http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 6  

PETITIONER: UDAI BHAN

       Vs.

RESPONDENT: THE STATE OF UTTAR PRADESH

DATE OF JUDGMENT: 29/01/1962

BENCH: KAPUR, J.L. BENCH: KAPUR, J.L. DAYAL, RAGHUBAR

CITATION:  1962 AIR 1116            1962 SCR  Supl. (2) 830  CITATOR INFO :  F          1976 SC 483  (12)

ACT:      Criminal  Law-Evidence-Confession-Information received  from  accused-Accused  producing  stolen articles-If amounts  to confesion-Admissibility of production-Indian Evidence  Act, 1872(1  of 1872), ss. 25,  26, 27-Indian Penal Code (Act 45 of 1860) ss. 71, 380, 457.

HEADNOTE:      On October  13, 1956,  at about  8  p.m.  the complainant locked  his shop  and went  out for  a while, but  when he  returned he  found  the  shop broken open  and  his  box  containing  money  and clothes stolen.  On  information  given  that  the appellant had  been seen carrying the box from the direction of  the complainant’s shop the appellant was arrested by the sub-inspector of police and on being interrogated he produced a box from out of a pond situate  close to  his field  and handed over the same  to the sub-inspector. He also produced a key from  out of a bunch of keys, which fitted the lock of the shop belonging to the complainant, and the sub-inspector  took into  possession both  the key and  the lock.  The appellant  was  tried  for offences under ss. 380 and 457 of the Indian Penal Code and  convicted by  the Magistrate  under both the sections.  The appellant  contended  that  the conviction was unsustainable 831 because (1)  the appellant’s  handing over the box and the  key amounted  to a confessional statement made to  a  police  officer  and,  therefore,  the production was  inadmissible in evidence under ss. 25 and  26 of  the Indian  Evidence Act, 1872, and that s. 27 was not applicable, and (2) ss. 380 and 457 of  the Indian  Penal Code were offences which fell under  s. 71  of the Code and, therefore, the appellant could  not be  punished under  both  the sections. ^

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 6  

    Held, that  s. 27 of the Indian Evidence Act, 1872, was  applicable to  the case  and  that  the conviction of the appellant was valid.      A discovery  of a  fact includes  the  object found, the place from which it is produced and the knowledge of  the accused  as  to  its  existence. Applying this  test, the evidence in regard to the discovery of  the key  as  well  as  the  box  was rightly admitted  into  evidence  in  the  present case.      Lachman Singh  v. The  State,  [1952]  S.C.R. 839, Ramkishan  Mithanlal Sharma  v. The  State of Bombay, [1955]  1 S.C.R.  903 and Pulukuri Kotayya v. Emperor, (1946) L. R. 74 I.A. 65, relied on.      Held, further,  that the  two offences  under ss. 380  and 457  of the Indian Penal Code did not fall under  s. 71 of the Code, and, therefore, the conviction  under   both  the   sections  was  not illegal.      In re  Natesa Mudaliar, A.I.R. 1945 Mad. 330, considered.

JUDGMENT:      CRIMINAL  APPELLATE   JURISDICTION  :   Civil Appeal No. 243 of 1959.      Appeal by special leave from the judgment and order dated  September 25,  1959. of the Allahabad High Court in Criminal Revision No. 1546 of 1958.      M.I. Khowaja for the appellant.      G.  C.   Mathur  and   C.  P.  Lal,  for  the respondent.      1962. January  29. The  Judgment of the Court was delivered by      KAPUR,  J.-This  is  an  appeal  against  the judgment and  order of the High Court of Allahabad dismissing  the   revision  application   of   the appellant 832 against his  conviction under  ss. 457  and 380 of the Indian Penal Code.      On October  13, 1956,  at about  8  p.m.  the complainant locked  his shop  and went  out for  a short while.  On his  return  after  about  three- fourths of  an hour  he found his shop broken open and a  box containing  Rs. 2,000  and clothes  and another box containing Rs. 200 stolen. He was told by prosecution witnesses Liladhar and Harnam Singh and two  others that  they had  seen the appellant and  Narain   carrying  away  the  boxes.  On  the following day at about 10 a.m. a report was lodged with the  police and  on  October  15,  1956,  the appellant   was    arrested    by    Sub-Inspector Virendrapal Singh.  According to  the prosecution, on being interrogated the appellant produced a box from a  pond and  handed over the same to the Sub- Inspector. He  also produced  a key  from out of a bunch of  keys before  the Sub-Inspector  and that key fitted  the lock  of the complainant which had been  sent   for.  The   Sub-Inspector  took  into possession  both   the  key   and  the  lock.  The appellant  and  Narain  were  tried  for  offences against ss.  457 and  380 of the Indian Penal Code and the  appellant was convicted by the Magistrate

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 6  

under both  the sections and was given consecutive sentence of one year’s rigorous imprisonment under s. 457 and six months’ rigorous imprisonment under s. 380,  Indian Penal  Code. Narain  was, however, acquitted. The  appellant unsuccessfully  appealed to the  Sessions Judge and then took a revision to the High Court which was dismissed. He has brought the present appeal by Special Leave.      The High  Court upheld the conviction holding that from  the fact  that the  appellant was  seen carrying  the   box  from  the  direction  of  the complainant’s shop and soon after produced the box and the  key with  which the  lock could be opened were sufficient  for the  purposes of holding that he 833 had committed  offences with which he was charged. The High  Court also  held that it was unnecessary to go  into the  question  of  possession  of  the stolen articles because the fact that he knew that they were  stolen from  the shop  of the appellant coupled with  the fact  that he  was seen  in  the neighborhood  of   the  premises  from  where  the articles were  stolen was sufficient to uphold the conviction. The  High Court  did not  go into  the question of  the applicability  or otherwise of s. 27 of  the Indian  Evidence Act,  1872, which  had been held  to be ultra vires by that court and has since been  held to  be intra vires by this Court* the reason  being that  there was no evidence of a statement made  by the  appellant about the stolen property made  to the  police and  therefore there was no discovery resulting therefrom.      Three  questions  have  been  raised  by  the appellant. First:  the case  is covered  by ss. 25 and 26  of the  Evidence Act  as  the  appellant’s handing   over   the   property   amounts   to   a confessional statement  made to  a police  officer and the  production therefore  is inadmissible  in evidence. The  argument was  put in  this way that when an  accused person  in  the  custody  of  the police just produces an article which is stolen he must be  taken to  have  made  a  statement  of  a confessional  nature  to  the  police  and  not  a statement  in  consequence  of  which  a  fact  is discovered by  the police.  In order  to  consider this question  we have  to see  what  exactly  was stated to the police by the appellant.      Sub-Inspector Virendrapal  Singh stated  that he made  an inquiry  from the  appellant about the stolen property  and the  appellant brought  out a box from  the pond  and handed it over to him. The pond was near the field of the appellant. He (Sub- Inspector) prepared  a  memo  in  respect  of  the recovery. The key which was handed over to the 834 police by the appellant and which he took out from out of  a  bunch  of  keys,  fitted  the  look.  A recovery memo  was prepared in which he had stated as follows:           "In the presence of the witnesses, viz.,      Shri  Damodar  Singh  son  of  Sunder  Singh,      Pradhan and Liladhar Singh son of Gulab Singh      Thakur, residents  of Maoo,  Udaibhan son  of      Bhikam Singh,  accused in  this case took out

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 6  

    from the  bunch and  handed over a key saying      that he  had opened therewith the lock of the      shop belonging to Laik Singh. The lock of the      shop of  Laik Singh  was opened  with it.  It      opened and  closed easily. It was, therefore,      taken  into   police  possession.   The  lock      belonging to  the complainant  was also taken      into police possession. Memo was prepared and      signatures of the witnesses were obtained." In regard  to the recovery of the box the recovery memo stated as follows:-           "In the presence of the witnesses, viz.,      Sri Damodar  Singh son  of Sunder  Singh  and      Liladhar Singh  son of  Gulab  Singh  Thakur,      residents of  Maoo, a  tin box containing the      clothes mentioned  below was  recovered  from      the water  of the  pond Garara, situate close      to the field of Udaibhan accused, towards the      west of  the  village,  on  the  pointing  of      Udhaibhan  son   of  Bhikam   Singh   Thakur,      resident of  Maoo. It  was taken out of water      and handed over by Udaibhan, accused himself.      It  was  taken  into  police  possession  and      sealed on  the spot. Memo was prepared on the      spot and  signatures of  the  witnesses  were      obtained."      These  statements,  it  was  contended,  were confessions of guilt and were not covered by s. 27 of the Evidence Act. Section 27 is in the 835 nature of  a proviso to s. 26 which interdicts the provision of  confessional statements  made  by  a person in  custody of the police. Section 27 reads as under:           "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."      Thus, s.  27 partially removes the ban placed on the  reception of confessional statements under s. 26.  But the  removal of the ban is not of such an extent  as to  absolutely undo the object of s. 26. All  it says  is that so much of the statement made by  a person  accused of  an offence  and  in custody  of   a  police  officer,  whether  it  is confessional or  not, as relates distinctly to the fact discovered  is proveable.  Thus, in this case taking the recovery memos the statements in regard to the key was this that the appellant handed over the key  and said  that he  had opened the lock of the shop  of the  complainant with  that key.  The handing over  of the  key is  not  a  confessional statement but the confession lies in the fact that with that  key the  shop of  the  complainant  was opened  and,   therefore,  that  portion  will  be inadmissible in  evidence and  only  that  partion will be admissible which distinctly relates to the fact discovered  i.e., the  finding  of  the  key. Similarly the  recovery of  the box  is  proveable because there  is no  statement of  a confessional

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 6  

nature in that memorandum.      The Privy  Council  in  Pulukuri  Kottaya  v. Emperor (1) dealt with this matter and 836 observed:           "In  their   Lordships’   view   it   is      fallacious to  treat  the  "fact  discovered"      within  the  section  as  equivalent  to  the      object produced; the fact discovered embraces      the place  from which  the object is produced      and the  knowledge of the accused as to this,      and  the   information  given   must   relate      distinctly to this fact".      The Privy  Council accepted  the decision  of the Lahore High Court in Sukhan v. Emperor (1) and of  the   Bombay  High  Court  in  Ganuchandra  v. Emperor(2).      This Court, in Lachman Singh v. The State (3) held that if a person in the custody of the police takes the  police to  a particular spot and at his instance some blood-stained earth is recovered and he also  points out  the trunk  of one of the dead bodies the  case is  covered by the language of s. 27 and  the evidence of discoveries is admissible. In a  later case Ramkishan Mithanlal Sharma v. The State  of   Bombay  (4),   it  was  observed  that according to  the section  if a  fact is  actually discovered in  consequence  of  information  given some  guarantee   is  afforded  thereby  that  the information was  true and it can safely be allowed to be  given in  evidence. Kottaya’s  case (5) was approved. Bhagwati, J., observed:           "On a  bare  reading  of  the  terms  of      section it appears that what is allowed to be      proved  is   the  information  of  such  part      thereof as  relates distinctly  to  the  fact      thereby discovered."      Thus it  appears that  s. 27 does not nullify the ban  imposed by s. 26 in regard to confessions made by  persons in  police  custody  but  because there is the added guarantee of truthfulness from 837 the  fact   discovered   the   statement   whether confessional or  not is  allowed to  be  given  in evidence but  only that  portion which  distinctly relates to  the discovery of the fact. A discovery of a  fact includes  the object  found, the  place from which it is produced and the knowledge of the accused as  to its  existence. Applying this test, in our  opinion, the  evidence in  regard  to  the discovery of  the key  as  well  as  the  box  was rightly admitted  into  evidence  in  the  present case. Apart  from this  we have the finding of the High Court  that the  appellant was  seen carrying the box near about the place of occurrence when he was coming  from the  side  of  the  shop  of  the complainant. Therefore  the contention  as to  the non-applicability of  s. 27  is without  substance and must be repelled.      It was next contended that as ss. 457 and 380 of the  Indian Penal  Code are offences which fall under s.  71, the  appellant could not be punished under  both  these  sections.  Section  457  makes punishable lurking  house  trespass  by  night  or house breaking by night in order to the committing

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 6  

of any offence punishable with imprisonment and if the effence intended to be committed is theft, the punishment is higher. Section 380 makes punishable a theft  committed in  a dwelling  house. The  two offences do  not, in our opinion, fall under s. 71 and, therefore,  the  conviction  under  both  the sections is not illegal. See In re Natesa Mudaliar (1).      There is  no substance in the contention that the appellant was not examined under s. 342 of the Code of  Criminal Procedure about his handing over the key.  This point  was never taken at any stage before nor  is it  shown  how  the  appellant  was prejudiced by the non-examination in this respect.      This appeal is without force and is therefore dismissed. The  appellant will  surrender  to  his bail.                                  Appeal dismissed. 838