ORDER
Sadasiva Iyer, J.
1. Criminal Revision Petition 568 has been filed by the second accused Manjunathaya and Criminal Revision Petition 582 by the first accused Subaraya Bhatta. They were convicted under Sections 461 and 380 of the Indian Penal Code on the finding that they broke open a closed copper dabbi buried in the store room of the Kamalashili temple situated in a village in the Coondapur Taluk. I may at once say as regards the second accused that there is no evidence worth the name that he committed theft of any coins from the dabbi of the temple which contained the cash and metal plate offerings made by the temple devotees. His confessional statement if it is admissible in evidence at all, merely shows that he received some coins from the first accused. This may be evidence of his having received stolen property but not of his having committed theft. His conviction and sentence must be set aside and his bail bond discharged.
2. Coming to the case of the 1st accused, his conviction is based upon the following facts, namely, that he told P.W. 1 sometime before the theft was discovered on the 6th June 1913 that as his pay had not been disbursed to him, he would steal the dabbi in which the offerings in cash and gold and silver trinkets are placed by the devotees of the temple. The evidence of the Prosecution witnesses 6 and 7 proves that the 1st accused obtained from the Prosecution 6th witness in April 1913 the duplicate key of the room in which the dabbi was kept on some pretext the key was afterwards returned and that he had another key made for himself through the Prosecution witness 7 (a goldsmith) in accordance with the impression of a key made in wax and left with the prosecution 7th witness by the accused.
3. The evidence of the prosecution witnesses 1 to 5 proves that the 1st accused made the following statements namely, that he and the 2nd accused stole the missing money from the dabbi, and that that stolen money will be found in a heap of rubbish close to his house. Then there is the fact that just after making these statements he went to that rubbish heap in the presence of two police constables and of the witnesses who made the search in his house and took out certain coins and metal plates similar to the coins and plates usually offered by the devotees and kept in the dabbi. On the above facts, the first accused was found guilty by both the courts below.
4. It is argued before me that the coins and the gold and silver pieces taken from the rubbish heap have not been identified with the coins and pieces which had been placed in the temple dabbi, that the statement of the first accused to the police that he stole those coins and pieces from the temple dabbi is not admissible in evidence as it was not connected with the discovery of the coins etc, in the rubbish heap, that that portion of his statement which signified that the coins and pieces found in that heap were properties stolen from the temple dabbi is also inadmissible in evidence as even that portion of the statement was not connected logically with the discovery of the properties in the heap, and that even if it could be held that that portion of the statement would have been logically connected with the discovery of these articles if the police had themselves acted on that information and recovered the properties from the rubbish heap it could not be connected with the discovery on the facts of this particular case, as the articles were taken by the accused himself from the rubbish heap and not by the police in consequence of that information.
5. As regards the first contention that the statement that he stole the articles is not admissible in evidence Mr. Adiga who appeared for the first accused is no doubt supported by all the cases. With the greatest respect to the Judges who decided those cases, I entertain some doubt on the question though my doubt is of very little practical consequence in the face of the dicta found in so many cases. Many departments of law are closely connected with the abstract sciences of metaphysics and logic, especially the department of the law of evidence. On the interpretation of Sections 26 and 27 of the Evidence Act much logical acumen has been employed in many of the cases. As to whether a particular portion of an accused’s confessional statement (a portion separable in idea though generally incapable of separation by taking apart some of the actual words used by the accused) can be said to be distinctly connected with the discovery of any particular fact, there has been much difference of opinion I should myself have held, if I were not bound by authority that any statement which forms a simple connected narrative leading naturally to the discovery of the stolen property is admissible in evidence and that only statements which are patently irrelevant to the discovery and which the police may be suspected to have introduced into the statement in order to fasten the guilt more securely on the accused were intended to be excluded by the Legislature as not connected with the discovery, especially as the Legislature distinctly contemplated that a direct confession of guilt might form part of the statement leading to the discovery (see the use of the expression in Section 27 ” Whether it amounts to a confession or not “) When the accused naturally says ” I committed this theft ” and I have concealed the stolen property in such and such a place ” and then leads the police to the place where the stolen property is concealed and the property is discovered, I should think that the statement as to the whereabouts of the property is so naturally connected with the statement immediately preceding it that he stole the property that the latter statement might also form one of the statements which are admissible in evidence though made in the presence of the police. However, as I said, the authorities (one of the latest is Sankappa Rai v. Emperor (1908) I.L.R. 31 M. 127) seem to be clear on the point that a statement that the accused himself committed the offence is not admissible in evidence under circumstances similar to those in the present case.
6. Then as regards the other portion of the statement of the 1st accused namely that portion signifying that the property stolen from the dabbi about which the police were then making an investigation will be found in the rubbish heap, I think that is a statement which is distinctly related to the discovery of the stolen property and is therefore clearly admissible. That statement sufficiently identifies the properties found in the heap with the temple properties stolen from the dabbi.
7. The fact that the rubbish heap out of which the stolen property was taken was in or near the accused’s compound and that he took it there from also proves the possession of the stolen property by the accused. A man found in possession of stolen property soon after the theft can be presumed to be the thief. That he was the thief was also indicated as I said before by the evidence of the prosecution witnesses 1, 6 and 7. I cannot accept the argument that the fact that the police or somebody under the directions of the police did not take the property from the place where the first accused said he had concealed it but the first accused himself took the property out of the rubbish heap indicates that the statement is not connected with the discovery and is therefore inadmissible in evidence. I agree with the decision of the Full Bench of the Bombay High Court (composed of Sargent C.J. and four other learned Judges) in Queen Empress v. Nana (1889) I.L.R. 14 B. 260. In that case it was held that though the accused himself took the property from the place where he had concealed it, it could be held without any violence to ordinary language that the property taken and produced by him was discovered in consequence of the statement which he made immediately before he took the property and handed it to the police. In the result, I dismiss the petition of the first accused and confirm his conviction and sentence.
8. He will surrender to his bail for serving the portion of the sentence remaining unserved.
