FATEHSING DAHYABHAI PARMAR v. STATE — 1972 DIGILAW 118 (GUJ)

D. P. DESAI, P. D. DESAI, J. ( 1 ) IT is therefore clearly established that at three stages after the appellant surrendered himself into police custody he made statements containing substantially the same information with regard to the fact that he had concealed the dead body of the deceased Raijibhai in a drum containing rice in his house; and that brings us to the question of law raised by Mr. Shelat. For this purpose we may recapitulate the three statements attributed to the appellant which according to the findings given by us were made by the appellant. The first statement was:- His dead body I have packed in a bundle and have kept in a drum in my house and on the same (I) have kept rice. The second statement made before the P. S. T. in the morning was to the effect that he was willing to show the dead body of the deceased Raijibhai Somabhai which he had packed in a quilt and had concealed in a drum of rice in his house. The words in his house are not to be found in the English memorandum of evidence of the P. S. 1. at Exh. 24. But they are to be found in the Gujarati record of the evidence of that witness. The third statement is to be found in the Panchnama Exh. 11 the contents of which are sworn to be correct by the Panch witness Akbarali Yasinmiya Exh. 10. That statement is in Gujarati and reads:- ** ** ** ** ** When translated it would read:- I have wrapped the dead body in Dhoti and quilt packed it in a bundle (and have) kept (it) in an iron drum containing rice and having filled (the drum with) rice the lid is fitted with dung which drum would show and would also point out voluntarily the dead body in it. ( 2 ) THE information that the dead body was concealed in a drum containing rice in the house of the appellant contained in these three different statements made by the appellant at different times is substantially the same. The contention however is that before making of the second and the third statements the fact that the dead body was concealed by the appellant in a drum in his house was already known to the police as a result of the first statement. The contention however is that before making of the second and the third statements the fact that the dead body was concealed by the appellant in a drum in his house was already known to the police as a result of the first statement. Therefore runs the argument the second and the third statements are not admissible in evidence. It is this question of law which we are called upon to decide in this case. It has become necessary for us to decide this question because as a corollary to the above argument it was urged that the recovery of the dead body was the consequence of the third statement only and therefore neither the first nor the second statement was admissible in evidence. This argument is based on sec. 27 of the Indian Evidence Act which may be reproduced:-27 Provided that when any fact is deposed to as discovered in consequence of formation 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 provedin support of this contention five decisions have been relied upon on behalf of the appellant. The first is Public Prosecutor v. Subba Reddi A. I. R. 1939 Madras 15. In fact in the remaining four decisions the observations made in this Madras case have been implicitly followed. In that case the evidence was that two Panch witnesses were sent for by the police and after their arrival at the police station the accused was brought out by the Circle Inspector in their presence. From this act of the Circle Inspector in bringing out the accused from the lockup it was inferred that this act was done because the Circle Inspector knew before hand precisely what the accused was going to say. With very great respect this is too broad an observation to be applicable to each and every case. The learned Judges said with regard to the P. S. I. His procuring the presence of P. Ws. 15 and 16 and three others who signed the Mahazar Ex. G. 2 was a mere farce. It is impossible to say that anything was discovered in consequence of the statement made by the respondent to the Inspector in the presence of P. Ws. 15 and 16. 15 and 16 and three others who signed the Mahazar Ex. G. 2 was a mere farce. It is impossible to say that anything was discovered in consequence of the statement made by the respondent to the Inspector in the presence of P. Ws. 15 and 16. We have had occasion to deprecate this manner of manufacturing evidence before and we shall if necessary continue to do so. Sec. 27 Evidence Act is not designed by the Legislature to encourage proceedings of this sort Apparently the Circle Inspector (P. W. 18) like so many of his fellow officers was afraid that if he went into the Court and said that he had received such and such information from the accused the Court would not believe him. He therefore found it necessary to have more trustworthy persons than himself present as witnesses when the information should be disclosed. This is a regrettable attitude on the part of any police officer and much more on the part of an officer of the grade of Circle Inspector. The Circle Inspector ought to expect to be believed when he gives evidence on oath. We think that the evidence regarding the statements made by the respondent and embodied in the Panchayatnama (Ex. G. 2) and spoken to by P. Ws. 15 16 and 18 was wholly inadmissible. These observations imply that there was an earlier statement made to the Circle Inspector relating to the place where the incriminating articles were concealed and that the repeatation of that statement in the presence of the Panchas cannot be held to lead to a discovery of the fact that the articles were concealed at that place. ( 3 ) IN a decision reported as In re Chenna Reddi A. I. R. 1940 Madras 710 the statement made by the accused in the presence of the Panchas was excluded from evidence precisely on the ground that that was not the first statement made by the accused. It was observed with regard to an earlier statement that:- A statement had been made to the police which P. W. 20 had thought it wise to get repeated in the presence of Panchayat dars. Having made these observations the High Court said It is the first statement of the accused to whomsoever made that leads to the discovery of the fact if a fact is discovered. . Having made these observations the High Court said It is the first statement of the accused to whomsoever made that leads to the discovery of the fact if a fact is discovered. . Both these cases of the Madras High Court proceed on the footing that first and the subsequent statements are separate informations. ( 4 ) THE third decision relied upon is of Rajasthan High Court in Dasu Ram v. State A. I. R. 1952 Rajasthan 20 which followed the principle based on the two distinct statements being to distinct informations as adopted by the Madras High Court in the aforesaid two decisions. Both the decisions of Madras High Court mentioned above were followed by the Rajasthan High Court. ( 5 ) THE fourth decision is of Kerala High Court reported as Abdul Samad v. The State A. I. R. 1959 Kerala 46. In that case also the latter decision of Madras High Court in A. I. R. 1940 Madras 710 (supra) was followed. ( 6 ) THE last decision is of the Punjab High Court reported as V. V. Joshi v. State A. I. R. 1968 Punjab 120. In this case also the aforesaid two decisions of Madras High Court were followed. ( 7 ) AS against this we find striking of a different note on this question by the Madhya Pradesh High Court in M. P. State v. Dhannalal 1961 Cri. L J. 238. This was also a decision of a Division Bench of the Madhya Pradesh High Court. The observations contained in paragraph 14 of that decision may be reproduced:- (14 ). On the former the requirements are that a person In police custody should give information; this will most often be in the form of a statement. On behalf of the respondent it is argued that the same statement was repeated before the panchas having been already made once before the police officer so that even if a discovery was made as a consequence of the second statement it cannot come under sec. 27 of the Evidence Act because the statement to the police officer has not led to any discovery. It is unnecessary to examine the argument at any length because this is fallacious and arises out of a confusion between a statement on the one hand and information on the other. 27 of the Evidence Act because the statement to the police officer has not led to any discovery. It is unnecessary to examine the argument at any length because this is fallacious and arises out of a confusion between a statement on the one hand and information on the other. MOST often they are used indiscriminately which is harmless as long as a basic distinction is noted. But when it is not confusion results. Information is actually the content or substance of a statement and may be the same in serveral statements which may substantially be repetitions. The discovery for the purposes of sec. 27 need not be the direct consequence of this or that statement but should be the direct consequence of this or that information. So where the information is one and the same it is immaterial if the statement is repeated. That is the position here. So the repetition as such does not affect the value of this information for what it is worththe Madhya Pradesh High Court proceeded on the basis that some confusion is likely to occur by equating a statement with information contemplated by Sec. 27 of the Indian Evidence Act. It was pointed out that the discovery for the purpose of sec. 27 need not be the direct consequence of this or that statement but should be the direct consequence of this or that information. These observations would therefore show that where the information contained in different statements is substantially the same there is only one information for the purpose of deciding the question of admissibility of different statements under Sec. 27 of the Indian Evidence Act. ( 8 ) WE have given our anxious consideration to the reasoning contained in Madras decisions and the reasoning contained in the Madhya Pradesh decision. With very great respect to the learned Judges of the Madras High Court and the other High Courts which followed those decisions of the Madras High Court in the aforesaid two cases we find that the real factor which makes an information or a statement given by an accused before police while he is in police custody admissible under Sec. 27 is the effect or the result of that statement. The information given would thus be the cause and the fact discovered including material object or fact would be the effect of that cause. The information given would thus be the cause and the fact discovered including material object or fact would be the effect of that cause. This is clear from the words used in Sec. 27 which read 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 Thus the fact discovered is the consequence of the information which is the cause; and if the material fact discovered is the result of one and the same information then it matters not that that result is brought about by repeating the same information at more than one stage. In this connection certain observations made by the Supreme Court in H. P. Administration v. Om Prakash A. I R. 1972 Supreme Court 975 are very apposite and bear repetition. They are to be found in paragraph 13 and they read:- ( 9 ) IN the Full Bench Judgment of Seven Judges in Sukhan v. The Crown ILR 10 Lah 283= (AIR 1929 Lah. 344) (FB) which was approved by the Privy Council in Pulukuri Kotayas case 74 Ind. App. 65= (AIR 1947 PC 67) Shadi Lal C. J. as he than was speaking for the majority pointed out that the expression fact as defined by sec. 3 of the Evidence Act includes not only the physical fact which can be perceived by the senses but also the psychological fact or mental condition of which any person is conscious and that it is in the former sense that the word used by the Legislature refers to a material and not to a mental fact. It is clear therefore that what should be discovered is the material fact and the information that is admissible is that which has caused that discovery so as to connect the information and the fact with each other as the cause and effect That information which does not distinctly connect with the fact discovered or that portion of the information which merely explains the material thing discovered is not admissible under sec. 27 and cannot be proved. . . . . The concealment of the fact which is not known to the police is what is discovered by the information and lends assurance that the informa tion was true. 27 and cannot be proved. . . . . The concealment of the fact which is not known to the police is what is discovered by the information and lends assurance that the informa tion was true. No witness with whom some material stolen property or other incriminating article is not hidden sold or kept and which is unknown to the police can be said to be discovered as a consequence of the information furnished by the accused. . . . . What makes the information leading to the discovery of the witness admissible is the discovery from him of the thing sold to him or hidden or kept with him which the police did not know until the information was furnished to them by the accused. IN the present case assuming that there were three different informations because three different statements were made by the appellant it cannot be said that the discovery of the fact that the dead body was lying concealed in a drum containing rice in the house of the appellant is the result of the third information or statement alone to the exclusion of the first and the second. The discovery of fact in this case which is found to be true as demonstrated by the actual recovery of the dead body from a drum containing rice in the house of the accused is the result of the information contained in each of the three statements The information being substantially the same it is the information which is the cause of the discovery of this fact and the repetition of that information on more than one occasion cannot have the effect of obliterating the cause which is as much contained in the first two informations as in the last. Speaking with respect therefore we are not inclined to agree with the view taken by the Madras High Court which has been followed by the Rajasthan and Punjab High Courts in the aforesaid decisions. We must apply the principle of cause and effect and decide the question of admissibility of the information given by an accused person who is in custody of the police; and if it is found on application of this principle that the material fact was discovered in consequence of the information given by the accused that information becomes admissible in evidence. If that information is repeated on more than one occasion the information so repeated on each occasion is the cause and is admissible in evidence. In fact we might show our disposition to agree with the reasoning of the Madhya Pradesh High Court that in such a case there is only one information and substantially the same information which is implicit in the different statements made by the accused on different occasions and we should not be guided away by the fact that the statements are different. But we must concentrate our attention on the information contained in these statements. If therefore the information contained in each of the three statements is substantially the same the principle of cause and effect would be applicable with greater force in such a case. To agree with the submission made by Mr. Shelat will we apprehend make sec. 27 of the Indian Evidence Act inworkeable in most of the cases. There is hardly any case in which an information relating to concealment of a material object is not given to the police in the first instance in so many words and is subsequently got repeated in the presence of the Panchas. The recovery of the articles or the weapons concealed follows after the second statement before the Panchas. In such a case on the basis of the argument advanced by Mr. Shelat the second statement would become inadmissible and the recovery of the articles or weapons concealed having been attributed to the second statement alone the first statement would as well become inadmissible with the result that there would be no admissible information on which the prosecution can rely under sec. 27 of the Evidence Act. In our opinion therefore such a proposition would defeat the object with which that provision has been enacted. . . . . . . . . . . . . . . . . . . .