Udai Bhan Vs. The State of Uttar
Pradesh  INSC 27 (29 January 1962)
29/01/1962 KAPUR, J.L.
CITATION: 1962 AIR 1116 1962 SCR Supl. (2)
F 1976 SC 483 (12)
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.
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.
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,  S.C.R. 839,
Ramkishan Mithanlal Sharma v. The State of Bombay,  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.
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
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
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 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 there from.
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
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 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 nature in that
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.,
"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 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
This appeal is without force and is therefore
dismissed. The appellant will surrender to his bail.