Rowland, J.This is a reference by the Sessions Judge of Cuttack u/s 374, Criminal P.C. for confirmation of the sentence of death passed by him on Mayadhar Pothal who has been convicted u/s 302, Penal Code, on a charge of the murder of an old woman named Fula Bewa who used to live alone in her house in Krishnaraipur. The murder is said to have been committed on the night of 21st October 1938, in the angan of the deceased. There is a chula or a raised hearth with a hole in the top. The body was found on the morning of 22nd October 1938, with the head thrust into the mouth of the chula. Death had been caused by a number of incised wounds on the back of the neck and the back. The lobes of the ears had been cut by some cutting instrument and the ear-rings removed from them. Robbery is naturally the motive ascribed. There is evidence of several neighbours that the deceased used to wear two pairs of gold ear-rings.

2. There is no eyewitness and the case against the accused rests entirely on circumstantial evidence consisting in the recovery from his house of certain suspicious articles on a statement made by him to the Investigating Sub-Inspector; the recovery of a weapon proved to be blood-stained, from the house of his neighbour Danai or Danadar Khatua as a result of a statement made by this accused and the finding of some marks of injury on the person of the accused which suggest that he may have-taken part in some sort of a struggle at about the time of the crime. As to the statement made by the accused and leading to the recovery of the articles we have it only in a fragmentary form. P.W. 12, Mayadhar Jena, one of the search witnesses, says: "The accused told the Sub-Inspector of Police, that he had got the ear-rings of the deceased." Sub-Inspector Narayan Prasad Prija says that accused told the witness-that he had got the ear-rings of the deceased hidden in his thatch. The note as to accuseds statement made in the search list-Ex. 5 is:

Mayadhar Pothal having produced the carings from the bundles of straw of the lowest layer of the thatch of his house over the eaves four rafters from the corner beam towards his bari (garden) side to the south saving that Janardan Khatua of Krishnaraipur after killing Fula Bewa had handed-them over to be kept, they were seized.

3. If is was intended to admit u/s 27, Evidence Act, the statement made by the accused regarding these ear-rings, the correct course was to use "so much of the information as relates distinctly to the far thereby discovered" and no less. The question arises whether a proper reading Section 162, Criminal P.C. prohibits the use of a statement made by an accused person to a police officer in the course of an investigation when it is made under the special circumstances provided for in Section 27, Evidence Act. It has recently been laid down by their Lordships of the Judicial Committee of the Privy Council in AIR 1939 47 (Privy Council) that Section 162 is not confined-to statements made to the police by witnesses but applies equally to statements made by accused persons; but their Lord, ships expressly abstained from deciding the question whether a statement followed by a discovery of fact such as is contemplated by Section 27 is rendered inadmissible or still remains admissible on the ground that Section 27, Evidence Act, is a special law within the meaning of Section 1(2), Criminal P.C. and is not specifically repealed by Section 162. Undoubtedly it has long been an unquestioned practice in all the High Courts that statements made to a police officer in the> circumstances provided for by Section 27, Evidence Act, have been treated as admissible in evidence notwithstanding that they may have been made to an investigating officer during the progress of an investigation. And in Emperor v. Syama Mahapatro A.I.R (1932) Mad. 391 . Reilly, J. has adopted the line of reasoning by which in Chinna Thimmappa v. Talu Kunto Thimmappa A.I.R (1928). Mad. 1028. Section 27, Evidence Act, and Section 162, Criminal P.C. were both given effect to, Section 162 having effect in every case except those to which Section 27 applies by way of exception or proviso.

4. In the absence of a definite pronouncement of the Judicial Committee to the contrary, I think it is permissible to follow that reasoning and to admit proof of a statement made by an accused person to an investigating officer in the special circumstances provided for in Section 27, Evidence Act. Three ear-rings, said to be the property of the deceased, were recovered in consequence of this statement of the accused and they have been identified as the property of the deceased by P.W. 2, Surji Dibya, P.W. 4, Bela Dei, P.W. 5, Bhaban Bewa, the above three being neighbours of the deceased woman and P.W. 6, Lakhi Das, the deceaseds nephew. As against the re-liability of the identification by Bhaban Bewa, it is pointed out that in the Committing Magistrates Court she said that during the police investigation she had failed to identify the ear-rings. For the purpose of this case, I shall assume the articles to have been correctly identified as the property of Fula Bewa, but this is not to be regarded as a definite finding because that very point will be for the Sessions Court to determine in the subsequent trial of the appellant on the charges connected with the property. This reservation is necessary in consequence of the procedure followed by the Sessions Judge at the outset of the trial.

5. The case had been committed for trial in his Court on charges under Sections 302, 392 and 411, I.P.C. It was the case of the prosecution that the murder of the deceased and the robbery were parts of one transaction and were simultaneously done and that the alleged stolen property found in the possession of the accused was property stolen in that very robbery done at the time of the murder, but the learned Judge tried the charge u/s 302 only. In the circumstances stated, there was ample authority in Section 235 and the succeeding Sections of the Criminal Procedure Code for the trial of the accused, at one trial for all the offences with which he was charged. The reason given in the order sheet for not trying all the charges together is that "the corpus delicti in each case is not the same."

6. I do not find corpus delicti in any part of the Code of Criminal Procedure and the course of criminal trials in India is to be governed by the provisions of the Indian statute and not by a criterion derived from the law of some other country. The test for applying Section 235 is to see whether the acts alleged form a series that can be regarded as one transaction and it is difficult to see how this question can be answered in the negative when the evidence to prove the one offence is identical with that by which the other is to be established. The procedure followed in taking up one charge only has the result that we are unable to deal with the whole case, and the inconvenience of holding two trials instead of one on the same evidence will be obvious to the learned Judge. In addition to the recovery from his house of the ear-rings, there is the further statement made by the accused and recovery in consequence of it of a katari in the house of Donai. As to this statement, we have it from P.W. 12, Mayadhar Jena that accused pointed out the katari in the house as having been used by Donai for the murder. The Sub-Inspector only says: "The accused took us to the house of Donai and pointed out the katari." The Sessions Judge appears to think that the recovery of these articles directly connects the accused with the crime, he having at the trial given no explanation or a false explanation about them.

7. Now the prosecution in order to establish a charge of murder has to prove that the accused is something more than a receiver of stolen property and so much of the evidence as I have thus far set out would appear to be equally consistent with his being a murderer or a receiver; and the position is the same whether the statements by Mayadhar to the Sub-Inspector regarding the articles found are taken into consideration or are excluded. If they are excluded, there is this to be noted, that accused is a goldsmith, and experience suggests that the nearest goldsmith is a person likely to be stolen jewels. No doubt it has been held in Queen Empress v. Sami (1939) 13 Mad. 426 that when persons have been tried at one trial for robbery and murder possession of recently stolen property, if unexplained, such as would be presumptive evidence against the prisoners on the charge of robbery, was similarly, admissible in evidence against them on the charge of murder. And in this Court in Emperor v. Sadasibo Majhi A.I.R (1939) Pat. 35 it is observed by Khaja Mohamad Noor, J., that one may presume u/s 114, Evidence Act, that the accused was either involved in the murder and robbery or at least received the stolen property knowing it to be the proceeds of the robbery.

8. This presumption is within the terms of Section 114, Illustration (a); but when the question arises whether the presumption of the graver offence or of the lesser offence is to be drawn, it is for the prosecution to establish the graver presumption rather than for the graver presumption to be drawn in the absence of an explanation from the accused. So we have to see what further material there is, to show that the accused was not merely a receiver of stolen property but was himself the murderer or actively concerned in the murder. The materials relied on are first, the finding of a sack at his house which contained a katari and a blood-stained rag. The katari had no blood stains on it. The stains on the rag may have had some other origin and as to the sack the accused says it is not his and has said in his. statement before the Magistrate that it has the name of Jagabandhu written on it. No question was asked of any witness as to whether this is so and the Sessions Judge has not made any note as to whether any such name was found on the sack. The sack itself has not been sent to this Court and we are unable to say whether it has Jagabandhus name on it. There seems to be room for doubt whether the sack is the property of the accused or not.

9. Then there are the injury marks found on the person of the accused which are consistent with his having taken part in some sort of scuffle at about the time of the alleged occurrence. The accused had an incised wound on the right thumb, two incised scratch marks on the left cheek and four scratch marks on the right hand besides some older marks. It is pointed out in argument that he could have received this cut in the course of his occupation as a goldsmilh and the other injuries could have been caused in many ways. There is also the fact that accuseds lantern was found broken. It was for the prosecution to show circumstances which could not be explained on any view consistent with the innocence of the accused; and in my opinion what has been found, while sufficient to give rise to very grave suspicion, is not (whether we regard the pieces of evidence individually or collectively) sufficient conclusively to demonstrate the guilt of the accused on the charge of murder.

10. Before leaving the case, I may refer to the map and index. The notes in the index embody statements regarding things said to have happened at the various points referred to. Such notes are not properly to be put before the jury and where the index contains such objectionable material the better course is to have a fresh index prepared with the objectionable material eliminated. In the present index the entries against F.G.H.I. and J. should be substituted by entries free from objectionable matter. The learned Judge may for guidance in such matters refer to Emperor v. Lalji Rai A.I.R (1936) Pat. 11 and the cases there cited.

11. In the result, I would accept the unanimous opinion of the assessors and set aside the decision of the learned Sessions Judge. I would discharge the reference and acquit the accused of the charge of murder. The Sessions Judge will take the necessary steps for his trial on the other charges which were framed against him.

Yarma J.

I entirely agree.