Section 27, which unusually starts with a proviso, lifts the ban against the admissibility of the confession/statement made to the police to a limited extent by allowing proof of information of specified nature furnished by the accused in police custody. In that sense Section 27 is considered to be an exception to the rules embodied in Sections 25 and 26 (vide AIR 1962 Supreme Court 1116). Section 27 reads as follows :
“27. 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.”
The history of case law on the subject of confessions under Section 27 unfolds divergent views and approaches. The divergence was mainly on twin aspects :
(i) Whether the facts contemplated by Section 27 are physical, material objects or the mental facts of which the accused giving the information could be said to be aware of. Some Judges have gone to the extent of holding that the discovery of concrete facts, that is to say material objects, which can be exhibited in the Court are alone covered by Section 27.
(ii) The other controversy was on the point regarding the extent of admissibility of a disclosure statement. In some cases a view was taken that any information, which served to connect the object with the offence charged, was admissible under Section 27.
The decision of the Privy Council in Kotayya’s case, which has been described as a locus classicus, had set at rest much of the controversy that centered round the interpretation of Section 27. To a great extent the legal position has got crystallized with the rendering of this decision. The authority of Privy Council’s decision has not been questioned in any of the decisions of the highest Court either in the pre or post independence era. Right from 1950s, till the advent of the new century and till date, the passages in this famous decision are being approvingly quoted and reiterated by the Judges of this apex Court . Yet, there remain certain grey areas as demonstrated by the arguments advanced on behalf of the State.
The rationale behind this provision is that, if a fact is actually discovered in consequence of the information supplied, it affords some guarantee that the information is true and can therefore be safely allowed to be admitted in evidence as an incriminating factor against the accused. As pointed out by the Privy Council in Kotayya’s case, “clearly the extent of the information admissible must depend on the exact nature of the fact discovered and the information must distinctly relate to that fact”. Elucidating the scope of this Section, the Privy Council speaking through Sir John Beaumont said “normally, the Section is brought into operation when a person in police custody produces from some place of concealment, some object, such as a dead body, a weapon or ornaments, said to be connected with the crime of which the informant is the accused”.
Then, their Lordships proceeded to give a lucid exposition of the expression ‘fact discovered’ in the following passage, which is quoted time and again by Supreme Court:
“…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. Information as to past user, or the past history, of the object produced is not related to its discovery in the setting in which it is discovered. Information supplied by a person in custody that “I will produce a knife concealed in the roof of my house” does not lead to the discovery of a knife; knives were discovered many years ago. It leads to the discovery of the fact that a knife is concealed in the house of the informant to his knowledge, and if the knife is proved to have been used in the commission of the offence, the fact discovered is very relevant. But if to the statement the words be added “with which I stabbed A” these words are inadmissible since they do not relate to the discovery of the knife in the house of the informant.”
The approach of the Privy Council in the light of the above exposition of law can best be understood by referring to the statement made by one of the accused to the police officer. It reads thus :
“…About 14 days ago, I, Kotayya and people of my party lay in wait for Sivayya and others at about sunset time at the corner of Pulipad tank. We, all beat Beddupati China Sivayya and Subayya, to death. The remaining persons, Pullayya, Kotayya and Narayana ran away. Dondapati Ramayya who was in our party received blows on his hands. He had a spear in his hands. He gave it to me then. I hid it and my stick in the rick of Venkatanarasu in the village. I will show if you come. We did all this at the instigation of Pulukuri Kotayya.”
The Privy Council held that “the whole of that statement except the passage ‘I hid it’ (a spear) and my stick in the rick of Venkatanarasu in the village. I will show if you come” is inadmissible. There is another important observation at paragraph 11 which needs to be noticed. The Privy Council explained the probative force of the information made admissible under Section 27 in the following words :
“…Except in cases in which the possession, or concealment, of an object constitutes the gist of the offence charged, it can seldom happen that information relating to the discovery of a fact forms the foundation of the prosecution case. It is only one link in the chain of proof, and the other links must be forged in manner allowed by law.”
In paragraph 11, their Lordships observed that they were in agreement with the view taken by the High Courts of Lahore and Bombay in Sukhan v. Emperor and Ganuchandra v. Emperor. The contrary view taken by the Madras High Court in Attappa Goundan v. Emperor [ILR 1937 Madras 695] was not accepted by the Privy Council.
In Attappa Goundan’s case, the High Court held that even that part of the confessional statement, which revealed the connection between the objects produced and the commission of murder was held to be admissible under Section 27 in its entirety. This approach was criticized by the Privy Council. To complete the sequence, we may refer to another decision of the Madras High Court in Emperor v. Ramanuja Ayyangar [AIR 1935 Madras 528]. In that case, the majority of learned Judges had disagreed with the view taken in Sukhan’s case that the expression ‘fact’ in Section 27 should be restricted to material objects or something which can be exhibited as material object. It was held that the facts need not be self-probatory and the word ‘fact’ as contemplated by Section 27 is not limited to “actual physical material object”. Emphasis was laid on the wording ‘any fact’. In this respect, the view taken in Sukhan’s case was dissented from. The minority view was that the discovery of a witness to the crime or the act of the accused in purchasing the incriminating material cannot be proved by invoking Section 27.
Sir John Beaumont who gave the opinion of the Privy Council in Kotayya’s case, was the Judge who spoke for the Division Bench in Ganuchandra’s case [AIR 1932 Bombay 286]. In that case, the learned Judge observed – “the fact discovered within the meaning of that Section must I think be some concrete fact to which the information directly relates, and in this case, such fact is the production of certain property which had been concealed”. This is also the view taken by Shadi Lal, CJ who expressed the opinion of the majority in Sukhan’s case wherein the learned Judge held that the phrase ‘fact discovered’ refers to a material and not to a mental fact.
It was further elucidated by saying that “the fact discovered may be the stolen property, the instrument of the crime, a corpus of a person murdered or any other material thing; or it may be a material thing in relation to the place or locality where it is found”. On the facts of the case, it was pointed out that “the fact discovered is not the ‘karas’ simplicitor but the ‘karas’ being found in the possession of Alladin. The information to be admitted must relate distinctly to the latter.
The ratio of the decision in Kotayya’s case reflected in the underlined passage extracted supra was highlighted in several decisions of Supreme Court .
The crux of the ratio in Kotayya’s case was explained by Supreme Court in State of Maharashtra v. Damu. Thomas J. observed that “the decision of the Privy Council in Pulukuri Kotayya v. Emperor is the most quoted authority for supporting the interpretation that the “fact discovered” envisaged in the section embraces the place from which the object was produced, the knowledge of the accused as to it, but the information given must relate distinctly to that effect”.
In Mohmed Inayatullah v. The State of Maharashtra [(1976)1 SCC 828], Sarkaria J. while clarifying that the expression “fact discovered” in Section 27 is not restricted to a physical or material fact which can be perceived by the senses, and that it does include a mental fact, explained the meaning by giving the gist of what was laid down in Pulukuri Kotayya’s case. The learned Judge, speaking for the Bench observed thus :
“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 Pulukuri Kotayya v. Emperor; Udai Bhan v. State of Uttar Pradesh)”
So also in Udai Bhan v. State of Uttar Pradesh [AIR 1962 Supreme Court 1116]. Raghubar Dayal, J. after referring to Kotayya’s case stated the legal position as follows :
“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.”
There is almost a direct decision of Supreme Court in which the connotation of the expression “fact” occurring in Section 27 was explored and a view similar to Sukhan’s case was taken on the supposition that the said view was approved by the Privy Council in Kotayya’s case. That decision is – Himachal Pradesh Administration v. Om Prakash [(1972)1 SCC 249]. In that case, on the basis of information furnished by the accused to the Police Officer that he had purchased the weapon from a witness (PW11) and that he would take the Police to him, the Police went to the Thari of PW11 where the accused pointed out PW11 to the Police. It was contended on behalf of the accused that the information that he purchased the dagger from PW11 followed by his leading the Police to the Thari and pointing him out was inadmissible under Section 27 of the Evidence Act. This argument was accepted. Jaganmohan Reddy, J. speaking for the Court observed thus :
“In our view there is force in this contention. A fact discovered within the meaning of Section 27 must refer to a material fact to which the information directly relates. In order to render the information admissible the fact discovered must be relevant and must have been such that it constitutes the information through which the discovery was made. What is the fact discovered in this case ? Not the dagger but the dagger hid under the stone which is not known to the Police (see Pulukuri Kotayya and others v. King Emperor). But thereafter can it be said that the information furnished by the accused that he purchased the dagger from PW11 led to a fact discovered when the accused took the police to the Thari of PW11 and pointed him out?”
The learned Judge then referred to the decision of Madras High Court in Emperor v. Ramanuja Ayyangar [AIR 1935 Madras 528] (supra) which held that the information relating to the purchase from the pointed shop and its carriage by a witness pointed out was admissible. Reference was then made to the law laid down in Athappa Goundan’s case [AIR 1937 Madras 618] and observed that “this view was overruled by the Privy Council in Pulukuri Kotayya’s case”.
The passage in Sukhan’s case was then approvingly referred to and the law was enunciated as follows :
“In the Full Bench Judgment of Seven Judges in Sukhan v. the Crown, which was approved by the Privy Council in Pulkuri Kotayya’s case, Shadi Lal, C.J., as he then was speaking for the majority pointed out that the expression ‘fact’ as defined by Section 3 of the Evidence Act includes not only the physical fact which can be perceived by the senses but also the psychological fact or mental condition of which any person is conscious and that it is in the former sense that the word used by the Legislature refers to a material and not to a mental fact.
It is clear therefore that what should be discovered is the material fact and the information that is admissible is that which has caused that discovery so as to connect the information and the fact with each other as the ’cause and effect’. That information which does not distinctly connect with the fact discovered or that portion of the information which merely explains the material thing discovered is not admissible under Section 27 and cannot be proved”.
The following observations are also crucial :
“As explained by Supreme Court as well as by the Privy Council, normally Section 27 is brought into operation where a person in police custody produces from some place of concealment some object said to be connected with the crime of which the informant is the accused. the concealment of the fact which is not known to the police is what is discovered by the information and lends assurance that the information was true. No witness with whom some material fact, such as the weapon of murder, stolen property or other incriminating article is not hidden sold or kept and which is unknown to the Police can be said to be discovered as a consequence of the information furnished by the accused.
These examples however are only by way of illustration and are not exhaustive. What makes the information leading to the discovery of the witness admissible is the discovery from him of the thing sold to him or hidden or kept with him which the police did not know until the information was furnished to them by the accused. A witness cannot be said to be discovered if nothing is to be found or recovered from him as a consequence of the information furnished by the accused and the information which disclosed the identity of the witness will not be admissible”.
Then follows the statement of law :
“But even apart from the admissibility of the information under Section 27, the evidence of the Investigating Officer and the panchas that the accused had taken them to PW11 and pointed him out and as corroborated by PW11 himself would be admissible under Section 8 of the Evidence Act as conduct of the accused”.
In an earlier paragraph, the Court stressed the need to exercise necessary caution and care so as to be assured of the credibility of the information furnished and the fact discovered.
Reference
State (N.C.T. Of Delhi) vs Navjot Sandhu@ Afsan Guru on 4 August, 2005