# The appeal therefore fails and is hereby dismissed with costs. Appeal dismissed. "CDAI BHAN v. THE STATE OF UTTAR PRADESH

- **Citation:** [1962] Supp. 2 S.C.R. 830
- **Court:** Supreme Court of India
- **Decided:** 1962
- **Case number:** Civil Appeal No. 243 of 1959
- **Bench:** J. L. Kapl'R, Raghubar Dayal
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/the-appeal-therefore-fails-and-is-hereby-dismissed-with-costs-appeal-dismissed-2348
- **Pages:** 8

## Headnote

c,-; m i11al J.a1»-Evi<l ence-Confeasion-lnf<>rmation reuit'ed fron, accu-<f.d-Accuaed producing alo/en artic/u--If amou"'8
to confe88ion-Admi•sibility of production-Indian Evid<n~
Act, 18i2 (1of1872), ""· 2.;, 26, 27-lndian Penal Code (Act
15 of JS'IO), ... 71,380,457.
On October 13, 1956, at about 8 p.m. the com)llainant
lorked !tis shop and went out for a while, but when he retur-.
ned he found the shop broken open and his box containing
money and clothes stolen.
On information given that the
appellant had been seen carrying the box from the direction
of the complainant's shop the appellant was arrested by the
sub-inspector of police and on being interrogated he produced
a box from out of a pond situate close to his field and handed
o\-.r the same to the sub-inspector.
He also produced a key
from out ofa bunch of keys, which fitted the lock of the
shop belonging to the complainant, and the sub-inspector took
into posscasion both the key and the lock.
The appellant was
tried for offences under ss. 380 and 457 of the Indian Penal
Code and convicted by the Magistrate under both the sections.
The appellant contended that the conviction wa• unsustainable
(I) [1958] S. C. R 871.
'·
2 S.C.R.
SUPREME COURT REPORTS
831
because (I) the appellant's h~nding over the box and the k•y
amounted to a confessional statement made to a police officer
and, therefore, the production was inadmissible in evidence
under ss. 25 and 26 of the Indian Evidence Act, 1872, and
thats. 27 was not applicable, and (2) ss. 380 and 457 of the
Indian Penal Code were offences which fell under s. 71 of the
Code and, therefore, the appellant could not be punished
under both the sections.
Held, thats. 27 of the Indian Evidence Act, 1872, was
applicable to the case and that the conviction of the app•llant
was valid.
A discovery of a fact includes the object fO'lnd, the place
from which it is produced and the knowledge of tre accused as
to its existence.
Applying this test, the evidence in regard to
the discovery of the kev as well as the box was rightly
admitted into evidence in the p'resent case.
Lackman Singh v.
The
State, [1952]
S.C.R.839,
Ramkishan Mithanlal Sharma v. The State of Bombay, [1955]
1 S.C.R. 903
and
Pulukuri J(otayy• v. Emperor, (1946)
L. R. 74 I.A. 65, relied on.
Held, further, that the two offences under ss. 380 and
457 of the Indian Penal Code did not fall under s. 71 of the
Code, and, therefore, the conviction under both the sections
was not illegal.
In re Natesa Mud<i/i'.ar, A.LR. 1945 Mad. 330, considered.

## Text

1962
n.M..,.,.,.."'of
U. B. D#JI <lo Co.
v.
Wor4m.n oJ
U. ll. D"11 &> Co.
W-.OJ.
830 SUPREME COURT REPORTS [1962] SUPP.
The Pat1U1 El.utrk Supply
Co.
Ltd. Patna
v.
Bali Rai ('). That Ctl8e in our opinion has no
applicu.tion to the facts of this case because that oaee
dealt with an application under 8. 33 of the Industrial Di~putes Act while the present proceedings are
under s. IO of thfl Act and the considerations which
apply under s. 33 are different in many respects
from those which apply to an adjudication under
8. IO.
The appeal therefore fails and is hereby dismissed with costs.
Appeal dismissed.
"CDAI BHAN
v.
THE STATE OF UTTAR PRADESH
(J. L. KAPL'R and RAGHUBAR DAYAL, JJ.)
c,-; m i11al J.a1»-Evi<l ence-Confeasion-lnf<>rmation reuit'ed fron, accu-<f.d-Accuaed producing alo/en artic/u--If amou"'8
to confe88ion-Admi•sibility of production-Indian Evid<n~
Act, 18i2 (1of1872), ""· 2.;, 26, 27-lndian Penal Code (Act
15 of JS'IO), ... 71,380,457.
On October 13, 1956, at about 8 p.m. the com)llainant
lorked !tis shop and went out for a while, but when he retur-.
ned he found the shop broken open and his box containing
money and clothes stolen.
On information given that the
appellant had been seen carrying the box from the direction
of the complainant's shop the appellant was arrested by the
sub-inspector of police and on being interrogated he produced
a box from out of a pond situate close to his field and handed
o\-.r the same to the sub-inspector.
He also produced a key
from out ofa bunch of keys, which fitted the lock of the
shop belonging to the complainant, and the sub-inspector took
into posscasion both the key and the lock.
The appellant was
tried for offences under ss. 380 and 457 of the Indian Penal
Code and convicted by the Magistrate under both the sections.
The appellant contended that the conviction wa• unsustainable
(I) [1958] S. C. R 871.
'·
2 S.C.R.
SUPREME COURT REPORTS
831
because (I) the appellant's h~nding over the box and the k•y
amounted to a confessional statement made to a police officer
and, therefore, the production was inadmissible in evidence
under ss. 25 and 26 of the Indian Evidence Act, 1872, and
thats. 27 was not applicable, and (2) ss. 380 and 457 of the
Indian Penal Code were offences which fell under s. 71 of the
Code and, therefore, the appellant could not be punished
under both the sections.
Held, thats. 27 of the Indian Evidence Act, 1872, was
applicable to the case and that the conviction of the app•llant
was valid.
A discovery of a fact includes the object fO'lnd, the place
from which it is produced and the knowledge of tre accused as
to its existence.
Applying this test, the evidence in regard to
the discovery of the kev as well as the box was rightly
admitted into evidence in the p'resent case.
Lackman Singh v.
The
State, [1952]
S.C.R.839,
Ramkishan Mithanlal Sharma v. The State of Bombay, [1955]
1 S.C.R. 903
and
Pulukuri J(otayy• v. Emperor, (1946)
L. R. 74 I.A. 65, relied on.
Held, further, that the two offences under ss. 380 and
457 of the Indian Penal Code did not fall under s. 71 of the
Code, and, therefore, the conviction under both the sections
was not illegal.
In re Natesa Mud<i/i'.ar, A.LR. 1945 Mad. 330, considered.
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
1962
Udai Bhan
v,
f'h1 .\tat1 of
Utlar Pradesh
KalJur J.
IllQ
Udai BJup,
••
Tiu Btcl.,,f
UllM Pralu~
Kop"' J.
832 SUPREME COURT REPORTS (1962) SUPP.
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.
SUPREME COURT REPORTS
833
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 (SubInspector) 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.
1962
UiaiB~
v.
n.sw .. f
u11., Pr..U.A
834 SUPREME COURT REPORTS (1962] SUPP.
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.
SUPREME COURT REPORTS
835
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.
1962
Udai Bhan
••
The State of
Uttor Pradesh
Ko;ur J.
1962
UUI BA.,.
v.
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
837
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.
1962
UdaiB/um
••
Tht Sl414 of
U114r.Praltsh
Kapur J.