By Apurva Rathee

Statement of Facts

  1. On 1-8-1968, around 8.40 a.m., Murari Bhikaji Bidya who was the Shed Superintendent of Haji Bunder, was informed by the Canteen boy named Shri Babu Durga that a car had come inside Haji Bunder and removed 3 small drums which were lying between Shed ‘A’ and Canteen in an open place.
  2. Shri Joshi, the gatekeeper was asked to go out and see what the matter was but before he could reach the gate, the car left.
  3. The gatekeeper shouted for the driver to stop the car, but the driver drove away at a high speed. The gatekeeper, however, noted the number of the car which was 6649.
  4. The Shed Superintendent went to the open place in between ‘A’ Shed and Canteen where the drums were lying to inspect whether the drums were actually missing. There was a gap between the bigger size drums from where the smaller ones had been removed showing that three small drums had been removed.
  5. I.R. of the theft was lodged with the police by the Shed Superintendent at 9.15 a.m. on the same day.
  6. Sub-Inspector Thorat, the investigating officer, after making inquiries from the Regional Transport Office, traced the owner of the car, BML 6649, and requested him to send his car-driver to the Police station.
  7. Accordingly, the driver, Babu Vithal, accompanied by the accused (appellant) appeared before the Sub-Inspector in the Police Station on 26-9-1968. The Sub-Inspector took the accused into custody.
  8. He then interrogated the accused who made a statement which was recorded by the Sub-Inspector. Rendered into English, this statement (incorporated in the Panchnama) read as: “I will tell the place of deposit of the three Chemical drums which I took out from the Haji Bunder on 1st August.”
  9. The accused then led the Police Officer and the Panchas to a Musafirkhana in Crowford Market and pointed out the three drums lying there, bearing the markings, ‘ACC I Phosphorous Pentaoxide’.
  10. The drums were identified by the Shed Superintendent as the same which had been stolen.
  11. The appellant, Mohmed Inayatullah, was tried on the charge of committing theft of three drums containing phosphorous pentaoxide, valued at Rs. 300/-, from the premises of the Bombay Port Trust on 1-8-1968 at 8.40 a.m.

Identification of Issues

  1. Whether or not the Appellant, Mohmed Inayatullah is guilty of theft (S. 379 I.P.C.) of three chemical drums containing phosphorus pentaoxide from Haji Bunder on 1-8-1968 at 8.40 a.m.?
  2. Whether or not the disclosure statement made by the Appellant Mohmed Inayatullah is admissible as a whole as per S. 27 of the Indian Evidence Act, 1872?
  3. Whether or not a presumption arises against the Appellant Mohmed Inayatullah under the Illustration (a) to S. 114 of the Indian Evidence Act, 1872?

Arguments Advanced

On behalf of Appellant:

  1. Regarding Issue 1.
  • That the Appellant not guilty of theft of the said chemical drums from Haji Bunder on the date in issue.
  • Complete denial of the prosecution case.
  1. Regarding Issue 2.
  • That there has been a misconstruction of the statement made by the accused to the Investigating Officer.
  • That the Courts below have also admitted that part of the statement of the accused which is not permitted by S. 27 of the Indian Evidence Act, 1872.
  1. Regarding Issue 3.
  • That when properly read, the admissible portion of the statement of the accused (appellant) does not warrant an inference under Illustration (a) to S. 114 of the Indian Evidence Act, 1872.
  • That, as a consequence, no presumption arises that the appellant was the thief or a receiver of stolen property.

On behalf of State:

  1. Regarding Issue 1.
  • That the appellant was guilty of theft of the said three chemical drums from Haji Bunder on 1-8-1968, at 8.40 a.m.
  1. Regarding Issue 2.
  • That the whole of the information supplied by the accused to the investigating officer while in custody admissible under S. 27.
  1. Regarding Issue 3.
  • That such information, as admissible under Section 27, Evidence Act, showed that the accused was admittedly in possession of these stolen drums on 26-9-1968.
  • That therefore, under illustration (a) of Section 114, Evidence Act, he would be presumed to be the thief.

Judgment by the Bombay High Court

Decision of the Presidency Magistrate 5th Court, Dadar, upheld by the High Court of Bombay:

The appellant, Mohmed Inayatullah was convicted and sentence was passed against him under S. 379 I.P.C. for the theft of the three chemical drums from Haji Bunder by the Presidency Magistrate 5th Court, Dadar. This decision was upheld by the Bombay High Court.

The reasons given for the conviction were:

  1. That three drums had been stolen from the shed of the Bombay Port Trust (Haji Bunder) on 1-8-1968 at 8.40 a.m.
  2. That the drums found from the Musafirkhana in Crowford Market were the same that had been stolen.
  3. That these drums were discovered in consequence of the information given by the accused whilst in police custody.
  4. That such information, as admissible under Section 27, Evidence Act, showed that the accused was admittedly in possession of these stolen drums on 26-9-1968 and therefore, under illustration (a) of Section 114, Evidence Act, he would be presumed to be the thief.[1]

Judgment by the Supreme Court

The accused appealed to the Supreme Court by Special Leave against the judgment of the High Court of Bombay[2] upholding the conviction and sentence passed against the appellant under S. 379 I.P.C.

The Bench of the Hon’ble Supreme Court that heard the appeal comprised of P. N. Bhagwati and R. S. Sarkaria, J.J. The judgment was delivered by Sarkaria, J.

Interpretation of S. 27:

The Hon’ble Supreme Court discussed at length the interpretation and scope of S. 27[3] of the Indian Evidence Act, 1872.

  1. The expression “Provided that” together with the phrase “whether it amounts to a confession or not” shows that the section is in the nature of an exception to the preceding provisions particularly Sections 25 and 26.[4] The Hon’ble Apex Court however did not consider the question whether S. 27 also acts as an exception to S. 24 of the Evidence Act.
  2. Conditions necessary for bringing S. 27 into operation:
  • The first condition necessary for bringing S. 27 into operation is the discovery of a fact, albeit a relevant fact, in consequence of the information received from a person accused of an offence.
  • The second is that the discovery of such fact must be deposed to.
  • The third is that at the time of the receipt of the information the accused must be in police custody.
  • The last but the most important condition is that only “so much of the information” as relates distinctly to that fact thereby discovered is admissible. The rest of the information has to be excluded.[5]
  1. The word “distinctly” means “directly”, “indubitably” “strictly”, “unmistakably”. The word has been advisedly used to limit and define the scope of the provable information. The phrase “distinctly” relates “to the fact thereby discovered”. This phrase refers to that part of the information supplied by the accused which is the direct and immediate cause of the discovery.
  2. The reason behind this partial lifting of the ban against confessions and statements made to the police is that if a fact is actually discovered in consequence of information given by the accused, it affords some guarantee of truth of that part, and that part only, of the information which was the clear, immediate and proximate cause of the discovery.
  3. No such guarantee or assurance attaches to the rest of the statement which may be indirectly or remotely related to the fact discovered.
  4. The expression “fact discovered” includes not only the physical object produced, but also the place from which it is produced and the knowledge of the accused as to this.[6] Although, earlier the expression “fact discovered” was interpreted to be restricted to a physical or material fact which could be perceived by the senses, and did not include a mental fact.[7]

Disclosure Statement made by the Accused:

  1. It is extremely necessary to be clear about the precise statement made by the accused to the police officer.
  2. The Supreme Court referred to the original record of the statement of the appellant in Hindi as was recorded in the Panchnama. The Panchnama also contained a correct English translation of the same.
  3. What the accused had stated was: “I will tell the place of deposit of the three Chemical drums which I took out from the Haji Bunder on 1st August”.
  4. The Supreme Court held that the statement of the appellant as interpreted by the High Court was wrong. While considering the statement, the High Court observed that the accused had stated that “he had kept them (drums) there”. But in the opinion of the Supreme Court he never said that it was he who had deposited the drums at the place from which they were produced. The latter part of the statement which was an outright confession of the theft, was not completely ruled out of evidence by the High Court and something of it was imported into and superimposed on the first part of the statement so as to fix the responsibility for deposit and possession of the stolen drums, on the accused.
  5. The Supreme Court then went on to apply the law laid down to the facts of the case.

Application of the Principles laid down to the Facts of the Case:

The Hon’ble Apex Court then applied the principles clarified by it to the facts of the case of the Appellant.

  1. The fact discovered in consequence of the information given by the accused. The three-fold fact that was discovered in this case was:
  • the chemical drums in question,
  • the place i.e. the Musafirkhana, Crawford Market, wherein they lay deposited and
  • the accused’s knowledge of such deposit.
  1. Only the part of the statement that relates ‘distinctly’ to the fact discovered would be admissible. Thus, after the discovery of the relevant fact the next step is to split up the statement of the accused into its components and to separate the admissible from the inadmissible portion or portions. Only those components or portions which were the immediate cause of the discovery would be legal evidence and not the rest which must be excised and rejected.[8]
  2. Thus, the Court held that, in the instant case, only the first part of the statement, viz., “I will tell the place of deposit of the three Chemical drums” was the immediate and direct cause of the fact discovered. Therefore, this portion only was admissible under S. 27. The rest of the statement , namely, “which I took out from the Haji Bunder on 1st August”, constituted only the past history of the drums or their theft by the accused; it was not the distinct and proximate cause of the discovery and had to be ruled out of evidence altogether.[9]
  3. After rejecting the inadmissible portion, the Supreme Court considered whether the admissible portion of the information taken in conjunction with the facts discovered was sufficient to draw the presumption that the accused was the thief or receiver of stolen property knowing it to be stolen. In the circumstances of the case pointed towards the negative.
  4. The drums in question were found in the compound or yard of a Musafirkhana which was a place of rest and waiting for travelers. It was not alleged by the prosecution – much less proved – that the drums were lying concealed, or that the compound was under the lock and key of the accused. The place of deposit of the drums was in no way under the control or occupation of the accused. The place being a Musafirkhana, was from its very nature accessible to all.[10]

Inference under Illustration (a) to S. 114:

An inference under Section 114, Illustration (a) should never be reached unless it is a necessary inference from the circumstances of the given case, which cannot be explained on any other hypothesis save that of the guilt of the accused. The case of the appellant was not that.

Decision of the Supreme Court

The Apex Court gave the accused the benefit of doubt as the facts proved by the prosecution gave rise to two equally possible hypothesis:

  1. That it was the accused who had himself deposited the stolen drums in the Musafirkhana, or
  2. That the accused only knew that the drums were lying at that place. The second hypothesis was wholly compatible with his innocence.
  3. Therefore, the appeal was allowed and the conviction of the Appellant was set aside.

[1] Para 7 of the Judgment

[2] Criminal Appeal No. 1954 of 1969, D/- 4-3-1971-Bom.

[3] Section 27, “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.”

[4] Para 11 of the Judgment

[5] Ibid.

[6] Cited Pulukuri Kotayya v. Emperor, AIR 1947 PC 67; Udai Bhan v. State of Uttar Pradesh, AIR 1962 SC 1116

[7] Cited Sukhan v. Crown, AIR 1929 Lah 344 (FB); Gangu Chandra v. Emperor, AIR 1932 Bom 286.

[8] Para 14 of the Judgment

[9] Ibid.

[10] Para 15 of the Judgment

image source: https://sites.psu.edu/tochange/2016/02/06/wf-ed-585-evidence-vs-proof/

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