Only that part of the confession which leads to the recovery of the body or articles can be proved under Section 27 of the Evidence Act.

KALIDAS MUKHERJEE, J.

1. THIS is an application under Section 482 Cr.P.C. assailing the order dated 09.3.2009 passed by learned Additional Sessions Judge, 2nd Fast Track Court, Berhampur in Sessions serial No. 154 of 2008 under Section 376(2)(g)/302/34 of the Indian Penal Code.

2. IN course of the evidence of Chandan Das, S.I. of Police the prosecution sought for permission to exhibit the statements of the accused recorded under Section 161 Cr.P.C. The defence immediately filed an application on 14.1.2009 contending, inter alia, that such statement was not admissible. It has been contended that the learned Trial Judge by the impugned order dated 09.3.2009 illegally and without application of judicial mind rejected the petition filed by the defence and held that the whole of the statements recorded under Section 161 Cr.P.C. were admissible in evidence and directed the same to be marked as exhibit 12 and exhibit 13. It has been further contended in the application that the learned Judge did not consider that the purported confessional statements were allegedly made by the petitioners while in police custody and, as such, inadmissible in evidence. It is contended that the learned Judge did not take into consideration the provision of Section 27 of the Indian Evidence Act. Being aggrieved with the order impugned, the accused persons have filed the instant application.

The learned Counsel appearing for the petitioners submits that the statements under Section 161 Cr.P.C. are inadmissible in evidence except where it leads to the recovery under Section 27 of the Indian Evidence Act. It is contended that the whole of the statements cannot be marked exhibit. It is contended that the learned Trial Judge observed that the point of recovery could not be separated from the rest of the statement and, as such, the whole of the statements should be marked exhibit. The learned Counsel has referred to and cited the decision reported in 2008(2)SCC (Cri) 266 [Alok Nath Dutta and others Vs. State of West Bengal] paragraph 54.

3. THE learned Counsel appearing for the O.P. State submits that if the statement regarding recovery can be separated from the rest of the statement that portion should be marked exhibit. In this connection the learned Counsel has referred to and cited the decisions reported in 2005(3) CHN 557 paragraph 27 [Nazrul Sk. @ Nazrul Mondal Vs. State of West Bengal] and AIR 1962 Supreme Court 1788 paragraphs 9 and 10 [K. Chinnaswamy Reddy Vs. State of Andhra Pradesh and another].

4. IN this case of Aloke Nath Dutta and others Vs. State of West Bengal (Supra) it has been held in paragraph 53 as follows:- 53. It is, however, disturbing to note that a confession has not been brought on record in a manner contemplated by law. Law does not envisage taking on record the entire confession by marking it an exhibit incorporating both the admissible and inadmissible part thereof together. We intend to point out that only that part of confession is admissible, which would be leading to the recovery of dead body and/or recovery of articles of Biswanath; the purported confession proceeded to state even the mode and manner in which Biswanath was allegedly killed. It should not have been done. It may influence the mind of the Court. (See State of Maharashtra V. Damu, SCC at P. 282, para 35.)

In the case of K. Chinnaswami Reddy Vs. State of Andhra Pradesh and another (Supra) it has been held in paragraph 9 as follows:- 9 Section 27 allows that part of the statement made by the accused to the police whether it amounts to a confession or not which relates distinctly to the fact thereby discovered to be proved. Thus even a confessional statement before the police which distinctly relates to the discovery of a fact may be proved under Section 27.

5. P.W. 18 S.I. Chandan Kumar Das has stated that he recorded the statement of accused Shibu Talukdar and Ratan Halder in course of investigation. He has stated that he seized broken brick, one branch o