Horace Owen Compton Beasley, C.J.

1. The following questions have been referred to the Full Bench, namely:

2. (1) Is the whole or any part of the following statement:

He said that at about 11 P.M. on the night of 26th March, 1936, himself and Gurunatha Goundan, son of Kanda Goundan of Erangattur, together killed Sennimalai Goundan alias Sottayan by gagging his mouth with cloth and throttling his neck with hands and also by putting a rope and pressing it,.... that that night... they got two bottles of illicit arrack by paying Rs. 2 to Gandhi Ranga Royan of Kallipatti who got it from some other place,... that a small quantity was left over in one bottle only, that... (they) buried (1) the empty bottle, (2) a rope and the cloth gag in a dung hill next to the cattle-shed in the same compound and the other bottle with some arrack in a heap of mud near a log of wood in corner of the compound east of the choultry at Kallipatti and that he would go and take them and produce them. This is known to us

3. Alleged to have been made by the first accused--admissible against the first accused under Section 27 of the Indian Evidence Act and if yes how much of it; and

4. (2) If the answer to No. (1) is in the affirmative, can such statements or any part thereof be "taken into account" against the second accused under Section 30 of the Indian Evidence Act?

5. In the Order of Reference my learned brothers Mockett and Horwill, JJ., the referring Judges, directed that, in order that the Full Bench could give the fullest consideration to this matter, the whole of Ex. G which sets out the statement made by the first accused should be typed and added to the record to be placed before the Bench. This direction has been carried out and the Court translation of Ex. G where it relates to the cloth buried in the dung hill reads as follows:

The cloth which was used for gagging the mouth.

6. The learned Counsel for the appellants agree that that is the correct translation.

7. The facts of this case are sufficiently stated in the Order of Reference and I will therefore proceed to discuss Section 27 of the Indian Evidence Act which my learned brothers in their Order of Reference correctly say has given rise to opinions which from the case-law are by no means uniform. That section reads as follows:

Provided 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.

8. Divergent opinions have been given by Judges upon how much of statements made by the accused persons in the custody of the police in consequence of which facts are thereby discovered can be proved of which the following may be given as examples, namely, that the accused has buried the weapon with which he cut or stabbed the deceased in a certain place or has stolen property which he has pledged or disposed of with certain persons, or has with the property stolen done something, or has murdered someone and thrown the body into a well, or has buried a weapon, adding with which he stabbed or cut the deceased. Some judges have taken the view that only such part of the statement as relates to the burial or disposal of the articles can be proved and that the further part that the article had been used by the person for stabbing or cutting, or that the property disposed or pledged, etc., was stolen property must be excluded; other judges have taken the view that the latter statement can also be proved; and the cases directly bearing on this question need very careful examination.

9. The first of these is Reg. v. Jora Hasji and Ors. (1874) 11 B.H.C.R. 242 the headnote of which reads as follows:

Under Section 27 of the Indian Evidence Act nor every statement made by a person accused of any offence while in the custody of a police officer, connected with the production or fin