Report No. 185

V. The next question is whether the words 'so much of such information' in section 27 should be dropped and admissibility restricted to 'facts' discovered?

It is worthwhile quoting section 27 again. It reads:

"Section. 27: 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."

Now, a careful reading of section 27 would show that "such" refers to the entire statement or information given by the person. The words "so much" relate to "so much" out of the total statements as relates distinctively to the fact thereby discovered. In other words, what is relevant is that part of the statement relating "distinctively to the facts thereby discovered".

The Privy Council in Pulukuri Kotayya v. The Emperor AIR 1947 PC 67 held that the inculpatory part of the statement is not admissible even under section 27. In that case the High Court convicted the accused, following the judgment in In re Athappa Gounder ILR 1937 Mad 695 and holding as admissible the word "with which I stabbed". The Privy Council held this was not permissible and overruled an earlier view of the same High Court that was followed in that case by the High Court. It was observed that:

"It is fallacious to treat the 'fact discovered' within this 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'."

If Kotayya's case is followed then, if the accused has no explanation to offer as to how he came to know that the dead body was in a particular place, a presumption will be drawn against him that he merely aided in its hiding and he would be guilty of an offence only under section 201 IPC. (see Vepa P. Sarathy 2002, 5th Ed, p. 130)

If the police already knew about the material object in a particular place, there is then no discovery within section 27. That means that if the circumstances show the police have planted the object at the place, it can never be treated as a discovery at the instance of the accused.

What do the words 'so much' in section 27 mean?

Nice questions have arisen in a number of cases as to what extent, on facts, a particular part of the statement is admissible. In Trimbak v. State of MP (AIR 1954 SC 39), the property was recovered from a field belonging to a third party and accused gave an explanation from his knowledge. The case related to an offence under dacoity. The Supreme Court reversed the High Court and held that the stolen property was not in possession of accused as required by section 411 as it was recovered from a field. The field was open and accessible to all and sundry. It was difficult to hold that the accused was in possession.

But in K. Chinnaswami v. State of A.P. AIR 1962 SC 1788, a three Judge Bench held that the words "where he had hidden" were admissible under section 27 as they are not on par with 'with which I stabbed the deceased' as observed in Pulukuri Kottaya's case. The words may merely show "possession of the appellant" but would not prove the offence. The police has to still show that the articles were connected with crime i.e. were stolen.

In a recent case, Limbaji & others v. State of Maharashtra 2001 (8) SCALE P. 522, a two Judge Bench preferred to follow the three Judge Bench case in Chinnaswami, and held that though the articles were recovered in a field the accused had concealed them in his possession. The court had also to explain the principle behind illustration (a) of section 114 of the Evidence Act. Following Sanwat Khan v. State of Rajasthan AIR 1956 SC 54 which was a three Judge Bench case, the court in Limbaji's case observed that even using section 114, only a presumption could be drawn that the persons were receivers of stolen property or were persons who committed theft but could not be presumed to have murdered the deceased who was in possession of the articles.

As already stated, question is whether section 27 be amended by restricting the admissibility to 'facts discovered' rather than 'so much' of the statement.

section 76 of the English Act of 198.- which we have extracted in our discussion under para II above says in subsection (4):

"the fact that a confession is wholly or partly excluded in pursuance of this section shall not affect the admissibility in evidence-

(a) of any facts discovered as a result of the confession; or

(b) where the confession is relevant as showing that the accused speaks, writes or expresses himself in a particular way, if so much of the confession as is necessary to show that he sectionso"

It will be noticed that the English Act confines the relevancy to "facts discovered" and not to that 'part of the confession'.

In order to avoid arguments as to what extent the words 'so much' extend, and to preclude the police authorities from using section 27 indirectly to violate section 25 and section 26, it will, in our opinion be advisable to confine section 27 to the 'facts' discovered as stated in the 152nd Report of the Commission (Report on Custodial Crime). As already stated, the section was revised in that Report as follows: (para 11.6)

"Section 27. Discovery of facts at the instance of the accused: When any relevant fact is deposed to as discovered in consequence of information received from a person accused of any offence, whether or not such person is in the custody of a police officer, the fact discovered may be proved, but not the information, whether it amounts to a confession or not."

It will be noticed that section 27 as recommended in that Report, omits the words "provided that" and brings in information given by those in custody or not.- whether the information amounts to a confession or no.- but makes the 'fact' discovered relevant and not the information. This is on par with section 76 of the English Act of 1984.

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