Telangana High Court
Macharla Ramesh vs The State Of Telangana on 18 April, 2022
Author: K. Lakshman
Bench: K. Lakshman
IN THE HIGH COURT FOR THE STATE OF TELANGANA
AT: HYDERABAD
CORAM:
* THE HON'BLE SRI JUSTICE K. LAKSHMAN
+ CRIMINAL REVISION CASE No.268 OF 2022
% Delivered on: 18-04-2022
Between:
# Mr. Macharla Ramesh .. Petitioner
Vs.
$ The State of Telangana, rep.by its
Public Prosecutor, Hyderabad .. Respondent
! For Petitioner : Mr. Koka Srinivas Kumar,
^ For Respondent : Learned Public Prosecutor
< Gist :
> Head Note :
? Cases Referred :
1. AIR 1966 SC 119
2. 2010 (2) ALD (Crl) 847 (AP)
3. 2020 (2) ALD (Crl) 476 (AP)
4. 2021 (1) ALD (Crl) 430 (AP)
5. AIR 1952 SC 354
6. 2014 Crl.L.J. 2371 SC
7. 2015 Crl.L.J. 3174 SC
8. 2013 Crl.L.J. 3260 SC
9. 2014 Crl.L.J. 2712 SC
10. (1995) 10 SCC 675
11. 2012 Crl.L.J. 3014 SC
12. 2011 Crl.L.J. 4920 SC
13. AIR 1976 SC 483
14. AIR 2004 SC 2865
15. AIR 1947 (PC) 67
16. 2002 Crl.L.J. 4664 SC
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KL,J
Crl.R.C. No.268 of 2022
HON'BLE SRI JUSTICE K. LAKSHMAN
CRIMINAL REVISION CASE No. 268 of 2022
ORDER:
This revision is filed challenging the order dated 28.03.2022 in Crl.M.P.No.148 of 2022 in SC/ST SC.No.131 of 2019, passed by the Special Sessions Judge, for Trial of Cases in SCs & STs (POA) Act- cum-VII Additional District and Sessions Judge, Ranga Reddy District at L.B.Nagar.
2. Heard Mr.Koka Srinivas Kumar, learned counsel for the petitioner/Accused No.1 and the learned Public Prosecutor.
3. The Petitioner herein is Accused No.1. The offences alleged against the petitioner herein are under Sections 302, 201, 414, 498-A, 109, 120-B of IPC and Sec.3(1)(r)(s) and Sec.3(2)(5) of SC/ST (POA) Act, 2015 (for short 'the Act').
4. As per the charge sheet, the allegations against the petitioner herein are that he has killed his wife and son by pouring Petrol on them and by litting fire. During the pendency of the said Sessions Case, the petitioner herein and other accused have filed a 3 KL,J Crl.R.C. No.268 of 2022 petition vide Crl.M.P.No.148 of 2022, under Section 25 of the Indian Evidence Act,1872 (for short 'Evidence Act') praying the Court below to dispense with the examination of L.W.13, G.Satish, Sub-Inspector of Police, Palakurthy, as a witness for prosecution on the following grounds:
(i) As per the statement of L.W.13 recorded under Section 161 Cr.P.C., he worked as Station House Officer, P.S.Palakurthy.
(ii) On 10.02.2019 at about 02.30 p.m., one person came to Police Station, discloses his name as Macharla Ramesh. On 09.02.2019 in the night, he killed his wife Smt.Sushrutha and his son Chinna in the forest area near Ghatkesar, due to family disputes. He bought petrol from H.P.Petrol Bunk and poured the same, burnt them by litting fire.
(iii) The said statement of Lw13 recorded under Section 161 of Cr.P.C., is squarely hit by Section 25 of the Evidence Act and it is inadmissible in evidence.
(iv) The bar imposed in the said proviso is absolute and cannot be overcome. The said bar covers a confession made when a person is free and not in police custody and also confession made before any investigation that has begun. The said confession need not be before the officer who is investigating the case and it cannot be before any Police Officer.
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5. In support of his contentions he placed reliance on the following three judgments i.e., Aghnoo Nagesia v. State of Bihar1, State of Andhra Pradesh v. Ramancha Laxma Reddy2 and Devarla Murali v. State of Andhra Pradesh3.
6. The said petition was resisted by the prosecution on the following grounds:
(i) On the report given by L.W.1, the Police, Ghatkesar have already registered a case and started investigation.
(ii) Any statement supposed to be acquainted with the facts and circumstances of the case made by any person with the Police Officer, his status will fall into the category of either witness or accused, depending on the circumstances.
(iii) The person if made statement of what he witnesses, it will hit by Section 161 of Cr.P.C. and if the statement is self incriminating it will become confession.
(iv) The statement of accused No.1 is involved the fact discovered and he cannot get exemption of Section 25 of Indian Evidence Act.
7. Accused No.1 confession statement is relevant and the said statement is involved in discovery of fact. Therefore, accused No.1 cannot get protection under Section 25 of Evidence Act. While 1 . AIR 1966 SC 119 2 . 2010 (2) ALD (Crl) 847 (AP) 3 . 2020 (2) ALD (Crl) 476 (AP) 5 KL,J Crl.R.C. No.268 of 2022 recording the evidence in the trial, the question of admission and inadmission comes only at the time of appreciation of evidence. It is the duty of the Police Officer to adduce the exact evidence on record of what information, he had received. No part of the confession statement is receivable in evidence except to the extent that the bar of Section 25 is lifted by Section 27 of Evidence Act. The confession statement of Accused No.1 before Police Officer is covered under the doctrine of confirmation by subsequent events. Therefore, by way of filing the present application, the defence is trying to get benefit under the Doctrine of Estoppels.
8. Vide impugned judgment, the Court below has dismissed the said petition on the following grounds:
(i) FIR was not registered on the statement of accused No.1.
(ii) The Lw13 is a Police Officer and he is not Investigating Officer.
(iii) As per Section 25 of Evidence Act, a confession made to a Police Officer is inadmissible and shall not be proved against maker.
9. As per Section 26 of the Evidence Act, a confession made while in the custody of Police Officer shall not be admitted, unless it is made in the immediate presence of Magistrate. Referring 6 KL,J Crl.R.C. No.268 of 2022 to Sections 24 to 27 of the Evidence Act, the Court below stated that the following two ingredients were to be satisfied with regard to inadmissibility of confession statement:
(i) A confession to a police officer.
(ii) The maker is in the custody of police officer.
10. L.W.13 is a Police Officer, he is not the Investigating Officer. The accused No.1 is not in the custody of L.W.13. The accused No.1 voluntarily came to Police Station and made statement to L.W.13 and moreover, accused No.1 is not in the custody of L.W.13. Therefore, the riders under Section 25 and 26 of the Evidence Act is not applicable to Section 161 Cr.P.C. L.W.13 did not discover any fact as per Section 27 of the Evidence Act. L.W.13 is a witness to prove that accused No.1 made statement and the same was stated by L.W.13 before the Investigating Officer, which does not attract the provisions of Sections 25 and 26 of the Evidence Act. Therefore, the examination of L.W.13 as a prosecution witness is permissible. As per Section 161 of Cr.P.C. the statement of L.W.13, is not hit by the provisions of Sections 25 and 26 of the Evidence Act. 7
KL,J Crl.R.C. No.268 of 2022
11. Sri Koka Srinivas Kumar, learned counsel for the petitioner would submit that the Court below erroneously dismissed the application filed by the petitioner without appreciation of law and facts. As per the language used in Section 25 of the Evidence Act, the Police Officer is not the Investigating Officer. The facts of the present case do not fall in the exception under Section 27 of the Evidence Act. The Court below erroneously held that accused No.1 was not in the custody of L.W.13. The Court below failed to consider the principle laid down by the Hon'ble Apex Court in the judgments cited supra.
12. Whereas the learned Public Prosecutor would submit that the Court below referring to various provisions of Criminal Procedure Code and Indian Evidence Act and also the Principle laid down by the Hon'ble Apex Court in three judgments cited supra by the petitioner, dismissed the said application. It is a reasoned order and well founded. There is no error in it. The matter is at trial stage. The petitioner/accused No.1 will be given an opportunity to cross examine L.W.13 and instead of availing the same, the petitioner herein seeking to dispense with the evidence of L.W.13 as prosecution witness which is not permissible under law.
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KL,J Crl.R.C. No.268 of 2022
13. In view of the said submissions, points that arise for consideration before this Court are:-
(i) Whether examination of L.W.13, Sub-Inspector of Police, before whom accused No.1 surrendered and informed about killing of his wife and child by pouring Petrol and by litting fire can be considered as prosecution witness or dispensed with his examination.
(ii) Whether the statement of L.W.13 recorded under Section 161 Cr.P.C. is hit by Section 25 of Indian Evidence Act.
14. From the above said rival submissions and also on perusal of record, the following are the undisputed facts:
i. Basing on the report received from L.W.1, Revenue Inspector (Giridwar, Ghatkesar), the Police Ghatkesar have registered a case in Crime No.63 of 2019 on 10.02.2019 for the aforesaid offences against the petitioner and other accused. L.W.24 registered the FIR and he started conducting investigation.
ii. As per the report of L.W.1, on 10.02.2019 at about 9 a.m., his Village Revenue Assistant received an information from the Kondapur Villagers stating that some unknown persons were murdered and burnt in land in Survey No.86 of Kondapur Revenue limits, belonging to one Dasu. On receipt of the said information, he along with Revenue Assistant and Revenue Inspector visited the said spot and 9 KL,J Crl.R.C. No.268 of 2022 observed that dead bodies of two persons were burnt and there is suspicion with regard to their deaths.
iii. As per the additional charge sheet, L.W.24 on registration of crime and recording of statement of L.W.1 under Section 161 Cr.P.C. secured L.Ws.15 and 16 panchas and conducted Inquest over the dead body of D.1 on 10.02.2019 between 1130 hours and 1245 hours and on the dead body of D.2 between 1245 hours and 1400 hours.
L.W.24 after conducting post-mortem on D.1 between 1500 hours and 1530 hours and over body of D.2 between 1530 hours and 1600 hours on 10.02.2019, has given his opinions. iv. On 10.02.2019 at about 0230 hours, while L.W.13, Sub- Inspector of Police, P.S., Palakurthy was in Police Station and discharging his duties, a person hurriedly came on his motorcycle to the Police Station and disclosed his identity as Macharla Ramesh, President of Gudur Village of Palakurthy Mandal and informed that on 09.02.2019 during night hours, he took his wife Macharla Sushrutha and son Chinna, aged 4 months to the forest area, Ghatkesar, killed them due to family disputes. He bought Petrol from H.P.Petrol Bunk near to the said spot in a plastic bottle, poured on them and lit fire and thus, he has burnt both the bodies. v. On receipt of said information, since according to the accused No.1, the incident took place within the jurisdiction of Ghatkesar Police Station, the L.W.13 informed the said fact to the Police Station Ghatkesar over phone. The Police 10 KL,J Crl.R.C. No.268 of 2022 personnel of Police Station, Ghatkesar came to Police Station Palakurthy took accused No.1 and his motorcycle.
15. As stated above, on receipt of report from L.W.1, L.W.24 has registered the above said crime against the petitioner herein. He took up investigation. Therefore, L.W.24 has recorded the statement of Sub-Inspector of Police, Palakurthy as L.W.13 under Section 161 Cr.P.C.
16. To decide the lis involved in the present criminal revision petition, this Court has to decide two important aspects i.e.,
(i) Whether accused No.1 is in the custody of L.W.13.
(ii) Whether the statement of L.W.13 recorded under Section 161 of Cr.P.C. is a confession statement.
17. It is relevant to note the expression 'confession' has not been defined in the Evidence Act. Considering the same, the Division Bench of High Court of Andhra Pradesh at Amaravathi, in Kalidindi Patiyya v. State of Andhra Pradesh4, referred to the Principle laid down by the Hon'ble Apex Court in Aghnoo Nagesia (supra), 4 . 2021 (1) ALD (Crl) 430 AP 11 KL,J Crl.R.C. No.268 of 2022 Palvinder Kaur v. State of Punjab5 and also in Pakala Narayana Swami v. King Emperor held as follows:
"7. The expression "confession" has not been defined in the Evidence Act. But, it has been held that, a confession is a statement which either admits the offence, or at any rate, substantially all the facts which constitute the offence. The law relating to the confessions has been succinctly elucidated by the Apex Court in Aghnoo Nagesia V. State of Bihar, AIR 1965 SC 119, as under:-
"The law relating to confessions is to be found generally in Sections 24 to 30 of the Evidence Act and ss. 162 and 164 of the Code of Criminal Procedure, 1898. Sections 17 to 31 of the Evidence Act are to be found under the heading "Admissions". Confession is a species of admission, and is dealt with in ss. 24 to 30. A confession or an admission is evidence against the maker of it, unless its admissibility is excluded by some provision of law. Section 24 excludes confessions caused by certain inducements, threats and promises. Section 25 provides: "No confession made to a police officer, shall be proved as against a person accused of an offence." The terms of s.25 are imperative. A confession made to a police officer under any circumstances is not admissible in evidence against the accused. It covers a confession made when he was free and not in police custody, as also a confession made before any investigation has begun. The expression "accused of any offence" covers a person accused of an offence at the trial whether or not he was accused of the offence when he made the confession. Section 26 prohibits proof against any person of a confession made by him in the custody of a 5 . AIR 1952 SC 354 12 KL,J Crl.R.C. No.268 of 2022 police officer, unless it is made in the immediate presence of a Magistrate. The partial ban imposed by S. 26 relates to a confession made to a person other than a police officer. Section 26 does not qualify the absolute ban imposed by s. 25 on a confession made to a police officer. Section 27 is in the form of a proviso, and partially lifts the ban imposed by ss. 24, 25 and 26. It provides 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. Section 162 of the Code of Criminal Procedure forbids the use of any statement made by any person to a police officer in the course of an investigation for any purpose at any enquiry or trial in respect of the offence Order investigation, save as mentioned in the proviso and in cases falling under sub-section (2), and it specifically provides that nothing in it shall be deemed to affect the provisions of S. 27 of the Evidence Act. The words of s. 162 are wide enough to include a confession made to a police officer in the course of an investigation. A statement or confession made in the course of an investigation may be recorded by a Magistrate under s. 164 of the Code of Criminal Procedure subject to the safeguards imposed by the section. Thus, except as provided by s. 27 of the Evidence Act, a confession by an accused to a police officer is absolutely protected under s. 25 of the Evidence Act, and if it is made in the course of an investigation, it is also protected by s. 162 of the Code of Criminal Procedure, and a confession to any other person made by him while in the custody of a police officer is protected by S. 26, unless it is made in the immediate presence of a Magistrate. These 13 KL,J Crl.R.C. No.268 of 2022 provisions seem to proceed upon the view that confessions made by an accused to a police officer or made by him while he is in the custody of a police officer are not to be trusted, and should not be used in evidence against him. They are based upon grounds of public policy, and the fullest effect should be given to them".
8) The Hon'ble Supreme Court in Palvinder Kaur v. State of Punjab reported in AIR 1952 SC 354, while referring to the judgment of Pakala Narayana Swamy v. King Emperor, observed that the word 'confession', as used in the Evidence Act, cannot be construed as meaning, a statement by the accused suggesting an inference that he committed the crime. It has been held that, the 'confession' must either admit, in terms, the offence, or at any rate, substantially all the facts, which constitute the offence. An admission of a gravely inculpatory fact, or even a conclusively inculpatory fact, is not by itself a confession. The same principle was reiterated in Оm Prakash v. State of U.P., reported in AIR 1960 SC 409.
9) If the confession was made before a Judicial Officer while discharging his duties, it is called as 'judicial confession', and if it made before a person other than the Judicial Officer or a Police Officer on duty or while in the custody of the Police Officer or before AIR 1952 SC 354, AIR 1960 SC 409 a Magistrate, who is not in discharge of his duty, is called as 'extra- judicial confession'.
10) In Sahoo v. State of U.P, reported in AIR 1966 SC 40, the Hon'ble Supreme Court held as under:-
"Admissions and confessions are exceptions to the hearsay rule. The Evidence Act places them in the category of relevant evidence, presumably on the ground that, as they are 14 KL,J Crl.R.C. No.268 of 2022 declarations against the interest of the person making them, they are probably true. The probative value of an admission or a confession does not depend upon its communication to another, though just like any other piece of evidence, it can be admitted in evidence only on proof. This proof, in the case of oral admission or confession, can be offered only by witness who heard the admission or confession, as the case may be".
18. Concise of Oxford English Dictionary defined 'confession' as a formal statement admitting to a crime, a reluctant acknowledgment.
19. It is also relevant to note that referring to Aghnoo Nagesia supra, Pakala Narayana Swami (supra) and Ramancha Laxma Reddy (supra), the Division Bench of High Court of Judicature of Andhra Pradesh at Hyderabad, in Kalidindi Patiyya (supra), held that when the accused went to the Police Station and gave a statement that he killed his wife, it definitely amounts to a confession. It is not the admission made by the accused with regard to some other facts because the accused admitted his guilt which amounts to a confession in view of the said law laid down and coming to the facts of the case on hand, as stated supra, accused No.1 went to Palakurthy Police Station voluntarily and informed to L.W.13 that he 15 KL,J Crl.R.C. No.268 of 2022 committed murder of his wife and son in forest area, Ghatkesar and burn the bodies by pouring petrol and by litting fire. Thus, accused No.1 has admitted his guilt. Therefore, according to this Court it is a confession statement.
20. Even there is no definition of 'custody' in the Indian Evidence Act. Concise Oxford English Dictionary defines 'custody' as the protective care or guardianship of someone of something, imprisonment. In Dharan Deo Yadav v. State of Uttar Pradesh6, Hon'ble Apex Court had an occasion to deal with custody as referred in Section 27 of the Indian Evidence Act and it held that the expression custody which appears in Section 27 did not mean a formal custody which includes any kind of surveillance, restriction or restrained by the Police. Even if the accused was not formally arrested at the time when the accused gave the information, the accused was, for all practical purposes, in the custody of Police. Therefore, as stated above accused No.1 voluntarily went to Police Station Palakurthy and informed L.W.13 about killing of his wife and son. On the basis of said information, since the commission of offence is in the territorial jurisdiction of Police Station Ghatkesar, L.W.13 informed Police 6 . 2014 Crl. L.J. 2371 SC 16 KL,J Crl.R.C. No.268 of 2022 Station Ghatkesar about the same. The police personnel of Police Station Ghatkesar came to Police Station Palakurthy, took accused No.1 and his motorcycle. Therefore, accused was in the custody of L.W.13.
21. In view of the said discussion and also the findings, now, the points that have to be decided is with regard to the relief sought by accused that the examination of L.W.13 has to be dispensed with as a prosecution witness and whether the statement of L.W.13 is hit by Section 25 of the Indian Evidence Act or falls under the exemption under Section 27 of the Indian Evidence Act.
22. To decide the said issue, it is relevant to extract Sections 25, 26 and 27 of Indian Evidence Act which reads as under:
Section 25: Confession to police officer not to be proved.--No confession made to a police officer, shall be proved as against a person accused of any offence.--No confession made to a police officer, shall be proved as against a person accused of any offence."
Section 26: Confession by accused while in custody of police not to be proved against him.--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 Magistrate1, shall be proved as against such person.17
KL,J Crl.R.C. No.268 of 2022 Section 27: How much of information received from accused may be proved.--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.
23. It is relevant to note that in Indra Dalal v. State of Hariyana7, the Apex Court had an occasion to deal with the scope and ambit of Section 27 of the Evidence Act. It was held that Section 27 is the form of proviso of Sections 25 and 26 of the Evidence Act. It makes clear that so much of such information which is received from a person accused of any offence, in the custody of Police Officer, which has lead to discovery of any fact may be used against the accused. Such information given must relate distinctly to the fact discovered.
24. In Rumi Bora Dutta v. State of Assam and Probal Datta v. State of Assam8, the Apex Court held that the basic idea embedded in Section 27 of the Evidence Act is a doctrine of confirmation by subsequent events. The doctrine is founded on the 7 . 2015 Crl. L.J. 3174 SC 8 . 2013 Crl.L.J. 3260 SC 18 KL,J Crl.R.C. No.268 of 2022 Principle that if any fact is discovered in a search made on the strength of any information obtained from a prisoner, such discovery is a guarantee that the information supplied by the prisoner is true. The information might be confession or non-inculpatory in nature, but if it results in discovery of a fact it becomes a reliable information. Hence, the legislature has permitted such information to be used as evidence by distinctly admissible portion to the minimum.
25. The Hon'ble Apex Court in Lalith Kumar Yadav @ Kuri v. State of Uttar Pradesh9, held that the statement of accused so far as it relates to giving of information regarding the hiding of the sickle and recovery of same can be taken into account to prove the truth of incident and to prove the statements of other witnesses which corroborated the same.
26. In State of Rajasthan v. Bhup Ram10, the Apex Court laid down certain conditions with regard to the applicability of Section 27 of the Indian Evidence Act for unwrapping the cover of ban against admissibility of statement of accused to Police. The same are as follows:
9
. 2014 Crl.L.J. 2712 SC 10 . (1995) 10 SCC 675 19 KL,J Crl.R.C. No.268 of 2022
1. A fact should have been discovered in consequence of the information received from the accused.
2. He should have been accused of an offence.
3. He should have been in custody of a police officer when he supplied the information.
4. The facts so discovered should have been deposed by the witness.
If the said conditions are satisfied, that apart information given by the accused which lead to such a recovery gets denuded of the wrapper of prohibition and it becomes admissible in evidence. The said principle was also reiterated by the Apex Court in Sahadevan v. State of Tamil Nadu11.
27. In Mustkeem @ Sirajudeen v. State of Rajasthan12, the Apex Court with regard to Section 27 of the Indian Evidence Act, held that what is important is discovery of material object at the disclosure of the accused, but such disclosure alone would not automatically lead to the conclusion that the offence was also committed by the accused. In fact, thereafter, burden lies on the prosecution to establish a close link between discovery of material objects and its use in the commission of offence. What is admissible 11 . 2012 Crl.L.J. 3014 SC 12 . 2011 Crl.L.J. 4920 SC 20 KL,J Crl.R.C. No.268 of 2022 under Section of 27 of the Act is the information leading to discovery and not any opinion formed on it by the prosecution.
28. In Mohammod Inayatullah v. State of Maharashtra13, the Apex Court held that expression fact discovered referred in Section 27 of the Indian Evidence Act includes not only the physical object produced but also place from which it is produced and the knowledge of the accused as to that. Interpreting the words of section "so much of information" as relates distinctly to the fact thereby discovered, the Court held that the word "distinctly" means "directly, indubitably, strictly, unmistakably". The word has been advisedly used to limit and define the scope of provable information. The phrase "distinctly" relates "to the fact thereby discovered". The phrase refers to that part of information supplied by the accused which is the direct cause of discovery of a fact. The rest of the information has to be excluded.
29. In Anter Singh v. State of Rajasthan14, the Apex Court had an occasion to deal with the scope and ambit of Section 27 of 13 . AIR 1976 SC 483 14 . AIR 2004 SC 2865 21 KL,J Crl.R.C. No.268 of 2022 Indian Evidence Act and referring to the Principle laid down in Pulukuri Kotayya Vs. Emperor15, held as follows:
".....It is fallacious to treat the fact discovered within the section as equivalent to the object produced. The fact discovered embraces and place from which the object is produced and the knowledge of accused as to this and information given must relate distinctly to this fact. The information as to past user or the past history, of the object produced is not related to discovery in the setting in which it is discovered. 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 knife. Knives were discovered many years ago. It leads to the discovery of the fact that a knife is concealed in a house of 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. But if to the statement the words be added "with which stabbed A", these words are inadmissible since they do not related to discovery of the knife in the house of the informant".
30. It is also relevant to note that in Bodh Raj v. State of Jammu and Kashmir16, the Apex Court referring to its other judgments held as follows:
15
. AIR 1947 (PC) 67 16 . 2002 Crl.L.J. 4664 SC 22 KL,J Crl.R.C. No.268 of 2022 "19.Emphasis was laid as a circumstance on recovery of weapon of assault, on the basis of information given by the accused while in custody. The question is whether the evidence relating to recovery is sufficient to fasten guilt on the accused. Section 27 of the Indian Evidence Act, 1872 (in short the Evidence Act') is by way of proviso to Sections 25 to 26 and a statement even by way of confession made in police custody which distinctly relates to the fact discovered is admissible in evidence against the accused, This position was succinctly dealt with by the this Court in Delhi Admn v, Balakrishan. AIR (1972) SC 3 and Md. Inayatullah v. State of Maharashtra. AIR (1976) SC
483. The words "so much of such information" as relates distinctlv to the fact thereby discovered. are very important and the whole force of the section concentrates on them. 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......., ..........It would appear that under Section 27 as it stands in order to render the evidence leading to discovery of any fact admissible, the information must come from any accused in custody of the police. The requirement of police custody is productive of extremely anomalous results and may lead to the exclusion of much valuable evidence in cases where a person, who is subsequently taken in to custody and becomes an accused. after committing a crime meets a police officer or voluntarily goes to him or to the police station and states the circumstances of the crime which lead to the discovery of the dead body, weapon or any other material fact. in consequence of the information thus received from him. This information which is otherwise admissible becomes inadmissible under Section 27 if the information did come from a person not in the custody of a police officer or did come from a person not in the custody of a police officer. The statement which is admissible under Section 27 is the one which is the information leading to discovery Thus, what is admissible being the information, the same has to be proved and not the opinion formed on it by the police officer. in other 23 KL,J Crl.R.C. No.268 of 2022 words, the exact information given by the accused while in custody which led to recovery of the articles has to be proved. !t is, therefore, necessary for the benefit of both the accused and prosecution that information given should be recorded and proved and if not so recorded, the exact information must be adduced through evidence. The basic idea embedded in Section 27 of the Evidence Act is the doctrine of confirmation by subsequent events. The doctrine is founded on the principle that if any fact is discovered as a search made on the strength of any Information obtained from a prisoner. such a discovery is a guarantee that the Information supplied by the prisoner is true. The information might be confessional or non-
inculcator in nature but if it results in discovery of a fact. it becomes a reliable information. it is now well settled that recovery of an object is not discovery of fact envisaged in the section. Decision of Privy Council in Palukuri Kotayya v. Emperor AIR (1947) PC 67, is the most quoted authority of supporting the interpretation that the "fact discovered" envisaged in the section embraces the place from which the object was produced, the knowledge of the accused as to it, but the information given must relate distinctly to that effect. [see Stale of Maharashtra v. Dam Gopinath Shirde and Ors, (2000) Crl.L.J 2301. No doubt, the information permitted to be admitted in evidence is confined to that portion of the information which "distinctly relates to the fact thereby discovered.'' But the information to get admissibility need not be so truncated as to make it insensible or incomprehensible."
31. It is also relevant to note that the Apex Court in Aghnoo Nagesia (supra) referring to Sections 24 to 27 of the Indian Evidence Act and other provisions held that Section 25 provides no confession made to a police officer shall be proved as against a person accused of 24 KL,J Crl.R.C. No.268 of 2022 an offence. The terms of Section 25 of the Evidence Act are imperative. A confession made to a police officer under any circumstances is not admissible in evidence against the accused. It covers a confession when he was free and not in police custody, as also a confession before any investigation has begun. The explanation "the accused of any offence" covers a person accused of an offence at the trial whether or not he was accused of the accused when he made the confession. Section 26 prohibits proof against any person of a confession made by him in the custody of a Police Officer, unless it is made in the immediate presence of a Magistrate. The partial ban imposed by Section 26 relates to a confession made to a person other than a police officer. Section 26 does not qualify the absolute ban imposed by Section 25 on a confession made to a police officer.
32. It further held that Section 27 of the Indian Evidence Act is in the form of a proviso and partially leads the ban imposed by Sections 24, 25 and 26. It provides 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 that amounts to a confession 25 KL,J Crl.R.C. No.268 of 2022 or not, as relates distinctly to a fact thereby discovered, may be proved. Section 162 of Cr.P.C. prohibits the use of any statement made by any person to a police officer in the course of investigation for any purpose at any inquiry or trial in respect of the offence under investigation, same as mentioned in the proviso and in cases falling under Sub Section (2), and it specifically provides that nothing in it shall be deemed to effect the provision of Section 27 of the Indian Evidence Act. The words of Section 162 are vide enough to include a confession made to a police officer in the course of an investigation. A statement or confession made in the course of investigation may be recorded by Magistrate under Section 164 of Code of Criminal Procedure subject to the safeguards imposed by the sections. Thus, except as provided by Section of 27 of the Indian Evidence Act, a confession by an accused to a police officer is absolutely protected under Section 25 of the Indian Evidence Act and it is not made in the course of an investigation, it is also protected by Section 162 of the Code of Criminal Procedure and a confession to any other person made by him while in the custody of a police officer is protected by Section 26 unless it is made in the immediate presence of a Magistrate. These provisions seem to proceed upon the view that 26 KL,J Crl.R.C. No.268 of 2022 confessions made by an accused to a police station or made by him while he is in the custody of police officer are not to be trusted and should not be used in evidence against him. There are based upon on the grounds of public policy and fullest efforts should be given to them. It further held that a confession may consists of several parts and may reveal not only actual commission of crime but also the motive, the preparation, the opportunity, the provocation, the weapon used, the intention, the concealment of the weapon and subsequent conduct of the accused. If the confession is tainted the taint attaches to each part of it. It is not permissible in law to separate one part and to admit it in evidence as a non-confessional statement. Each part discloses some incriminating facts i.e., some facts which by itself or along with other admitted approved facts suggest the inference that the accused committed the crime, and though each part taken singly may not amount to a confession, each of them is part of a confession statement partakes of the character of the confession. If a statement contains an admission of an offence, not only that admission but also every other admission of an incriminating facts contained in the statement is part of the confession. In proof of confession is excluded by any provision of law such as Sections 24, 25 and 26 of the Indian 27 KL,J Crl.R.C. No.268 of 2022 Evidence Act, the entire confession statement in all its parts including the admissions of minor incriminating facts must also be excluded unless proof of it is permitted by some other such as Section 27 of Indian Evidence Act. Little substance and content would be left in Sections 24, 25 and 26 in proof of admission of incriminating facts in a confessional statement is permitted.
33. It further held that a little reflection will show that the expression "confession" in Sections 26 to 34 refers to the confession statement as a whole including not only the admission of the offence but also all other admissions of incriminating facts related to the offence. Section 27 partially lifts the ban imposed by Sections 24, 25 and 26 in respect of so much of the information whether it amounts to confession or not, as relates distinctly to the fact discovered in consequence of the information, if other conditions of Section are satisfied. Section 27 distinctly contemplates that the information leading to a discovery may be part of the confession of the accused and thus, fall within the purview of Sections 24, 25 and 26. Section 27 thus shows that a confession statement admitting the offence may contain additional information as part of the confession. 28
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34. With the said findings, on examination of the facts of the said case therein, the Apex Court further held that the accused therein was constructively was in the police custody and therefore, the information contained in the First Information Report leading to the discovery of 'dead bodies' and the 'taungi' is admissible in evidence.
35. The sum and substance of the above said Judgments is that where there is discovery of fact, such recovery gets denuded of the wrapper of prohibition and it becomes admissible in evidence.
36. In view of the above said provisions law laid down by the Apex Court and High Court of Judicature of Andhra Pradesh in the cases referred supra, as discussed supra, in the case on hand, accused No.1 voluntarily went to the police station Palakurthy on 10.02.2019 at about 02.30 p.m., and informed L.W.13, Sub Inspector of Police, P.S.Palakurthy committing murder of his wife and son. He also informed the place of commission of offence and the manner of commission of offence. It is relevant to note that by the time accused No.1 voluntarily went to P.S.Palakurty and informed about the commission of offence to L.W.13 at 02.30 p.m., on 10.02.2019, L.W.24 has already registered a case in Crime No. 63 of 2019 on 29 KL,J Crl.R.C. No.268 of 2022 10.02.2019 itself on the report of L.W.1. He had already recorded the statement of L.W.1. L.W.24 has secured the presence of L.Ws.15 and 16 and conducted inquest on D.1 between 1130 and 1245 hours and D.2 between 1245 and 1400 hours. L.W.21 visited the scene of offence and conducted spot post mortem examination on D.1 at 1500 hours and 1530 hours and over the body of D.2 at 1530 and 1600 hours. Therefore, apart from the admission of commission of offence by accused No.1 before L.W.13, L.W.13 have also discovered certain facts i.e. place of commission of offence, manner in which the offence was committed by accused No.1. By the time L.W.13 received information from accused No.1, L.W.24, Investigating Officer has not identified the deceased and also did not come to a conclusion with regard to person who committed the offence. Thus, according to this Court L.W.13 has discovered certain facts and recorded his statement under Section 161 Cr.P.C. as L.W.13 before L.W.24 includes discovery of fact. Therefore, the confession statement of accused No.1 before L.W.13, police officer is covered by doctrine of confirmation of subsequent events.
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37. As discussed supra, it is relevant to note that L.W.13 statement is not recorded by the trail Court in the above said Sessions Case. After chief examination of L.W.13, the petitioner and other accused will be given an opportunity of cross examination of L.W.13. During the course of cross examination, accused will get an opportunity to disprove the deposition of L.W.13. Thereafter, an opportunity will be given to the petitioner to make his submissions with regard to the reliability of genuineness and other aspects of deposition of L.W.13.
38. Therefore, without availing the said opportunities, petitioner/accused No.1 cannot seek for dispense with examination of L.W.13 as a witness for prosecution. According to this Court, the said petition is filed only on assumptions and presumptions. Though the Court below has not discussed the above said several aspects in the impugned order, however, the Court below has rightly dismissed the said application filed by the petitioner herein and other accused.
39. Therefore, according to this Court, in view of the said discussions, there is no error in it. The petitioner herein failed to make out any case to interfere with the said impugned order. Thus, this 31 KL,J Crl.R.C. No.268 of 2022 Criminal Revision Case is liable to be dismissed and accordingly, it is dismissed. However, the observations made by this Court in the impugned order, is only for the purpose of deciding Criminal Revision Case. It will not have any bearing on the trial in SC.No.131 of 2019.
As a sequel, miscellaneous applications, if any, pending in the revision shall stand closed.
__________________ K. LAKSHMAN, J 18th April, 2022 Note: L.R. Copy to be marked (B/O.) Bak