Judgment :- 1. The appellants Karunakaran and Samikutty have been convicted by the Assistant Sessions Judge, Kozhikode under S.381 and 380 I.P.C. respectively and sentenced to undergo rigorous imprisonment for six years and to pay a fine of Rs. 500/- each. Criminal Appeal No, 360 of 1959 is by the 1st accused and Criminal Appeal No. 20 of 1960 is by Samikutty the 2nd accused. 2. The three Sindhi brothers, Fageemal Lakshmichand Pw. 1, Bihari Lal Pw. 2 and Sreechand Fageemal Pw. 3 were conducting a private banking business as partners, in the name of "Sreechand and Co" in Silk Street, Calicut. Pws.1 and 3 are the managing partners doing the banking business in two adjacent rooms of the same building. Pw.3 engaged the 1st accused as a clerk cum accountant. The two brothers used to go out daily for an evening stroll at about 6 P.M. leaving the 1st accused in charge of both the offices and were in the habit of returning only by about 8 P.M. to close down their offices at 9 P.M. On 20-3-1959 as usual Pws.1 and 2 after locking the safe and table and taking the keys with them, left their offices for an evening walk, leaving the 1st accused in charge of the offices. They returned a bit early on that day at about 7.15 P.M. when they found their offices closed and lights put out. Pw. 2 entered through the back door, put on the lights and found the 1st accused tied to a chair with his mouth closed with a cloth. Pw. 2 opened the door and admitted Pw.1 who removed the 1st accused's gag when he told them that three or four robbers entered the office and at the point of the dagger tied him up, put out the lights and tampered with the safe, Godrej table and box and escaped shortly after. Telephonic information given to the Town Police brought Pw. 8 to the scene at about 8.30 P.M. when Pw.1 reported that currency notes to the value of Rs. 3,510/- were missing from the safe and boxes kept in their offices. Police detected the offence and arrested the 1st accused on whose information the 2nd accused was "discovered". The 2nd accused was also arrested and MOs.1 to 5 were recovered under S.27 of the Evidence Act as a result of the 2nd accused's confession Ext. 3,510/- were missing from the safe and boxes kept in their offices. Police detected the offence and arrested the 1st accused on whose information the 2nd accused was "discovered". The 2nd accused was also arrested and MOs.1 to 5 were recovered under S.27 of the Evidence Act as a result of the 2nd accused's confession Ext. P-3, recorded by the Sub-Inspector of Police and attested by two witnesses. The investigation was completed and the accused were charge-sheeted under S.381 and 380 respectively. 3. The 1st accused in the Magistrate's Court denied the whole thing and hesitated to admit that he was tied up to his chair as seen by Pws.1 and 2 when they returned. But in the trial court he veered round and admitted that he was really tied up by robbers. He repudiated his confessional statement, Ext. P-2 and the consequential recovery of M. Os.1 to 5 on the information given by the 2nd accused to the police. The 2nd accused denied even his arrest and refused to admit the recovery of the stolen articles M. Os.1 to 5 from the paramba around his house as a result of the information contained in Ext. P-3, his confessional statement to the police. 4. The occurrence of theft is not disputed and is amply proved by the evidence of the three brothers Pws. 1 to 3 who have absolutely no interest to concoct a false case of theft. 5. Two points alone were strongly urged before me by the learned Advocate for the 1st accused. They are (i) the serious prejudice to the 1st accused caused by the improper questioning of the accused under S.342, Criminal Procedure Code by the trial judge and (ii) the illegality in the recovery of M. Os.1 to 5 as a result of the information given by the accused to the police. 6. In spite of repeated observations of this court and even of the Supreme Court to avoid entrapping questions in the nature of cross-examination, we find such objectionable questions still, in several of the cases coming before us. The learned trial judge evidently lost sight of his limitations when examining an accused under S.342, Criminal Procedure Code. The object of the questioning is to afford the accused an opportunity to explain the circumstances proved against him by the prosecution. That beneficial provision is not used in that spirit in this case. The learned trial judge evidently lost sight of his limitations when examining an accused under S.342, Criminal Procedure Code. The object of the questioning is to afford the accused an opportunity to explain the circumstances proved against him by the prosecution. That beneficial provision is not used in that spirit in this case. The learned Advocate for the first accused Mr. Kadir pointed out three or four such objectionable questions. Q. 15. "What is it that you have told Pw. 1?" Q. 17. "Why is it that you did not fight with those who came there?" Q. 23. "Does accused 2 know your house? Has he come to your house? Q. 25 any argument to advance?" These questions are in the nature of cross-examination asked to supplement the prosecution case and are couched in language which is not easy and direct. The form of some of the questions is not at all conciliatory. The question why did you not fight with the robbers is asked not with reference to any item of evidence adduced by the prosecution. So also the question what did you tell Pw.1 is not asked to explain any circumstance in evidence. The question whether accused 2 knows accused 1's house is an entrapping question. Again Q. No. 16 "When you were met by Pws.1, 2 and 8 your hair and dress were not dishevelled and no signs of a struggle were noticed. Is it correct?" is not a proper one. Pw.1 did not say that the 1st accused's hair was not dishevelled. Pw. 2 stated nothing about the condition of accused 1's hair or dress. Pw. 8 the Sub-Inspector alone has stated that the hair was not dishevelled but he prepared no observation mahazar about the state of the accused's hair or dress when he first found him. It has also been brought out in cross-examination that this information is given out for the first time in the Sessions Court and none of the earlier records refer to it at all. According to the accused he yielded as soon as he was threatened with a dagger by the robbers and there was no struggle or resistance whatsoever. When facts in evidence are like these such a complex question is not warranted and is sure to confuse the accused. 7. According to the accused he yielded as soon as he was threatened with a dagger by the robbers and there was no struggle or resistance whatsoever. When facts in evidence are like these such a complex question is not warranted and is sure to confuse the accused. 7. The complaint that this sort of examination of the 1st accused under S.342, Criminal Procedure Code is objectionable and improper seems to be well-founded. Judges and Magistrates will do well to bear in mind the salutary directions contained in Tara Singh v. The State, AIR. 1951 Supreme Court 441. "The importance of observing faithfully and fairly the provisions of S.342 cannot be too strongly stressed. The whole object of the section is to afford the accused a fair and proper opportunity of explaining circumstances which appear against him. The questioning must therefore be fair and must be couched in a form which an ignorant or illiterate person will be able to appreciate and understand. Even when an accused person is not illiterate, his mind is apt to be perturbed when he is facing a charge of murder. He is therefore in no fit position to understand the significance of a complex question. Fairness therefore requires that each material circumstance should be put simply and separately in a way that an illiterate mind or one which is perturbed or confused, can readily appreciate and understand" 8. Point (ii). Law is imperative that confessions to the police should be excluded from evidence and so S.24 to 26 of the Indian Evidence Act are enacted. S.27 of the Act is an exception. That portion of a statement in a confession leading to the discovery of a fact and that alone should be treated as admissible. But a wider interpretation was put upon the section and in some Madras cases Anthappa Goundan v. Emperor, ILR [1937] Madras 695 [Full Bench Case] being one of them, confessional statements containing incriminating matters have been treated as admissible. The Privy Council in Kottaya v. Emperor, AIR 1947 PC. 67, deprecated the wholesale admission and the law has been put on a uniform basis by overruling the Full Bench case Athappa Goundan v Emperor. The Privy Council in Kottaya v. Emperor, AIR 1947 PC. 67, deprecated the wholesale admission and the law has been put on a uniform basis by overruling the Full Bench case Athappa Goundan v Emperor. Their Lordships laid down the law as follows: "The difficulty, however great, of proving that a fact discovered or information supplied by the accused is a relevant fact can afford no justification for reading into S.27 something which is not there, and admitting in evidence as confession barred by S.26. Except in cases in which the possession or concealment, of an object constitutes the gist of the offence charged, it can seldom happen that information relating to the discovery of a fact forms the foundation of the prosecution case. It is only one link in the chain of proof, and the other links must be forged in manner allowed by law. Clearly the extent of the information admissible must depend on the exact nature of the fact discovered to which such information is required to relate That ban [imposed by the two preceding sections] was presumably inspired by the fear of the Legislature that a person under police influence might be induced to confess by the exercise of undue pressure. But if all that is required to lift the ban be the inclusion in the confession of information relating to an object subsequently produced it seems reasonable to suppose that the persuasive powers of the police will prove equal to the occasion, and that in practice the ban will lose its effect". In the instant case, Exts. P-2 and P-3, are the confessional statements of accused 1 and 2, attested by two witnesses and the Sub-Inspector of Police. Ext. P2 begins thus:- "I am Sreechand's clerk. Myself and my family belong to the Goldsmith Community. As my father was in debts we were in need of money and we stole some money from the bank I am working. When the Sait used to go to answer calls of nature leaving his keys I took the impression of the keys of the safe and table. I knew where the money was kept. As my father was in debts we were in need of money and we stole some money from the bank I am working. When the Sait used to go to answer calls of nature leaving his keys I took the impression of the keys of the safe and table. I knew where the money was kept. I made two false keys in my house etc." He describes the incident in all its details and ends up with the statement that "If Samikutty is met and questioned the money we stole from the bank will be obtained." Omitting the words (we stole from the Bank) the portion that "If Samikutty is met and questioned you can get the money" alone was bracketted and used. 9. The whole thing appears to be an "intentional whittling down" of the wholesome provisions of S.25 and 26 of the Evidence Act. It is very easily said that the incriminating portion of a lengthy confessional statement should be excluded. But it is a very difficult mental process to close your eyes to the details in the confessional statement and see only the bracketted portion and remain uninfluenced by the confession of the accused. This feat is possible of performance only by a few specially trained experts. There is no reason why the overburdened judicial officers should be saddled with an additional burden which has not the support of law or procedure. In this case Exts. P-2 and P3 confessional statements are attested by two witnesses and the Sub-Inspector. The witnesses are specially got down for pinning them and the accused down to a particular position by the attestation of a document of questionable legality. The accused's confessions are filed as exhibits in court and proved by attesting witnesses and used for questioning the accused under S.342, Criminal Procedure Code. 10. Sankaran, C. J., and Velu Pillai, J., in Mohammed v. The State reported in 1960 KLT. Short Notes 1 (Criminal Appeals Nos. 166 to 168 of 1959) have expressed their disapproval, by characterising this method of collecting evidence as objectionable and opposed to the spirit of S.27 basing their observations on the Division Bench decision by Burn and Lakshmana Rao, JJ., in Public Prosecutor v. Subba Reddi, AIR. 1939 Madras 15. Short Notes 1 (Criminal Appeals Nos. 166 to 168 of 1959) have expressed their disapproval, by characterising this method of collecting evidence as objectionable and opposed to the spirit of S.27 basing their observations on the Division Bench decision by Burn and Lakshmana Rao, JJ., in Public Prosecutor v. Subba Reddi, AIR. 1939 Madras 15. There Burn, J., has observed as follows: "The evidence regarding the information said to have been given by the respondent leading to the discovery of the wood chopper [MO. 4], the axe-head [MO.3] and the axe handle. We think, not admissible under S.27, Evidence Act. The whole story is entirely artificial. The Karnam Pw.15 and Pw.16 both say that on 16th August they were sent for to go to the police station at Kolimigundla where the respondent was kept in custody. When they arrived there, the respondent was brought out of the lock-up and examined by the Circle Inspector in their presence. This means that the Circle Inspector knew beforehand precisely what the respondent was going to say. His procuring the presence of Pws.15 and 16 and three others who signed the Mahazar Ex. G-2 was a mere farce. It is impossible to say that anything was discovered in consequence of the statement made by the respondent to the Inspector in the presence of Pws.15 and 16. We have had occasion to deprecate this manner of manufacturing evidence before and we shall if necessary continue to do so. S.27, Evidence Act, is not designed by the Legislature to encourage proceedings of this sort. S.27, as we have frequently held, is quite simple: it says that where any fact is deposed to as having been discovered in consequence of information given by a person in custody accused of an offence, so much of the information as relates distinctly to the fact thereby discovered may be proved, whether it amounts to a confession or whether it does not. Apparently, the Circle Inspector [Pw. 18], like so many of his fellow officers, was afraid that if he went into the court and said that he had received such and such information from the accused, the court would not believe him. He therefore found it necessary to have more trustworthy persons than himself present as witnesses when the information should be disclosed. 18], like so many of his fellow officers, was afraid that if he went into the court and said that he had received such and such information from the accused, the court would not believe him. He therefore found it necessary to have more trustworthy persons than himself present as witnesses when the information should be disclosed. This is a regrettable attitude on the part of any police officer and much more on the part of an officer of the grade of Circle Inspector. The Circle Inspector ought to expect to be believed when he gives evidence on oath. We think that the evidence regarding the statement made by the respondent and embodied in the Panchayatnama [Ext. G-2] and spoken to by Pws.15,16 and 18 was wholly inadmissible". 11. This practice of attestation of confessional statement by witnesses is an objectionable one. It prejudices the accused to safeguard whose interest the legislature has enacted S.24 to 26 of the Evidence Act. It has no legal sanction behind it. I think there is no harm in recording the accused's statement in the first person at any great length in the Case Diary when the accused is arrested and questioned and in the preamble to the recovery mahazar reference to the reasons leading to the recovery may be made. 12. All the irregularities pointed out in Public Prosecutor v. Subba Reddi are therein Ext. P-2 confessional statement of accused 1. Both the accused are questioned in a ceremonial way by the police in the station and the same witnesses who were got down by the Sub-Inspector specially to attest the confessional statements have signed both of them. Accused 1 only gave the information that accused 2 may be met and questioned. The questioning and detention of the 2nd accused in the station preceded the information given by the 1st accused in Ext. P-2. Strictly speaking there is no discovery under S.27 of the Evidence Act as the police were in possession of the information long before accused I gave it in P2. The prejudice created by the improper questioning by the trial judge, the illegality involved in the "discovery of the person" under S.27 of the Indian Evidence Act and the absence of any other evidence to connect the 1st accused with the crime, compel me to set aside his conviction. The prejudice created by the improper questioning by the trial judge, the illegality involved in the "discovery of the person" under S.27 of the Indian Evidence Act and the absence of any other evidence to connect the 1st accused with the crime, compel me to set aside his conviction. But I must say that the 1st accused leaves the dock not without a cloud of suspicion. It is really unfortunate that the chief actor and the principal culprit whoever he may be could not be booked and the minor actor who is only a tool in the hands of the prime offender is to be convicted. 13. As regards accused 2 the actual recovery of such a big sum of money as Rs. 3,510 and the hundies and bags belonging to Pws.1 to 3, as per the information given by him has in spite of the irregularities noted above has established his possession of the stolen articles. Exts. P-4 and P-5 are the recovery mahazars and they are proved by the Sub-Inspector Pw. 8 who effected the recovery and Pw. 7 who was present at the time and has attested the mahazars. Pws.1 to 3 apparently respectable people have absolutely no reason to foist such a case on the 2nd accused whom they hardly knew. In the first information statement the loss of the hundies and the bag is not mentioned. But it is only an innocent omission honestly made in the hurry and confusion. I accept the recovery of M.0s.1 to 5 as the direct result of the information given by the 2nd accused. The 2nd accused has no explanation to offer as to how he came by these stolen articles. The conviction of accused 2 has therefore only to be upheld. But the punishment seems to be excessive. The maximum term of imprisonment under S.380 is only 7 years. Hence 1 order the reduction of the 2nd accused's sentence from 6 years' rigorous imprisonment and Rs. 500 fine to 2 years' rigorous imprisonment and a fine of Rs. 100. In default of payment of the fine he will undergo rigorous imprisonment for a further term of 3 months. 14. In the result Criminal Appeal No. 360 of 1959 by the 1st accused is allowed and he is acquitted. His bail bonds are cancelled and he is set at liberty. 100. In default of payment of the fine he will undergo rigorous imprisonment for a further term of 3 months. 14. In the result Criminal Appeal No. 360 of 1959 by the 1st accused is allowed and he is acquitted. His bail bonds are cancelled and he is set at liberty. Criminal Appeal No. 20 of 1960 by accused 2 is dismissed with the modification in the sentence.