Udai Bhan vs The State Of Uttar Pradesh

Rewritten Version Notice: This is a rewritten version of the original judgment.

Court: Supreme Court of India

Case Number: Civil Appeal No. 243 of 1959

Decision Date: 29 January 1962

Coram: J.L. Kapur, Raghubar Dayal

In this case the Court noted that on 13 October 1956 at approximately eight o’clock in the evening the complainant shut the doors of his shop and left for a short period. When he returned about forty‑five minutes later he found the shop broken open and observed that a box containing money and clothing had been taken. Information was received that the appellant had been seen carrying a box away from the direction of the complainant’s shop. Acting on that information the sub‑inspector of police arrested the appellant. During interrogation the appellant produced a box that he claimed to have retrieved from a pond situated close to his own field and he handed that box over to the sub‑inspector. In addition the appellant produced a key taken from a collection of keys; the key fitted the lock of the complainant’s shop. The sub‑inspector also took possession of the lock itself along with the key.

The appellant was subsequently tried for offences punishable under sections 380 and 457 of the Indian Penal Code. The trial magistrate found him guilty of both offences and sentenced him accordingly. The appellant challenged the conviction on two grounds. First, he argued that his act of handing over the box and the key amounted to a confession made to a police officer; consequently, the production of the items should have been excluded as evidence under sections 25 and 26 of the Indian Evidence Act, 1872, and that section 27 of that Act was not applicable. Second, he contended that the offences under sections 380 and 457 fell within the ambit of section 71 of the Penal Code, and therefore he could not be punished under both provisions simultaneously.

The Court held that section 27 of the Indian Evidence Act was applicable to the facts of the case and that the conviction was therefore valid. It explained that a discovery of a fact includes (a) the object found, (b) the place from which it was produced, and (c) the accused’s knowledge of its existence. Applying this test, the Court found that the evidence regarding the discovery of both the key and the box was properly admitted. The Court relied on the authorities set out in Lachman Singh v. State, Ramkishan Mithanlal Sharma v. State of Bombay and Pulukuri Kotayya v. Emperor in reaching this conclusion.

Further, the Court determined that the two offences under sections 380 and 457 of the Indian Penal Code did not constitute offences covered by section 71 of the Code. Accordingly, the appellant could be convicted and punished under both sections, and the conviction on both counts was not illegal.

In this appeal the Court considered the judgment and order dated 25 September 1959 of the Allahabad High Court in Criminal Revision No. 1546 of 1958, which had dismissed the appellant’s revision against his conviction under sections 457 and 380 of the Indian Penal Code. The appeal, numbered Civil Appeal No. 243 of 1959, was taken by special leave. Counsel M.I. Khowaja represented the appellant while G.C. Mathur and C.P. Lal appeared for the respondent. The judgment was delivered on 29 January 1962 by Justice Kapur. The factual background recorded that on 13 October 1956, at about eight o’clock in the evening, the complainant locked his shop and left it briefly. He returned approximately forty‑five minutes later to discover that the shop had been broken into and that two boxes had been stolen—one containing rupees two thousand and clothing, and another containing rupees two hundred. Prosecution witnesses identified as Liladhar, Harnam Singh, and two others testified that they had seen the appellant together with a person named Narain carrying away the boxes. A police report was lodged the next morning at ten a.m., and on 15 October 1956 the appellant was arrested by Sub‑Inspector Virendrapal Singh. During interrogation the appellant produced a box that had allegedly been recovered from a pond and handed it over to the Sub‑Inspector. He also produced a key from a bunch of keys before the Sub‑Inspector, and it was shown that the key fitted the lock of the complainant’s shop, which had subsequently been sent for examination. The Sub‑Inspector retained both the key and the lock as evidence. The appellant and Narain were tried for offences under sections 457 and 380, and the magistrate convicted the appellant under both sections, imposing a consecutive sentence of one year’s rigorous imprisonment for the charge under section 457 and six months’ rigorous imprisonment for the charge under section 380. Narain was acquitted. The appellant unsuccessfully appealed to the Sessions Judge and then filed a revision which the High Court dismissed. The High Court affirmed the conviction on the basis that the appellant had been seen carrying the box from the vicinity of the complainant’s shop and that, shortly thereafter, he produced the same box and the key capable of opening the shop’s lock; these facts were held to be sufficient to establish that the appellant had committed the offences charged. The High Court further held that it was unnecessary to examine the issue of possession of the stolen articles because the appellant’s knowledge that the articles were stolen, together with his presence near the premises from which they were taken, was deemed adequate to sustain the conviction. The High Court did not address the question of the applicability of section 27 of the Indian Evidence Act in this matter.

The Court observed that section 27 of the Indian Evidence Act, 1872, which had previously been held ultra vires by the lower court, was later declared intra vires by the Court because the record exhibited no evidence of any statement made by the appellant to the police concerning the stolen property; consequently, no fact was discovered as a result of such a statement. The appellant placed before the Court three questions for consideration. The first question concerned whether the case fell within sections 25 and 26 of the Evidence Act, on the ground that the appellant’s act of handing over the recovered property constituted a confessional statement made to a police officer and therefore should be excluded from evidence. The appellant’s argument was framed in the following manner: when a person in police custody produces a stolen article, the production must be treated as a confession of guilt to the police rather than as a statement that leads the police to discover a fact. To address this issue, the Court examined precisely what the appellant had communicated to the police. Sub‑Inspector Virendrapal Singh testified that he had interrogated the appellant regarding the stolen property and that the appellant produced a box from a pond and handed it to the Sub‑Inspector. The pond was located near the appellant’s field. The Sub‑Inspector then prepared a recovery memo documenting the seizure. According to the memo, the appellant also handed over a key taken from a bunch of keys, and the key fit the lock of the complainant’s shop. The memo recorded that, in the presence of two witnesses—Shri Damodar Singh, son of Sunder Singh, and Liladhar Singh, son of Gulab Singh Thakur, both residents of Maoo—the accused, identified as Udaibhan, son of Bhikam Singh, took the key from the bunch, handed it to the Sub‑Inspector, and stated that he had used it to open the lock of Laik Singh’s shop. The lock was opened and closed easily, after which both the lock and the key were taken into police possession, and the witnesses signed the memo. Regarding the recovery of the box, the memo further stated that, in the presence of the same two witnesses, a tin box containing the clothes described in the case was recovered from the water of the pond Garara, situated close to the appellant’s field on the western side of the village, on the direction of Udhaibhan, son of Bhikam Singh Thakur, a resident of Maoo. The box was removed from the water by the appellant himself, handed over to the Sub‑Inspector, taken into police possession, sealed on the spot, and the memo was prepared at that time with the signatures of the witnesses obtained.

It was argued that the statements recorded in the recovery memoranda amounted to confessions of guilt and therefore could not be admitted under section 27 of the Evidence Act. Section 27 functions as a proviso to section 26, which generally forbids the admission of confessional statements made by a person while in police custody. The text of section 27 provides: “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.” This provision therefore relaxes the strict prohibition of section 26, but only to the extent that it permits the part of a statement which directly relates to the fact that was discovered to be proved. The relaxation does not completely overturn the purpose of section 26. In other words, only the portion of a statement that is directly connected with the discovered fact may be admitted, even if the statement is confessional in nature.

Applying this principle to the recovery memoranda, the passage concerning the key indicates that the appellant handed over the key and said that with that key he had opened the lock of the complainant’s shop. The act of handing over the key itself is not a confession; the confession is embedded in the assertion that the shop lock was opened with that key. Consequently, the portion of the memorandum that merely records the hand‑over of the key is admissible, whereas the portion that conveys the confession that the shop was opened with the key must be excluded because it does not relate distinctly to the fact of the key’s recovery. In contrast, the memorandum dealing with the tin box does not contain any confession. It merely notes that the box was recovered from the pond and that it was handed over by the accused. Since no confessional statement is present, the entire memorandum is admissible as evidence of the fact discovered.

The Privy Council, in Pulukuri Kottaya v. Emperor, considered this question and observed that it is erroneous to treat the “fact discovered” as synonymous with the object produced. The “fact discovered” includes the location from which the object was obtained and the accused’s knowledge of that location, and the information supplied must relate distinctly to that fact. The Privy Council relied on decisions of the Lahore High Court in Sukhan v. Emperor and of the Bombay High Court in Ganuchandra v. Emperor. Similarly, this Court, in Lachman Singh v. The State, held that when a person in police custody leads the police to a particular spot and the police recover a blood‑stained earth and a trunk of a dead body at his direction, the evidence of those discoveries falls within the language of section 27 and is admissible. Later, in Ramkishan Mithanlal Sharma v. The State of Bombay, the Court observed that the section allows proof of the part of the information that relates distinctly to the fact discovered. The Privy Council’s decision in Kottaya’s case was affirmed, and Bhagwati, J., remarked that a plain reading of the provision shows that only the portion of the information that directly pertains to the discovered fact may be proved.

The overall effect of section 27, therefore, is not to abolish the ban on confessions made while in police custody, but to permit admission of those portions of a statement that are directly linked to the fact that was discovered, because the discovery itself provides a guarantee of truthfulness. A “discovery of a fact” encompasses the object found, the place from which it was obtained, and the accused’s knowledge of its existence. Applying this test, the evidence concerning the recovery of the key is admissible only to the extent that it proves the key’s existence, while the confession that the key was used to open the shop must be excluded. By contrast, the evidence regarding the tin box is fully admissible because it contains no confessional element.

The Court explained that when a fact is actually discovered as a result of information supplied by an accused person, the law assumes a guarantee that the information is true, and consequently the information may be safely admitted as evidence. The decision in Kottaya’s case was affirmed. Bhagwati, J. observed that a plain reading of the statutory language shows that only the portion of the information that relates distinctly to the fact discovered may be proved. Accordingly, Section 27 does not overturn the prohibition contained in Section 26 with respect to confessions made by persons who are in police custody. Because the discovery of a fact carries with it an inherent assurance of truthfulness, any statement—whether it is a confession or not—may be admitted, but only the part of the statement that directly concerns the discovered fact may be used. A “discovery of a fact” comprises three elements: the object that was found, the location from which it was obtained, and the accused’s knowledge of the existence of that object. Applying this test, the Court held that the evidence relating to the discovery of the key and the box was properly admitted in the present case. In addition, the High Court had found that the appellant was observed carrying the box in the vicinity of the incident while approaching the complainant’s shop. For these reasons, the appellant’s argument that Section 27 was inapplicable was found to be without merit and was therefore rejected.

The Court then addressed the contention that the appellant could not be punished under both Sections 457 and 380 of the Indian Penal Code because those offences allegedly fall within Section 71. Section 457 penalises house‑trespass or house‑breaking at night for the purpose of committing an offence punishable with imprisonment, with a higher punishment if the intended offence is theft. Section 380, on the other hand, punishes theft committed in a dwelling house. The Court held that these two offences do not, in fact, fall within the ambit of Section 71, and therefore the conviction under both provisions is legally valid, citing the authority in In re Natesa Mudaliar. The appellant also argued that he had not been examined under Section 342 of the Code of Criminal Procedure concerning the surrender of the key. The Court found no record of such an issue being raised at any stage of the trial, and no evidence was shown that the appellant suffered any prejudice as a result. Consequently, the appeal was deemed to have no merit, was dismissed, and the appellant was ordered to surrender to bail.