ORDER G.D. Sahgal, J. - Harpal Singh and Gajraj Singh, residents of village Maraunda, police station Safipur in the district of Unnao and Dina Ahir, resident of village Kotariha, police station Kotwali in the district of Unnao, have been convicted by the First Additional Sessions Judge of Unnao for an offence u/s 201, IPC and sentenced to seven years rigorous imprisonment each. Along with them Gajraj Ahir of village Maraunda also was convicted for an offence u/s 411, IPC, but he has not appealed. 2. According to the prosecution case, one R.L. Misra (P.W. 10), Deputy Regional Employment Officer at Kanpur, had a farm in village Panari, police station Safipur in the district of Unnao, Sardar Mela Singh was employed by him as Manager to look after the farm while one Sardar Subeg Singh used to look after the tractor and worked as tractor-driver. Gajraj Ahir also had worked at the farm of Sardar Mela Singh and was known to him. Harpal, Dina Ahir and Gajraj Singh are said to have been friends of Gajraj Ahir. Sardar Subeg Singh (P.W. 11) had gone to Kanpur in order to get a part of the tractor repaired and had not returned till the night of the 17th of January, 1964, in which night the occurrence under enquiry took place. At about 9 P.M. on the 17th of January, 1964, it is said, while Sardar Mela Singh was alone on the farm, the three Appellants along with Gajraj Ahir arrived duly armed with spears. At about 3 P.M. earlier Sardar Mela Singh had sent Chandrika and Budha (P.Ws. 12 and 13) to village Bardhana to contact one Rajjan Singh and request him to arrange for two persons to be sent to the farm to stay there during the night. At about 9 P.M. when these persons were sitting there, Chandrika and Budha returned and informed Sardar Mela Singh that Rajjan Singh had gone to Kanpur and could not be contacted. Thereafter Gajraj Ahir is said to have assured. Sardar Mela Singh and others that he and his men were there and there was nothing to fear. Chandrika and Buddha then went back to their villages. Thereafter on the 18th of January, 1964 Sardar Mela Singh was not seen at the farm. Thereafter Gajraj Ahir is said to have assured. Sardar Mela Singh and others that he and his men were there and there was nothing to fear. Chandrika and Buddha then went back to their villages. Thereafter on the 18th of January, 1964 Sardar Mela Singh was not seen at the farm. During that very night one Sheo Din (P.W. 27) and Prithi Pal Singh were in their water-melon field when Harpal, Dina Ahir and Gajraj Singh Appellants came there and on being asked told them that they were coming from Bithoor Ghat where they had gone to meet Sardar Mela Singh. On the 19th of January, 1964 Sardar Subeg Singh also returned to the farm from Kanpur and did not find Sardar Mela Singh there. Sirdar Subeg Singh also found Sardar Mela Singh's bitch lying injured in the farm. Sardar Subeg Singh's suspicions were around. He went back to Kanpur and brought R.L. Misra with him to the farm. Enquiries were made about the whereabouts of Sardar Mela Singh, but he could not be found. Thereafter Sardar Subeg Singh and R.L. Misra went back to Kanpur. Sardar Mela Singh seems to have certain friends and relatives at Kanpur. Enquiries were made from them, but nothing could be known. Ultimately on the 22nd of January, 1964 Sardar Subeg Singh informed at the police station in writing about the disappearance of Sardar Mela Singh. A case was registered u/s 302, IPC and some other provisions of the Indian Penal Code and investigation started. 3. Arrest was made of Gajraj Ahir at 5-30 P.M. on the 25th of January, 1964 near the samadhi of baba at village Rampur, police station Safipur in the district of Unnao and from his possession was recovered a gun and fifteen live cartridges in a leather bag which Sardar Mela Singh had with him having taken them from one Sardar Harnam Singh of Kanpur. Gajraj Ahir has in the circumstances been convicted of an offence u/s 411, IPC, but we are not concerned with it as he has not filed any appeal. 4. On the 11th of February, 1964 at about noon Harpal was arrested from his house in village Maraunda in the presence of Devi, Suraj Din and others. Gajraj Ahir has in the circumstances been convicted of an offence u/s 411, IPC, but we are not concerned with it as he has not filed any appeal. 4. On the 11th of February, 1964 at about noon Harpal was arrested from his house in village Maraunda in the presence of Devi, Suraj Din and others. He was interrogated by the Sub-Inspector Jai Karan Singh (P.W. 30) in the presence of Devi and Suraj Din and he is said to have disclosed that he, Dina Ahir and Gajraj Singh and some other persons had hidden the dead body of Sardar Mela Singh in the river Ganga under a fallen babul tree. Harpal was then taken by Sub-Inspector Jai Karan Singh along with those witnesses to the said place and there he took out the dead body of Sardar Mela Singh from under the waters of the Ganga under a fallen babul tree. Almost all the clothes of Sardar Mela Singh were in tact on the dead body. One over-coat, one pant, on sweater, one bush shirt, one baniyan, one turban round about his waist and one Kara were found on his body. The dead body was identified and also the clothes were found to be those of Sardar Mela Singh. A post-mortem examination of the dead body was arranged, but it is not material for the purposes of this case as the fact as to how the murder took place is not the subject-matter of enquiry in this appeal, the factum of murder itself being not challenged. 5. Dina surrendered on the 21st of April, 1964 and Gajraj Singh on the 2nd of May, 1964 in the court of the Addl. District Magistrate (Judicial), Unnao. 6. The Appellants had pleaded not guilty. They denied the allegations levelled against them and stated that they had been implicated in the case falsely at the instance of one Darshan Singh with whom they had enmity. 7. The evidence in the main against Harpal, Dina and Gajraj Singh Appellants is: (1) At about 9 P.M. on the 17th of January, 1964 they were seen armed with spears together with Gajraj Ahir sitting with Sardar Mela Singh in his farm, by P.Ws. 12 and 13 Chandrika and Buddha. 7. The evidence in the main against Harpal, Dina and Gajraj Singh Appellants is: (1) At about 9 P.M. on the 17th of January, 1964 they were seen armed with spears together with Gajraj Ahir sitting with Sardar Mela Singh in his farm, by P.Ws. 12 and 13 Chandrika and Buddha. (2) During the same night they along with three persons who were described as the men of Dina at about 3 a.m. came to the water-melon field of Sheo Din (P.W. 27) and his co-cultivator Prithipal Singh and told them on enquiry that they were returning after leaving Sardar Mela Singh at the Bithoor Ghat. (3) On the 11th of February, 1964 on his arrest Harpal deposed in the presence of Devi and Suraj Din (P.Ws; 24 and 26) and Sub-Inspector Jai Karan Singh (P.W. 30) that he and accused Dina and Gajraj Singh and three others who were the men of Dina had concealed the dead body of Sardar Mela Singh in the water of the Ganga under a fallen babul tree. (4) The dead body subsequently identified to be that of Sardar Mela Singh with the clothes on the body which also belonged to Mela Singh was recovered from under the fallen babul tree in the river Ganga on the pointing out of Harpal. 8. It is on the basis of the aforesaid circumstances that a conviction of the Appellants has been recorded for an offence u/s 201, IPC only. 9. We have now to see haw far these circumstances have been proved and how for if at all, has any offence been made out against the Appellants on the basis of the circumstances that may have been proved. 10. Let us examine the evidence of the circumstances one by one. 11. The first circumstance is about the Appellants being seen sitting at about 9 p.m. in the company of Sardar Mela Singh in the farm on the 17th of January, 1964. As to this, we have the statements of Chandrika (P.W. 12) and Buddha (P.W. 13). It comes out from the statement of Chandrika that on the 17th of January, 1964 he and Buddha went to the farm of Mela Singh in order to purchase Patawar from there. They were directed by him to come the next day. As to this, we have the statements of Chandrika (P.W. 12) and Buddha (P.W. 13). It comes out from the statement of Chandrika that on the 17th of January, 1964 he and Buddha went to the farm of Mela Singh in order to purchase Patawar from there. They were directed by him to come the next day. When they were about to ret arte, they were requested to proceed to village Bardhana and there; request Rajjan Singh to, arrange for two men to come and stay at the farm. They, proceeded to Bardhana where they met Rajjan Singh's son who informed them, that Rajjan Singh had proceeded to Kanpur. They waited for Rajjan Singh till the Evening, but when he did not return, they came back to the farm at about 9.00 p.m. and found Gajraj Ahir, Harpal, Dina and Gajraj Singh sitting there. They also, stated that all these persons; were armed with spears. After informing Sardar Mela Singh that Rajjan Singh was not available, they went back home. They are supported in this statement of theirs by Partap Singh (P.W. 7) son of Rajjan Singh who confirms the story of their meeting him in Bardhana. There is no reason why they should not be believed. The only criticism against their statements is that it is very strange that just to oblige Mela Singh they would go such a long way and would wait for such long time for Rajjan Singh to come back for the sake of Mela Singh. They may have, had intimate and close relations with Mela Singh and if they obliged him by doing some job for him, the circumstance; that they covered a long distance, waited at. Bardhana and came back to the farm to do so is not sufficient to discard their testimony. The first circumstance, therefore, that the Appellants were seen, together with the accused Gajraj Ahir sitting with Mela Singh in his farm at about 9-00 p.m. on the 17th of January, 1964. 12. Bardhana and came back to the farm to do so is not sufficient to discard their testimony. The first circumstance, therefore, that the Appellants were seen, together with the accused Gajraj Ahir sitting with Mela Singh in his farm at about 9-00 p.m. on the 17th of January, 1964. 12. We now come to the next circumstance namely, of the Appellants being seen along with three others who were described as the men of accused Dina in the night between the 17th and the 18th of January, 1964 in the watermelon filed of Sheo Din and his co-cultivator Prithi Pal Singh and to have stated there that they were returning after leaving Sardar Mela Singh at the Bithoor Ghat. We have the statement of PW 27 Sheo Din only in that connection. From the statement of Sheo Din it comes out that he was looking after his bari where water-melon was grown during the night and he and Prithi Pal his, co-cultivator were warming themselves around some fire. As they were doing so, the Appellants, namely, Gajraj Singh, Dina and Harpal arrived there from the side of the Ganga and began to warm themselves. They were six persons in all including the three Appellants. He recognised only three persons. They had spears with them and when he made enquiries from them from where they were coming, Dina told them that Sardarji namely, Mela Singh had summoned them and they were coming back after leaving him at the Bithoor Ghat. It is very difficult to place reliance on this evidence. If these persons were coming back after committing the murder of Mela Singh or concealing his dead body they would try to avoid being seen by any one. It would be most unnatural on their part to be attracted by the warmth of fire and sit there to warm themselves and when they were asked, they would not mention any thing about Mela Singh so as to create suspicion. The conduct attributed to them is a most unnatural conduct and it is difficult to place reliance on the testimony of Sheo Din (PW 27) highly inconsistent as is with the natural conduct of the Appellants if they were the murderers or if they had concealed the dead body of Sardar Mela Singh as they are said to have done. 13. 13. Let us examine the next circumstance, i.e., the circumstance about the arrest of Harpal and his stating before the Sub-Inspector Jai Karan Singh in the presence of Devi and Suraj Din that he and accused Dina and Gajraj Singh and three others who were the men of Dina had burried the dead body of Sardar Mela Singh in the water of Ganga under a-fallen babul tree. We have in that connection the statements of Devi Suraj Din and Sub-Inspector Jai Karan Singh. It comes out from the statement of Sub-Inspector Jai Karan Singh PW 30 that on receiving information that Harpal was fixing some screen (tatiya) in front of his door, he took along with him Suraj Din, Jai Lal, Lachman and Devi and proceeded to the door of Harpal. He arrested Harpal who made disclosures about the murder of Sardar Mela Singh and told him, to use the words of Sub-Inspector Jai Karan Singh, "maine, Gajraj Singh, Dina Pasi aur Dina ke tin sathiyon ne Sardar ki lash Gangaji me chhipa rakha hai chalkar de sakta hun." Thus Harpal Singh is said to [have disclosed to the Sub-Inspector that! he along With the two Appellants and three others had concealed the dead body of the Sardar in the fiver Ganga and he could get it recovered also. It is as a result of this statement that the sub-Inspector proceeded to the place where Harpal took him. Harpal even took out the dead body from where it had been concealed in the water and the dead body was taken out. This dead body wais subsequently identified to be that of Mela Singh and the over-coat and the other articles that he was putting on were identified to be those of Mela Singh. The evidence of identification consists of Smt. Ram Piari (PW 25), Mela Singh's widow. She identified his clothes also and also the kara that he was putting on being a Sikh. The overcoat of Mela Singh as also the dead body was identified by R.L. Misra (PW 10) also and the over coat also by Subeg Singh (PW 11) Ram Bahari (PW 1) and Chhedi (PW 6). She identified his clothes also and also the kara that he was putting on being a Sikh. The overcoat of Mela Singh as also the dead body was identified by R.L. Misra (PW 10) also and the over coat also by Subeg Singh (PW 11) Ram Bahari (PW 1) and Chhedi (PW 6). It thus comes out that the dead body of Mela Singh was recovered at the instance of Harpal Appellant on the 11th of February, 1964, The statement of Harpal before this recovery is said to be admissible u/s 27 of the Indian Evidence Act inasmuch as it led to the discovery of the dead body, i.e., of the fact where the dead body was. u/s 27 of the Indian Evidence Act when any fact is deposed to as discovered in consequence 6f information received From a person accused of any offence, in the custody of a police officer, so much of such information, whether it amounts to a confession or not as relates distinctly to the fact thereby discovered, may be proved. The statement of Harpal Appellant that led to the discovery of the dead body of Sardar Mela Singh being in the river Ganga from where it was recovered would be admissible u/s 27 of the Indian Evidence Act, even though it may amount to a confession, though ordinarily a confession made by any person; whilst in the custody of a police officer cannot be proved as against him unless it is made in the immediate presence of a Magistrate (vide Section 26 of the Indian Evidence Act) Section 27 of the Indian Evidence Act is an exception to Section 26 and the statement, even if it amounts to a confession, can be used as evidence against Harpal Singh. Harpal Singh is said to have stated that he along With others named by him and three other unnamed persons also had concealed the dead body of Sardar Mela Singh in the river Ganga. Harpal Singh then confessed that he along with three named and three unnamed persons had concealed the dead body at the police where it was found concealed as a result of the information given by him. This statement of Sub-Inspector Jai Karan Singh is supported by the statements of Devi (PW 24) and Suraj Din (PW 26). Harpal Singh then confessed that he along with three named and three unnamed persons had concealed the dead body at the police where it was found concealed as a result of the information given by him. This statement of Sub-Inspector Jai Karan Singh is supported by the statements of Devi (PW 24) and Suraj Din (PW 26). Devi (PW 24) states that Harpal told them that the deaid body of Mela Singh had been concealed in the river Ganga and that he, Gajraj Singh, Dina and three companions of Dina had concealed it there and that he could get it recovered from there. To the same effect is the statement of Suraj Din (PW 26). But the statement that was actually given by Harpal was recorded in the recovery memo, of the dead body in Ex Ka 7 by the Sub-Inspector. That document to a certain extent is different from what we find in the statements of these three persons on oath. The relevant portion of that document may be read as follows:-- ...ikbal karke bataya ki wah Sardar Mela Singh mahlook mukhdma uprokt ki lash ko Ganga nadi men babul ke per jo nadi me gira hai ki tahaniyon ke neeche pani me chhipa-kar rakhi hai nikalkar chalkar de sakta hun. It thus appears that in this statement he did not state that he had concealed the dead body in the river. On the other hand, what he is supposed to have stated was that he could get the dead body recovered which was lying concealed in the river under the branches of the babul tree. The dead body, of course, is described as that of Sardar Mela Singh. We have, however, in the same document a further Statement made by him but that statement is said to have been made after the dead body had been recovered. It reach as follows: .... Sardar Mela Singh ki lash nikalkar diya. Peechhe bataya ki yahi Sardar Mela Singh ki lash hai jisko usne wa uske sathiyon ne mar dalne ke bad chhipaya tha. Reading the document as a whole it appears that, the statement that led to the discovery of the dead body was the knowledge of Harpal, as to where it had been concealed. He had not stated before the dead body was actually recovered that he or his companions had concealed it there. Reading the document as a whole it appears that, the statement that led to the discovery of the dead body was the knowledge of Harpal, as to where it had been concealed. He had not stated before the dead body was actually recovered that he or his companions had concealed it there. The statement of the witnesses, therefore, in so far as it mentions that Harpal had admitted that he along with two other Appellants and three companions of Dina had concealed the dead body of Sardar Mela Singh in the river as a result of which statement the dead body, was discovered is an improvement on what was actually stated and which was recorded in the document Ex Ka 7. The statement of Harpal Singh is only to the effect that he knew as to where the dead body of Sardar Mela Singh was and not that he had himself along with others concealed it there. The statement, therefore, to the effect that Harpal had concealed the dead body there along with others which appears to have been made after the dead body had been recovered in view of what is mentioned in Ex Ka 7 cannot be read u/s 27 of the Indian Evidence Act inasmuch as this was not part of the statement which led to the discovery of the dead body of Mela Singh. The statement to the effect that he had knowledge as to where it was only is admissible. 14. The circumstances established in the case, therefore, are: (1) At about 9 P.M. on the 17th of January, 1964 the Appellants were seen together with accused Gajraj Ahir sitting with Sardar Mela Singh at the farm and at that time they were armed with spears; (2) on the 11th of February, 1964 on his arrest Harpal Singh disclosed that he knew where the dead body of Mela Singh was concealed in the river Ganga which led to the discovery of the body as to where it was and its subsequent recovery therefrom. The question is whether these two circumstances established in the case lead to any conclusion about the guilt of the Appellants. 15. So far as Harpal Singh is concerned, his presence in the company of Mela Singh on the night between the 17th and the 18th of January, 1964 is established. The question is whether these two circumstances established in the case lead to any conclusion about the guilt of the Appellants. 15. So far as Harpal Singh is concerned, his presence in the company of Mela Singh on the night between the 17th and the 18th of January, 1964 is established. It is also established that on the 11th of February, 1964 he knew as to where the dead body had been concealed. The mere fact that he knew about the dead body being concealed at a place does not lead to the conclusion that he was a party to its concealment there in order to screen himself from legal punishment. If a person knows where a thing is concealed, the conclusion is not inevitable that he must have concealed it there specially when the place is exposed and is not protected. He might have seen some one else keeping it there. On this evidence alone, therefore, Harpal Singh's conviction cannot be recorded. 16. So far as the other Appellants are concerned, we have the evidence of their being seen in the company of Sardar Mela Singh in the night of the 17th of January, 1964 and even if the statement of Harpal is read as against them, which, I am of opinion, cannot be taken it into consideration against them u/s 30 of the Indian Evidence Act, no guilt has been established against them as well. All the Appellants, therefore, have to be acquitted as the evidence falls far short of establishing an offence u/s 201, IPC. 17. The question, therefore as to whether a confession, if any, that might have been admissible against Harpal u/s 27 of the Indian Evidence Act is admissible against his co-accused also in so far as it implicates them as well, remains only of academic interest, but as the case has been argued at length on this point, I proper to deal with this aspect of the case also. 18. The statement of Harpal was recorded by the investigating Officer during the course of investigation. 18. The statement of Harpal was recorded by the investigating Officer during the course of investigation. u/s 162 of the Code of Criminal Procedure, leaving out for the present Sub-section (2) of that section which is an exception, this statement could not be used for any purpose at any inquiry or trial in respect of any offence under investigation at the time when that statement was made except for the limited purpose of contradiction contemplated in the section and for explaining any matter referred to therein, in re-examination. 19. Under Sub-section (1) of Section 162, Code of Criminal Procedure by itself therefore, this statement would not be admissible in evidence against the accused. But Sub-section (2) of Section 162 makes an exception and it provides that nothing in this section shall be deemed to apply to any statement falling within the provisions of Section 32, Clause (1) of the Indian Evidence Act, 1872 or to affect the provisions of Section 27 of that Act. This statement which is covered by Section 27 of the Indian Evidence Act, even though recorded during the course of investigation, can thus be used in evidence. 20. We have, therefore, to examine the scope and amit of the provisions of Section 27 of the Indian Evidence Act. Section 27 of the Indian Evidence Act begins with the word "Provided" which means that it is by way a proviso to some other provision of law. The other provision of law is no other than Section 26 of the Act. 21. Section 26 of the Indian Evidence Act provides that no confession made by any person whilst he is in the custody of a police-officer, unless it be made in the immediate presence of a Magistrate, shall be proved as against such person. 22. We are not concerned with the explanation to that section. 23. Section 27 of the Indian Evidence Act which is an exception to Section 26 of that Act reads as follows: ....Provided that, when any fact is deposed to as discovered in consequence of information received fro n a person accused of any offence, in the custody of a police-officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved. 24. 24. Thus though a confession made by a person whilst he is in the custody of a police-officer may not be proved against such person unless it is made in the immediate presence of a Magistrate, yet when a fact is deposed to as discovered in consequence of information received from a person accused of any offence in the custody of a police-officer so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved. 25. Section 26 is a bar to the use of confession against "such person," namely, the person who makes the confession. Section 27, which is an exception to Section 26, allows the use of the confession in certain circumstances, which could not otherwise be used u/s 26, against "such person" as contemplated u/s 26, i.e., against the person who made the confession. The confession, therefore, if any, made by Harpal could be used against Harpal only who made the confession and not against his co-accused. 26. u/s 30 of the Evidence Act, no doubt, 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 such other person as well as against the person who makes such confession. Thus u/s 30 the confession made by an accused may be taken into consideration against a co accused. The confession made by Harpal is in the first instance not admissible in evidence u/s 162, Code of Criminal Procedure. It is admissible in evidence only to the extent to which it comes under the exception under Sub-section (2) of Section 162. Under that exception it can be used only if it falls u/s 27 of the Evidence Act and u/s 27 of the Indian Evidence Act it can be used only against him and not others. Therefore, there being a bar to the statement of Harpal being used against a co-accused which bar is not lifted by Sub-section (2) of Section 162, Code of Criminal Procedure, it cannot be taken into consideration u/s 30 of the Evidence Act against the co-accused of Harpal. 27. Therefore, there being a bar to the statement of Harpal being used against a co-accused which bar is not lifted by Sub-section (2) of Section 162, Code of Criminal Procedure, it cannot be taken into consideration u/s 30 of the Evidence Act against the co-accused of Harpal. 27. The view that I have taken as to the scope and ambit of Section 27 of the Indian Evidence Act is supported by a case of the Calcutta High Court, namely, Satish Chandra Seal and Others Vs. Emperor, AIR 1945 Cal 137 . There is a contrary view of a Full Bench of the Madras High Court in re: Athappa Goundan ILR (1937) Mad 695) which purports to follow Sankappa Rai v. Emperor ILR (1908) 31 Mad. 127, Shivabhai v. Emperor (1926) ILR 50 Bom. 683 and in re : Periyaswami Moonan ILR (1930) 54 Mad. 75. But for the reasons given above I prefer the Calcutta view to the Madras view and the Bombay view which the latter purports to follow. 28. In view of what has been held above, it is not necessary to enter into a discussion as to how far, if at all, the statement made by Harpal while in custody can be used againt the other Appellants and to consider the effect of the law laid down in Hari Charan Kurmi and Jogia Hajam Vs. State of Bihar, AIR 1964 SC 1184 . Altogether, therefore the appeal should be allowed and is hereby allowed and the conviction and the sentences passed against the Appellants set aside. The Appellants are on bail. They need not surrender to their bails. Their bail bonds are discharged. Appeal allowed.