1. This appeal arises out of an order passed on 5th November 1966 by Mr. N.R. Tatia, City Magistrate, 5th Court, Ahmedabad, in Summary Case No. 834 of 1966, whereby while the accused Nos. 2 and 3 came to be acquitted, the accused No. 1, appellant was convicted and sentenced to suffer rigorous imprisonment for three months and to pay a fine of Rs. 200/-, in default, to suffer further rigorous imprisonment for one month for an offence punishable under Section 379, Indian Penal Code.
2. The facts of the case are quite simple. One Nanalal Govindji owned a Raleigh Cycle having a Frame No. R/34493/D. He had purchased it from Royal Cycle Importing Co. in Ahmedabad on 10th December 1961 for a sum of Rs. 273/-. On 4th July 1964, while going to his office at Sachivalaya in Ahmedabad, he had left his cycle at the Cycle Stand. When he left the office in the evening and went to the Cycle Stand, he found his cycle missing. He made enquiries in respect of his cycle at several places for about a fortnight and at last filed a complaint on 22nd July 1964 at the Navrangpura Police Station. On 22nd May 1966, while Mr. Salunke, the P.S.I. of the Navrangpura Police Station was investigating the case, he learned that one cycle was sold to accused No. 3. That cycle was attached as the number of the frame of the cycle was the same as the one which the complainant's cycle had. On his getting information about that cycle having been sold by accused Nos. 1 and 2 for a sum of Rs. 70/ - he made further enquiries and arrested the accused Nos. 1 and 2 as well. The cycle was attached and the writing produced by accused No. 3 was also attached. After finishing the investigation of the case, the charge-sheet against all the accused was sent up to the Court of the City Magistrate, Ahmedabad.
3. While accused Nos. 1 and 2 were charged for an offence of theft in respect of that cycle punishable under Section 379, Indian Penal Code, accused No. 3 was charged for an offence punishable under Section 411, Indian Penal Code. The accused Nos. 1 and 2 denied to have committed any offence whatsoever. Both of them also denied to have sold any such cycle to accused No. 3. Accused No. 1 also denied to have passed any writing, such as the one produced by accused No. 3 and marked "B" in the case. The accused No. 3 denied to have committed any offence and stated that he had already produced a cycle before the police along with a writing marked "B" under which he had purchased the same by paying a sum of Rs. 70/-. He has filed a written statement which has been also kept on record. The accused has led no evidence in this case.
4. On a consideration of the evidence adduced in the case, the learned Magistrate found that since the statement of accused No. 3 finds support from a writing marked "B" passed by accused No. 1, in absence of any explanation as to how he was in possession of that stolen property, held him alone guilty for an offence of theft and sentenced him as stated hereinabove. Feeling dissatisfied with that order, the appellant-accused No. 1 has come in appeal.
5. The fact about the muddamal cycle belonging to the complainant and the same having gone in theft from the Cycle Stand at the Secretariat on 4th July 1964 and found from accused No. 3 has been amply establi shed and there is no dispute raised in that regard. The learned Magistrate, however, accepted the Statement of accused No. 3 about his having been a bonaflde purchaser thereof from the accused No. 1 for a sum of Rs. 70/-under a writing marked "B" dated 8th July 1964 and made use of it against accused No. 1 since it found support from that writing. It is only that much evidence, if at all it can be called legal evidence in the case, that the learned Magistrate has chosen to convict accused No. 1 for the theft of the cycle in the case. What was urged by Mr. Thakore for the appellant, was, that the learned Magistrate was in grave error to think that the statement of the co-accused by itself even without the same to be a confessional statement, can be used against the appellant even if any other piece of evidence tends to serve as some corroboration to that part of the statement. He also urged that the writing marked "B" is not proved as the one executed by accused No. 1 by any legal evidence on record and yet the learned Magistrate has chosen to take that into account. In no case, can it be said that accused No. 1 was in possession of the cycle which was a stolen property and that he had sold it for Rs. 70/- to accused No. 3 in the case.
6. Now it is clear that there is no other evidence to connect the appellant-accused No. 1 with the theft of the cycle in question-except the one on which the learned Magistrate has relied upon as stated above. It is essential to point out that such a statement of the co-accused in a case can only be used against the other accused if it becomes admissible and falls within the ambit of Section 30 of the Indian Evidence Act. Section 30 of the Indian Evidence Act provides that when more persons than one are being tried jointly for the same offence, and a confession made by one of such persons affecting himself and some other of such persons is proved, the Court may take into consideration such confession as against the person who makes such confession, In other words, before any such statement of a co-accused can be used against another accused in the case, it must amount to a confession about the guilt in question and it is only then that the Court would be justified in taking into consideration such confessional statement not only against the person making it but also against other persons in the case. The term "confession" has not been defined under the provisions of the Indian Evidence Act. However, it has come to be interpreted in the case of Pakala Narayana Swami v. Emperor , as meaning either admitting in terms the offence, or at any rate substantially all the facts which constitute the offence. The word "confession" as used in the Indian Evidence Act cannot be construed as meaning a statement by an accused "sugggesting the inference that he committed" the crime. There is considerable difference between an admission of a gravely incriminating fact, but it cannot itself amount to a confession. A statement that contains self-exculpatory matter cannot amount to a confession, if the exculpatory statement is of some fact which if true would negative the offence alleged to be confessed. In the case of Balbir Singh v. State of Punjab , it was held as under:
So far as the confessional statement of one accused is concerned, it may be taken into consideration against the other accused if it fulfils the conditions, laid down in Section 30 of the Evidence Act. One of the conditions is that the confession must implicate the maker substantially to the same extent as the other accused person against whom it is sought to be taken into consideration. Where on reading the confession as a whole it appears that he was really trying to throw the main blame on the other accused and make out that he was an unwilling spectator of the crime committed by the other accused the utmost that can be stated is that the confession cannot be used at all against the other accused.
It would thus appear plain that primary condition required to be fulfilled before any such statement of an accused can be used against the other one in the same case is that it must fully or even substantially implicate himself in that crime. It must amount to a confessional statement and not a mere statement in respect of some facts without inculpating himself in that respect. His statement may affect and bind him, it being an admission on his part of certain facts stated therein, but it cannot affect the co-accused in the case unless it fell within the ambit of Section 30 of the Indian Evidence Act. In that event, the question of corroboration to such a non-confessional or exculpatory statement cannot arise. The corroborative piece of evidence has, therefore, to be judged on its own worth, and unless that evidence is clear and sufficient enough to connect the accused with the crime in question, he cannot be held liable for the offence in question. Now accused No. 3 has not at all admitted his guilt or about the facts showing or suggesting his guilt. The statement is clearly exculpatory and has thrown the blame on accused No. 1, in the case. It does not, therefore, fulfil the test required under Section 30 of the Indian Evidence Act and consequently cannot be used against accused No. 1 in the case.
7. It was next urged by Mr. Thakore that the writing marked "B" is not at all proved by any legal evidence on record. It has not been admitted by accused No. 1 and in fact he has denied to have passed any such writing or about his having sold the cycle in question to accused No. 3. He, therefore, urged that it cannot be used against accused No. 1 and it was wrong of the learned Magistrate to look into it as evidence in the case. It was produced by accused No. 3 first before the police and then in Court while his statement came to be recorded by the learned Magistrate under Section 342, Criminal Procedure Code. It needs hardly be said that the mere filing of any such writing in any proceeding before a Court cannot necessarily become legal evidence in the case. Before a Court can consider any material in the case, it has to be proved in accordance with law and unless so done, it cannot be read as evidence in the case against any person, and at any rate, other than the one who produced it. It was the duty of the prosecution to prove this writing as one executed by accused No. 1, as required under Section 67 of the Indian Evidence Act. Even the contents thereof are required to be established against accused No. 1. In fact this writing is not even exhibited as a document on record of the case and yet, the learned Magistrate has chosen to make use of it not against one who produced it, but against one who is said to have passed it, though he has plainly denied to have so executed any such writing. The learned Magistrate has unfortunately felt that "since the accused was bound to deny such writing, the best investigation of the case will feel baffled as to how to connect the accused with the offence". That was no concern of the learned Magistrate and his duty was to consider that evidence which is lawfully established in the case. No extraneous considerations can be allowed to weigh with the Court in deciding cases. It will be for those in charge of the prosecution to think as to how any document, before having it on the record of the case, was required to be proved. The prosecution could have taken accused No. 3 as a witness in the case and may well have been able to prove this document, as also his version about accused Nos. 1 and 2 having sold the cycle within 4 days of the same having been stolen. Whatever that be, such a writing cannot be taken into account, and the learned Magistrate was obviously wrong in making use of it as a corroborative piece of evidence to the statement of accused No. 3 before the Court.
8. Even if any such writing were to be taken note of, it can only be used against accused No. 3 in the case, for whatever it was worth. But, if we were to look to the written statement given by accused No. 3 in the case, we find a different story given out by him. Therein, he has referred to about accused No. 2 having assured him that the cycle in question belonged to him and that it was he who had purchased the stamp-paper. Not only that, but he has further stated that he had paid Rs. 72/- to accused No. 2 and that he had taken all responsibility in respect of that cycle towards him. Then he has stated that accused No. 1 had merely signed as the same having been signed by accused No. 2 before him. In a way that is quite in contradiction of the contents of the document marked "B" in the case. In those circumstances, even if, for a moment, the statement of accused No. 3 were to be taken into account, that would not involve accused No. 1 in regard to the sale of the cycle to him for a sum of Rs. 70/- on 7th June 1964. The learned Magistrate has lost sight of the contents of the written statement filed by accused No. 3 and he has all along remained under the impression on the basis of the writing marked "B" that it was the accused No. 1 who has sold the cycle to him.
9. The learned Magistrate was thus obviously in error in making use of the statement of accused No. 3 and that "again, without carefully reading the same, for, as I pointed out hereinabove, it does not affect the accused No. 1-the appellant-and then again making use of a writing marked "B", without the same being proved in accordance with law. There is no other evidence to connect the accused with the commission of the crime in respect of the cycle which was found to be a stolen property.
10. The learned Magistrate was, therefore, wrong in holding the appellant guilty for the same.
11. In the result, the appeal is allowed, the order of conviction and sentence passed against the appellant-accused No. 1 is set aside, and he is acquitted. The fine if paid, is directed to be refunded to him.