# AGHNOO NAGESIA v. STATE OF BlliAR

- **Citation:** [1966] 1 S.C.R. 134
- **Court:** Supreme Court of India
- **Decided:** 1965-05-04
- **Case number:** Criminal Appeal No. 37 of 1965
- **Bench:** K. SUBBA RAo, Raghubar Dayal, R. S. Bachawat
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/aghnoo-nagesia-v-state-of-blliar-3476
- **Pages:** 11

## Headnote

B
Indian Evidence Act (! of 1872), s. 25-Ban on confession made to a
police officer--Confessional F.J.R .. by accUsed-Ban whether applies to
lvhole statement or only those part showing actual commission of crime.
The appellant was tried for murder.
The principal evidence against
him consisted Qf a first information report containing a full conf~sion
of the crime.
The appellant was convicted under s. 302 Indian Penal
C
Code by the trial court and the High Court upheld the conviction.
By
special leave he appealed to the Supreme Court.
The question before the court was whether the whole confessional
statemeQt in the first information report \Vas banned by s. 25
of the
EvidencC Act or only those portions of it \Vere barred which related to
the actual commission of the crime.
HELD : A confession may consist of several parts and may reveal not
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only the actual commission of the crime but also the motive, the prcparatiOn, the provocation etc.
If the confession is tainted the taint attaches
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to the whole statement of the accused. [140 B-C]
If a statement contains an admission of an offence, not only that
2!.dmission but also every other· admission of an incriminating fact contained
in the statement is part of the confession.
Little substance and content
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would be left in ss. 24, 25 and 26 if proof of admissions of incriminating
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facts in a confessional statement is permitted .. [140 D-E, F]
The appellant's first information report was a confessional statement
to a police officer and as such no pan of it could be admitted iqto evidence on account of the b;in in s. 25 except in so far as the ban was lifted
by s. 27 and except in so far as it identifi-cd the appe11ant as the maker
of the report. [143 F-G]
Case law considered.

## Text

134
AGHNOO NAGESIA
A
v.
STATE OF BlliAR
May 4, 1965
[K. SUBBA RAo, RAGHUBAR DAYAL AND R. S. BACHAWAT, JJ.]
B
Indian Evidence Act (! of 1872), s. 25-Ban on confession made to a
police officer--Confessional F.J.R .. by accUsed-Ban whether applies to
lvhole statement or only those part showing actual commission of crime.
The appellant was tried for murder.
The principal evidence against
him consisted Qf a first information report containing a full conf~sion
of the crime.
The appellant was convicted under s. 302 Indian Penal
C
Code by the trial court and the High Court upheld the conviction.
By
special leave he appealed to the Supreme Court.
The question before the court was whether the whole confessional
statemeQt in the first information report \Vas banned by s. 25
of the
EvidencC Act or only those portions of it \Vere barred which related to
the actual commission of the crime.
HELD : A confession may consist of several parts and may reveal not
D
only the actual commission of the crime but also the motive, the prcparatiOn, the provocation etc.
If the confession is tainted the taint attaches
•
to the whole statement of the accused. [140 B-C]
If a statement contains an admission of an offence, not only that
2!.dmission but also every other· admission of an incriminating fact contained
in the statement is part of the confession.
Little substance and content
•
would be left in ss. 24, 25 and 26 if proof of admissions of incriminating
E
facts in a confessional statement is permitted .. [140 D-E, F]
The appellant's first information report was a confessional statement
to a police officer and as such no pan of it could be admitted iqto evidence on account of the b;in in s. 25 except in so far as the ban was lifted
by s. 27 and except in so far as it identifi-cd the appe11ant as the maker
of the report. [143 F-G]
Case law considered.
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No.
37 of 1965.
Appeal by special leave from the judgment and order dated
November 9, 1964 of the Patna High Court in Criminal Appeal
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No. 200 of 1964 and Death Reference No. 9 of 1964.
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K. K. Jain, for the appellant.
S. P. Varma and R. N. Sachthey, for the respondent.
The Judgment of the Court was delivered by
Bachawat, J.
The appellant was charged under s. 302 of
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the Indian Penal Code for murdering his aunt, Ratni, her daughter, Chamin, her son-in-law, Soμira and Dilu, son of Somra. He
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AGHNOO NAGESIA v. STATE (Bachawat, J.)
135
A was convicted and sentenced to death by the Judicial Commissioner of Chotanagpur.
The High Court of Patna accepted the
death reference, confirmed the conviction and sentence and dismissed the appeal preferred by the appellant.
The appe!lant
now appeals to this Court by special leave.
B
The prosecution case is that on August 11, 1963 between
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7 a.m. and 8 a.m. the appellant murdered Somra in a forest known
as Dnngijharan Hills and later Chamin in Kesari Garha field and
then Ratni and Dilu in the house of Ratni at village J amtoli.
The first information of the offences was lodged by the appellant himself at police station Palkot on August 11, 1963 at
3-15 p.m.
The information was reduced to writing by the officerin-charge, Sub-Inspector H. P. Choudhury, and the appellant
affixed his left thumb-impression on the report. The Sub Inspector immediately took cognizance of the offence, and arrested the
appellant.
The next day, the Sub Inspector in the company of
the appellant went to the house of Ratni, where the appellant
pointed out the dead bodies of Ratni and Dilu and also a place
in the orchard of Ratni covered with bushes and grass, where he
had concealed a tangi.
The appellant then took the Sub Inspector and witnesses to Kasiari garha khet and pointed out the dead
body of Chamin lying in a ditch covered with Ghunghu.
The
appellant then took the Sub Inspector and the witnesses to Dungijharan Hills, where he pointed out the dead body of Somra lying
in the slope of the hills to the north.
The Sub Inspector also
recovered from the appellant's house a chadar stained with human
blood.
The evidence of P. W. 6 shows that the appellant had
gone to the forest on the morning of August 11, 1963.
The medical evidence discloses incised wounds on all the dead
bodies.
The injuries were caused by a sharp-cutting weapon
such as a tang!.
All the four persons were brutally murdered.
There is no eye-witness to the murders.
The principal evidence against the appellant consists of the first information report,
which contains a full confession of guilt by the appellant. If this
report is excluded, the other evidence on the record is insufficient
to convict the appellant.
The principal question in the appeal
is whether the statement or any portion of it is admissible in
evidence.
The first information report reads as follows : "My name is
Aghnu Nagesia. ( 1) My father's name is Lodhi Nagesia.
I am
a resident of Lotwa, Tola J amtoli, thana Palko!, district Ranchi.
136
SUPREME COURT REPORTS
[I %6] l S.C.R.
Today, Sunday, date not known, at about 3 p.m. I having come
to the P .S. make statement before you the S.I. of Police (2)
that on account of my Barima ( aun~) Mussammat having given
away her property to her daughter and son-in-law quarrels and
troubles have been occurring among us.
My Barima has no son
and she is a widow.
Hence on her death we shall be owners
of her lands and properties and daughter and son-in-law of Barima
shall have no right to them.
She lives separate from us, and
lives in her house with her daughter and son-in-law and I live
with my brother separately in my house.
Our lands are separate
from the time of our father. ( 3) Today in the morning at about
7-8 a.m. I h:id gone with a tangi to Duni Jharan Pahar to cut
shrubs for fencing.
f found Somra sitting alone there who was
grazing cattle there. ( 4) Seeing him I got enraged and dealt him
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a Langi blow on the filli (calf) of right leg, whereby he toppled
down on the ground.
Thereupon I dealt him
several Chheo
(blows) on the head and the face, with the result that he became
speechless and died.
At that time there was none near about on
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that Pahar. ( 5) Thereafter I came to the
Kesari
Garu field
where "Somra's wife Chamin was weeding out grass in the field.
( 6) I struck her also all on a sudden on the head with the said
tangi whereby she dropped down on the ground and died then
and there. (7) Thereafter I dragged her to an adjoining field and
laid her in a ditch to the north of i~ and covered her body with
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Gongu (Pala ke Chhata) so that people might not see her. There
was no person then at that place also. ( 8) Thereafter I armed
with that tangi went to the house of my Barima to kill her. When
r reached there, I found that she was sitting near the hearth which
was burning. (9) Reaching there all on a sudden I began to
strike her on the head with tangi whereupon she dropped down
dead at that very place. (I 0) Near her was Somra's son aged
about 3-4 years. ( 11) I also struck him with the tangi.
He also
fell da»n and died. ( 12) l finished the line of my Barima so
that no one could take share in her properties. (13) I hid the
tangi in the jhari of my Barima's house. (14) Later on I narrated
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the occurrence to my
chacha (father's brother) Lerha that I
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killed the aforesaid four persons with tangi.
After
sometime
( 15) J started for the P .S. to lodge information and reaching the
P.S. I make this statement before you. (16) My Barima had all
along been quarrelling like a Murukh (foolish woman) and being
vexed, I did so. ( 17) All the dead bodies and the tangi would
be lying in those places. I can point them out. (18) This is my
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statement.
I got it read over to me and finding it correct, I
affixed my left thumb-impression."
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AGHNOO NAGESIA v. STATE (Bachawat, J.)
137
We have divided the statement into 18 parts. Parts l, 15
and 18 show that the appellant went to the police station to
make the report.
Parts 2 and 16 show his motive for the murders.
Parts 3, 5, 8 and 10 disclose the movements and opportunities of the appellant before the murders.
Part 8 also discloses
his intention. Parts 4, 6, 9 and 11 disclose that the appellant
killed the four persons.
Part 12 discloses the killing and the
motive.
Parts 7, 13 and 17 disclose concealment of a dead body
and a tangi and his ability to point out places where the dead
bodies and the tangi were lying.
Part 14 discloses the previous
confession by the appellant.
Broadly speaking, the High Court
admitted in evidence parts 1, 2, 3, 5, 7, 8, 10, 13, 15, 16, 17
and 18.
On behalf of the appellant, it is contended that the entire
statement is a confession made to a police officer and is not provable against the appellant, having regard to s. 25 of the Indian
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Evidence Act, 1872.
On behalf of the respondent, it is contendD ed that s. 25 protects only those portions of the statement which
disclose the killings by the appellant and the rest of the statement
is not protected by s. 25.
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Section 25 of the Evidence Act is one of the provisions of
law dealing with confessions made by an accused.
The law
relating to confessions is to be found generally in ss. 24 to 30
of the Evidence Act and ss. 162 and 164 of the Code of Criminal
Procedure, 1898. Sections 17 to 31 of the Evidence Act are
to be found under the heading "Admissions".
Confession is a
species of admission, and is dealt with in ss. 24 to 30.
A confession or an admission is evidence against the maker of it, unless
its admissibility is excluded by some provision of law. Section 24
excludes confessions caused by certain inducements, threats and
promises. Section 25 provides : "No confession made to a police
officer, shall be proved as against a person accused of an offence."
The terms of s. 25 are imperative.
A confession made to a
police officer under any circumstances is not admissible in evidG ence against the accused. It covers a confession made when he
was free and not in police custody, as also a confession made
before any investigation has begun. The expression "accused of
any offence" covers a person accused of an offence at the trial
whether or not he was accused of the offence when he made the
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confession.
Section 26 prohibits proof against any person of a
confession made by him in the custody of a police officer, unless
it is made in the immediate presence of a Magistrate. The partial ban imposed by s. 26 relates to a confession made to a person
138
SUPREME COURT REPORTS
[1966] I S.C.R.
other than a police officer.
Section 26 docs
not
qualify the
absolute ban imposed by s. 25 on a confession made to a police
ollicer.
Section 27 is in the fonn of a proviso, and partially lifts
the ban imposed by ss. 24, 25 and 26.
It provides that when
any fact is deposed to as discovered in consequence of infonnat ion recei\'ed from a person accused of any offence. in the custody
of a police olliccr.
so much
of such infonnation, whether it
amounts to a confession or not, as relates distinctly to the fact
thereby discovered, may be proved.
Section 162 of the Code of
Criminal Procedure forbids the use of any statement made by
any person to a police officer in the course of an investigation
for any purpose at any enquiry or trial in respect of the offence
under investigation, save as mentioned in the proviso and in cases
falling under sub-s (2), and it specifically provides that nothi~1,!
in it shall he deemed to affect the provisions of s. 27 of the
Evidence Act.
The words of s. 162 are wide enough to include
a confc>sion made to a police otlicer in the course of an investigation.
A statement or confession made in
the course of an
investigation may be recorded by a Magistrate under s. 164 of
the Code of Criminal Procedure subject to the safeguards imposed
by the section.
Thus, except as provided by s. 27 of the Evidence Act, a confession by an accused to a police officer is absolutely protected under s. 25 of the Evidence Act, and if it is
made in the course of an investigation. it i; also
protected
by
s. 162 of the Code of Criminal Procedure, and a confession to
any other person made by him while in the custody of a police
officer is protected by s. 26. unless it is made in the immediate
presence of a Magistrate.
These provisions seem to proceed upon
the view that confessions made by an accused to a police officer
or made by him while
he is in the custody of a police officer
are not to be trusted, and should not be used in evidence against
him.
They arc based upon grounds of public policy, and the
ful!est effect should be given to them.
Section 154 of the Code of Criminal Procedure provides for
the recording of the first information.
The information report
as such is not substantive evidence.
It may be used to corroborate the infonnant tmder s. 157 of tl1e Evidence Act or tll
contradict him under s. 145 of the Act, if the informant is called
as a witness.
If the first infonnation is given by the accused
himself. the fact of his giving the infonnation is admissible against
him as evidence of his conduct under s. 8 of the Evidence Act.
If the infomiation is a non-confessional statement, it is admissible
against the accused as an admission under s. 21 of the Evidence
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AGHNOO NAGESIA v. STATE (Bachawat, !.)
139'
Act and is relevant, see Faddi v. The State of Madhya Pradesh(')
explaining Nisar Ali v. State of U.P. (2 ) and Dal Singh v. King
Emperor(').
But a confessional first information report to a
police officer cannot be used against the accused in view of s. 25
of the Evidence Act.
The Indian Evidence Act does not define "confession".
For
a long time, the Courts in India adopted the definition of "confe3sion" given in Art. 22 of Stephen's Digest of the
Law of
Evidence.
According to that definition, a confession is an admission made at any time by a person charged with crime, stating
or suggesting the inference that he committed that crime.
This
definition was discarded by the Judicial Committee in Pakala
Narayanaswami v. The King Emperor('). Lord Atkin observed:
" . . . no statement that contains self-exculpatory
matter can amount to confession, if the exculpatory
statement is of some fact which if true would negative
the offence alleged to be confessed.
Moreover, a confession must either admit in terms the offence, or at
any rate substantially all the facts which constitute the
offence.
An admission of a gravely incriminating fact,
even a conclusively incriminating fact, is not of itself
a confession, e.g., an admission that the accused is the
owner of and was in recent possession of the knife or
revolver which caused a death with no explanation of
any other man's possession."
These observations received the approval of this Court in Palvindu Kaur v. The State of Punjab(').
In State of U.P. v. Deoman
Upadhyaya("), Shah, J. referred to a confession as a statement
made by a person stating or suggesting the inference that he has
committed a crime.
Shortly put, a confession may be defined as an admission of
the offence by a person charged with the offence.
A statement
which contains self-exculpatory matter cannot amount to a
G confession, if tlie exculpatory statement is of some fact which,
if true, would negative the offence alleged to be confessed. If
an admission of an accused is to be used against him, the whole
of it should be tendered in evidence, and if part of the admission
is exculpatory and part inculpatory, tlie prosecution is not at
H
(1) Criminal Appeal No. 210 of 1963 decided on January 24, 1964.
(2) A.l.R. 1957 S.C. 366.
(3) L.R. 44 I.A. 137.
(4) [1939] L.R. 66 I.A. 66, 81.
(5) [1953] S.C.R. 94, IC4.
(6) [1961] 1 S.C.R. 14, 21.
L5 Sup.Cl/65-10
140
SUPlll!MB
COURT
REPORTS
[1966] I S.C.R.
liberty to use in evidence the inculpatory part only.
Se~ Ha11umant v. State of U.P.(1)
and Pa/vinder Kaur v. The State of
Punjab(').
The accused is entitled to insist
that the entire
admission including the exculpatory part must be tendered in evidence.
But this principle is of no assistance to the accused where
no part of his statement is self-exculpatory, and the prosecution
intends to use the whole of the statement against the accused.
Now, a n1nfession may consist of several parts and may reveal
not only the aclual commission of the crime but also the motive.
the preparation, the opportunity, the provocation, the weapons
used, the intention, the concealment of the weapon and the subsequent conduct of the accused. If the confession is tainted, the
taint attaches to each part of it.
It is not permissible in law to
separate one part and to admit it in evidence as a non-confessional
statement. Each part discloses some incriminating fact. i.e., some
fact which by itself or along with other admitted or proved facts
suggests the inference that the accused committed the crime, and
though each part tat:en singly may not amount to a confession.
each of them being part of a confessional statement partakes of
the character of a confession.
If a statement contains an admission of an offence, not only that admission but also every other
admission of an incriminating fact contained in the statement is
part of the confession.
If proof of the confession is excluded by any prov!Slon of
law such as s. 24, s. 25 and s. 26 of the Evidence Act, the
entire confessional statement in all its parts including the admissions of minor incriminating facts must also be excluded, unless
proof of it is permitted by some other section such as s. 27 of
the Evidence Act.
Little substance and content would be left
in ss. 24, 25 and 26 if proof of admissions of incriminating facts
in a confessional statement is permitted.
Sometimes. a single sentence in a statement may not amount
to a confession at all.
Take a case of a person charged under
s. 304-A of the Indian Penal Code and a statement made by him
to a police officer that "I was drunk; I was driving a car at a
speed of 80 miles per hour; I could sec A on the road at a
distance of 80 yards; I did not blow the horn; T made no atlempt
to stop the car; the car knocked down A."
No single sentence
in this statement amounts to a confession, but the statement reacl
as a whole amounts to a confession of an offence under s. 304-A
of the Indian Penal Code, and it would not be permissible to
(I) [1952J S.C.R. !091, llll.
(2) (t95J] S.C.R. 94, 105-106.
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AGHNOO NAGESIA v. STATE (Bachawat, J.)
141
admit in evidence each sentence separately as a non-confessional
statement.
Again, take a case where a single sentence in a statement amounts to an admission of an offence. 'A' states "I struck
'B' with a tangi and hurt hinI." In consequence of the injury
'B' died.
'A' committed an offence and is chargeable under
various sections of the Indian Penal Code. Unless he brings
his case within one of the recognised exceptions, his statement
amounts to an admission of an offence, but the other parts of the
statement such as the motive, the preparation, the absence of
provocation, concealment of the weapon and the subsequent conduct, all throw light upon the gravity of the offence and the intention and knowledge of the accused, and negatives the riglit of
private defence, accident and other possible defences.
Each and
every admission of an incriminating fact contained in the confessional statement is part of the confession.
If the confession is caused by an inducement, threat or promise as contemplated by s. 24 of the Evidence Act, the whole
of the confession is excluded by s. 24.
Proof of not only the
admission of the offence but also the admission of every other
incrinlinating fact such as the motive, the preparation and the
subsequent conduct is excluded by s. 24. To hold that the proof
of the admission of other incriminating facts is not barred by
s. 24 is to rob the section of its practical utility and content. It
may be suggested that the bar of s. 24 does not apply to the other
admissions, but thouglI receivable in evidence, they are of no
weiglit, as they were caused by inducement, threat or promise.
According to this suggestion, the other admissions are relevant.
but are of no value.
But we think that on a plain construction
of s. 24, proof of all the admissions of incrinlinating facts contained in a confessional statement is excluded by the section.
Similarly, ss. 25 and 26 bar not only proof of admissions of an
offence by an accused to a police officer or made by him while
in the custody of a police officer but also admissions contained
in the confessional statement of all incriminating facts related to
the offence.
A little reflection will show that the expression "confession"
in ss. 24 to 30 refers to the confessional statement as a whole
including not only the admissions of the offence but also all other
admissions of incriminating facts related to the offence. Section
27 partially lifts the ban imposed by ss. 24. 25 and 26 in respect
of so much of the information whether it amounts to a confession
or not, as relates distinctly to the fact discovered in consequence
of the information, if the other conditions of the section are
142
SUPRBMB
COURT
:REPORTS
[1966] l S.C.R.
satisfied.
Section 27 distinctly contemplates that an information
leading to a discovery may be a part of the confession of the
accused and thus, fall within the purview of ss. 24, 25 and 26.
Section 27 thus shows that a confessional statement admitting the
offence may contain additional information as part of the confession.
Again, s. 30 permits the Court to take into consideration
against a co-accused a confession of another accused affecting
not only himself but the other co-accused.
Section 30 thus shows
that matters affecting other persons may form part of the confession.
If the first information report is given by the accused to a
police officer and amounts to a confessional statement, proof of
the confession is prohibited by s. 25.
The confession includes
not only the admission of the offence but all other admissions of
incriminating facts related to the offence contained in the confessional statement.
No part of the
confessional statement is
receivable in evidence except to the extent that the ban of s. 25
is lifted by s. 27.
Our attention is not drawn to any decision of this Court or
of the Privy Council on the question whether apart from s. 27,
a confessional first information
report given by an accused is
receivable in evidence against him.
Decisions of the High Courts
on this point are hopelessly conflicting.
They contain all shades
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of opinion ranging from total exclusion of the confession to total
inclusion of all admissions of incriminating facts
except tho
actual commission of the crime.
In Harfi v. Emperor(') and
Noor Muhammad v. Emperor('), the Lahore High Court held
that the entire confessional first information report was inadmisF
sible in evidence.
In Emperor v. Harman Kisha ('), the Bombay High Court held that the entire confessional report dealing
with events on the night of the offence was hit by s. 25, and
it could not be said that portions of it dealing with the motive
and the opportunity were not parts of the confession.
In KingEmperor v. Kommoju Brahman('). the Patna High Court held
that no part of the confessional first information report was receivable in evidence, the entire report formed a single connected story
and no part of it had any meaning or significance except in relation to the whole, and it would be wron)! to extract parts of the
statement and treat them as relevant.
This case was followed
(I) A.LR. 1918 Lah. 69.
(3) (1935] I.L.R. 59 Born. 120.
(2) (1925) 90 J.C. 148.
(4) I.LR. (194G] Patna. 301. 308, 314.
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AGHNOO NAGESIA v. STATE (Bachawat, I.)
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A in Adimoola Padayachi v. State (1), and the Court admitted only
the portion of the confessional first information report which
showed it was given by the acoused and investigation had started
thereon. In State of Rajasthan v. Shiv Singh('), the Court
admitted in evidence the last part of the report dealing with the
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movements of the accused after the commission of the offence,
but excluded the other parts of the statement including those
relating to motive and opportunity. In Legal Remembrancer v.
Lalit Mohan Singh Roy('), the Calcutta High Court admitted in
evidence the narrative of the events prior to the night of the
occurrence disclosing the motive of the offence.
This case was
followed by the Nagpur Court in Bharosa Ramdayal v. EmpeC ror('). In Kartar Singh v. State( 5 ), the Court admitted in evidence the introductory part and the portion narrating the motive
and the opportunity. In Ram Singh v. The State("), the Rajasthan
High Court held that where it is possible to separate parts of the
first information report by an accused from that in which he had
D made a confession, that part which can be so separated should be
admitted in evidence, and on this view, admitted a part of the report
relating to motive and subsequent conduct including the statement that the accused had left the deceased lying wounded and
breathing in the tibari and there was no hope of her surviving and
he had come having covered her with a cloth. In Lachhuman
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Munda v. The State of Bihar(7), the Patna High Court admitted
in evidence portions of the first information report relating to the
motive, the opportunity and the entire narrative of events before
and after the crime. This case was followed in the judgmen~ under
appeal. Some of the decided cases took the view that if a part of
the report is property severable from the strict confessional part,
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then the severable par~ could be tendered in evidence. We think
that the separability test is misleading, and the entire confessional
statement is hit by s. 25 and save and except as provided by s. 27
and save and except the formal part identifying the accused as
the maker of the report, no part of it could be tendered in
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evidence.
We think, therefore, that save anc! except parts 1, 15 and
18 identifying the appellant as the maker of the first information
report and save and except the portions coming within the purview of s. 27, the entire first information report must be excluded
from evidence.
H
(1) [1960] M.W.N. ~:8.
(2) A.LR. 1962 Rajasthan 3.
(3) [1922] I.L.R. 49 Cal. 167.
(4) A.l.R. 1941 Nag. 86.
(5) A.LR. 1952 Pepsu 98.
(6) [1952] I.L.R. 2 Rajasthan 93.
(1) A.l.R. 1964 Patna 210.
IH
SUPREME
COURT
REPORTS
[1966] I S.C.R.
Section 27 applies only to information received from a person
accused of an offence in the custody of a police officer.
Now, the
Sub Inspector stated that he arrested the appellant after he gave
the tirst information report leading to the discovery. Prima facie,
therefore, the appellant was not in the custody of a police officer
when he gave the report, unless it can be said that he was then
in constructive custody.
On the question
whether a
person
directly giving to a police officer information which may be used
as evidence against him may be deemed to have submitted him,elf
to the custody of tho police officer within the meaning of s. 27,
ther" is conflict of opinion.
See the observatiom of Shah, J.
and Subba Rao, J. in State of U.P. v. Deomal! Upadhyaya('). For
the purposes of the case. we shall assume that the appellant was
constructively in police custody
and therefore
the informafon
contained in the first information report leading to the discovery
of the dead bodies and the tangi is admissible in evidence.
The
entire evidence against the appellant then consists of the fact that
A
R
c
the appellant gave information as to the place where the dead
I>
bodies were lying and as to the place where he concealed the
tangi, the discovery of the dead bodies and the tan11i
in conse·
qucnce of the information. the discovery of a b!ood-staincd chadai·
from the appellant's house and the fact that he had gone to Dungi
Jharan Hilb on the morning of August 11. I 963. This evidence
is not sufficient to convict the appellant of the ofknces under
E
s. 302 of lhe Indian Penal Code.
In the result. tho appeal is allowed, the conviction and sen·
te~ce passed by the Court~ below are set aside. and the appellant
is directed to be set at liberty forthwith.
Appeal allowed.
F
(1) !1961) I S.C.R. 14 at 26, 44.
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