Udai Bhan v. the State of Uttar Pradesh

Judgment

CRIMINAL APPELLATE JURISDICTION : Civil Appeal No. 243 of 1959. Appeal by special leave from thfl judgment and order dated September 25, I !l!'i!l. of the Allahabad High Court in Criminal Re,·ision No. 1546 of 1958. M.l. Khowaja. for the appellant. G. C. Mathur and C.P. Lal, for the respondent. 1962. January '.!9. The Ji1dgment 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 Udai Bhan f'h1 .\tat1 of Utlar Pradesh KalJur J. IllQ Udai BJup, Tiu Btcl.,,f UllM Pralu~ Kop"' J. 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 Lila.dhar a.nd Harnam Singh a.nd two others tha.t they had seen the appellant a.nd Nara.in ca.rrying a.way the boxes. On the following day at about IO a.m. a. report was lodged with the police and on October 15, 1956, the appel· !ant 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 produood a. key from out of a. bunch of keys before the Sub-Inspector and that key fitted the lock of the complainant which ha.d been sent for. The Sub-Inspector took into possession both tho key and the lock. The a.ppellant and N'arain wore tried for offences against ss. 457 a.nd 380 of the Indian Penal Code and the appellant was convicted by the Magistrate under both the sections a.nd was given consecutive sentence of one year's rigorous imprisonment under s. 457 and six months' rigorous imprisonment under s.

380, Indian Pena.I Code. Narain was, however, acquitted. The appellant unsuocessfully appea.lcd to the Sessions J udgo and then took a revision to the High Court which was dism1BSod. He has brought the present appc:i.l by Special Leave. The High Court upheld the conviction holding that from the fa.ct that the appellant was seen carrying the box from the direction of the compla.inant's shop and soon after produced the box a.nd the key with which the Jock could be opened were sufficient for the purposes of holding that he 2 S.C.R. 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 thP. appelhnt coupled with the fact that he was seen in the neighbourhood of the premises from where the ar~ic~es were sto!en was sufficient to uphold the convwt10n.

The H11rh Court did not go into the question of t.h3 app!icabi· lity or otherwise of s. 27 of the Indian Ev1denCA 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 confessio· nal 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 disoovered 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 •State of U. P. \·. Deoman Upadhyo;•a, [1961] 1 S.C.R. 14. t96t Udo.i Bhan v The Slate of Vtt:Jr Pradesh Kspur J. UiaiB~ n.sw .. f u11., Pr..U.A police by the appellant and which he took out from out of a bunch of keys, fitted the lock.

A recovery memo waR prepared in whioh he had stated as follows: ''In the presence of the witnesses, viz,, Shri Damodar Singh son of Sunder Singh, Pradhau and Liladhar Singh eon of Guiab Singh Thakur, residents of llfaoo, Udaibhan !IQn of Bhikam Singh, accused in this case took out from the bunch and handed over a key saying that he ha4 opened therewith the lock of the shop belonging to L!lik 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 look belonging to the complainant lvas also taken into police possession. Memo was prepared and signatures of the witnesses were obtained.''

In regiud to the recovery of the box the recovery memo stated as follows :- "In the presence of the witneeses, viz., Sri Damodar Singh son of Sunder Singh and Liladhar Singh son of Guiab Singh Thakur, reRidents 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 p0inting of Udhaibhan son of Bhikam Singh Thakur, resident of Maoo. It was taken out of water and handed over by Udaibhan, accused hims<"lf. 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 confession" of guilt and were not covered by R. 27 nf the Eviden~e Act. Section 27 is in the 2 t:l.C.R. 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 muck of information received from acCUBed may be proved.-Provided that, when any fa.ct is deposed to a.s discovered in con· sequence of information reoeived from a person acoused of any offence, in the custody of a police officer, so much of such informa· tion, 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 ma.de 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 prove. able.

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 Jock 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 proveahle because there is no statement of a confessional nature in that memorandum. The Privy Council in Pulukuri Kottaya v. Emperor i') dealt with this matter and (l) (1946) L.R. 74 I.A. 65. Udai Bhan The State of Uttor Pradesh Ko;ur J. UUI BA.,. 71. Slat. of Ulw Pr«hs• ""'"' J. 838 SOPREME COUR'l· REPORTS [1962) SUPP. obs11rved:

"In their Lordships' view it is fallacious to treat the "fa.ct discovered" within the section a.e equivalent to the object produced ; the fact discovered embraces the place from which the object is produced a.nd the knowledge of tho accused a.e to this, a.nd the information given must relate distinctly to this fact". The Privy Council accepted the decision of the La.horo High Court in 8uk11'Jn v. Emperor (1) and of the Bombay High Court in Ganw:Jiandra v. Emperor('). This Cou.rt, in Lachman Singh v. ~ BUile (') held that if a. person in the custody of the police takes the police to a. p'l.rticula.r spot and a.t hie instance some blood-stained e~rth is recovered and ho a!Ro point& out the trunk of one of the dead bodies the ca.se is covered by the language of a. 27 a.nd the evidence of discoveries is admillllible.

In a later case Ramkiahan Mit11'Jnl.al Sharma v. ~State of Ram.bay ('), it was observed that according to the section if a fa.ci is actually discovered in consequence of information given some guarantee is afforded thereby that the information was tme a.nd it can safely be allowed to be given in evi· dence. KoUnya'a case(') was approved. Bhagwati, J., observed: "On & ha.re reading of th'e terms of section it a.ppea.1'11 that what is allowed to be proved is the information of such part thereof as relates distinctly to the fa.ct thereby discovered." Thus it appears that s. 27 dooe not nu~lify the ba.n imposed by s. 26 in regard to oonfeaa1on1 made by persons in police custody but beoauee there is tho added guarantee of truthfulness from (1) (1929) 1.L.R. 10 Lah. 283. (21 (1931) I.LR. Ni Born. 172. (31 [1952l s.c.R. 839. (4) [195SJ 1 s.c.R. 903. (5) (l!HOJ L.R. 74 I.A. 65. 2 S.G.R. SUPREME COURT REPOR'fS 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 n~arabout the pl:ice of occurrence when he was commg from the side of the shop of the complainant. Therefore the contention as to the non-applicability of s. 27 is with· out substance and must be repelled. It was next contended that as es. 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.

Sect.ion 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 Mwlaliar (I). There is no substance in the contention that the appellant was not examined under s. 342 of the Code of Criminal Prccedure 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 appenl is without force and is therefore dismissed. The appellant will surrender to his bail. Appeal tlismissed. (I) A. J. R. 1945 Madras 330. UdaiB/um Tht Sl414 of U114r.Praltsh Kapur J.