Full Judgment
M.F. Saldanha, J.
1. We have heard the learned Advocates on both sides. The prosecution had alleged that on the right of 31-5-1998 at about 9 p.m. the 3 accused had inflicted stab injuries on the complainant and the injuries being of some seriousness, he was taken to the hospital and was retained as an impatient for 3 and 1/2 months. The 3 accused were known persons. They were placed under arrest and in the course of investigation certain weapons were also recovered from them. The trial Court adopted an ultra-technical view and held that the offences were not made out and consequently acquitted the accused and the State has challenged the order of acquittal through the present appeal.
2. The learned Addl. SPP has submitted that the evidence of the injured complainant who has in terms implicated all the 3 accused corroborated by the medical evidence is alone sufficient to sustain the conviction because there is no valid ground on which this evidence could have been discarded. On the other hand, the respondents' learned Advocate submits that as far as A1 is concerned, it is very important to note that the injured complainant has in terms stated that A1 had stabbed his thigh with a knife. Learned Advocate Sri Ahmad, appearing for R1 points out to us from the medical evidence that there is no injury and that too a stab injury on the thigh and that consequently, it is very clear that A1 has been falsely implicated. Also, on the basis of the decision reported in ILL 1994 Kant 491 the learned Advocate has submitted on a point of law, that as far as the recovery evidence is concerned, P.W. 12 who is the I.O. has deposed that after his arrest Al made a certain statement which is recorded in the mahazar and pursuant to that statement he led the police and the panchas to a place called 'Harihara Gudda' from where the knife Exhibit P3 was produced by him. This recovery evidence which strongly implicates Al has been challenged by the learned Advocate on the ground that in the aforesaid decision the Division Bench has held, that unless the evidence of the I.O. very clear sets out as as to what precisely the nature of the statement was or in other words, unless the I.O. deposes to the effect that the accused made an incriminating statement which led to the recovery or discovery, that the evidence is useless. The facts of that case are not very clear though the learned Judges have reproduced the deposition of the police officer in the proceeding before them. What we need to amplify is that as far as Section 27 is concerned, that the legal position is extremely delicate. For very good reasons the law totally prohibits the use of a confession made to a police officer in a criminal proceeding as a basis for a conviction. Having regard to what transpires during investigation there is valid ground why the law prohibits the use of such evidence. A confession has been made however insofar as under Section 27 of the Evidence Act that it is still permissible for the Court to admit in evidence such part of the statement made by the accused that leads to the recovery or discovery. The trial Judges, therefore, are required to virtually lean on the safe side while recording the evidence. Invariably, the I.Os. make the mistake of recording the statement attributed to the accused in the following from; I will show you the place where the weapon which was used for committing murder has been bidden.' On a simple clear application of Section 27 the later part of this statement is totally inadmissible in so far as it implicates the accused in the offence and is in the form of a confession and, therefore, it is only the first part of it that is admissible. We need to therefore distinguish the interpretation that has emerged in the decision that has been quoted by us supra and to clarify that it is therefore fully justified on the part of the trial Court to record the evidence in the form as has been done in this case, viz., that the accused made a certain statement pursuant to which he led the police and the panchas to the place from where he produced the weapon in question. This evidence in our considered view, fully meets with the requirements of law. What the Court takes into cognizance is, that it is pursuant to the statement made by the accused that the weapon or blood stained clothes or property as the case may be has been recovered and the nexus with these items coupled with the knowledge that they were kept at a particular place known to the accused, are the factors which incriminate. This material is admissible under Section 27 of the Evidence Act. Under these circumstances, we need to record that the objection canvassed in the present case with regard to the recovery evidence cannot be upheld.
3. On a careful consideration of the material before us, we hold that the 3 accused were involved in the incident in question. Their presence has been established and consequently for having assaulted the injured with a deadly weapon they are liable for having committed the offence punishable under Section 32527 read with Section 34, I.P.C. We accordingly confirm the order of acquittal under Section 307 read with Section 34, I.P.C. and we convict Al to A3 under Section 325 read with Section 34, I.P.C. Having regard to what is pointed out on their behalf, the nature of the incident and the time that has elapsed since the incident, we direct that they shall undergo imprisonment for the period already undergone and pay a fine quantified at Rs. 1500/- each. The fine amount to be deposited in the trial Court within 3 months from today. If the accused fails to deposit the amount the trial Court to recover the same from them. After the amount in question is recovered, the trial Court to issue notice to the injured Varadaraj who is P.W. 8 and to pay over the full amount so recovered as and by way of compensation.
4. The appeal succeeds to this limited extent and stands disposed of.