Mohmed Inayatullah Vs. The State of
Maharashtra  INSC 207 (9 September 1975)
SARKARIA, RANJIT SINGH SARKARIA, RANJIT SINGH
CITATION: 1976 AIR 483 1976 SCR (1) 715 1976
SCC (1) 828
Evidence Act (1 of 1872), s. 27-Scope of-S.
114(a)- Scope of.
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
[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] Palukuri Kotayya and ors. v.
Emperor 74 I.A. 65 and Udai Bhan v. State of Uttar Pradesh  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]
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
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 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
The plea of the appellant was one of plain
denial of the prosecution case.
The courts below have concurrently found
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
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
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)
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
After culling out and rejecting the
inadmissible portion, it was to be considered further whether the admissible
portion of the information - (1) I.L.R. 10 Lah. 283 F.B. (2) I.L.R. 56 Bom.
(3) 74 I. A. 65; (4)  Supp. 2 S.C.R.
830 720 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
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
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
Accordingly, we allow his appeal, set aside
his conviction and acquit him of the charge levelled against him.
P.B.R. Appeal allowed.