also seen Halim at that time in an injured condition and keeping one of his hand on the chest. Halim has gone upto the steps of the bakery (i) when he assaulted No. 2 Imtiaz and at that time Nissar was inside the room. The witness has denied the suggestion that accused No. 1 had held the iron bar or that there was a scuffle between accused No. 1 Nabi and Halim. He has denied the suggestion that Nabi and Imatiaz had no knives at all. He has stated the iron bar was lying in the Verandah which was picked up by Halim. He has denied the suggestion that in the Verandah one knife was also lying or that it was picked up by Halim and Nabi tried to snatch that knife or that in the scuffle Halim received the injury because of that knife. Eklat got up on hearing the shouts and was covering some distance and moved ahead from the place where he was sleeping and at that time, there was commotion. The witness has denied the suggestion that Eklat had picked up any iron bar and assaulted Nabi on his thing or that Nabi had looked back and Eklat had given him a second stroke on his head. He has stated that he was himself shouting "Bachav, Bachav" during the course of the incident and has denied the suggestion that he was not at all present there. He had not disclosed to the police that he had actually come out of the counter, stood at the door and looked outside. The reason he gave is that the police did not ask him about the same. Similarly he had not stated before the police that he shouted "Bachav, Bachav". He was asked about one Rustom and the assault on him by Nissar. He has stated that he had no knowledge about it. According to the witness, Nissar had not entered the bakery immediately after Halim was assaulted. According to the witness, when he said that Nissar came inside the bakery, what he meant was that he came inside the threshold between the Verandah and the room where there was a counter. He did not know accused Nos. 3 and 4 before the incident and he admitted that when his statement was recorded, he had seen them thereafter he was seeing them in Court.
12. The evidence of Abdul Hamid is to the effect that he was serving in the bread shop situated at Sonapur Street and was doing the work of selling bread and that bread shop too belongs to Tosa Bakery. He used to come for sleeping in Tosa Bakery. On the night in question, he was sitting, on the heap of stones when Eklat was assaulted. That was at about 1 a.m. He was sleeping on the heap of stones since about 10.45 p.m. When he heard commotion, he woke up and he heard Nissar telling accused Nos. 1 and 2 that they should not enter into any conversation with him at the place and they should do so on the next morning. Both the accused then told him that the matter would have to be settled than and there. When this talk was going on, the witness got up and set at the place where he was sleeping. Then he saw accused Nos. 1 and 2 rushing towards Nissar. Nissar went inside the Verandah and shouted "Halim Halim". Both the accused took out knives, he picked up an iron bar and gave a stroke on the head of accused No. 2 Imtiaz. Accused No. 1 then assaulted Halim with the knife of the right side of his chest. Halim, as a result of that blow, bent down. Eklat then stood up from the place where he was sleeping and accused No. 1 thrust the knife into the stomach of Eklat. Eklat then started shouting that he was assaulted. Within half an hour, a police van came and took away Eklat and Halim. After assaulting Eklat and Halim, accused Nos. 1 and 2 ran away. An attempt was made during the examination-in-chief itself to ask the witness about the shouts being given by accused Nos. 3 and 4. That was not spoken to by the witness and was not permitted by the Court in the leading form. Similarly, the witness has asserted that it was only accused Nos. 1 and 2 who ran away. It appears that an attempt was made to ask as to who else had run away along with accused Nos. 1 and 2 but an objection the Court ruled out that question too. It is not necessary to decide as to whether the Court was right in ruling out those questions, but suffice it to say that in the entire substantive evidence in examination-in-chief, the witness has not attributed any role to accused No. 3 an 4 nor has even spoken about their presence. In cross-examination he has spoken about being related to Nissar and has asserted that when Nissar shouted "Halim Halim", Nissar was in the verandah and it was after Halim had come that he had picked up the iron bar and at that time accused No. 1 and 2 had already taken out of the knives and then the first stroke was given by means of the iron bar on the head of Imtiaz by Halim. The witness did not remember whether accused No. 2 had held the iron bar. Similarly, he denied that there ensued any scuffle between Halim and accused No. 2 or that Halim had picked up some knife that was lying on the ground and a scuffle ensued between accused No. 1 and Halim over the knife. According to the witness, Eklat work up after Halim began to about "Mar Dala, Mar Dala" and as soon a Eklat stood up, accused No. 1 thrust the knife in the stomach of Eklat. Abdul Hamid had denied that Eklat having seen the knife in the hand of accused No. 1 had helt it from behind and a scuffle ensued and that is how Eklat received the injury. When Halim was assaulted, Halim was standing just near the steps of the Verandah of the bakery and when Eklat received the injury, Eklat was standing near the steps just at the place where he was previously sleeping. Nissar was in the Verandah and did not come out. The witness has denied that accused Nos. 1 and 2 were not armed with knives. He has stated that he might have told the police that Nissar had told accused Nos. 1 and 2 that they should not enter into a quarrel with him at that place. According to the witness, about 4 or 5 persons were sleeping on the heap of stones and all of them had awakened after hearing the commotion As there was knives in the hands of accused Nos. 1 and 2, he did not dare to do anything. He has then asserted in cross-examination that all the four accused were present at the place of the occurrence. When he was further questioned why he did not speak about accused Nos. 3 and 4 earlier, he asserted that he did not remember them. He has, however, stated that accused Nos. 3 and 4 were on the road at a distance of 15 to 20 feet and were shouting loudly "Maro Salen Ko, Maro Salen Ko".
13. Now, the evidence of these witness, that is, Mohomed Halim, the victim, and natural witnesses Sorab Irani and Abdul Hamid, clearly goes to show that they were at their usual places and accused Nos. 1 and 2 had given the call in the name of Nissar. After the call was given, Nissar had come out from the Verandah of the bakery down the footsteps and there was exchange of talk between Nissar on the one hand and accused Nos. 1 and 2 on the other hand about the settlement of some dispute and Nissar had given the shout in the name of Halim, when he found that both accused Nos. 1 and 2 had taken out the knives. Halim was inside the room and after hearing the shouts had gone out, picked up an iron bar that lying in the Verandah and had found both these accused with open knives rushing towards him and then had used the iron bar first on the person of Imtiaz, accused No. 2, when he was subjected to stab wound by accused No. 1 various suggestions have been made to the witnesses with regard to the scuffle and also that along with the iron bar there was a knife in the Verandah which had been picked up either by Halim or by accused No. 1. These suggestion, to say the least, are clearly an after thought. Though, no doubt, the medical opinion is that such injuries are possible in a scuffle, the evidence about the incident clearly shows how the injuries were inflicied. Suggestions were made that Eklat had picked up an iron bar and has assaulted accused No. 1. All the witnesses have denied these suggestions. Except the assertions of the accused in this regard, there is no materials to hold that Eklat was either in any manner armed or had picked up any iron bar and had used it against the person of accused No. 1. Though Mr. Godiwala has strenuously argued that this was a case where the prosecution has failed to explain the injuries on the person of accused No. 1, the very nature of the evidence with regard to the incident spoken to by these witnesses clearly shows that the injuries that were seen on the person of accused No. 1 could be possible when he approached Halim who was holding the iron bar and had used it against the person of Imtiaz. Now, the iron bar is 4 feet long. If a person is holding and using such an iron bar and the other person like accused No. 1 is having a knife and approaching the former, when his hold is on the iron bar, for the purpose of giving a knife injury, it is quite possible to find such injuries as were found on the person of accused No. 1. As the evidence indicates, there was only one iron bar and there were two knives both in the hands of accused Nos. 1 and 2. The suggestion that there was any other iron bar or any other knife has to be ruled out as a mere suggestion. It is equally not possible to infer that there was any body to body scuffle between accused No. 2 and Halim or between accused No. 1 and Eklat. What appears to have happened, as is disclosed unimpeachably by this evidence is that after Nissar gave the call in the name of Halim and withdrew himself into the Verandah of the bakery, these two accused (accused Nos. 1 and 2), who were seen armed with knives, in that position rushed towards Halim. At that time, Halim came out, picked up the iron bar and assaulted this menacing accused No. 2 and at that point accused No. 1 came closer to him and landed a knife injury on his person. Halim must have left the hold of the iron bar with some violence as a result of the injury or as a result that it was held by accused No. 2. At that time, it is not impossible, looking to the placement of accused Nos. 1 and 2 and Halim, that accused No. 1 might have got the injuries that were found on his person. Exhibit 37, the injury certificate with regard to the injuries on the person of accused No. 1, shows that the injuries were not serious or indicative of any determined assault on any particular part of the body. On the other hand, the injuries appear to be of a very minor nature and possible under the circumstances unfolded in the present case. Similarly, the place where Halim was subjected to injury appears to be nearby the Verandah close to the steps and it is possible to infer that accused Nos. 1 and 2 were on the steps or just at the skirt of the Verandah. It is clear, therefore, that both accused Nos. 1 and 2 had come to Tosa Bakery. They were knowing that Nissar was available and had picked up the conversation involving Nissar and accused No. 2 and as a result of which had eventually taken out the knives and in a threatening position moved forward towards the Verandah. Halim's appearance on the scene, his picking up of the iron bar and giving the stroke were just the consequences of the clear trespass and aggression committed by these two accused. It cannot be said, therefore, as the evidence stands, that either of the accused had any right of private defence of their person, for they were in the position of the trespassers and aggressors. They had gone there armed with knives and, upon failure of negotiations, had opened the knives against the person of Nissar, who shouted for help in the name of Halim. Halim, who was the occupant and who was called for help, had every right to take to the iron bar and use it against such aggressors. He could have, because of the menacing movement of these two accused, a reasonable apprehension with regard to his personal safety as well as the safety of Nissar. The way accused No. 1 had use d the knife on the person of Halim, followed by the injury inflicted on Eklat who appears to have stood up when the incident was coming to an end, clearly goes to show that both the accused had come armed with a definite intention to use the arms, if necessary, and if any incident were to occur against any person. The fact that one of them was subjected to injury, leaving only one to us the knife would not, in any way, indicate that the persons so injured in the scuffle were not having the same intention which eventually materialised as a result of the violent incident.
14. This evidence of the four eye-witnesses, therefore, clinchingly involves accused Nos. 1 and 2 in the offence, while the evidence is hardly adequate with regard to accused Nos. 3 and 4. As far as these two accused that is, accused Nos. 3 and 4 are concerned, we have already indicated while appreciating the evidence that the assertions are made while the witnesses were under cross-examination in the state of such evidence, it will not be safe to rely on the testimony of these witnesses to implicate accused Nos. 3 and 4 in the crime.
15. The unfolding of the incident, as is done by these four witnesses and their evidence being unimpeachable as far as accused Nos. 1 and 2 are concerned, it is not necessary to closely consider the aspects of the cases, including the admissibility of the memorandum, Exhibits 16 an 17, the former being made by accused No. 1 and the latter by accused No. 3, leading to the seizure of the knives, articles 9 and 10 from Shakin Ahmed (P.W. 12). As both the learned Counsel addressed upon the admissibility of these statements, we propose to deal, in brief, with the question so raised.
16. Mr. Godiwala's approach is that Exhibit 16 is the statement of accused No. 1 stating that the knife handed over to accused No. 3 Therefore, this statement does not lead to discovery and should, therefore, be inadmissible. As to Exhibit 17, the statement made by accused No. 3, it was submitted that it implicates the co-accused and should not be used against accused No. 1, though it may be used against accused No. 3. As against this, Mr. Parkar has argued that Exhibit 16 indicated the person at whose instance, eventually, as per the memorandum (Exhibit 17) the knife was recovered and, therefore, it would be admissible against both accused Nos. 1 and 3. We has relied on the provisions of section 27 as well as section 30 of the Evidence Act.
17. First, we will briefly examine the evidence in this regard coming forth from Panch Harishchandra (P.W. 10) and Shakin Ahmed (P.W. 12), from whose place the two knives were seized. We have already indicated that article 9 is shown to have been used on the person of the deceased Eklat and thus is an incriminating weapon. Panch Harishchandra states that accused No. 1 stated that he had handed over one knife to one Nande and of that information the panchanamas Exhibit 16, was prepared. Thereafter, accused No. 2 disclosed that accused No. 1 had handed over a knife to him and he had kept it in a bakery at Dr. Veigas Street. A memorandum of that as per Exhibit 17 was prepared. Thereafter, the police along with accused No. 3 went to the bakery at Dr. Veigas Street and accused No. 3 showed the person who produced two knives from one bag and those knives, articles 9 and 10, were eventually seized by the police as per Exhibit 18. In cross-examination, he has asserted that accused No. 1 had disclosed about two knives, but when confronted with Exhibit 16, the panch was not in a position to reconcile his statement. The admissible portion from Exhibit 16 reads :---
".......... gave the knife to one Nanhe who was with me".
and the admissible portion from Exhibit 17, the statement of accused No. 3, reads :---
"I was given two knives by accused Nabi Mohamad ... ... ... handed over the knives to one Shakin Ahmed. I will point out the said place and knives".
The evidence of Shakin Ahmed is to the effect that he knew accused No. 3 and he had thrown those two knives in his bakery and after throwing those knives, he had run away. The police had attached those knives, being articles 9 and 10, when accused No. 3 and 2 to 3 Police Constables had come to his place. Now, therefore, this evidence, of statement contained in the memorandum (Exhibit 16, 17 and 18) as well as of the Panch Harishchandra and upon the statement containing an information, accused No. 3 took the police and the Panchas to the place of Shakin Ahmed and that caused the discovery of the two knives. It is equally clear that the statement recording the information from accused No. 1 did not lead to any discovery of any article, but it is suggested by the prosecution that it led to the discovery of the person who was the co-accused along with accused No. 1. When more than one accused are taken in custody, such types of statements, as are recorded in Exhibit 16, have, in our view, merely a dramatic effect because in all possibility it must be presumed that the police would question each of the accused and would come in possession of the information with regard to the incriminating, or otherwise, circumstances against each of them. All the accused, as the prosecution case stands, were arrested together and from the hospital itself. Therefore, we do not think that Exhibit 16 conveyed something which was not possible to be otherwise known to the investigating machinery. By the very circumstances in all likelihood the investigating machinery should be able to know that it was accused No. 3 who had the knowledge about the alleged knives. This possibility being there, we do not think that Exhibit 16 is inadmissible under section 27 of the Evidence Act.
19. The same is not the position with regard to Exhibit 17, for accused No. 3, admittedly, was in custody and the evidence of both Harishchandra and Shakin Ahmed clearly shows that upon his Statement, the two knives were traced by the police. The use of Exhibit 17 so as to implicate accused No. 1, who was the co-accused, and to make that part of the statement admissible involving accused No. 1 as the person handing over these knives only falls for consideration.
20. The problem posed will have to be determined and settled by reference to the provisions of the Evidence Act and particularly to the provisions of sections 25, 26, 27 and 30 thereof. These sections from part of Chapter II dealing with relevancy of facts and further have been grouped along with the sections dealing with generally the admissions as defined in section 17 of the Evidence Act, the obvious reason being that all confessions are inculpatory admissions on the part of the maker thereof. To be a confession, admission should contain an acknowledge of the guilt. Therefore, all confessions are admissions, but every admission may not be a confession. See A Nagesia v. Bihar State, . The phraseology employed by section 25 and section 26 contains negative and positive injunctions with regard to the confessions by accused person and is indicative as to when and accused whom such evidence is admissible or is not admissible. Confessions made to a Police Officer cannot be proved and as such excluded as against a person accused of any offence in view of the prohibition enacted by section 25. Similarly, confessions made by the person whilst in police custody cannot be proved as against such person under section 26. It is only when such confessions is made in the immediate presence of a Magistrate and is free from the mischief contemplated by section 24 that it can be proved against such person. Emphasis of clear wordings available in sections 25 and 26 is that confessions made by accused person are admissible or not admissible in evidence "against such person" or the maker thereof. What follows from this phrase is that admissible confessions are in the nature of evidence against the confession and as a corollary the same do not partake the character of admissible evidence against others or non-parties thereto. One more relevant provisions that may be referred to is the provision in section 162 of the Code of Criminal Procedure, and any statement made to the Police Officer during the investigation, whether confessional or otherwise, is blotted out and cannot be tendered in evidence because of the statutory bar enacted by that provision. Sub-section (2) of section 162 of the Code of Civil Procedure, however, carves out exception in favour of statements admissible under section 27 of the Evidence Act so also otherwise admissible under section 32 of that Act. This outlay of these provisions is clearly indicative of the principle that all the statements given by the accused person, whether to the police officer during investigation or while in custody cannot be proved nor are admissible, the specific exception being only under section 27 of the Evidence Act.
21. Section 27 of the Evidence Act opens with the word "provided" and in its text contains the clause qualifying the information that is admissible thereunder which reads : "whether it amounts to a confession or not". It is obvious that the section is enacted as a rider and an except to the general rule that statements containing the information received by the police officer from a person during investigation, whether inculpatory or not, are not admissible against such person. Being in the nature of a proviso and an exception to the general rule, it follows that before section 27 is applied, all its conditions must be fully satisfied. Any element wanting would bring in the prohibition rendering the statements as tried to be proved to be entirely inadmissible. Under this provisions, only the statement containing the information leading to discovery coming from the accused while in police custody is rendered admissible. See Delhi Administration v. Balkrishan, , and Eliga Anamma v. State of AD, . Primarily, being the part of the group of sections dealing with admissions and confessions in the Evidence Act, what it admits as evidence is the information received from the accused when such information distinctly relates to the discovery. Such information may be confessional or may not be strictly so, but what is important is, what is permitted to be proved is "the information received from the accused". When the truth of such information during investigating is established or re-assured by its direct connection with the discovery, then the information is allowed to be proved. This provision contains an investigatory mechanics permitting eventual proof of information received from an accused person while in police custody only when it is assured by the fact that it led to discovery. Two things are necessary to satisfy the requirements of the provision. Firstly, there must be a statement containing an information from a person in the police custody accused of an offence and secondly, as the direct consequence thereof, a distinct discovery of fact should eventually be shown to have followed. See K. Chinnaswamy Reddy v. State of A.P., . The facts discovered would be the materials facts such as objects which can be physically comprehanded or perceived. See Ganu Chandra v. Emperor A.I.R. 1932 Bombay 286. When such objective facts are discovered pursuant to the informatic contained in the statement, such information is admissible in evidence against the accused who, while in police custody, supplied that information. The salutary use of this mechan is by practice adds value to the investigation as well as facilitates eventual decisions of criminal trials.
22. It is obvious that the provisions of section 27 are not restricted "to confessions", but its not is much wider that can contain all statements containing information that lead to discovery of facts. All informatory statements pursuant to which discoveries are effected are within its ambits. Such statement eventually may amount to confession or eventually may not be so and yet be incriminating. The significance of this wider amplitude for permitting use of informatory statements by proof that lead to discovery of facts lies in the facts themselves so discovered during the course of the investigation when such information is proved to have distinctly led to such discovery. Facts or materials objects so found become relevant to establish the connection of the informant with the crime concerned. Thus, both the information and the facts discovered assume importance once the informatory statement is admissible.
23. Generally speaking, therefore, discoveries of materials objects that are effected and permitted to be proved along with the mode of such discovery and its place consist of (i) articles connected with the commissions of the given offence, such as weapons, arms, mechanical or otherwise devices, or (ii) the subject with regard to which or against which the offence is committed, such as dead body or the stolen property or the stone booty, or (iii) as well objects or materials that have otherwise evidentiary value in relation to the offence concerned and provide a connecting link between the offence and the offender, such as blood-stained clothes or such articles. Once the information leading to discovery of such articles is established or proved, inferences that primarily arise from informatory statements against the giver of such information depending upon the facts can be : (a) that the informant accused is connected with the facts so discovered and if the fact is incriminatory, the accused's connection therewith is established ; (b) that the fact so discovered was within the exclusive knowledge of the informant ; (c) that the fact is referable to the culpable possession of it by the informat ; (d) that the informant had secreted away the fact with culpable motive and (e) that the informant was a person who was responsible for the culpable act by reason of which the resultant fact was traced and is available. All these inference that arise because of the fact so discovered are not by themselves informatory statements containing any admission of guilt on the part of the accused. These inference that arise may be merely circumstantial bringing the accused nearer the offence and even may not be enough in given cases to inculpate the accused conclusively in the offence with which he is charged and thus would not be confessional. Nevertheless, the informant being known and the informant being admissible because of the resultant discovery, these may be raised and used appropriately against the informant. But these illustrative inferences that can be drawn as a result of the facts discovered cannot further be stretched so as to draw similar inculpatory inferences against the persons who are in the position of the co-accused. Such an exercise would mean drawing an inference from a mere inference having no direct nexus with the non-informant. Hardly that can be logical or reasonable. In the context of the statute like the Evidence Act what is important is the direct evidence against the offender. In the realm of "admissions" and "confessions" it is the statement of the maker that is relevant and his liability can be judged on its basis. The same cannot be fastened on others who have not spoken nor are parties to it. To extend draw such further inference so as to involve the co-accused is not only improper on the principles of fairness and justice but is fraught with obvious danger of false and vexations implications of one by another. As our system of evidence indicates, it is hazardous to fasten the culpability on the basis of such inferences drawn from inferences flowing from statements of others on the person who are not the makers thereof.
24. The inbuilt limitation for its use against the maker in the provisions of section 27 appears us as available because of its setting after the provisions of sections 24, 25 and 26, and particularly the latter two sections and that goes to show that though in the text of section 27 the words "against such person" available in both sections 25 and 26 are not the part of the enacting text, by its very nature the same should be fairly read to be the part thereof. This is particularly so because the character of section 27 is to carve out an exception to the general rule available in sections 25 and 26 and also to cut down to some extent the general provisions of section 24 operative upon the proof of confessions. If it be the exception to the general rule, which has clear reference to the person accused and "against" when the rule of evidence is being enacted, it follows that the exception has to be read as one enacted with regard to such evidence that is admissible as against such person and no other. So read and together, it is implicit in these provisions that what is permitted to be proved having the information received from the accused pursuant to which discovery is made, is intended to be proved against such accused and not against non-informant co-accused.
25. We are aware that in the body of text of section 27 the words "so much of such information, whether it amounts to confessions or not" have been enacted. The phraseology so employed merely shows that such information so given may amount to confession, in that it may be an admission of an incriminating nature or it may be merely an information without implications or involvement of criminal character. On the principles evident herein, such incriminating information could effectively be used only against the maker, as admissible evidence having assurance of its trust coming forth from the facts discovered pursuant thereto. With regard to co-accused, nothing of the kind is available and it would not be safe to use such information involving the co-accused, though such a statement may contain incriminating information with regard to the maker thereof. In fact, such an information even if proved would not strictly be evidence against the non-maker, for the maker is not a witness nor can be subjected to cross-examination. We must hasten to add that this all relates to informatory statement and not to "the facts" so discovered. Like any other fact being available and established as proved, it use would depend on the other evidence that may connect co-accused with such fact though they may not be linked with it by reason of the information that led to its discovery. Against the maker both the information and the fact discovered would be available for drawing inferences while against others the other evidence will have to be produced to connect them with such a fact.
26. Would the provisions of section 30 as enacted by the Evidence Act affect the position we have indicated above with regard to incriminating information 1st in with the aid of section 27 We do not think so. On the other hand, the general departure from the common law that is permitted by section 30 would go to reinforce the conclusions to which we have arrived at. The provisions of section 30 are restrictive in their character and enabling in its operation. By itself that section does not lay down any substantive rule of evidence. It lays down the discretionary rule for the use of evidence already admitted depending upon other factors available in a joint trial of more than one accused. The Evidence Act has enacted distinct provisions with regard to admissibility of confessions and those provisions treat confessions as evidence as against the maker, being "evidence" within the meaning of section 3 of the Act. Section 30, however, merely enables the Court to use such a proved confessions to the extent it may appear to affect the co-accused in a joint trial. The purpose of introducing such a provision is not to make the confessions of one of the accused the piece of evidence against the other accused but to make it available for its use to the extent it may appear to affect the other co-accused. This exceptional provision is enacted clearly upon a guarantee and belief that the person making the clean breat with regard to an offence and entering an admission about his guilt would be presumed to be speaking the truth and, therefore, such a truthful statement having the imprint of truth should also be available to the Court for the limited use against the co-accused affected thereby along with the maker of the confession. See Haricharan Kurmi v. State of Bihar, , and Balbir Singh v. State of Punjab, . It is further well settled that the requirement of section 30 before it is made to operate against the co-accused should be strictly established. In other words, what must be before the Court should be a confessions proper and not a mere circumstances of an information which could be an incriminating one. Secondly, it being the confession of the maker, it is not to be treated as evidence within the meaning of section 3 of the Evidence Act against the non maker co accused and lastly, its use depends on finding other evidence so as to connect the co accused with the crime and that too as a corroborative piece. It is only when the other evidence tendered against the co accused unmistakably points to his guilt, then the confession duly proved could be used against such co accused if it appears to affect him as lending support or assurance to such other evidence. See Haricharan Kurmi v. State of Bihar, . As we have indicated, the very text of section 30 leaves the matter to the discretion of the Court and that by itself obliges the Court to keep the matters of propriety and fairness all in view while using the confession of one accused against his co-accused. The statements containing information leading to discoveries under section 27 may or may not, depending upon the facts and circumstances, be confessional. Those may be simply incriminating. To attract the provisions of section 30 it should for all purposes be a confessions, that is a statement containing an admission of guilt and not merely a statement raising the inference with regard to such a guilt.
27. Looking to the principles on which section 30 is founded and also its discretionary use, we think, it will not be appropriate to read the informatory statements admissible under section 27 involving co-accused with the aid of section 30 of the Evidence Act.
28. We find that there is preponderance of judicial opinion that favours such a conclusions. See Babulal v. Emperor A.I.R. 1946 Nagpur 120 ; Narayan Dinba v. Emperor A.I.R. 1947 Nagpur 57 ; In re: Nandivaca Ganganna Bhore, A.I.R. 1940 Madras 744 ; In re: Abdul Basha Sahib ; Satish Chandra v. Emperor ; Mathur Dhana v. State, ; K. Mohammed v. State of Kerala, A.I.R. 1963 Kerala 54.
29. As far as this Court is concerned, a brief review of few decisions appears to us to be necessary at this juncture. The clear statement in this regard is available in two decisions of this Court, being Emperor v. Shivabai , and Mathur Dana v. State, , the former taking the view on the basis of earlier decisions of the Court that informatory statement amounting to confession under section 27 of the Evidence Act can be used against co-accused with the aid of section 30 thereof, while the latter, without noticing the former holding that such statement of one co-accused is not admissible against another co-accused. No doubt, Mathur Dhana's case does not give reasons for such a conclusions. Therefore, the decision of Fawcett, J. in Shivabhai's case (supra) requires closer scrutiny. Upon scrutiny, we feel that it does not lay down any universal ratio with regard to the statements admissible under section 27 and its use against co-accused by recourse to section 30, but under the facts involving discovery from the place in the ownership of two accused purports to rely on section 30 and also section 8 of the Evidence Act treating the same is incriminating. It is useful to refer to the earlier decisions to which reference is made in Shivabhai's case. In Empress v. Rama Birapa, I.L.R. 3 Bombay 12, the Court was considering the case of a confession recorded by the Second Class Magistrate and in that connection it observed that if the confession was admissible, it was admissible for the purpose of Court taking it into consideration against Rama's co-accused as well as affording strongest evidence against himself. This was clearly with the aid of section 30. As to the discovery, the Court found that the prosecution had been unable to point out any discovery made through information given by the prisoner which would make his statement leading to such discovery admissible. This case, therefore, does not lay down that the statement that led to discovery under section 27 can be used against co-accused. In Queen Empress v. Nano, I.L.R. 14 Bombay 260, the Court ruled that a statement leading to discovery was admissible under section 27 of the Evidence Act and such statement was in the nature of admissions of a criminating circumstance and would from a very important part of the evidence against the accused. Its use against the co-accused did not fall for consideration in that case. In Queen Empress v. Javecharam, I.L.R. 19 Bombay 363, the ratio reached is that the statement made to a police officer by an accused person while in the custody of the police containing an admission of a criminating circumstances could not be used as evidence under section 25 or section 26 of the Evidence Act. In Emperor v. Haji Sher Mohome, A.I.R. 1923 Bombay 65, the Court was truly dealing with a statement of a self exculpatory kind and its use and eventually found that crimination statement was inadmissible under section 25 of the Evidence Act. The decision in Shivabai's case referring to these decisions concluded that criminating circumstances leading to the discovery would amount to confession within the meaning of section 27 and, therefore could be treated as confession for its use with the aid of section 30 and particularly because that section used the word "affect" having wide connotation, such statement of one accused would be admissible in evidence against another accused under section 30 and could be taken into consideration against him. This decision, as we have stated above, by itself is clearly distinguishable, for there the Court eventually used the evidence of discovery with regard to the incriminating burnt pieces of clothes that were traced to the filed belonging to both accused Nos 1 and 2, that is, the accused who made the statement under section 27 and the accused who had not made a statement but was the co-accused. It is that fact, that the field belonged to the accused where incriminating ash was found which assumed importance and that is why the judgment relied on section 8 of the Evidence Act for using that piece of evidence against accused No. 2. Reference to other earlier judgments in Shivabai's case does not support any such position. Those judgments went to the extent indicating that such statements under section 27 being incriminatory amounted to confessional ones. Shivabai's case, therefore, appears to us to have been decided on the particular facts available there and mainly with the aid of section 8 of the Evidence Act. In Emperor v. Shivputraya, A.I.R. 1930 Bombay 244, the Court was concerned with the discovery in consequence of information by one accused as well as the same information given by the other accused. The Court ruled by holding that it would not be legitimate to say that the fact was so discovered from the information given by both the accused. For that, reliance was placed on the earlier judgment of this Court in Queen Empress v. Bashya, 2 Bombay Law Reporter 1089, and Reg. v. Jora Jasji, 11 B.H.C.R. 242 in Ganu Chandra Kashid v. Emperor, A.I.R. 1932 Bombay 286, the Court was concerned with the trial for the offence of dacoity and it observed that section 27 of the Evidence Act allows only that statement to be proved which leads to the discovery of the concrete fact and to which such information is directly related and all other parts of such information were held to be inadmissible and as such to be excluded from consideration. The view of this Court in Ganu Chandra Kashid's case was eventually approved by the Privy Council in Kattaya v. Emperor, A.I.R. 1947 Privy Council 67.
30. Close to our view is the direct ruling in Mathur Dhana case , where the question related to the use of statement of one accused against another. The Court ruled that such a statement would be inadmissible against the co-accused who were the brothers of the maker of such a statement and in the position of the co-accused. This is not to rule out, as we have indicated above, the use of the facts discovered, for those facts may be shown to have connection with the other co-accused apart from the informatory incriminating statement of one of the co-accused. The facts so discovered may include the place, situation, as well as the mode and manner of objective concealment of the incriminating articles.
31. Therefore, keeping in view of the limited admissibility of the information that is allowed to be proved under section 27 of the Evidence Act and also the principles underlying section 30, we are of the view that such an informatory statement leading to discovery is primarily evidence of incriminating nature against the informing accused and not against the co-accused. To come within the purview of section 30, it must be a confession proper containing admission of guilt and it was against the co-accused would be merely for affording corroboration and its use would depend upon other evidence and its evaluation by the Court against co-accused facing joint trial for the same offence.
32. The statement of accused No. 3, to which we have already made a reference, that is, Exhibit 17, could only, therefore, be used under the present facts and circumstances against accused No. 3 and the information containing incriminating involvement of accused No. 1 is not rendered admissible under section 27 against accused No. 1. It being not a confession proper, section 30 does not help the prosecution in this regard. Therefore, the reference in Exhibit 17 to accused No. 1 to the effect "I was given two knives by accused No. 1", is clearly inadmissible against accused No. 1. Excluding that portion, what survives of the statement is that accused No. 3 "handed over knives to one Shakin Ahmed. I will point out the said place and knives". This information led to discovery, for the police were taken to the place of P.W. 12 Shakin Ahmed and eventually two knives were taken charge of by the police. The fact that article 9 had blood-stains of the same groups as that of the deceased renders the information proving an incriminating circumstance, but that, in our view, is not enough to implicate accused No. 3 for the offence of abetting the crime involving criminal assault on Halim and causing homicidal death of Eklat. On the prosecution case itself, the circumstance is equivocal and is suggestive of coming into possession of the weapon used by some one lease. Unless other evidence is satisfactory about abetment it will be risky to uphold the conviction of this accused for abetment of the principal offence. The other circumstances, being that immediately after the incident accused Nos. 3 and 4 were seen moving along with accused Nos. 1 and 2 and were eventually arrested together, are too equivocal and are not sufficient to implicate accused Nos. 3 and 4 in that offence particularly because from the perusal of the evidence of the four eye-witnesses it is not possible to hold that accused Nos. 3 and 4 did the shouting so as to abet the crime. At the most, the circumstances raise possibility but not certainty.
33. The question, however, remains as to what is the evidentiary value of article 9 so received during the investigation, as far as the other accused are concerned. The evidence of Shakin Ahmed goes to prove that it was accused No. 3 who threw the two knives, articles 9 and 10, which he collected and eventually hand over to the police when the police appeared on the scene along with accused No. 3. The other evidence which is more or less not in dispute of the police officials, including that of the Investigating Officer P.S.I. Bhalme, clearly shows that all the accused, including accused No. 3, were together and were arrested as such within a short time after the incident. These circumstances that cannot be in serious dispute show that though we are inclined to extend the benefit of doubt to accused No. 3 along with accused No. 4, these knives which were recovered at the instance No. 3, must have been the weapon used during the course of the incident. The direct evidence connects accused Nos. 1 and 2 with two knives, who were arrested in the company of accused No. 3 who is shown to have handed over the knives to Shakin Ahmed. The finding of human blood of 'S' group on Article 9 reinforces the conclusion that it was used against the person of the deceased. Read with the eye-witness account, it is certain that accused No. 1 used the same and the further circumstances established to fortify such a conclusion.
34. Turning to the conviction of accused No. 2 with the aid of section 34 of the Indian Penal Code, no doubt, the facts indicate that Halim's stroke on his head disabled him as the incident developed which resulted in assault upon Halim and deadly injury upon Eklat. The question is whether accused No. 2 could be said to possess the common intention with accused No. 1 with regard to these culpable assaults. Such a question has to be determined and decided on the basis of facts and circumstances in which the offence has been committed. The actual assault and the involvement therein undoubtedly is of central importance. But culpable liability may arise and be indicated with certain assurance because of preceeding, intervening as well as succeeding conduct of the person accused of an offence and claimed to be involved therein. Section 34 of the Indian Penal Code enacts a rule of coextensive culpability when offence is committed with common intention by more than one accused. Such co-extensive culpability would be indicated by reason of actual participation, some overt act, active presence, pre-plan and preparation and eventual participation therein as well immediate conduct after the commission of the offence. When the question of such a kind arises while a person is charged with the aid of section 34 of the Indian Penal Code, all those and connecting relevant factors have undoubted significance. Safe rule is that the entire conduct of the accused, preceding the commission of offence, during its commission and succeeding it together should be considered to infer his intention that alone would render him culpable co-extensively with others involved in the Commission of the offence. It is immaterial by whose hand the eventual blow was dealt when the offence is of criminal assault. Common intention backing the commission of criminal act would be reinforced by other factors, one of these being the conduct of the accused. Intention after all is by far a psychological fact. Its realisation may be objective but its seat is largely subjective. Meeting of more than one mind in doing or for bearing to do an act that amounts to an offence can be said to result in having common intention in doing or for bearing to do it. That given rise to co-extensive culpable liability under section 34 of the Indian Penal Code.
35. The evidence which is already referred to in details of the eye-witnesses positively indicates that accused No. 2 came along with accused No. 1; it is because of accused No. 2's grievance that they approached Tosa Bakery for the settlement of his dispute with Nissar; Nissar was called out and questioned by accused No. 1; both accused Nos. 1 and 2 were armed and when Nissar asked them to postpone the talk till the next morning, both of them took out the knives and when Nissar withdraw into the premises of Tosa Bakery, both moved forward with open knives and were seen moving ahead by Halim who appeared on the scene. It was Halim who disabled accused No. 2 by means of a stroke given by the iron bar. Thereafter, the assault by accused No. 1 on the person of Halim and Eklat took place. The evidence further indicates that after this assault, accused No. 2 in the company of accused No. 1 along with accused Nos. 3 and 4 went to the Police Station and also to the hospital and they were put under arrest by the police immediately with regard to the investigation of this offence. This conduct of accused No. 2 clearly shows the pre-plan with regard to the participation in the commission of the offence itself. Both accused Nos. 1 and 2 had the common intention to commit culpable acts and their conduct of coming together, being armed and leaving together, is an assurance for drawing an inference so as to extend culpability to accused No. 2 with the aid of section 34 of the Indian Penal Code.
36. The direct evidence of the eye-witnesses clearly Rules out the possibility of any right of private defence being available to either of accused Nos. 1 and 2, and particularly the evidence of Nissar shows that after he had heard the call, he had gone out on the road and had receded back into the premises of Tosa Bakery. Eventually, both these accused with weapons like knives in their hands rushed towards the bakery and the incident had taken place somewhere near about the steps of the bakery that lead to the verandah which is the part of the front portion of the bakery.
37. Under these circumstances, we find no merit in the appeal of accused Nos. 1 and 2. Their appeal eventually fails and is dismissed. As far as the appeal of accused Nos. 3 and 4 is concerned, on the basis of the evidence, they are entitled to acquittal of the offence for which they have been found guilty. The appeal of appeal Nos. 3 and 4 is, therefore, accepted and the other of conviction and sentence passed against them is set-aside. They be set at liberty forthwith.