John Freeman Norris, J.

1. (After setting out the facts and detailing the evidencecontinued).--I am inclined to think that the Judge has attached too littleweight to the evidence as to the circumstances under which the accused made hisstatement; but, however that may be, I am of opinion that so much of thestatement as related distinctly to facts thereby discovered was admissible inevidence, not as a confession, but as evidence of the facts thereby discovered.

2. Now it seems to me that no facts deposed to werediscovered by the prisoners statement, "that he had robbed Kristo Rishiof Rs. 48, whereof he had spent Rs. 8 and had Rs. 40." Upon this point theSessions Judge says: "According to Straight, J., in Empress of India v.Pancham I.L.R. 4 All. 198 and Queen-Empress v. Babu Lal I.L.R. 6 All. 509 theevidence of Adus statement that he had robbed Kristo Bishi of Rs. 48 isinadmissible, but Stuart, C.J.S opinion in the first case is in favour of itsadmission in explanation of the delivery of the money and the case of The Queenv. Paqaree Shaha 19 W.R. 51 is a distinct authority therefor. Section 27, Act Iof 1872, moreover legalises the reception of any statement of an accusedwhether amounting to a confession or not, which leads to the discovery of amaterial fact, and it is clear that the confession of the robbery was thenecessary preliminary of the surrender of the Rs. 40, and it is impossible toseparate them. Had he not confessed the robbery Adu would not have made overany money to the Sub-Inspector; and the surrender of the money must necessarilyhave been accompanied or immediately preceded by some explanatory statement. Ihave accordingly received the evidence thereof." Now I cannot agree withthe Judge, when he says "the confession of the robbery was the necessarypreliminary to the surrender of the Rs. 40," still less can I agree withhim when he says "it is impossible to separate them," by which Isuppose he means "impossible to separate this part of the prisonersstatement from what preceded and followed it."

3. I emphatically endorse the observation of Straight, J. inQueen-Empress v. Babu Lal I.L.B. 6 All. 509 where he says: "No judicialofficer dealing with such provisions should allow one word more to be deposedto by the Police officer detailing a statement made to him by an accused, inconsequence of which he discovered a fact, than is absolutely necessary to showhow the fact that was discovered is connected with the accused, so as in itselfto be a relevant fact against him. Section 27 was not intended to let in aconfession generally, but only such particular part of it as set the person towhom it was made in motion, and led to his ascertaining the fact or facts ofwhich he gives evidence;" and I must respectfully but firmly express mydissent from the observations of Stuart, C.J. in Empress of India v. PanchamI.L.R. 4 All. 198 where that learned Judge says: "But I have no doubt inmy own mind that statements by Police officers embodying and including what maybe understood as a confession or admission of guilt by an accused person arenot wholly inadmissible, but may be received and, applied so far as they provemerely corroborative circumstances and not an absolute confession ofguilt."

4. I am also of opinion that the prisoners admission thathe had assisted Ram Kristo in the theft of Raj Chunder Rishis hides wasinadmissible. The fact of the theft of these hides was already known, thoughnot to the Sub-Inspector; and I think it would be a most dangerous thing toextend the provisions of Section 27 and allow a Police officer who isinvestigating a case to prove an information received from a person accused ofan offence in the custody of a Police officer, on the ground that a materialfact was thereby discovered by him, when that fact was already known to anotherPolice officer.

5. Now, considering the whole oral evidence, and acceptingthe prisoners admissions (subject to what I have said I think ought to berejected) as true, how does the case stand

6. I think it may be taken to be proved that the prisonerand Ram Kristo left Hogla in company on the night of 29th Kartic inKamaruddins boat; that on the way Ram Kristo pawned the chain and keys toIshan Chunder Das; that they continued their journey to Barisal where theyarrived on 30th Kartic, and where Ram Kristo sold 21 hides for Rs. 50, which hereceived in cash, to Rahim Buksh; that the prisoner, though not actuallypresent at the sale, knew of it, and knew that Ram Kristo had received Rs. 50;that they left Barisal in company; that at some period he quitted Kamaruddinsboat, took Ammuddins boat, travelled a certain distance in it, then abandonedit and walked home, and that Ram Kristo has not since been heard of. This isall that I think can be taken to be proved, even accepting the prisonersadmission as true.

7. I do not think that is sufficient to convict the prisonerof murder.

8. In Russell on Crimes, 4th edition, Vol. I, p. 770, it issaid: "It has been considered a rule that no person should be convicted ofmurder unless the body of the deceased has been found." And a very greatJudge says: "I would never convict any person of murder or manslaughterunless the facts were proved to be done, or at least the body be found dead.But this rule, it seems, must be taken with some qualifications; andcircumstances may be sufficiently strong to show the fact of the murder, thoughthe body has never been found. Thus, where the prisoner, a mariner, wasindicted for the murder of his captain at sea, and a witness stated that theprisoner had proposed to kill the captain, and that the witness beingafterwards alarmed in the night by violent noise, went upon deck, and thereobserved the prisoner take the captain up and throw him overboard into the sea,and that he was not seen or heard of afterwards; and that near the place on thedeck where the captain was seen, a billet of wood was found, and that the deckand part of the prisoners dress were stained with blood; the Court, thoughthey admitted the general rule of law, left it to the jury to say, upon theevidence, whether the deceased was not killed before his body was cast into thesea; and the jury being of that opinion, the prisoner was convicted, and (theconviction being unanimously approved of by the Judges) was afterwardsexecuted.

9. But where upon an indictment against the prisoner for themurder of her bastard child, it appeared that she was seen with the child inher arms on the road from the place where she had been at service to the placewhere her father lived, about 6 in the evening, and between 8 and 9 she arrivedat her fathers without the child, and the body of a child was found in atide-river near which she must have passed in her road to her fathers, but thebody could not be identified as that of the child of the prisoner, and theevidence rather tended to show that it was not the body of such child, it washeld that she was entitled to be acquitted; the evidence rendered it probablethat the child found was not the child of the prisoner; and with respect to thechild, which was really her child, the prisoner could not by law be called uponeither to account for it, or to say where it was unless there were evidence toshow that her child was actually dead.

10. I will not go so far as to say that under nocircumstances, in this country, could a charge 6f murder be sustained withoutproof of the finding of the dead body, but considering the well-authenticatedinstances of the subsequent appearance in the flesh of persons said to havebeen murdered, and whose death has been deposed to by eye-witnesses, theproduction of bones, alleged to be those of a man, and discovered to be thoseof a Woman, and the numerous false charges which are brought against innocentpeople, I should require the strongest possible evidence as to the fact of themurder if the dead body were not forthcoming; that evidence is, I think,wanting here.

11. If the evidence of Jasimuddin, his brother, and mother,as to Ram Kristos dying declaration is put on one side, as 1 think, it oughtto be, there is no evidence to support the charges of grievous hurt and robbery.

12. With regard to the charge of stealing Aramuddins boat,I do not think it can be sustained, as there is not only no evidence that theprisoner intended to convert it to his own use, and make it permanently his ownproperty, but the evidence is entirely the other way.

13. The charge of the theft of the 19 hides from Raj ChunderRishis verandah rests entirely upon the prisoners statement to Mookerjee,which I have already said, I think, was inadmissible.

14. Thus, in my opinion, all the charges against theprisoner fail, and he must be acquitted of them all and discharged from jail.

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Adu Shikdar vs.Queen-Empress (29.05.1885 - CALHC)