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PETITIONER: MOHMED INAYATULLAH

       Vs.

RESPONDENT: THE STATE OF MAHARASHTRA

DATE OF JUDGMENT09/09/1975

BENCH: SARKARIA, RANJIT SINGH BENCH: SARKARIA, RANJIT SINGH BHAGWATI, P.N.

CITATION:  1976 AIR  483            1976 SCR  (1) 715  1976 SCC  (1) 828

ACT:      Evidence Act  (1 of  1872), s.  27-Scope of-S.  114(a)- Scope of.

HEADNOTE:      The appellant  was charged  with an offence of theft or three drums  of chemicals. He was taken into police custody. On interrogation  he said : I will tell the place of deposit of the three chemical drums which I took out.... "      The drums  were thereafter  recovered  from  the  place mentioned by him. The trial court held that the. information given by the appellant as a result of which the stolen drums were discovered,  was admissible under s. 27 of the Evidence Act and  that under  illustration (a) to s 114 Evidence Act, the appellant would be presumed to be the thief.      Allowing the appeal to this Court, ^      HELD: 1(a)  The conditions  necessary for bringing this section into  operation are  (1) the  discovery of  a  fact, albeit a  relevant fact,  in consequence  of the information received from  a person  accused  of  an  offence  (ii)  the discovery of such fact must be deposed to, (iii) at the time of the  receipt of’  the information  the accused must be in police custody,  and (iv)  only "so much of the information" as relates  distinctly to  the fact  thereby  discovered  is admissible. The  rest of the information has to be excluded. [718 E]      (b)   The    word   ’distinctly    means    ’directly’, ’indubitably’ ’strictly’,  ’unmistakably. The  word has been advisedly  used  to  limit  and  define  the  scope  of  the proveable information. The phrase "distinctly relates to the fact  thereby   discovered"  refers  to  that  part  of  the information supplied  by the accused which is the direct and immediate cause of the discovery. [718 F]      (c) 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.  No  such  guarantee  or  assurance attaches  to   the  rest  of  the  statement  which  may  be indirectly or  remotely related to the fact discovered. [718 G]

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    Palukuri Kotayya  and ors.  v. Emperor  74 I.A.  65 and Udai Bhan v. State of Uttar Pradesh [1962] Supp. 2 S.C.R 830 referred to.      In  the  instant  case  only  the  first  part  of  the statement, namely  "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 was not a distinct and  a proximate  cause of the discovery and had to be ruled out evidence altogether. [719 G]      2(a) It  cannot be  said that 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. The drums were in a Musafirkhana which was a place  accessible to  all and  sundry. The  drums were not alleged to be lying concealed nor was the compound under the lock and key of the appellant. [720 A-B]      (b) The  inference under s. 114(a) can never be reached unless it is a necessary inference from the circumstances of a given  case which  could not  be explained  on  any  other hypothesis save  that of  the guilt  of the  accused. In the present case two alternative hypotheses are equally possible (1) that  it was  the accused  who had himself deposited the stolen drums in The Musafirkhana 716      or (ii) the accused only knew that the drums were lying at that  place. The   second  hypothesis was compatible with the innocence  of the  accused and  he is  entitled  to  the benefit of doubt. [720 C-D]

JUDGMENT:      CRIMINAL APPELLATE  JURISDICTION: Criminal  Appeal  No. 131 of 1971.      Appeal by  special leave  from the  judgment and  order dated the  4th March.  1971 of  the  Bombay  High  Court  in Criminal Appeal No. 1954 of 1969.      K. R.  Chaudhury, S.  L. Setia,  Rajendra Chaudhury and Veena Khanna, for the appellant.      H. R. Khanna and M. N. Shroff, for the respondent.      The Judgment of the Court was delivered by      SARKARIA, J.  This appeal  by special leave is directed against a judgment of the High Court of Bombay upholding the conviction and  sentence passed  against the appellant under s. 379, Penal Code. The facts are these :      The appellant  was tried in the court of the Presidency Magistrate 5th  Court, Dadar  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.      The First  Information Report  of the theft lodged with the  police   by  Murari   Bhikaji  Bidya   (PW  1   )  Shed Superintendent of Haji Bunder, at 9.15, was as follows:           "Today in  the morning at about 8. a.m. I reported      for duty  at Haji Bunder. At about 8.40 a.m. or so, the      Canteen boy  named Shri  Babu  Durga  came  to  me  and      informed me  that one M/Car had come inside Haji Bunder      and removed  3 small drums which were lying between ’A’      Shed and  Canteen in  an open  place along with several      drums. I  immediately asked  Shri Joshi the gate-keeper      who was  present in  my office at that particular time,      to go  out and  see what was the matter after some time      Shri Joshi  came to  my office  and  informed  me  that

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    before he  could reach  the gate,  the car  had already      left. However,  he has noted down the number of the Car      as 6649. He further told me that he shouted to stop the      car but  the driver  of the said car drove away the Car      at a  fast speed.  I then  went in  the open  place  in      between ’A’ Shed and Canteen where the drums were lying      when the  above said  Canteen boy  showed me  a gap  in      between bigger-size  drums from  where the  small drums      were removed .. "      Sub-Inspector Thorat PW 7, conducted the investigation. After making  inquiries from  the Regional Transport office, he traced the 717 owner of  the car,  BML 6649,  and requested him to send his car-driver to  the Police  station. Accordingly, the driver, Babu Vithal  (PW 5),  accompanied by the accused (appellant) appeared before  the Sub-Inspector  in the Police Station on September 26,  1968. The Sub-Inspector took the accused into custody. He then called the Panchas (including PW 6) and, in their  presence,   interrogated  the   accused  who  made  a statement which  was recorded by the Sub-Inspector. Rendered into English, this statement (incorporated in the Panchanama Ex. C) reads:           "I will  tell the  place of  deposit of  the three      Chemical drums which I took out from the Haji Bunder on      1st August."      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’.   Thereafter,   the   drums   were identified by PW 1 as the same which had been stolen.      Among others,  the prosecution  examined Bhikaji (PW 1) the informant,  Vishnu Sakharam  (PW  2),  the  Gate-keeper, Govindji (PW 3) the Clearing Agent and Rasal Mohd. (PW 6), a panch witness  of the  discovery. The  driver of the car BML 6649 was  also put  in the  witness-box as  PW 5.  He turned hostile and  the prosecution  cross-examined him  to impeach his credit.      The plea  of the  appellant was  one of plain denial of the prosecution case.      The courts below have concurrently found these facts:           1. That  three drums had been stolen from the shed      of the Bombay Port Trust on 1-8-1968 at 8.4 A.M.           2. That  the drums  in question were the same that      had been stolen.           3. That these drums were discovered in consequence      of the  information (vide  Ex. C)  given by the accused      whilst in police custody.           4. That  such information,  as admissible under s.      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 sec. 114, Evidence      Act, he would be presumed to be the thief.      Mr. Chaudhry,  the learned  Counsel for  the  appellant does not  seriously dispute  the first  two findings. But he forcefully assails the third and the fourth. His contentions are: (a)  that the  courts below  have not only misconstrued the statement  made by  the accused but have used more of it than was  permissible under  Sec. 27, Evidence Act; (b) that properly read, the admissible portion of the statement, 718 in the  circumstances  of  the  case,  did  not  warrant  an inference under  illustration (a) to Sec. 114, Evidence Act, that the  appellant was  the thief  or a  receiver of stolen property.

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    As against  this, Mr. H. R. Khanna, learned Counsel for the State submits that the whole of the information supplied by the accused was admissible udder sec. 27.      Although the  interpretation and  scope of  sec. 27 has been the  subject of  several authoritative  pronouncements, its application  to concrete  cases is  not always free from difficulty. It  will therefore  be worthwhile at the outset, to have  a short  and swift  glance at  the section  and  be remained of its requirements. The Section says:           "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."      The expression  "Provided that"  together  with  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 Secs. 25 and 26. It is not necessary in this  case to  consider if this section qualifies, to any extent, Sec.  24, also.  It will  be  seen  that  the  first condition necessary for bringing this section 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 the  fact thereby  discovered is  admissible. The rest of the information  has to  be excluded.  The word "distinctly" means "directly", "indubitably", "strictly", "unmistakably". The word  has been  advisedly used  to limit  and define the scope of  the proveable information. The phrase "distinctly" relates to  the fact thereby "discovered" is the linchpin of the provision.  This phrase  refers  to  that  part  of  the information supplied  by the accused which is the direct and immediate cause  of the  discovery. 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.  No  such guarantee or assurance attaches to the rest of the statement which may  be indirectly  or remotely  related to  the  fact discovered.      At one  time it  was held  that  the  expression  "fact discovered" in  the section  is restricted  to a physical or material fact which can be perceived by the senses, and that it does not include a mental fact (see 719 Sukhan v.  Crown,(1) Rex  v. Ganee)  (2). Now  it is  fairly settled that  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 (see Palukuri Kotayya and ors. v. Emperor(3), Udai Bhan v. State of Uttar Pradesh.(4)      Before proceeding  further, it is necessary to be clear about the  precise statement  which had  been  made  by  the appellant  to  the  Police  officer.  This  statement  finds incorporation in  the panchnama,  Ex. and we have reproduced an English  rendering of  the same earlier in this judgment. While considering  this statement,  the High  Court observed that the  accused had  stated that "he had kept them (drums)

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there". We have perused the original record of the statement which is  in Hindi,  and  we  are  of  opinion  that  by  no stretching of  the words  this statement  can be  so read or construed as  has been  done by the High Court. The copy Ex. of the  Panchnama, in  the  Paper-book  contains  a  correct English rendering  of the  same. 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  first August". It will be seen that he never I said that it was he who had  deposited the  drums at  the place  from which they were produced.  It seems  the latter  part of  the statement which was  an outright  confession of  the  theft,  was  not completely ruled  out of  evidence 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 there, on the accused.      Having cleared the ground, we will now consider, in the light of  the principles clarified above, the application of s. 27  to this  statement of  the accused. The first step in the  process   was  to   pinpoint  the  fact  discovered  in consequence of  this statement.  Obviously, in  the  present case, the  threefold fact  discovered was:  (a) the chemical drums in  question, (b)  the place  i.e.  the  Musafirkhana, Crawford Market,  wherein they  lay deposited  and  (c)  the accused’s knowledge  of such deposit. The next step would be to split  up  the  statement  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..  Thus processed. 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 Sec. 27. The rest of the statement, namely, "which I  took out  from the  Haji Bunder  on first 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.      After  culling   out  and  rejecting  the  inadmissible portion,  it  was  to  be  considered  further  whether  the admissible portion of the infor-      (1) I.L.R. 10 Lah. 283 F.B.     (2) I.L.R. 56 Bom. 172.      (3) 74 I. A. 65;          (4) [1962] Supp. 2 S.C.R. 830 720 mation 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. The answer to this questions in the circumstances of the case,  had to  be in the negative. The drums in question were found  in the  compound or yard of a Musafirkhana which was a  place of  rest and waiting for Musafirs (travellers). 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. There is not even an oblique hint  that the place of the deposit of the drums was in any  way under  the control or occupation of the accused. The place  being a  Musafirkhana, was  from its  very nature accessible to all and sundry.      It must  be remembered  that an inference under s. 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. Such is not the case here.

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    The facts  proved by the prosecution, particularly. The admissible portion  of the  statement made  by the  accused" could give  rise  to  two  alternative  hypotheses,  equally possible, namely:  (1) that  it  was  the  accused  who  had himself deposited  the stolen  drums in the Musafirkhana, or (ii) the accused only knew that the drums were lying at that place. The  second hypothesis was wholly compatible with his innocence.  In   the  ultimate   analysis,  therefore,   the appellant was entitled to the benefit of doubt.      Accordingly,  we   allow  his  appeal,  set  aside  his conviction and  acquit him  of the  charge levelled  against him. P.B.R.                                       Appeal allowed. 721