Judgement

Appeal by Special Leave (No. 81 of 1938) from a judgment of the High Court (November 9, 1937), which confirmed a judgment of the Sessions Judge of Berhampore (September 15, 1937).

The appellant was convicted of the murder of a man whose dismembered body was found in a trunk on March 23, 1937.

At the trial, a statement made by the deceased to his wife on March 20, 1937, to the effect that he was going to the house of the appellant on March 21 and a statement by the appellant to a police officer investigating the crime on April 4 to the effect that the deceased slept at the appellants house on the night of March 21 and left the following day were admitted in evidence.

It was contended on behalf of the appellant that, having regard to s. 32 of the Indian Evidence Act and

s. 162 of the Code of Criminal Procedure, these statements were inadmissible in evidence and that, apart from these statements, the evidence was insufficient to justify a conviction.

The material facts are more fully stated in the judgment of the Board.

1938. Dec. 12,15,16,19. Pritt K.C. and H. W. Williams for the appellant. On the question of the admissibility of a statement made by an accused person to a police officer during his investigation and recorded under s. 162 of the Code of Criminal Procedure, there has been a divergence of view in the High Courts in India. The judgment of Rankin J. in Azimuddy v. Emperor (( 1926) I. L. R. 54 Cal. 237.) and that of Reilly J. in In re Syamo Maha Patro (( 1932) I. L. R. 55 Mad. 903.) are typical of the two views. In my submission, the correct view is that taken by Reilly J. The section in terms absolutely prohibits statements made to the police during investigation being used except for the purposes therein provided for and a statement made by an accused person cannot fall within the saving clause. The view taken in Jogendranath Gorai v. Emperor (( 1935) I. L. R. 63 Cal. 419.), a later Calcutta case, differed from that in Azimuddys case (( 1926) I. L. R. 54 Cal. 237.) but Azimuddys case (( 1926) I. L. R. 54 Cal. 237.) was not referred to in it. There are a number of decisions on the question. We have an agreed list of cases on the point, and, with permission, will put it in. [The Board directed the list to be handed in.]

If the statement is one of an incriminating nature, it would also be ruled out as a confession under s. 25 of the Evidence Act. " Confession " is not defined. But, upon the authorities, it appears that if the statement of the accused proves facts which are part of the incriminating facts of the prosecutions case, if the accused says something which can fairly be construed as " I committed the offence," his statement would be a confession. If the statement is a mere admission which simply provides a fact which is not sinister, then it is not a confession. The case here, I submit, falls within the rule in Imperatrix v. Pandharinath (( 1881) I. L. R. 6 Bom. 34.) which is confirmed in Queen-Empress

v. Nana. (( 1889) I. L. R. 14 Bom. 260.) The strongest case the other way is Emperor v. Kangal Mali. (( 1905) I. L. R. 41 Cal. 601.) The other question is that of the admissibility of the statement made by the deceased to his wife to the effect that he was going to the house of the accused. I submit that this statement cannot be said to be a statement as to a circumstance of the transaction which resulted in his death. The transaction, in my submission, means the activities which resulted in the death Rego v. Emperor. (( 1933) I. L. R. 29 Nag. 251,259.) But this case is against me on the question under s. 162 of the Code of Criminal Procedure.

[The rest of the argument was directed to the facts, on the assumption that the two statements were inadmissible in evidence.]

G. D. Roberts K.C., Wallach and Megaw for the respondent. (Called on to reply only on the questions raised under s. 162 of the Code of Criminal Procedure and ss. 25 and 32 of the Evidence Act.) We submit that the words " any person M in s.