Bombay High Court
Rama Shidappa Thorali And Ors. vs State on 26 November, 1951
Equivalent citations: AIR1952BOM299, (1952)54BOMLR316, ILR1952BOM662, AIR 1952 BOMBAY 299, 54 BOM L R316
Author: Chief Justice
Bench: Chief Justice
ORDER Bavdekar, J.
(1) The appellants have been convicted by the learned Additional Sessions Judge, Belgaum, of an offence under Section 411 of the Indian Penal Code and have been sentenced to rigorous imprisonment for a period of three years.
(2) The trial was by a jury and the jury by a majority of 3 to 2 found the appellants guilty of the offence. The principal point, which has been made against the conviction of the appellants, is the admissibility of statements made by all the appellants to the effect that they themselves had hidden the property. In the case of accused No. 5 none of the property was found in his house But he had made a statement stating that he had hidden a trunk in a dunghill of Berads. Mr. Mandgi who appears on behalf of the appellants says that the words forming part of the statements of the accused persons which attributed to them the authorship of the concealment are not admissible in evidence. In support of this contention he refers to our decisions in the case of 'STATE v. RANGRAO DNYANU', 53 Bom LR 834. We took that view following the ruling of the Privy Council case of 'KOTTAYA v. EMPEROR', 49 Bom LR 508 (PC). This view has also been taken by another Division Bench of this Court to which I was a party in 'STATE v. KALEKHAN SALE MAHOMED KHAN', Confirmation Case No. 13 of 1950 (Bom). The contrary view has. however, been taken by another Division Bench in 'STATE v. PANDURANG DAGDU', Cri. Appeal No. 403 of 1951 (Bom). They have also relied in support of their decision upon the Privy Council case of 'KOTTAYA v. EMPEROR'. In these circumstances, in our view, it is proper to refer to a Full Bench the following question:
"When a statement made by an accused person while in custody of a police officer is tendered into evidence under the provisions of Section 27 of the Indian Evidence Act on the ground that an article which is concealed and the accused's knowledge of its whereabouts are discovered in consequence of the statement are words included in the statement with regard to the authorship of concealment, for example, "I have concealed", "I have hidden", or "I have kept", admissible in evidence or not?"
Case Note:
Indian Evidence Act (I of 1872), Section 27 - Statement made by accused to police-officer regarding concealment by him of stolen property--Recovery of property as consequence of such statement--Words in statement regarding authorship of concealment whether admissible in evidence.
When a statment made by an accused person while in custody of a police-officer is tendered in evidence under Section 27 of the Indian Evidence Act, 1872, on the ground that an article which is concealed and the accused's knowledge of its whereabouts arc discovered in consequence of the statement, the words included in the statement with regard to the authorship of the concealment, e.g., "I have concealed," "I have hidden", or "I have kept," are admissible in evidence under Section 27 of the Act.
Before Section 27 of the Indian Evidence Act can come into play, there must be a fact discovered and the fact must be discovered in consequence of some information received from an accused person. The section lays down a further qualification that the whole of the statement made by the accused in consequence of which the fact is discovered is not admissible. Only so much of the statement is admissible as relates distinctly to the fact discovered. Therefore, once a relevant fact is discovered by reason of a statement made by the accused to a police-officer, the Court must scrutinize the statement in order to find out which portion of that statement bears a distinct relationship to the discovery of the fact. Any relationship to the fact is not sufficient. The relationship must be distinct; it must be unmistakable and unequivocal.
Kottaya v. Emperor (1946) 49 Bom. L. R. 508, P. C. and Queen-Empress v. Nana (1889) I.L.R. 14 Bom. 260, F.B. followed.
State v. Rangrao Dnyanu (1951) 53 Bom. L. R. 834 and State v. Kelekhan Sale Mahomed Khan (1951) Confirmation Case No. 13 of 1950 (with App. No. 688 of 1950) decided by Bavdekar and Dixit JJ., on January 21, 1951 (Unrep) overruled.
Emperor v. Chokhey [1937] All. 710, Sukhan v. The Crown (1929) I. L. R. 10 Lah. 283, Sonaram Mahton v. King-Emperor (1930) I. L. R. 10 Pat. 153, Amiruddin Ahmed v. Emperor (1917) I. L. R. 45 Cal. 557, Mohd. Ilyas v. The State [1950] A. I. R. All. 615, Public Prosecutor v. Oor Goundan [1948] A. I. R. Mad. 242, In re Vellingiri [1950] A. I. R. Mad. 61, Mangal Singh v. King-Emperor [1948] Nag. 57, Emperor v. Namdeo Kaikadi (1944) 46 Bom. L. R. 546 and Pandurang Dagdu Gadekar v. State Criminal Appeals Nos. 403 and 404 of 1951, decided by Rajadhyaksha and Dixit JJ., on August 6, 1951 (Unrep.) referred to.
JUDGMENT Chagla, C.J.
(3) Nine accused were tried by the Additional Sessions Judge, Belgaum, with a jury, for having committed an offence under Section 395 and in the alternative under Section 411 of the Indian Penal Code. The jury brought in a verdict of guilty by 3 to 2 against accused Nos. 5, 6, 7 and 8 under Section 411 and they brought in a verdict of not guilty against the other accused. The Additional Sessions Judge accepted the verdict of the jury and with regard to the four accused Nos. 5, 6, 7 and 8 convicted and sentenced them. An appeal was preferred by these four accused and the appeal came for hearing before Mr. Justice Bavdekar and Mr. Justice Chainani. The only evidence against these four accused was a certain statement made by them to the police officer, and the question that arose before the Court of appeal was whether this statement was admissible Under Section 27 of the Indian Evidence Act. These two learned Judges have referred the matter to a Full bench as there were conflicting decisions of this Court on this point.
(4) Now, the statements made by these accused were these: With regard to accused No. 5 the statement was that " he would show the place where he had concealed one Bogani and one small Kolag and Jamb in a dung-hill." With regard to accused No. 6 the statement was that " he would produce a trunk which he had concealed in a dung-hill of Berads." With regard to accused No. 7 the statement was that "he would produce a pair of copper ghaggars which he had kept concealed in Ketki garden in the brook in the Shindolli limits." With regard to accused No. 8 the statement was that "he would show two copper Ghaggars and one brass Tapeli which he had concealed in the Ketki garden." The Division Bench that referred this matter to the Full Bench felt ioubt as to whether these statements, to the extent that they attributed the authorship of the concealment to the accused, were admissible under Section 27, and the question that arises for the determination of the Full Bench is whether the statements of these four accused, persons, when they stated that they had concealed various articles in certain places, are admissible when those articles have been in fact discovered in those places. As has been often pointed out, Section 27 is an exception to the general principle with regard to confessions embodied in Sections 25 and 26 of the Evidence Act. Those two sections make a confession made to a police officer or by a person while in custody of a police officer, unless it is made in immediate presence of a Magistrate, inadmissible, and according to the ordinary canon of construction the proviso embodied in Section 27 must be strictly construed. It must not be so construed as to make Sections 25 and 26 in their operation nugatory. Section 27 is in the following terms:
"Provided that when any 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."
Therefore, before Section 27 can come into play, there must be a fact discovered and the fact must be discovered in consequence of some information received from an accused person. Section 27 lays down a further qualification that the whole of the statement made by he accused in consequence of which the fact is discovered is not admissible. Only so much of the statement is admissible as relates distinctly to the fact discovered. Therefore, once a relevant fact is discovered by reason of a statement made by the accused to a police officer, the Court must scrutinise the statement in order to find out which portion of that statement bears a distinct relationship to the discovery of the fact. Any relationship to the fact is not sufficient. The Legislature has emphasised that the relationship must be distinct; it must be unmistakable and unequivocal.
(5) This section came up for consideration before the Privy Council in a recent decision reported in 'KOTTAYA v. EMPEROR', 49 Bom L R 508 (PC), and the Privy Council has emphasised one aspect of the matter which was apt to be overlooked before this decision was given. The Privy Council points out that Ihe fact discovered referred to in Section 27 embraces the place from which the object is produced and the knowledge of the accused as to this. Therefore, the fact discovered need not merely be the physical object like a knife or the subject-matter of the dacoity and not only the place from which these objects are found, but the fact discovered may also be the knowledge of the accused of the place where the articles were concealed. Their Lordships of the Privy Council go on to say (page 514):
" ...........Information supplied by a person in custody that 'I will produce a knife concealed in the roof of my house' does not lead to the discovery of a knife; knives were discovered many years ago. It leads to the discovery of the fact that a knife is concealed in the house of the informant to his knowledge; and if the knife is proved to have been used in the commission of the offence, the fact discovered is very relevant."
Therefore, a statement may merely disclose the fact that a knife is concealed in a particular place. It may also disclose the fact that the accused had knowledge of the fact that the knife was concealed in a particular place. Therefore, if the statement leads to the discovery not only of the fact that the knife was in a particular place but also of the fact that the knife was in a particular place to the knowledge of the accused, then the fact discovered is not merely the knife or the place where the knife was lying, but the fact discovered would also be that the knife was lying, in a particular place to the knowledge of the accused, and every portion of the statement made by the accused which relates to the discovery of this fact would be admissible under Section 27. In the case before the Privy Council the statement used by the accused which was challeged was, "I stabbed Sivayya with a spear, I hid the spear in a yard in my village. I will show you the place". The Privy Council held that the whole of the statement was admissible with the exception of the first part, viz., "I stabbed Sivayya with a spear." Therefore, their Lordships held that the statements "I hid the spear in a yard in my village", and "I will show you the place", were both admissible statements. The reason why, looking to the judgment of the Privy Council, their Lordships held that "I hid the spear in a yard in my village" was admissible was that this statement led to the discovery of the fact that the accused had knowledge that the spear was hidden in the yard in the village, and as that was a fact discovered, the statement relating to that discovery was admissible, and the statement relating to the discovery of that knowledge was "I hid the spear in a yard in my village". Apart from the decision of the Privy Council it is difficult to understand, once it is conceded that the knowledge of the accused may be a fact which can he discovered within the meaning of Section 27 how it is possible to argue that the source" of the knowledge of the accused is not distinctly related to the discovery with regard to his knowledge. The accused may say '"I hid a particular object in a particular place". The accused may say "X or Y told me that a particular object is hidden in a particular place and therefore I believe it is there and I am prepared to point the place out". Either of the two statements is distinctly related to the fact of the knowledge of the accused with regard to the place where a particular object is concealed. Therefore, turning to the facts of this particular case, all the accused volunteered to show the place where the various articles were concealed, because they knew the place as they themselves had concealed these articles. Therefore, the statements made by the four accused led to the discovery not only of the fact that these articles were concealed in a particular place, but it also led to the discovery of the fact that these articles were concealed in these places to the knowledge of the accused, and if knowledge of the accused was a relevant fact which was discovered by reason of the statement, then the portion of the statement which distinctly related to that knowledge, viz., that the accused had concealed these articles, would be admissible under Section 27 of the Evidence Act.
(6) There is a judgment of a Full Bench of this Court in 'QUEEN EMPRESS v. NANA', 14 Bom 260 (FB). In that case the statement attributed to the accused was: "Yes, I have kept it. I will point it out. I have buried it in the fields". And the Full Bench consisting of Sir Charles Sargent, Chief Justice, and Mr. Justice Bayley, Mr. Justice Scott, Mr. Justice Jardine and Mr. Justice Parsons held that the statement was admissible with the exception of the first part, viz. "Yes, I have kept it". And in the judgment of the learned Chief Justice he deals with the argument that the property was not discovered in consequence of the information given., by the accused to the police but by the act of the accused himself on the spot, and he dismisses this argument by pointing out that (p. 264):
."......it was upon the information which the statement gave the police that they accompanied the accused to the spot where the earthen pot was disintered by the accused containing the property, and it is equally clear that, if it had not been for this information, the property would not have been discovered, and it is, therefore, in accordance with the ordinary use of such terms to say that the discovery of the property in this case was 'the consequence' of the information."
The learned Chief Justice further adds (p. 204):
"It set the police in motion, the immediate consequence being that the police asked the accused to show them the spot, and accompanied him there; but such a proceeding on the part of the police was with the view to the discovery of the property, and was the natural consequence of the information they had received from him, and so connected it with the final result, viz., the discovery of the property as a 'causa causans'."
Therefore, this Full Bench clearly lays down that if there is a statement made by the accused which sets the police in motion, it is immaterial if the accused himself, after making the statement points out the place to the police and the discovery is made. If what led the police to take the accused to the place in question is the statement of the accused, then such portion of the statement as is distinctly related to the discovery is admissible. The Full Bench also clearly considered the statement "I have buried the particular object in the fields" as admissible, and the Full Bench was not troubled by the consideration which, with respect, has weighed with Bavdekar and Chainani JJ. that in considering the relationship which a portion of the statement bears to the discovery the authorship of the concealment should be ruled out in admitting the statement. In this particular statement before the Full Bench the accused admitted his own responsibility for burying the object in the fields and yet that statement was considered admissible because according to the Full Bench it was that statement which led to the discovery of the object, and now in view of the Privy Council decision it also led to the discovery of the knowledge of the accused that the object was buried in the fields. It would be difficult to take the view that the Privy Council has in any way impaired the authority of this Full Bench decision. Far from impairing it, it has supplied a further argument to strengthen and consolidate the decision which has stood as good law since 1889.
(7) The Government Pleader has drawn our attention to an impressive series of authorities of the different High Courts, both before and after the Privy Council decision, which have taken the same view of the law. Before the Privy Council decision was delivered, 'EMPEROR v. CHOKEY', ILR (1937) All 710; 'SUKHAN v. THE CROWN', 10 Lah 283; 'SONARAM MAHTON v. EMPEROR', 10 Pat 153 and 'AMIRUDDIN AHMED v. EMPEROR', 45 Cal 557, all take the same view of the law, and after the decision of the Privy Council 'MOHD. ILYAS v. THE STATE', ; 'PUBLIC PROSECUTOR v. OOR GOUNDAN', AIR 1948 Mad 242; 'IN RE VEL-LINGIRF, and 'MANGAL SINGH v. EMPEROR ILR (1948) Nag 57, have also taken the same view of the law.
(8) There is, however, a decision of this Court to which express reference must be made, because it seems to have taken a view of the law which is contrary in our opinion to the view of the Privy Council and the view of the Full Bench just referred to and also the view taken by the other High Courts, and that is the decision reported recently in 'STATE v. RANGRAO DNYANU', 53 Bom L R 834. That is a judgment of Mr. Justice Bavdekar and Mr. Justice Chainani. In that case the statement the learned Judges were considering was that the accused had kept a bomb in a cattle-shed belonging to a friend of his and that he would take it out and give it to the police, and the Bench took the view that the portions of the accused's statement that he had kept the bomb one month previously in his friend's cattle-shed were not admissible in evidence and that the only parts of the statement which could be admitted in evidence were those in which it was stated that the bomb was kept in the cattle-shed and that the accused would take it out and hand it over to the police. Now, with respect to the learned Judges, they do not seem to have attached sufficient importance to what was laid down by the Privy Council that the knowledge of the accused is a fact which can be discovered under Section 27 of the Evidence Act. Nor have they attached sufficient importance to the decision of the Full Bench in 'QUEEN EMPRESS v. NANA', 14 Bom 260. We also find, again with respect to the learned Judges, that an earlier decision of a Division Bench of this Court was not cited before them, and that was a judgment of Mr. Justice Lokur and Mr. Justice Divatia reported in 'EMPEROR v. NAM-DEQ', 46 Bom L R 546. In that case the statement was : "I put a bomb in R's office, I will show it to you." This statement was held to be admissible on the same ground as taken by the Full Bench, viz., that it was this statement that put the police in motion and which resulted in the finding of the bomb at the place indicated.
(9) Mr. Mandgi has drawn our attention to the fact that the salutary safeguard provided by the Legislature in Section 27 is the actual physical discovery of the object. But, say's Mr. Mandgi, if even the knowledge of the accused is to be considered as a fact discovered under Section 27, then that salutary safeguard would disappear. There is force in Mr. Mandgi's criticism, but we would like to point out that the criticism of Mr. IMandgi is directed more to the evidentiary value of a statement made by the accused rather than to its admissibility. It does not follow that because a portion of a statement of the accused is admissible in evidence, the Court is bound to act upon it or to attach to it the importance which it would attach to independent evidence; and we should also like to point out that the Privy Council has also emphasised that in considering the relationship which a portion of a statement bears to the discovery of the fact, information as to past user or the past history of the object produced is not related to its discovery in the setting in which it is discovered. Therefore, you have to look at the setting in which an object is discovered, and the portion of the statement which is to be admitted is to be strictly con-lined to the knowledge of the accused with regard to the particular setting in which the object was discovered. We hope that this judgment will not be looked upon as expanding unduly the ambit or scope of Section 27 of the Evidence Act.
(10) We would, therefore, answer the question submitted to us as follows: That the statement with regard to the authorship of the concealment is admissible in " evidence under Section 27. We also hold that 'STATE v. RANGRAO DNYANU', 53 Bom L, R 834, with respect, was wrongly decided. Mr. Justice Bavdekar in the referring judgment has referred to his own un-reported judgment in 'STATE v. KALEKHAN SALE MAHOMED KHAN', Confirmation Case No. 13 of 1950 (Bom). In our opinion, again with respect, that judgment seems to take a different view from the Full Bench in 'QUEEN EMPRESS v. NANA', 14 Bom 260. To the extent that it takes a different view from the Full Bench in 'QUEEN-EMPRESS v. NANA', in our opinion the decision is erroneous. Mr. Justice Bavdekar has also referred to another unreported judgment of Mr. Justice Rajadayaksha & Mr. Justice Dixit in 'PANDURANG DAGDU JADE-KAR v. STATE', in Appeals Nos. 403 & 494 of 1951 (Bom). That judgment takes the same view as we have taken in this Full Bench. In that judgment of Mr. Justice Rajadhyaksha and Mr. Justice Dixit the statement that came up for consideration was, "I have kept the stolen articles in a forest near the Bori field at Pinipalgaon. "I will show that to you." The learned Judges admitted the statement under Section 27. With respect' we agree with that view, except that they should have deleted from the statement the adjective "stolen" as it was not related to the discovery of the fact.
(11) Answer accordingly.