JUDGMENT Mohammad Ismail, J.
1. Udhan Lohar, resident of village Salempur, District Farrukbabad, appeals from his conviction and sentence under Section 302, I.P.C., for having caused the death of Thakur Banwari Singh on the night between 31st May and 1st June 1938 at village Tera. There is also a reference before us by the learned Sessions Judge for the confirmation of the death sentence imposed on the appellant. The prosecution story is that Banwari Singh deceased was sleeping outside his house when he was set upon by the appellant Udhan and two other persons named Bhawani and Pooran and was done to death by spear wounds and lathi blows. The wife of the deceased and his aunt were sleeping in side the house and his son Rameshur was sleeping outside at some distance. They heard the noise and coming to the place whore the deceased was sleeping they found that Banwari Singh was dead and a sheet covered his body. A report of the occurrence was made at the instance of the relatives of the deceased by the village Chaukidar named Misri at 6 A.M. The Thana is at a distance of 2 1/2 miles from village Tera. In the report no name of the accused person was mentioned. It was stated that Misri was asked by the son of the deceased and his widow to make the report and on being asked as to the details of the occurrence they said that they would make a statement when some responsible person would visit the place. After investigation the three persons named above were put on their trial. The learned Sessions Judge found insufficient evidence against Pooran and Bhawani and accordingly acquitted them. In the opinion of the learned Sessions Judge the charge against the appellant was fully established by circumstantial evidence and the confession of the appellant. He accordingly convicted and sentenced the appellant as stated above. The motive for the crime is said to be enmity between the deceased and the appellant.
2. It appears that Udhan originally belonged to village Salempur but after the death of his father, when he was only about 12 years old, he came to village Tera to reside with his uncle Roshan. On attaining majority, Udhan built a house for himself and began to live in it separate from his uncle Roshan. Some time before the occurrence, it is alleged that Udhan contracted illicit connexion with the wife of one Shamle. Later, it is said that Banwari Singh, deceased, ousted Udhan from the favour of the woman and succeeded in preventing Udhan from visiting the house of Shamle. This is said to have enraged Udhan against Banwari Singh. It is also stated that Roshan had arranged the marriage of Udhan in village Mahsulapur but Udhan refused to marry there because Shamle's wife had arranged a marriage for him with her own niece, that is, the daughter of Shibu. It is suggested that Udhan was anxious to marry this girl because through this marriage he would succeed in regaining the favour of Shamle's wife and eventually supersede Banwari Singh. Evidence has been led to prove that Banwari Singh brought pressure upon Shibu to refuse to marry his daughter to Udhan. This further strained the feelings between the deceased and Udhan. It is not necessary for us to consider the evidence led by the prosecution to prove the motive for the crimes, because, in our opinion, the evidence implicating the accused with the commission of the offence is wholly inadequate.
3. It is conceded that there is no direct evidence of this murder. Some attempt was made to prove that all the accused persons were seen running away from the house of Banwari Singh after the commission of the offence. But the learned Sessions Judge has disbelieved the statement of P.W. Makka who was produced to prove this fact. We are in entire agreement with the learned Sessions Judge that Makka is not a reliable witness and no weight can be attached to Ion testimony. The only evidence relied upon is the alleged statement of Udhan to the Sub-Inspector Habib Hasan which led to the discovery of a spearhead and a lathi. Sub-Inspector, Habib Hasan, P.W. 19, states that Udhan told him that he killed (Bunwari Singh) with a spear and then broke the spear and threw the spearhead in the well and the lathi in the talab. After this statement, the Sub-Inspector was taken by Udhan to the talab and there ho brought out the lathi from under the mud in the talab and then he took the Sub-Inspector to the well and told him that the spearhead was thrown in that well. The Sub-Inspector deputed one Mindai Kahar to dive into the well and search for the spearhead. Mindai Kahar brought out the spearhead. The spearhead was sent to the Chemical Examiner who noted that the suggestion of the police that the spear head was stained with blood was not confirmed. From the report of the Imperial Serologist, it appears that the stains disintegrated and their origin could not be determined. Several witnesses have been produced to prove that the accused Udhan did make the statement attributed to him which led to the discovery of the spearhead with which the deceased Banwari Singh is said to have been injured which resulted in the latter's death. Learned Counsel for the appellant contends that in the first place the alleged statement of Udhan is not admissible in evidence and secondly even if it is admissible it is wholly Insufficient to base the conviction upon.
4. Section 27, Evidence Act, provides 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. This Section has been the subject of discussion in numerous cases, and it must be conceded that there is a good deal of conflict of judicial opinion upon the interpretation of this Section. In Sogaimuthu Padayachi v. Emperor (1926) 13 A.I.R. Mad. 638 it was held:
If an accused makes a statement under Section 27, Evidence Act, the whole of the statement which leads to the discovery of the stolen article is admissible and it should not be out up so as to confine it only to the actual words which the accused may use to express the fact that be had hidden the properties.
5. In Emperor of India v. Pancham (1882) 4 All. 198 a different opinion was expressed. In that case the facts were that on 2nd October one Panoham, accused of murder of a girl, gave to a police officer a knife saying that it was the weapon with which he had committed the murder. He also said that he had thrown down the girl's anklets at the scene of the murder and would point them out. On the following day he accompanied the police officer to the place where the girl's body had been found and pointed out the anklets. A Bench of this Court held that such statements, being confessions made to a police officer whereby no fact was discovered, could not be proved against Pancham. Straight, J., in the course of his judgment observes as follows:
As to the statement made by the appellant with respect to the knife, that is an obvious confession, and his remark about the anklets bear a like construction. But with regard to the latter, it is obvious that the anklets were not discovered in consequence of what he had said, for on the contrary the appellant himself went with the police and pointed out the spot where they were lying. In short it was by his own act, and not from any information given by him, that the discovery took place.
6. The above observations would undoubtedly exclude a considerable portion of the statement said to have been made by Udhan and admitted by the learned Sessions Judge. In Queen-Empress v. Babu Lal (1884) 6 All. 509 a Full Bench of this Court had to interpret Section 27. Oldfield J. at p. 519 remarks:
I can best express my own opinion as to the meaning of Section 27 by stating a case as follows : The chaukidar of Mauza Rampur gives information at the neighbouring police station that Zalim Singh, of the said village, is missing, and that fears are entertained that he has been murdered. The Sub-Inspector, immediately on receiving this report, repairs to Rampur, and on his arrival there, and whilst he is standing close to a well, Gobindi Kahar comes up to him and says, "I give myself up; I am guilty," and then makes a voluntary and full confession, stating the particulars of the crime and the reason for committing it, and concluding by saying, "the knife with which I committed the murder is, together with the body, in this well." The well is thereupon searched, and a knife and the body of Zalim Singh, with a knife, wound through the heart, are thence recovered.
The entire confession made to the Sub-Inspector cannot, with reference to Section 25, Evidence Act, be used as evidence against Gobind Kahar, but the Sub-Inspector, when giving evidence in Court as to the discovery of the oorpse and the knife, is, under the provisions of Section 27 of the Act, competent to depose that be had searched the well, and had found the today of Zalim Singh and a knife, owing to Gobind Kahar having given the following information, viz. "the knife with which I committed the murder is, together with the body, in this well."
7. Having regard to the view of law taken by the Full Bench, we are not prepared to accept the contention of learned Counsel that the statement made by Udhan to the Sub-Inspector Habib Hasan is not admissible in evidence. The next point to be determined is whether the statement said to have been made by Udhan brings home the guilt to him. We have no reason to doubt the testimony of Sub-Inspector, Habib Hasan, and other witnesses that in consequence of the information given by Udhan a spearhead was recovered. We however do not consider that it would be safe to uphold the conviction of the accused only on that statement. The value of extra-judicial confessions, except in very rare cases, is not very high. It is admitted that the time the statement was made Udhan was in police custody. The usual precautions enjoined by law taken by a Magistrate before recording a confession would not be taken by the Sub-Inspector. The appellant on the earliest possible opportunity disclaimed all responsibility for the statement. As we have stated above, we do believe that Udhan made the statement attributed to him. But it does not necessarily prove that he committed the murder or that the statement was voluntary. The spearhead found did not contain any stains of human blood. Such spearheads are very common and can be found in large numbers in every village. Even if we believe that the deceased was speared with this spearhead, there is no evidence besides the statement of Udhan that the deponent was one of the assailants. It would be very unsafe to rely upon an extra judicial confession of this kind when there is no other corroborative evidence in support of it. Under the circumstances we think that the benefit of doubt should be given to the appellant Udhan. We accordingly allow the appeal, set aside the conviction and sentence imposed on Udhan and acquit him. We direct that he be set at liberty forthwith unless required in connexion with other case.