# Palukuri' Kotayya and ors v. En1peror 74 I.A. 65 and Udai Bhan v. State of

- **Citation:** [1976] 1 S.C.R. 715
- **Court:** Supreme Court of India
- **Decided:** 1975-09-09
- **Case number:** Criminal Appeal No. 131 of 1971
- **Bench:** P. N. Bhagwati, R. S. Sarkaria
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/palukuri-kotayya-and-ors-v-en1peror-74-i-a-65-and-udai-bhan-v-state-of-6665
- **Pages:** 6

## Headnote

L\iJence Act (l of 1872), s. 27-Scopc of-S. 114(a)--Scope of.
715
The appellant was charged with an offence of theft of three- drums
of
chemiQa1s.
He was taken into police custody.
On interrogation he said:
"! wiU tell ~he place of deposit of the three chemical drums V.'hich I took
out. ....... .
The. drun1s were thereafter recovered fron1 the place mentioned by him.
The trial court held that the. information given by the appellant as a result
of which the stolen drums were discovered, was admissible und~r s. 27 of
the Evidence Act and that under illustration (a) to s. 114 Evidence Act,
the appellant would be presumed to be the thief.
A11owing the appeal to this Court,
HELD : 1 (a) The conditions necessary for bringing this section into opera:
tion; are (i) the discovery of a. fact, albeit a relevant fact, in consequence of the
information received fr9m a person accused of an offence (ii) the discovery
of such fact must be deposed to, (iii) at the timoe. of the receipt of the
information the .accused must be in police custody, and (iv) only "so much
of the information" as relates distinctly to the fact thereby discovered
is
ad1ni..>sible.
The rest of the information has to be excluded.
[718 F,)
(b) The word 'distinctly' means 'directly', 'indubitably'_ 'strictly', 'unmis.
1akably. The word has been advisedly used to limit and define the scope of
the proveable information. Tll\': phrase "distinctly relates to the fact thereby
discovered" refers to that part of the information supplied by the accused which
is the di 1·ect and flnn1ediate cause of the discovery. [718 F]
(c) If a fact is actually discovered in consequence of information given
by the accused, it affords some guarantee of truth of that part, and that part
OAly, of the inforn1aion which was the clear, immediate and proximate cause
of the discovery.
No such guarantee or assurance attaches to the rest of the
statement which tnay be indirectly or remotely related to the fact discovered.
[718 GJ
Palukuri' Kotayya and ors. v. En1peror 74 I.A. 65 and Udai Bhan v. State of
Uttar Pradesh [1962] Supp. 2 S.C.R. 830, referred to.
ln lhe instant case only the first part of the statement, namely "I will tell
the place of deposit of the three chemical drums'' was the immediate and
direct cau~~ of the· fact discovered.
Therefore. this portion only was admissible
under s. 27.
The rest of the statemient was not a distinct and a proximate
cac1se vf the discovery and had to be ruled out evidence altogether. [719 G]
2(..t) ft cannot be said that the admissible portion of the information taken
in conjllnction with the facts discovered was sufficient to draw the presump. ion
that the
accu~ed was the thief Or receiver of stolen property knowin!' it to be
stolen. The drums were in a Musafirkhana which was a place accessible to
all and sundry.
The drums were not alleged to be lying concealed nor was
the compound under 1he lock and key of the appellant. [720 Ai-B]
(b) The inference under s. 114{a) can never be reached unJcss it is a
necessary inference from the circumstances of a given case \Vhich could not
be explained on any other hypothesis save that of the guilt of th~ accused. In
the present case two alternative hypotheses are equally possible ( i) that it was
the accused who had hin1self deposited the stolen drums in the J\.fusaffrkhana
716
SUPREME COURT REPORTS
[1976] I S.C.R.
or (ii) the accused only knew that the drums were lying at that place. The
second hypothesis was compatible. with the innocence of the accused and be
is entitled to the benefit of doubt. [720 C-D]

## Text

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MOHMEDINAYATULLAH
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THE STATE OF MAHARASHTRA
September 9, 1975
[P. N. BHAGWATI AND R. S. SARKARIA, JJ.]
L\iJence Act (l of 1872), s. 27-Scopc of-S. 114(a)--Scope of.
715
The appellant was charged with an offence of theft of three- drums
of
chemiQa1s.
He was taken into police custody.
On interrogation he said:
"! wiU tell ~he place of deposit of the three chemical drums V.'hich I took
out. ....... .
The. drun1s were thereafter recovered fron1 the place mentioned by him.
The trial court held that the. information given by the appellant as a result
of which the stolen drums were discovered, was admissible und~r s. 27 of
the Evidence Act and that under illustration (a) to s. 114 Evidence Act,
the appellant would be presumed to be the thief.
A11owing the appeal to this Court,
HELD : 1 (a) The conditions necessary for bringing this section into opera:
tion; are (i) the discovery of a. fact, albeit a relevant fact, in consequence of the
information received fr9m a person accused of an offence (ii) the discovery
of such fact must be deposed to, (iii) at the timoe. of the receipt of the
information the .accused must be in police custody, and (iv) only "so much
of the information" as relates distinctly to the fact thereby discovered
is
ad1ni..>sible.
The rest of the information has to be excluded.
[718 F,)
(b) The word 'distinctly' means 'directly', 'indubitably'_ 'strictly', 'unmis.
1akably. The word has been advisedly used to limit and define the scope of
the proveable information. Tll\': phrase "distinctly relates to the fact thereby
discovered" refers to that part of the information supplied by the accused which
is the di 1·ect and flnn1ediate cause of the discovery. [718 F]
(c) If a fact is actually discovered in consequence of information given
by the accused, it affords some guarantee of truth of that part, and that part
OAly, of the inforn1aion which was the clear, immediate and proximate cause
of the discovery.
No such guarantee or assurance attaches to the rest of the
statement which tnay be indirectly or remotely related to the fact discovered.
[718 GJ
Palukuri' Kotayya and ors. v. En1peror 74 I.A. 65 and Udai Bhan v. State of
Uttar Pradesh [1962] Supp. 2 S.C.R. 830, referred to.
ln lhe instant case only the first part of the statement, namely "I will tell
the place of deposit of the three chemical drums'' was the immediate and
direct cau~~ of the· fact discovered.
Therefore. this portion only was admissible
under s. 27.
The rest of the statemient was not a distinct and a proximate
cac1se vf the discovery and had to be ruled out evidence altogether. [719 G]
2(..t) ft cannot be said that the admissible portion of the information taken
in conjllnction with the facts discovered was sufficient to draw the presump. ion
that the
accu~ed was the thief Or receiver of stolen property knowin!' it to be
stolen. The drums were in a Musafirkhana which was a place accessible to
all and sundry.
The drums were not alleged to be lying concealed nor was
the compound under 1he lock and key of the appellant. [720 Ai-B]
(b) The inference under s. 114{a) can never be reached unJcss it is a
necessary inference from the circumstances of a given case \Vhich could not
be explained on any other hypothesis save that of the guilt of th~ accused. In
the present case two alternative hypotheses are equally possible ( i) that it was
the accused who had hin1self deposited the stolen drums in the J\.fusaffrkhana
716
SUPREME COURT REPORTS
[1976] I S.C.R.
or (ii) the accused only knew that the drums were lying at that place. The
second hypothesis was compatible. with the innocence of the accused and be
is entitled to the benefit of doubt. [720 C-D]
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 131
of 1971.
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Appeal by special leave from the judgment and order date(! the
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4th March. 1971 of the Bombay High Court in Criminal Appeal No.
1954 of 1969.
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K. R- Chaudhury, S. L. Setia, Rajendra Chaudhury and Veena
Khanna, for the appellant.
H. R. Khanna and, M. N. Shroff, for the respondent.
The Judgment of the Court was delivered by
SARKARIA, J. This appeal by special leave is directed against a
judgment of the High Court of Bombay upholding the conviction anl:I
sentience passed against the appellant under s. 379, Penal Code. The
facts are these ;
The appellant was tried in the court of the Presidency Magistrate
5th Court, Dadar on the charge of committing theft of three drums
containing phosphorous pentaoxide, valued at Rs. 300/-, from the
premises of the Bombay Port Trust on 1-8-1968 at 8.40 a.m.
The First Information Report of the theft lodged with the police
by Murari Bhikaji Bidya (PW 1) Shed Superintendent of Haji Bunder,
at 9.15, was as follows :
"Tol:lay in the morning at abaut 8. a.m. I reported for
duty at Haji Bunder.
At about
8.40 a.m.
or so,, the
Canteen boy named Shri Babu Durga came to me and informed me that one M/Car had come inside Haji Bunder
and removed 3 small drums which were lying between 'A'
Shed and Canteen in an open place along with several
drums.
I immediately asked Shri Joshi
the
gate-keeper
who was present in my office at that particular time, to go
out and see what was the matter.
After some time Shri
Joshi came to my office and informed me that before he
could reach the gate, the car had already left. However, he
has noted down the number of the Car as 6649. He further told me that he shouted to stop the car but the driver
ot the said car drove away the Car at a fast speed.
I then
went in the open place in between 'A' Shed and Canteen
where the drums were lying when the above said Canteen
boy showed me a gap in between bigger-size drums from
where the small drums were removed ...... "
Sub-Inspector Thora! PW 7, conducted the investigation. After
making inquiries from the Regional Transport Office, he traced the
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INAYATULLAH v. MAHARASHTRA (~arkaria, !. )
717
owner of the car, BML 6649, and requested him to send his card.river to the Police station.
Accordingly, the driver,
Babu Vithal
(PW 5), accompanied by the accused (appellant) appeared before
the Sub-Inspector in the Police Station on September 26, 1968. The
Sub-Inspector took the accused _into custody. He then called the
Panchas (inclulling PW 6) and, in their presence, interrogated the
accused who made a statement which was recorded by the Sub-Inspector. Rendered into English, this statement
(incorporated
in
the
Panchanama Ex. C) reads :
"I will tell the place of de_posit of the three Chemical
drnms which I took out from the Haji Bundcr on ht
August."
The accused then led the Police Officer and the Panchas to a
Musafirkhana in Crowford Market and pointed out the three \!rums
lying there, bearing the markings, 'ACC I Phosphrous Pentaoxide'.
Thereafter, the drums were identified by PW 1 as the same which had
been stolen.
·
Aic1ong others, the prosecution examined Bhikaji (PW 1). the
infonnant, Vishnu Sakharam (PW 2), the Gate-keeper,
Go~indji
(PW 3) the Clearing Agent and Rasal Mohd. (PW 6), a panch witness of the discovery.
The driver of the car BML 6649 was also put
in the witness-box as PW 5. He turned hostile and the prosecution
cross-examined him to impeach his credit.
The plea of the appellant was one of plain denial of the prosecuE
tion case.
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The courts below have concurrently found these facts :
1. That three drums had been stolen from the shed of
the Bombay Port Trust on 1-8-1968 at 8.40 A.M.
2. That the drums in question were the same that had
been stolen.
3. That these drums were discovered in consequence of
the information (vide Ex. C) given bv the accused whilst in
police custody.
4. That such information, as admissible under
s.
27,
Evidence Act, showed that the accused was admittedly in
possession of these stolen drums on 26-9-1968 and therefore,
under illustration (a) of sec. 114, Evidence Act, he would
be presumed to be the thief.
.
Mr. Chaudhry, the learned Counsel for the. appellant does not
seriously dispute the first two findings.
But he forcefully .assails the
third and the fourth. His contentions are : Qa) that the courts below
have not only misconstrued the statement made by the accused but
have used more of it than was permissible under Sec. 27, Evidence
Act; (b) that properly read,, the admissible portion of the statement,
718
SUPREME COURT REPORTS
[1976] [ S.C.R.
in the circumstauces of the case, did not warrant an inference under
illustration (a) to Sec. 114,, Evidence Act, that the appellant was the
thief or a receiver o~ stolen property.
As against this, Mr. H. R. Khanna, learned Counsel for lite State
submits that the whole of the information supplied by the accused
was admissible un\ler sec. 27.
Although the interpretation and scope of sec. 27 has been the
subject of several authoritative pronouncements, its
application to
concrete cases is not always free from difficulty. It will therefore be
worthwhile at the outset; to have a short and swift glance at the
sec;tion and be remained of its requirements.
The Section says :
"Provided that, when any fact is deposed to as
discovered in consequence of information received from
a
person accused of any ol,fience, in the custody ·of a Police
Officer, so much of such information, whether it amounts
to a confession or not, as relates l'.listinctly to the fact thereby
discovered may be proved."
The expression "Provided that" together with phrase ''whether
it amounts to a confession or not" shows that the section is in the
nature of an exception to the preceding provisions particularly Secs.
25 and 26. It is not necessary in this case to consider if this wet.ion
qualifies, to any extent, Sec. 24, also. It will be seen that the first
condition mcessary for bringing this section into operation is the discovery of a fact, albeit a relevant fact, in consequence of the information received from a person· accused of an offence.
The second
is that the discovery of such fact must be deposed to.
The third
is that at the time of the receipt of the information the accused must
be in police custody.
The last but the most important condition is
that only "so much of the information" as relates distinctlv to the fact
thereby discovered is admissible.
The rest of the information has to
be excluded.
The word "distinctly" means "directly", "indubitably",
"strictly", "unmistakably".
The word has been advisedly
used
to
limit and define the scope of the proveable information. The phrase
"distinctly" relates to the fact thereby "discovered" is the linchpin of ·
the provision.
This phrase refers to that part of the
information
supplied by the accused which is the direct and immediate cause of
the discovery.
The reason behind this partial lifting of
the ban
against confessions and statements made to the police, is that if
a
fact is actually discovered in consequence of information given by the
accused, it affords some guarantee of truth of that part, and that part
only, of the information which was the clear, immediate and proximate
cause of the discovery.
No such guarantee or assurance attaches
to the rest of the statement which may be indirectly or remotely retared
to the fact discovered.
At nne time it was held that the expression "fact discovered" in
the section is restricted to a physical or material fact which can be
perceived by the senses, and that it does not include a mental fact (see
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INAYATULLAH v. MAHARASHTRA (Sarkaria, 1.)
719
Sukhan v. Crown,(') Rex v. Ganee)("). Now it is fairly settled that
the expression "fact ~iscovered" includes not only the physical object
produced, but also the place frpm which it is produced and
the
knowledge of the accused as t0 this (see Palukuri Kotayya and ors.
v. Empror( 3 ), Udai Bhan v. State of Uttar Pradesh.(')
Before proceeding further, it is necessary to be clear about the
precise statement which had been made by the appellant to the Police
Officer.
This. statement finds incorprn-ation in the panchnama, Ex.
C and we have reproduced an English rendering 0£ the same earlier
in this judgment.
While considering this statement, the High Court
observed that the accused had stated that "he had kept them (drums)
there". We have perused the original record of the statement y.:hich
is in Hindi, and we are of opinion that by no stretching of the words
this statement can be so read or construe\i as has been done by the
High Court. The copy Ex. C of the Pap.chnama, in the Paper-book
contains a correct English rendering of the same. What the accused
had stated was : "I will tell the place of deposit of the three Chemical
drums which I took out from the Haji Bunder on first August". It
will be seen that he never ,said that it was he who had deposited
the drums at the place from which they were produced.
It seems
the latter part of the statement which was an outright confession of the
theft, was not completely ruled out of evidence and somethiog of it
was imported into and superimposed on the first part of the statement
so as to fix the responsibility for deposit and possession of the stolen
drums there, on the accused.
Haviog cleared the ground, we will now consider, in the Jijht
of the principles clarified above, the application of s. 27 to this statement of the accused.
~e first ste,p iri the process was to pinpoint
the fact discovered in consequeice Of this statement. Obviously, in
the present case, the threefold fact discovered was: (a) the chemical
drums in question, (b J the place i.e. the Musofirkhana, Crawford
Market, wherein they lay deposited and (c) the accused's knowledge
of such deposit.
The next step would be to split up the statement
into its components and to separate the admissible from the inadmiss;ble portion or portions.
Only those compon·ents or portions which
were the immediate cause of the discovery would be legal evidence
· anti not the rest which must be excised and rejected. Thus processed.
in the instant case, only the first part of the statement, viz.,
"I will
tell the place of deposit of the three Chemical drums" was the
immediate and direct cause of the fact discovered.
Therefore,, this
portion onlv was admissible under Sec. 27. The rest of the statement .
namely, "which I took out from _the Haji Bunder on first August",
constituted only the past history of the drums or their theft by the
accused: it was not the. distioct and proximate cause of the discovery
and hatl to be ruled out of evidence altogether.
After culling out and rejecting the inadmissible portion, it was
to be considered further whether the admissible portion of. the iofor·
(IJLL.R:iOLah. 283-F.ll.
(2) I.L.R. 56 Born. 172.
(3) 74 !. A. 65;
(4) [19621 Supp. 2 S.C.R. 830.
720
SUPREME COURT REPORTS
[1976] 1 S.C.R.
mation taken in conjunction with the facts discovered was sufficient
to draw the presumption that the accused was the thief or receiver
of stolen property knowing it to be stolen.
The answer
to this
question, in the circumstances of the case, had to be in the negative.
The drums in question were found in the compound or yard of a
Musafirkhana which was a place of rest and waiting for Musafus
(travellers). It was not alleged by
the
prosecution-much less
proveli-that the drums were lying concealed, or that the compound
was under the lock and key of the accused. There is not even an
oblique hint that the place of the deposit of the drums was in any
way under the control or occupation of the accused. The place being
a Musafirkhana, was from its very nature accessible to all and sundry.
It must be remembered that an inference under s. 114, Illustration
(a) should never be reached unless it is a necessary inference from
the circumstances of the given case, which cannot be explained on
any other hypothesis save that of the guilt of the accus~d. Such is
not the case h~re.
The facts proved by the prosecution, particularly the admissible
portion of the statement made by the accused,. could give rise to two
alternative hypotheses, equally possible, namely : (i) that it was the
accused who had himself deposited the stolen drums in the Musafirkhana, or (ii) the accused only knew that the drums were lying at
that place.
The second hypothesis was wholly compatible with his
innocence. In the ultimate analysis, therefore, the
appellant
was
entitled to the benefit of doubt.
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Accordingly, we allow his appeal, set aside his conviction and
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acquit him of the charge levell¢ against him.
P.B.R.
A.pp~al allow~d.
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