N Criminal Appeal No 131 of 1971
Appeal by special leave from the judgment and order dated the 4th March
1971 of the Bombay High Court in Criminal Appeal No 1954 of 1969
K R Chaudhury section 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 and sentence passed against the appellant under section 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 840 am
The First Information Report of the theft lodged with the police by Murari Bhikaji Bidya PW 1  Shed Superintendent of Haji Bunder at 915 was as follows Today in the morning at about 8
am I reported for duty at Haji Bunder
At about 840 am or so the Canteen boy named Shri Babu Durga came to me and informed me that one MCar 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 of 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 Thorat PW 7 conducted the investigation
After making inquiries from the Regional Transport office he traced the 717 owner of the car BML 6649 and requested him to send his car driver 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 including 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 exhibit C reads I will tell the place of deposit of the three Chemical drums which I took out from the Haji Bunder on 1st August
 The accused then led the Police officer and the Panchas to a Musafirkhana in Crowford Market and pointed out the three drums lying there bearing the markings ACC I Phosphorous Pentaoxide 
Thereafter the drums were identified by PW 1 as the same which had been stolen
Among others the prosecution examined Bhikaji PW 1 the informant Vishnu Sakharam PW 2 the Gate keeper Govindji 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 prosecution case
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 84 AM 2
That the drums in question were the same that had been stolen
That these drums were discovered in consequence of the information vide exhibit C given by the accused whilst in police custody
That such information as admissible under section 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 a 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 in the circumstances 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 of stolen property
As against this Mr H R Khanna learned Counsel for the State submits that the whole of the information supplied by the accused was admissible udder sec
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 section 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 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 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 section qualifies to any extent Sec 24 also
It will be seen that the first condition necessary 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 distinctly 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 related to the fact discovered
At one 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 719 Sukhan vs Crown1 Rex vs Ganee 2
Now it is fairly settled that the expression fact discovered includes not only the physical object produced but also the place from which it is produced and the knowledge of the accused as to this see Palukuri Kotayya and ors
vs Emperor3 Udai Bhan vs State of Uttar Pradesh4 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 incorporation in the panchnama exhibit and we have reproduced an English rendering of 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 which is in Hindi and we are of opinion that by no stretching of the words this statement can be so read or construed as has been done by the High Court
The copy exhibit of the Panchnama 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 I 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 something 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
Having cleared the ground we will now consider in the light of the principles clarified above the application of section 27 to this statement of the accused
The first step in the process was to pinpoint the fact discovered in consequence of this statement
Obviously in the present case the threefold fact discovered was a the chemical drums in question b the place ie the Musafirkhana 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 inadmissible portion or portions
Only those components or portions which were the immediate cause of the discovery would be legal evidence and 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 only 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 distinct and Proximate cause of the discovery and had 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 infor 1 ILR FB 2 ILR 3 74 I A 65 4 1962 Supp 2 SCR 830 720 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 questions 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 Musafirs travellers
It was not alleged by the prosecution much less proved 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 section 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 accused
Such is not the case here
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 1 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
Accordingly we allow his appeal set aside his conviction and acquit him of the charge levelled against him
PBR Appeal allowed


Summary:
The appellant was charged with an offence of theft or three drums of chemicals
He was taken into police custody
On interrogation he said  I will tell the place of deposit of the three chemical drums which I took out  The drums were thereafter recovered from 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 under section 27 of the Evidence Act and that under illustration a to s 114 Evidence Act the appellant would be presumed to be the thief
Allowing the appeal to this Court  HELD 1a The conditions necessary for bringing this section into operation are 1 the discovery of a fact albeit a relevant fact in consequence of the information received from a person accused of an offence ii the discovery of such fact must be deposed to iii at the time 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 admissible
The rest of the information has to be excluded
718 E b 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 refers to that part of the information supplied by the accused which is the direct and immediate 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 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 related to the fact discovered
718 G Palukuri Kotayya and ors
vs Emperor 74 IA 65 and Udai Bhan vs State of Uttar Pradesh 1962 Supp 2 SCR 830 referred to
In the 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 cause
Of the fact discovered
Therefore this portion only was admissible under section 27
The rest of the statement was not a distinct and a proximate cause of the discovery and had to be ruled out evidence altogether
719 G 2a It cannot be said that the admissible portion of the information 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 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 the lock and key of the appellant
720 A B b The inference under section 114a can never be reached unless it is a necessary inference from the circumstances of a given case which could not be explained on any other hypothesis save that of the guilt of the accused
In the present case two alternative hypotheses are equally possible 1 that it was the accused who had himself deposited the stolen drums in The Musafirkhana 716 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 he is entitled to the benefit of doubt
720 C D