Das, J.These are two applications in revision, which have been heard together. The two petitioners are Mathura Prasad and Muhammad Rafique. Mathura Prasad has been found guilty under Sections 406 and 408, Penal Code, and he has been sentenced to rigorous imprisonment for two years under each of the two Sections mentioned above. The order is that the two sentences of imprisonment shall run concurrently. Rafique has been found guilty u/s 411, Penal Code, and under Sections 406 and 408 read with Section 114, Penal Code. He has been sentenced to rigorous imprisonment for one year under each of the three Sections mentioned above. In his case also, the order is that the sentences shall run concurrently.

2. The case against these two petitioners was the following. One Rai Sahib Baldeo Sao, a resident of the district of Ranchi, is the proprietor of several liquor shops in the district of Manbhum and other districts. We are concerned in this case, with two of the liquor shops, one known as Sarbari liquor shop and the other known as Narayanpur liquor shop. The Sarbari liquor shop is stated to be about half a mile from village Naturia. Narayanpur liquor shop is about two miles from the Sarbari liquor shop. Mathura Prasad was the manager of the Sarbari liquor shop, and one Chandradeo (who was also accused, but was acquitted) was the manager of the Narayanpur liquor shop. Rafique was a peon of the Narayanpur liquor shop. The prosecution case is that on 5th January 1944, at about 2-80 A.M., one Ganesh Ram, a peon of the Sarbari liquor shop lodged an information at Naturia Police Station to the effect that there had been a dacoity in the liquor shop at Sarbari. This information was lodged by Ganesh Ram at the instance of the petitioner Mathura Prasad.

3. It was alleged, in the first information, that 15 to 20 Punjabis had entered the room where the petitioner Mathura Prasad was sleeping, and that the dacoits had tied up Mathura Prasad by means of a rope and had taken away the key from him; the dacoits then opened the iron safe, and took away the properties mentioned in Ex. 6. The properties consisted of Rs. 18,566-5-6, and a gold chain and a gold churi; alleged to have been pawned by one Sadilal, and also a silver necklet. The proprietor of the shop, Rai Sahib Baldeo Sao, was away at Ranchi at the time. He came to know of this dacoity at Ranchi on 6th January 1944, and he arrived at Sarbari liquor shop on 7th January 1944, in the afternoon. It appears that he was not satisfied that a real dacoity had been committed, and he suspected that there was some foul play by his employees in this matter. From 7th January 1944 to 9th January 1944, nothing in particular seems to have happened; but at 11 P.M. on 9th January 1944, Mathura Prasad and one Bindeswari (Bindeswari was stated to be the general manager of all the liquor shops and was one of the accused who has been acquitted on appeal by the learned Sessions Judge) are stated to have confessed their guilt. I am not referring in detail to the confessional statement, inasmuch as it has been held to be inadmissible in evidence by the learned Sessions Judge. Mathura Prasad and Bindeswari then took Rai Shaib Baldeo Sao to a ditch, about 200 steps north-west of the liquor shop. The prosecution case is that this was in the presence of Sadilal and Hardayal, Mathura Prasad took out a bundle from under the grass in the ditch, and it was found to contain Rs. 15,048 in Government currency notes, one gold chain, one gold churi as well as three gold guineas. Sadilal, who was present at the time, identified the gold chain and churi as those belonging to him, which he had pawned with the petitioner Mathura Prasad. As the cash recovered still fell short of the total amount which was alleged to have been removed by the dacoits, Rai Sahib was anxious to know where the balance of the cash was.

4. On certain further information given by Mathura Prasad and Bindeswari, the Rai Shaib proceeded to the other liquor shop at Narayanpur in his car. He was accompanied by Mathura Prasad, Bindeswari and three other employees of his. At Narayanpur, the Rai Sahib met Chandradeo and two other persons, called Moti and Ramjan. It appears that on certain information given by Chandradeo, the party proceeded to a village called Saltore, which is half a mile from Narayanpur. Rafique resided in this village. The party went to the house of Rafique. Rafique took the party to a river bed, about 1/4th of a mile from Saltore, and there a packet was recovered from under the dried-up river bed, and on opening the packet, currency notes of the value of Rs. 2864 were found. The cash so far recovered still fell short of the total amount by about Rs. 600, and this amount was subsequently produced on the next day by another of the accused persons, who had been acquitted by the learned Magistrate. Rafique is stated to have made some confessional statement to the Rai Sahib after the recovery of the cash from the river bed.

5. The prosecution case, therefore, is that Mathura Prasad had given information of a faked dacoity in which Rafique had also taken part. As a result of this faked dacoity, Mathura Prasad had committed criminal breach of trust, as a servant of the liquor shop, in respect of the cash amount kept in the liquor shop, and that he had committed criminal breach of trust in respect of the gold chain and churi pawned by Sadilal. This explains the two charges against Mathura Prasad under Sections 408 and 406, Penal Code. As against Rafique, the case is that he had abetted Mathura Prasad in the faked dacoity and he was also in dishonest possession of part of the stolen cash. This explains the charge of abetment (sic and) the charge u/s 411, Penal Code, against Rafique. It would be convenient to take up the cases of the petitioners separately. I take up the case of Mathura Prasad first. On behalf of Mathura Prasad, the following points have been urged.

6. It has been contended that excluding the confession which has been found to be inadmissible, the other evidence in the record does not support the conviction of Mathura Prasad for offences under Sections 406 and 408, Penal Code. As to the confession, it appears that both the Courts below have come to the finding that the confession was the result of an inducement or promise having reference to the charge against the accused person proceeding from a person in authority and sufficient to give the accused person grounds for supposing that by making the confession he would gain an advantage, etc., and was, therefore, hit by Section 24, Evidence Act. The learned trying Magistrate, however, held that the confession was admissible u/s 27, Evience Act, inasmuch as it led to a discovery of the bundle in the ditch containing cash and ornaments. The learned Sessions Judge, however, has held that the confession is not admissible, inasmuch as Section 24 contains an absolute bar against the admission of a confession caused by inducement, threat or promise.

7. In my opinion, the learned Sessions Judge is right in holding that the confession is not admissible in evidence, though not exactly for the reason given by him. It has been held in several cases that Section 27 is one of those Sections which controls the three earlier sections, namely Sections 24, 25 and 26. If, therefore, a confession comes within the purview of Section 27, it would be admissible in evidence, even if it is hit by Section 24 of the Act: Vide Queen-Empress v. Babu Lal (84) 6 All 509; Emperor v. Misri (09) 31 All. 592; Amiruddin Ahmed v. Emperor AIR 1918 Cal. 88 and AIR 1939 47 (Privy Council) . In AIR 1939 47 (Privy Council) their Lordships of the Judicial Commit, tee no doubt have made an observation to the effect that Section 27 seems to be intended to be a proviso to Section 26, etc. Their Lordships took the precaution, however, of stating that they were expressing no opinion on this topic, and they merely held that Section 162, Criminal P.C., should be given its full meaning.

8. Their Lordships did not, therefore, decide the question if Section 27, Evidence Act, is a proviso to Section 26 only or to the three preceding sections, namely Sections 24, 25 and 26, Evidence Act. The conflict between Section 27, Evidence Act, and Section 162, Criminal P.C., if any, has now been resolved by Act 15 [XV] of 1941 by which it has been clearly provided that Section 162, Criminal P.C., will not affect the provisions of Section 27, Evidence Act, The position, therefore, still remains as laid down in the cases cited above, namely that Section 27, Evidence Act, is not merely a proviso to Section 26 of the Act, but also to the two preceding Sections namely, Sections 24 and 25 of the Act. The difficulty, however, is that the confession in question does not come within the terms of Section 27, Evidence Act. Section 27, Evidence Act, refers to the statement of a person accused of any offence and in the custody of a police officer. Mathura Prasad was not in the custody of a police officer at the time when he is stated to have made the confession. Section 27 does not, therefore, apply. This no doubt results in an anomalous position, to which attention was drawn by Rankin C.J., (as he then was), in AIR 1939 47 (Privy Council) . I am, therefore, of the view that the learned Sessions Judge was right in holding that the confessional statement of Mathura Prasad was not admissible in evidence.

9. The question, therefore, is if Mathura Prasad can be found guilty of the offences under Sections 406 and 408, Penal Code, in case the confessional statement is excluded. Both the Courts below have come to the finding that the so-called dacoity, of which Mathura Prasad gave information through Ganesh Earn, was really a faked dacoity, and that no dacoity had actually taken place. The Courts below have given very good reasons for this finding. The evidence given in the case has been placed before us, and I see no reasons to go behind the finding of fact arrived at by the Courts below. Mathura Prasad had faked up a dacoity, and had then taken the proprietor of the shop to a ditch 200 paces north-west of the shop, and brought out et bundle containing cash and ornaments. A minor discrepancy as to whether the place from which the bundle was brought out was dug out or not, does not, in my opinion, affect the main question. Mathura Prasad was the manager of the liquor shop, and it is clear that his intention was to dishonestly misappropriate the cash and the ornaments by staging a faked dacoity. The offence of criminal breach of trust is completed by the misappropriation of the properties dishonestly.

10. It is the intention which is essential; whether wrongful gain or loss actually results is immaterial; it is a consequence, but not essential part, of the offence, and a person is not accused of the offence by reason of it. There may be appropriation by a mental act without any actual expenditure of the money appropriated, though the mental appropriation must be established by some overt and visible act; but actual expenditure of the money is not the only proof of it. In the particular case under our consideration, Mathura Prasad dishonestly misappropriated the cash and the ornaments by staging a faked dacoity in which he alleged that the cash and the ornaments have been stolen by dacoits. The evidence of Sadilal (P.W. 1) has an important bearing on this point. After Sadilal had come to know of the dacoity, he went to Mathura Prasad to enquire about the gold churi and chain which he had pawned with Mathura Prasad. Sadilal then says as follows:

Mathura Prasad told me that a dacoity had been committed in the Bhatti and everything including my ornaments had been taken by the dacoits.

11. This shows what the intention of Mathura Prasad was. As to the cash, our attention was pointedly drawn to the discrepancies between Ex. 6 and Ex. 2. Exhibit 6 is the list of articles stated to have been stolen by the dacoits and Ex. 2 is the list of articles which were found in the bundle recovered from the ditch. It appears that there are several discrepancies with regard to the number and denomination of the notes. These discrepancies have been referred to by the learned Sessions Judge, and he has come to the finding that the prosecution has not been able to explain these discrepancies. He has therefore found that the only things, which connect the articles recovered with the alleged dacoity, are the gold chain and churi pawned by Sadilal. The charge u/s 408, Penal Code, related to the cash and the charge u/s 406, Penal Code, related to the gold chain and churi. It has been contended before us that Mathura Prasad did not tell Sadilal that he would not return the pawned articles, and, therefore, Mathura Prasad committed no breach of trust in respect of the gold chain and churi. I have already stated that misappropriation may be by a mental act shown by some overt and visible action. It is obvious that Mathura Prasad wanted to appropriate the cash and the ornaments by setting up a false plea of dacoity. As to the discrepancies between Ex. 2 and Ex. 6, I am of the opinion that they do not affect the main question. The cash recovered from the bundle was undoubtedly the cash of the liquor shop. It is nobodys case that the cash recovered from the bundle in the ditch was the private cash of Mathura Prasad. Obviously, Mathura Prasad did not give the correct number and denominations of the notes in Ex. 6. His main idea was to misappropriate the cash of the liquor shop by staging a faked dacoity. I am, therefore, unable to hold that the discrepancies between Ex. 2 and Ex. 6 make any difference to the offences committed by Mathura Prasad.

12. In my opinion, Mathura Prasad has been rightly found guilty of the offence u/s 408, Penal Code, in respect of the cash and u/s 406, Penal Code, in respect of the gold chain and churi.

13. I now take up the case of Rafique. At first, I was inclined to think that Rafique cannot be found guilty of abetment. I have carefully gone through the evidence in the record, and I find that Rafique had confessed to having joined in the faked dacoity for the purpose of removing the cash and the ornaments from the liquor shop at Sarbari. The confession of Rafique is not hit by Section 24, Evidence Act, and is clearly admissible in evidence. It has been pointed out to us that the evidence of the Rai Sahib shows that Rafique and two other persons made the confession and it has been contended that in the absence of any evidence showing which particular person had made the confession, it would not be admissible in evidence. I have carefully examined the evidence of Rai Sahib Baldeo Sao, and it appears from his evidence that it was Rafique who made the confession first.

14. Subsequently, he was supported by Ramjan, Moti and Chandradeo. It was Rafique, who took the party to the river, bed from which the packet containing Rs. 2364 was recovered. Our attention has been drawn to the evidence of Rai Sahib Baldeo Sao in which states that Rafique, Ramjan and Moti began to remove the sand; then the packet was found. There can, however, be no doubt that Rafique was also in possession of the packet along with two other employees. It was Rafique who took the party to the river bed. Unless Rafique was in the full know of things, he could not have taken the party to the place where the packet was. The mere fact that two other persons removed the sand before the packet was found, does not show that Rafique had no guilty knowledge.

15. I am, therefore, satisfied that Rafique was an abettor in the sense that he had conspired with other persons in taking part in the faked up dacoity for the removal of the cash and the ornaments; he is also guilty of dishonestly retaining part of the cash with a guilty knowledge.

16. For these reasons, I think that both the petitioners have been rightly convicted, and there are no grounds for interference either with the convictions or with the sentences.

17. The result, therefore, is that the applications fail and are dismissed.

Criminal Revision No. 675 of 1945.

Manohar Lall, J.

18. I feel doubtful as to the correctness of the conviction of petitioner Mathura Prasad u/s 406, Penal Code, inasmuch as no evidence has been led as to the person on whom the damage or loss would fall if the pawned articles were stolen by some thieves or dacoits. But as the sentence u/s 406, Penal Code, is concurrent with the sentence u/s 408, Penal Code, the petitioner will get no relief. It is, therefore, undesirable for me to differ from my learned brother.

Criminal Revision No. 676 of 1945.

19. In this case I am doubtful as to the correctness of the conviction for abetment of dacoity because I am not satisfied that it is sage to act upon the confession which is said to have been made by the petitioner Rafiqua after the discovery of the stolen property. But I am in agreement with my learned brother as to the correctness of the conviction u/s 411, Penal Code. The sentences imposed under both the Sections being concurrent, the petitioner would get no relief. For this reason it is undesirable for me to differ from my learned brother.